COURT FILE No.: 101621

DATE: 2012·02-06

Citation: R. v. Sanderson, 2012 ONCJ 41

ONTARIO COURT OF JUSTICE

(CENTRAL WEST REGION)

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

— AND —

LAURIE SANDERSON

Applicant

Before Justice Douglas B. Maund

Heard on January 5th, 2012

Released to Counsel January 25, 2012

Lowell Hunking…………………………………………………………………………………….............. for the Crown

Douglas Lent ....................................................................................................................... for the accused Laurie Sanderson

R U L I N G

Maund, J.:

1. The Applicant, Laurie Sanderson seeks a judicial stay pursuant to Section 11(b) of the Charter of Rights and Freedoms. The Applicant is charged with a sole count that on December 11th, 2010 at the Town of Caledon she operated a motor vehicle having consumed alcohol with a blood alcohol content in excess of 80 milligrams percent contrary to Section 253(1)(b) of the Criminal Code of Canada.

T H E C H R O N O L O G Y

2. The events giving rise to this charge occurred on December 11th, 2010. The information was sworn and confirmed on December 30th, 2010 and that is the start date for consideration of potential delay.

• January 6, 2011 – This was the date of the first appearance in Assignment Court. Counsel, Mr. Lent appeared, initial disclosure was given and the matter was adjourned pending a Crown resolution meeting to the second date;

• February 3, 2011 – The Applicant was represented on the second appearance by the paralegal agent on behalf of counsel, Christie Lent. Certain further disclosure was provided at that appearance. A trial was set for June 29th, 2011 with a confirmation appearance on May 5th, 2011. No judicial pre-trial was held prior to setting the trial date. The Court was advised during argument that the original estimate of a four hour trial was based on the discussions between Crown and Defence in their resolution meeting. This estimate was apparently based on the review of the potential evidence by counsel and on the understanding that Defence intended to bring a blended Charter application in relation to Sections 7 and 8 only. Experienced counsel set the trial on this basis without a judicial pre-trial. They must have been aware of the long standing practice memo for the Ontario Court of Justice at Orangeville which mandates the holding of judicial pre-trials in such cases unless Crown and Defence are both satisfied that their trial estimate is accurate and that a judicial pre-trial would not be of value.

While five earlier dates were provided by the trial co-ordinator between February 17th and June 29th, only two of these, March 14th and June 9th were available for the Crown to proceed. Of those five dates the only date available to the Defence was March 1st. A letter from Mr. Lent dated February 2, 2011 indicated that he was also available on ten dates prior to June 29th commencing February 28th.

• May 5, 2011 – On the date of the confirmation hearing, both the Crown and Defence filed trial confirmation reports which indicated to the Court that they confirmed, among other things, that the time estimate for trial was still accurate. I note that the Defence report dated May 4th, 2011, now also referenced Sections 9 and 10 in their Charter application. There was no indication by Defence about whether those further Charter issues might affect trial time. It is not clear from the record whether the extent of Mr. Lent’s Charter application at that point was fully understood by the Crown. In any event, while the presiding Justice asked if the parties had considered a judicial pre-trial, that offer was declined and the matter was unconditionally confirmed to the first trial date of June 29th. `

• May 20th, 2011 – On this date Defence brought the matter back before the Court to indicate that given recent developments in the law at that time, he had been just instructed by his client to challenge the constitutional validity of the C-2 amendments to the Criminal Code in relation to Over 80 charges. Counsel advised the Court that more time for trial may be required. Mr. Lent was speaking to two similar cases on the same appearance, both Ms. Sanderson’s matter and R. v. Cortese

The Court (I was the presiding Judge on that date) pointed out to Defence that this development would substantially change the nature of this proceeding in terms of the estimate of trial time required. The Court pointed out to counsel on pages 1 and 2 of the transcript “your estimate completely goes out the window of course now as it is an entirely different proceeding, don’t you think?” There was a suggestion by the Crown that the constitutional issues in the two different cases be merged. In any event the Court directed the Defence to speak to the trial co-ordinator and reserve further time for trial as required. It was acknowledged by Mr. Lent that neither trial could conclude on the two originally scheduled dates. Ms. Sanderson’s matter was adjourned to the original trial date on the understanding that it would commence but could not be concluded on that date because of the constitutional issues to be raised by the Defence and further potential evidence.

• June 29th, 2011 – This was the original trial date. On this date the Crown proceeded, and quite properly in my view, gave priority to a previously scheduled in custody matter which had originally been scheduled for a half day. In the morning it became clear to the Court that the in custody trial would consume the remainder of the day. The Crown acknowledged that, in the circumstances, if the Sanderson matter were even commenced it could not be completed that day. The matter was addressed at 11:08 in the morning. The Defence acknowledged his understanding that it was unlikely that there would be time to commence the Sanderson matter on that date. Court and counsel agreed that the matter would have to be adjourned.

