Court File and Parties

Court File No.: TORONTO 10 – 12004676

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kevin Tobin

Before: Justice Paul H. Reinhardt

Heard on: 20 July, 22 November 2011, 8 February 2012

Reasons for Ruling released on: 23 May 2012

Counsel:

• Joanne Bruno for the Crown
• Jason Dos Santos for the defendant

REINHARDT J.:

1: Introduction

[1] This is an application dated 11 November 2011 by the defendant, Kevin Tobin, for the stay of these proceedings under section 24(2) of the Canadian Charter of Rights and Freedoms for a breach of his Charter-protected right to have his trial within a reasonable time, as set out in section 11(b) of the Charter.

[2] Kevin Tobin stands charged that on 12 October 2010, in the City of Toronto, in the Toronto Region, he did:

(1) Falsely represent himself to be a peace officer, to wit, a police constable for the City of Toronto to Natasha D'Souza-O'Connor, contrary to section 130(1)(a) of the Criminal Code of Canada.

[3] In this proceeding, the Information was sworn on 12 November 2010, and the matter came before this court for trial on 20 July 2011.

[4] On that date, the Crown elected to proceed summarily, and I commenced the trial by hearing submissions from counsel as to agreed facts, which included:

(a) The person who spoke to Constable D'Souza-O'Connor that day was the defendant, Kevin Tobin;

(b) The defendant concedes that Constable D'Souza "could have received a police business card from him in that conversation, but not in the manner that she will describe in her testimony;

(c) The business card was admitted on consent, as Exhibit One in this proceeding, and read:

Colin Sutcliffe, Police Constable Badge # 10017, 53 Division, 73 Eglinton Avenue West, Toronto M4R2G9

[5] On this date I heard the beginning of the testimony from the first and only intended Crown witness, Constable Natasha D'Souza-O'Connor, Badge # 65758.

[6] It became apparent very quickly that she had notes regarding the Crown allegations that had not been disclosed to the defence.

[7] Once it was clear that the witness had refreshed her memory from undisclosed personal notes, the defence requested first the disclosure of these personal notes and then an adjournment, to discuss these notes with his client and to prepare cross-examination of the Crown witness. Despite the objections of the Crown I granted the adjournment and the matter was put over to the 22nd of November, for further evidence.

[8] On that date the matter was further adjourned for this application.

[9] I have concluded that Mr. Tobin's section 11(b) rights have not been breached, and therefore this application is dismissed. These are my reasons.

2: Summary of the Facts

[10] As stated above, Mr. Tobin was charged and arrested under section 130(1)(a) for Personating Peace Officer on October 12th, 2010. The information was sworn on November 12th, 2010. His subsequent court appearances were as follows:

December 10th, 2010 – Set Date

• Matter adjourned to January 14th for Mr. Tobin to retain counsel
• Initial disclosure given by Ms. Song, Crown Counsel

January 14th, 2011 – Set Date

• Designation of counsel filed
• Agent for Mr. Dos Santos (defense counsel) requested adjournment in order to conduct Crown Pre-Trial in interim
• Mr. Tobin given more disclosure
• Matter adjourned to January 28th, 2011

January 28th, 2011 – Set Date

• Agent for defense requested adjournment
• Crown Pre-Trial had not yet been conducted; Crown and defense had been "playing phone tag" to set a date
• Matter adjourned to February 11th, 2011

February 11th, 2011 – Set Date

• Agent for defense requested further adjournment to conduct Crown Pre-Trial
• Crown requested Pre-Trial to occur immediately as Ms. Finley, the Crown assigned to the matter, was present and ready to conduct the Pre-Trial
• Agent indicated that Mr. Dos Santos, counsel for Mr. Tobin, would prefer to speak to Ms. Finley himself
• Crown asked agent to fill out the form requesting the Pre-Trial but agent did not have time (other matters to attend to)
• Matter adjourned to February 24th, 2011

February 24th, 2011 – Set Date

• No transcript for this date
• Matter adjourned to March 17th, 2011

March 17th, 2011 – Set Date

• Crown Pre-Trial has occurred in interim
• Defence ready to set date for trial; three hour trial requested
• Defence first available on May 2nd, 2011
• Court offered July 18th, 2011; defense not available
• Defence available July 20th, 25th, 26th, 29th
• Crown not available July 18th, is available July 19th or 20th
• Trial date set for July 20th, 2011 for 3 hours