When it was determined that the matter could not commence, the Court again reminded Defence of the need to make an accurate estimate of the remaining time required for trial. It was reiterated to Mr. Lent that four hours could not be sufficient in the circumstances. By the June 29th trial date, no further trial time had been reserved by counsel since the May 20th appearance despite the direction of the Court. Defence reiterated their position that it had been their intention to proceed with the essential Crown evidence on the first trial date and then reserve further trial time for potential evidence including a toxicologist and the argument of the constitutional challenge issue. There was discussion between the Court and counsel about such potential evidence. The precise evidence to be called in connection with the Defence challenge and the time required was not made clear by the Defence at this appearance. The matter was put over to the assignment Court to set a second date for trial.

• July 7th, 2011 – On this appearance in Assignment Court, the agent for Mr. Lent appeared to set the second trial date of February 6th, 2012. Again four hours were reserved as the estimate for trial. I indicated during argument that I cannot understand how the Defence proposed and the Crown agreed that the trial of this matter, as it was then understood, would consume merely four hours. It was clear from the May 20th appearance that substantial further time would have to be reserved. The nature of the case and the issues had changed. In any event, there was no discussion about time requirements on the record on July 7th. The case was remanded to the second trial date of February 6th, 2012 for a four hour trial.

According to the Verification of Trial Date form from the Trial Oo-ordinator, nine earlier dates were provided on the second set date. These were August 4th, 8th, 18th and 29th, October 28th, November 7th and 14th and December 7th and 8th. None of these dates were available to the Defence but the five dates between October 28th and December 8th were available for the Crown. Mr. Lent provided a letter to the Court dated July 6th, 2011 which indicated that he was available on thirty-two earlier dates between July 8th, 2011 and February 3rd, 2012.

3. During argument of the 11(b) motion on January 5th, 2012, I again asked Defence for their best estimate of the time required for trial. The extent and timing of the various Charter challenges is in the hands of the Defence. Initially counsel indicated that the four hours set aside on the second trial date on February 6 should be sufficient. When pressed by the court, counsel indicated that, in addition, as much as a further full day could be required to deal with the constitutional issues. January 5th, 2012 was the first date when the Defence advised the Court of the actual time which might be required to complete this trial. Previous estimates stated by counsel were in relation to only part of the trial and the preliminary Charter issues. In any event, during argument on January 5th the Court directed Crown and Defence to attend the trial co-ordinator to secure additional trial time. March 12th was set for a potential trial continuation day of one full day.

D I S C U S S I O N

4. Every person charged with a criminal offence has the constitutional right to be tried within a reasonable time. What is reasonable is not capable of precise definition and must be determined on a case by case basis. The Court must consider all the circumstances which are generally grouped under four headings in the caselaw.

5. Length of Delay

6. Waiver of Time Periods

7. Reasons for Delay

8. Prejudice.

9. The overall period of delay from the swearing of the information is just in excess of thirteen months and merits this inquiry. From my review of the record there was no express or implied waiver by the Defence of Ms. Sanderson’s 11(b) Charter rights at any time. Accordingly, my review and analysis of the circumstances of this case will focus on reasons for the delay and prejudice.

Reasons for the Delay

6. There was considerable argument about the law in relation to the assessment of delay from set dates. Defence took the position that the recent decision of Justice Code of the Ontario Superior Court in R. v Lahiry et al 2011 ONSC 6780, [2011] O.J. No. 5071 was wrong in law. The Court was referred to cases where trial findings of the commencement of institutional delay from set date courts were accepted by appeal courts.

7. Since the decision of Lahiry, the Ontario Court of Appeal released its decision in R. v. Tran [2012] ONCA 18 on January 12th. I wrote to Crown and Defence to invite further submissions in relation to Tran. In further submissions, Mr. Lent argues that this Court is nevertheless still bound by prior authorities of both the Supreme Court of Canada and the Ontario Court of Appeal. While not explicitly stated the Defence position is that there are authorities which either can be distinguished or contradict the decision in Tran. Counsel relies on R. v. Godin 2009 SCC 26, [2009] S.C.J. No. 26 (SCC), R. v. Rego 2005 CanLII 40718 (ON CA), [2005] O.J. No. 4768 (Ont.CA), R. v. Tar Singh and R. v. Henderson (Nov.18, 2003) (Ont.C.J.) (unreported) as well as reference therein to R. v. Morin 71 CCC (3d) (SCC), R. v. Sharma 1992 CanLII 90 (SCC), [1992] 1 S.C.R. 814 (SCC) and R. v. Meisner [2003] O.J. No. 1948 (SCJ).

8. Respectfully, I disagree with the Defence. The principles set out by Justice Code in Lahiry have been explicitly affirmed by the Ontario Court of Appeal in Tran. Both decisions are binding upon this court. With great respect it would be an error in law, if not impertinent, for this trial Court to ignore binding authority which is directly on point. The Tran decision stands for the following proposition in relation to the reasons for delay, as set out in paragraph 32.

“..... parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the Court is unable to accommodate them.”