July 20th, 2011 – Trial

• Mr. Tobin was arraigned and plead not guilty
• During Crown's examination-in-chief, the sole witness, while needing to refresh her memory, revealed that she had personal notes that had not been disclosed
• Crown suggested a short recess to photocopy the notes and give them to defense counsel and the Court agreed
• Following the recess, defense counsel requested an adjournment to speak to client to put the notes in the context of the rest of the disclosure and further prepare
• Crown opposed the adjournment, claimed that the notes were "essentially the same information" that had already been provided
• Crown offers conference room in the Crown office for defense counsel to review the new notes with Mr. Tobin
• Court does not oppose the adjournment and suggests allowing another judge to proceed with the matter if it would assist in getting an earlier date for trial
• Defence suggests checking available dates first but does not oppose trying matter before a new judge
• Reasonable dates were given by Trial Coordinators; no need to find new judge to hear matter
• Trial date set for November 10th, 2011
• Defence had earlier dates available (no specific dates given) but they were not available to Crown or Court
• Other earlier dates were provided that were not available to defense counsel
• Due to scheduling conflict with a clerk training program, trial date re-set for November 22nd, 2011

November 22nd, 2011 – Trial

• Defence sought adjournment
• Defence wanted to bring a s. 11(b) application but had not yet received trial transcripts
• Crown had been served with a "bare bones" notice; court had not been served although defense claimed that an agent sent it in
• Defence prepared to proceed on delay motion with November 22nd as the final date, primarily because of the lateness of the request
• Crown opposed to adjournment; requested s. 11(b) application to be summarily dismissed and for proceedings to continue immediately
  • Application dated November 11th, 2011 but wasn't faxed to the Crown office until November 14th, which was not in compliance with amount of notice required
  • No analysis in the s. 11(b) application
  • No factum or affidavit sent
  • Defence ordered the information on September 4th, 2011, before ordering the transcripts on October 14th, 2011, which the Crown regarded as unnecessary
  • Defence ordered transcripts by sending a fax to the Court Reporter's Office but did not do any follow up
  • Leaving the transcript request until October 11th for a November 22nd application is "leaving it to the 11th hour" and inevitably leading to a situation where proper notice will not be served to the court
• Court wanted to hear evidence from the witness, but does not want to dismiss s. 11(b) application summarily
• Defence indicated that he could not order transcripts without the information giving reporter's names, and that he marked his request as "urgent" although this cannot be verified
• Crown and defense agreed that it would not be an efficient use of court time to hear the witness
• Court grants adjournment
• Two days re-scheduled to hear s. 11(b) application (February 8th, 2012 for ½ day, and March 26th, 2012 for ¾ day)
• Defence was not available March 21st, 2012

February 8th, 2012 – Voir Dire

• Defence counsel conducted examination-in-chief of Mr. Tobin to verify that the information provided in his affidavit was true and correct
• Ms. Bruno for the Crown conducted cross-examination, primarily in regards to Mr. Tobin's claim that the delay in bringing the matter to trial caused him significant prejudice, for example, needing to postpone surgery, his concern about his ability to travel to the United States, and the embarrassment caused by not having the chance to "clear his name" to his friends, many of whom are police officers

3: Analysis

The Legal Framework

[11] The law with respect to section 11(b) is found in R. v. Morin (1992), S.C.J. No. 25 (S.C.C.) The factors to consider are:

1. the length of the delay;

2. waiver, if any, of time periods;

3. the reasons for the delay, including

   • a. the inherent time requirements of the case;
   • b. the actions of the Crown;
   • c. the actions of the accused;
   • d. the limits on institutional resources;
   • e. other reasons for the delay; and

4. prejudice to the accused.

[12] A recent decision by Justice Michael Code in the Superior Court of Justice in this province, R. v. Lahiry 2011 ONSC 6780, [2011] O.J. No. 5071, cited with approval in the Superior Court of Justice by Justice Ian MacDonnell in R. v. Beteta-Amaya [2011] O.J. No. 5136 and in the Ontario Court of Appeal by Madam Justice Janet Simmons on 12 January 2012 in R. v. Tran (2012) ONCA 18, has clarified a particular area of this legal framework, the proper calculation of systemic or institutional delay. In the four cases under appeal before Justice Code, the trial judges characterized the entire period from the set date appearance to the trial date as systemic or institutional delay. As stated by Justice Code, in paragraph 2 of his decision in Lahiry:

The one error that is common to all four appeals is the proper calculation of institutional delay. In all four cases, the entire period from the set date appearance to the trial date was automatically characterized as systemic or institutional delay, without further analysis. This is not a correct approach to calculating this particular cause of delay, given that institutional delay only "starts to run when the parties are ready for trial but the system cannot accommodate them", as Sopinka J. put it in R. v. Morin (1992), 71 C.C.C. (3d) 1 at p. 18 (S.C.C.). The Court cannot find that a particular period of delay has been caused by systemic congestion until it is first established when counsel were ready to try the case. (Emphasis added)

3.1: The Relevant Principles as they apply to the case at bar

3.1(a): The Overall Period of Delay

[13] The overall period of delay is calculated from the date the information is sworn to the date the trial is completed. (See R. v. Kalanj, [1989] S.C.J. No. 71.) The information was sworn on 12 November 2010 and the trial is now scheduled to proceed on 27 March 2012, an overall period of sixteen months. As stated by Justice Code, in Lahiry this first factor is simply a mechanism for weeding out frivolous applications. It is only necessary to go on and consider the other three factors if the overall delay is of sufficient length to raise an issue as to its reasonableness. (See R. v. Askov, [1990] S.C.J. No. 106 and R. v. Morin, [1992] S.C.J. No. 25, supra.) I am satisfied that because of the passage of over twelve months, the delay in this case requires further scrutiny.

3.1(b): Reasons for Delay – The Intake Period

[14] Mr. Tobin was arrested on 12 October 2010 and he was released on an Undertaking Given to a Peace Officer and required to come to court on 10 December 2010. On 14 January 2011 a designation naming Mr. Dos Santos was filed and the matter was further adjourned.

[15] In his consideration of the reasons for the delay, the Applicant does not allow for an intake period. An acceptable intake period will vary depending on the nature and complexity of the case. Neutral intake periods include the time needed to arrange bail, retain counsel, prepare and review disclosure, write follow-up requests, and prepare for judicial pre-trials. In Morin, two months was deemed appropriate to complete all normal intake periods, given the simplicity of the case. Here, the period between 12 November 2010 and 14 January 2011, during which time the Applicant retained counsel and was given disclosure, can be properly viewed as a neutral intake period of just over two months.

[16] The first area of dispute is in regards to the next two months leading up to the date the trial was set, 17 March 2011. The Crown submits that this can be attributed to neutral or defence delay, since defence counsel was unable to schedule or conduct a Crown pre-trial. The Applicant submits that this period can be assigned to Crown delay, although no reason for this is given in the Applicant's factum. The transcript for 28 January 2011 indicates that counsel and the Crown had been playing "phone tag" to set a date for the Crown pre-trial. On 11 February 2011, the Crown pre-trial had still not occurred. Crown counsel requested an immediate pre-trial but the agent for the defence indicated that counsel wanted to speak to the Crown personally. There were no transcripts for the 24 February 2011 date. Given the gap in the record, I would attribute the two months between 14 January 2011 and 17 March 2011 to the inherent time requirements of the case.

3.1(c): Reasons for The Delay – Calculating Institutional Delay

[17] The second period of delay was from The second area in dispute is from 17 March 2011, the date the trial was set, and 20 July 2011, the first trial date, a period of four months. This is the period that is generally understood as the period of "institutional delay", in the analysis by Justice Sopinka, in R. v. Morin, supra:

the period that starts to run when the parties are ready for trial but the system cannot accommodate them.

[18] In Lahiry, the court concluded that the approach to calculating "institutional delay" has to reflect not just the passage of time from the day the parties are ready to set the date, and the date they receive, but must take into account defence counsel's actual and realistic availability to attend and represent the client at trial.

[19] Thus, Justice Code looks at two factors: 1) the first available date that the defence could attend to represent the client at trial, and 2) the availability of defence counsel on the dates at which time the court can provide a courtroom and judicial officer to hear the case.

[20] Using this approach, Justice Code reduced the "institutional delay" in the initial fact situation he dealt with in Lahiry from just less than eleven months (from 3 March 2010, when the trial date was set, until 28 January 2011, when the trial proceeded) to just over nine months. Here is his calculation, at paragraphs 36 and 37 of his judgment:

36 In any event, in this case the trial judge properly insisted that defence counsel file his instructing letter to his agent as an exhibit. As the trial judge put it, "it would have been nice to know what those [earlier available] dates were". As a result, it was clear from the evidentiary record on the s. 11(b) Motion that the earliest dates on which counsel could accommodate this new case in his calendar were in late April or early May of 2010. This would also allow counsel time to properly prepare the case for trial and to prepare his s. 11(b) Motion.

37 As a result, the period of systemic delay in the case at bar, at best, ran from April 23, 2010 until January 28, 2011. In other words, this period of delay was just over nine months rather than just under eleven months. The remaining one month and twenty day period, from March 3 until April 23, 2010, was part of the inherent time requirements of the case as counsel needed time to accommodate a new case in his calendar and needed time to prepare it. This period of just under two months carries neutral weight in the s. 11(b) analysis. (Emphasis added)

[21] In the case at bar, the Applicant submits that the entire four month period, from 17 March to 20 July 2011 can be attributed to institutional delay. The Crown disagrees; arguing that institutional delay begins at the date defence counsel is first available, following the principle set out in Lahiry. I would agree with the Crown on this point. Defence counsel indicated that he was available 2 May 2011, and given that the date available to all parties was 20 July 2011, the period of institutional delay should properly run from the two and a half month period between 2 May 2011 and 20 July 2011, with the one and a half month period between 17 March and 2 May attributed to neutral time, following Lahiry.

3.1(d): Reasons for Delay – The Further adjournment for "Completion" of the Trial

[22] In the case at bar, the trial, which was scheduled to take three hours, did not finish on 20 July 2011, but was further adjourned to 22 November 2011 in order to complete the Crown's case.

[23] It was in the interim period between the first and second days of trial, in the beginning of November 2011, that the applicant prepared his Charter application for a stay of proceeding based upon delay, which was dated 11 November 2011.

[24] In Justice Code's judgment of 16 November 2011, in Lahiry, which addresses four trial court judgments involving delay, it is actually the second fact situation, the case of Jose Carreira that involves adjournments that occur after the first scheduled trial date. In Mr. Carreira's case, the trial was originally set for 12 September 2008, "with or without counsel". On subsequent dates, prior to the trial date, various factors intervened, including the defence request for adjournments and waivers of the interim time periods. On the second date set for trial, 23 March 2009, the trial commenced at 2:30 p.m. because of other matters on the list. The arresting officer completed her examination-in-chief, but the matter was not finished, so the parties attended at the trial coordinator's office and obtained a new date of 26 August 2009, for further evidence. In fact, for various interruptions, the matter again did not commence at all, and had to be further adjourned until 14 December 2009, and further evidence was heard, but not until 3:30 pm because of the heavy docket, and the matter was further adjourned until 17 March 2011, when the trial evidence was completed.

[25] Justice Code summarizes the existing case law on re-scheduling of cases where the trial evidence is not completed, as follows:

67 There is now a substantial a body of case law dealing with this issue of re-scheduling a trial that has not commenced or that has not been completed on the scheduled trial date. These authorities hold that the case must be given priority in the system and that the delays resulting from re-scheduling the trial date will generally be treated as institutional, or as part of the inherent time requirements, or as a combination of both, depending on the circumstances. See: R. v. Godin, supra; R. v. Brace (2010), 2010 ONCA 689, 261 C.C.C. (3d) 455 at paras. 14-16 (Ont. C.A.); R. v. Allen, supra at pp. 347-351; R. v. Satkunanathan (2001), 152 C.C.C. (3d) 321 at paras 43-5 and 54-5 (Ont. C.A.); R. v. M. (R.) (2003), 180 C.C.C (3d) 49 at paras. 6-9 (Ont. C.A.); R. v. W. (A.J.) (2009), 2009 ONCA 661, 257 O.A.C. 11 at paras. 29-43 (Ont. C.A.); R. v. Khan, supra at paras. 58-71. (Emphasis added)

[26] In the case at bar, the Applicant submits that the 125 day period from 22 July to 22 November 2011 should all be attributed to unjustified Crown delay, due to the discovery of additional notes that had not been disclosed from the sole Crown witness. The Crown submits that this was an unforeseen event, not the fault of anyone, and that the ensuing delay should be deemed neutral. The Applicant argues that the Toronto Police Service witness "is not an ordinary witness who can be forgiven for not knowing disclosure procedures".

[27] In my view, this failure to give the two pages of personal notes to the defence is mitigated somewhat by two factors: (1) the notes were short and largely reproduced the disclosure already given; and (2) the Crown offered a short recess to photocopy the notes and give them to counsel, and following the recess, offered the Crown conference room to allow the defence to go over the new notes with the Applicant.

[28] Nevertheless, I find, based on the case law that disclosure obligations should be taken very seriously. In Lahiry, in the third fact situation discussed by Justice Code, that of Davidson, two months four days of unjustified delay was attributed to the Crown for a multiplicity of errors, including delays in disclosure, arguably more serious than the delay here. In my view I should and will assign one month of unjustified delay, in the case at bar, to the Crown.

[29] Furthermore, when looking for a new date to continue the trial, the defence did have earlier dates that were not available to the Crown or the Court; however, these dates were not put on the record. Further, defence counsel was offered multiple dates from 21 September 2011 onwards that were not available to him. I find I must factor this in to the calculation, despite the paucity of clarity on the record. I therefore assign one month of this delay to inherent time requirements. The trial had to be re-scheduled once more to 22 November 2011, due to a clerk training program on 10 November 2011. Accordingly, I would assign the remaining two months to institutional delay.

[30] By my calculation, the total period of unjustified delay is thus five and a half months, with four and a half assigned to institutional delay, and one month to Crown delay. This total time period is well under the eight to ten month guidelines for the Ontario Court of Justice set out in Morin.

[31] In my view, no prejudice can be inferred from this delay, alone.

3.2(a): Prejudice

[32] In R. v. Godin 2009 SCC 26, [2009] S.C.J. No. 26, paragraphs 29 to 32, Justice Thomas Cromwell reviewed how trial judges should evaluate the issue of prejudice, and supported the trial judge's view that actual prejudice had taken place, where the over-all delay of 30 months in a complex sexual assault case had contributed to a number of types of actual prejudice:

29 The Court of Appeal disagreed with the trial judge's analysis of prejudice and found that any prejudice to the accused's interest in a fair trial was too speculative to be considered. Partly on this basis, the Court of Appeal found that the delay was not unreasonable. I respectfully disagree. In light of the length of the delay, of the Crown's failure to explain the multiple delays adequately, and of the prejudice to the accused's liberty and security interests - if not also to his interest in a fair trial - the delay in this case was unreasonable.

30 Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3.

31 The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn". Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice.

32 This approach was reflected in the trial judge's reasons, where he wrote that the delay in this case was "well beyond any reasonable interpretation of the [ Morin ] guidelines" ( 2007 CarswellOnt 5364, at para. 20) and that the appellant had suffered prejudice as a result. The judge referred specifically to the fact that the charges had been hanging over the appellant's head for a long time and that he was subject to "fairly strict" bail conditions (para. 22).

[33] In my view, the facts herein are quite different.

[34] Firstly, the delay of five and one half months is not comparable to the facts in Godin. As stated above, there can be no implied prejudice in this case, save for the fact of the charge having been laid.

[35] It is also necessary to state that the guidelines set out in Morin are just that, guidelines. They are not a limitation period. The delay and the reasons for the delay must be weighed against the societal interests involved. In this instance, that weighing very much suggests that the remedy of a stay should not be granted.

[36] An argument for additional prejudice resulting from the delay was asserted in the Applicant's factum and affidavit. The Applicant argues that he has experienced stress resulting from (1) not knowing if he would be able to travel across the border for work until his charges were resolved; (2) embarrassment, because his friends, many of whom are police officers, have been teasing him; and (3) the need to reschedule two serious medical procedures because of trial dates. The first two points of stress result primarily from the prosecution itself. The medical claim has more merit; however, the Applicant did not provide medical documentation supporting his claim that he had to postpone two procedures, nor was the record clear as to whether or not he was, in fact, required to re-schedule the procedures as a result of the delayed trial. Although there is some evidence of modest prejudice, in my view, it is of little weight.

4: Ruling

[37] In the result, I have concluded that the societal interest in this matter being heard on the merits out ways any prejudice that Mr. Tobin may have suffered in this proceeding.

[38] Accordingly, this application is dismissed.

Released: 23 May 2012

Signed: "Justice Paul H. Reinhardt"