9. Applying this principle to the facts before me, I disagree with the Applicant’s submission that potential institutional delay commences from the two set dates on February 3rd and July 7th, 2011. In addition, it is my understanding of the caselaw that the mere availability of counsel for trial is not the same as readiness for trial. In Lahiry the Court indicated that some period for preparation for trial after the set date was required. Roughly one month was imputed. As in Lahiry, I do not have evidence before me to suggest when counsel would be ready for trial in the sense that they completed their preparation including Charter materials. Mr. Lent, as is his practice, filed correspondence on the first set date which said that he was available as early as February 28th, 2011 for trial. Effectively the earliest date the Court could accommodate this trial (the earliest dates offered were mutually unavailable to Crown and Defence) was the first trial date of June 29th, 2011. Without further evidence on the point, it is a reasonable inference, in my view, that the first date offered by Mr. Lent of February 28th accommodated both his availability and pre-trial preparation. I believe February 28th is the appropriate date for the commencement of institutional delay, applying the caselaw to these facts.

10. There are other considerations in relation to the first trial date not proceeding which have not yet been dealt with. However, on the issue of pre-trial preparation, when the second trial date was set on July 7th Mr. Lent had offered July 8th in his letter. That is the date counsel was again, ready for trial. By July 8th, counsel had already prepared for the first trial date and had filed all of his materials in relation to the constitutional challenge and other Charter issues. Mr. Lent is a very experienced counsel. I accept that his preparation for this continuing matter was essentially completed when the second date was set.

11. It was conceded during argument that the intake period from December 30th, 2010 to February 3rd, 2011 was neutral or inherent time. The actions by Crown and Defence were efficient during intake. I also conclude that the period from the first trial date on June 29th, 2011 and the second set date on July 7th, 2011 was also part of the inherent time required and is also neutral.

12. The important determination is of the periods between counsel availability and the trial dates. I assess institutional delay to the first trial date at four months. That is, from the date of apparent Defence readiness on February 28th to the first date of trial on June 29th. The seven month period from the second set date on July 7th to February 6th, 2012 is more problematic. Such assessment depends upon the circumstances of the additional trial issues raised by the Defence as of May 20th, as well as the potential impact of the first trial not proceeding. The Court must consider whether sufficient or reasonable earlier trial dates were provided by the Trial Co-ordinator for the second trial.

13. The Defence relies upon the decision of the Supreme Court of Canada in Godin for the proposition that a single offer by the Court of an earlier date which is unavailable to the Defence should not serve to “stop the clock” from running in terms of institutional delay. I agree that Godin stands for that proposition. The Applicant also relies on the decision of the Ontario Court of Appeal in R. v. Rego 2005 CanLII 40718 (ON CA), [2005] O.J. No. 4768 in that regard.

14. I indicated in an earlier 11(b) Ruling in which Mr. Lent was counsel (R. v. Dragan Bartulovic O.C.J. November 12, 2009 unreported) at paragraph 13.

“I do not find that the law supports the broad argument by the Defence that no offer of a series of earlier dates on which the defence is unavailable can ever stop the delay clock in terms of institutional delay. In my view, if the Court offers a variety of earlier dates which are unavailable to the Defence, when the matter was originally set for trial, it may not be open to the Defence to claim later that the entire period from the set date to the first trial date is a period of institutional delay. While this issue need not be determined on the facts before me I wish to emphasize that I cannot agree with the broad interpretation of the effect of Godin as advanced by the Defence.”

15. Despite the dates available for the defence indicated in their letter of July 6th, 2011, the Court offered five earlier dates between October 28th and December 8th, 2011 which were available to the Crown and not available to the Defence. In my view, this was a reasonable accommodation in the circumstances. While the principle of reasonable availability for the defence is important in terms of trial fairness, counsel’s schedule cannot be the only consideration for a busy trial court. It is simply unreasonable to expect that the hundreds of competing trials which must be accommodated by the Ontario Court of Justice must give way to the needs of a single case. Due to these earlier trial dates offered, I would not characterize further delay after the first week in November and specifically from November 7th as institutional. Rather the four months between July 7th and November 7th would be the total institutional delay. The balance of the period to the second trial date is inherent. This conclusion is subject to my following comments about the first trial not being reached.

16. As discussed, the trial did not proceed on the first date of June 29th, 2011. The Crown proceeded with an in custody matter which, I was advised, was originally set for one half day. That trial proceeded to consume all of the trial time on June 29th and accordingly, the Sanderson trial did not commence.

17. It is significant that Defence understood that the trial was set to commence on June 29th but could not be completed. While no further time had been reserved to deal with the constitutional validity challenge and evidence, both Crown and Defence anticipated that the Crown evidence would be heard along with the original blended Charter voir dire. The in custody matter also was subject to an inaccurate estimate of time as it was originally estimated for a half day and ultimately consumed the entire day.

18. The Defence submits that the fact that the matter did not proceed because of the decision of the Crown to proceed with the other trial should result in the entire period between June 29th, 2011 and the second trial date of February 6th, 2012, being deemed institutional delay. The fact of the case not commencing on June 29th must be considered. But the Defence position, in my view, considerably overstates the impact of the circumstances from that event.

19. By the first trial date, despite the direction by the Court on the May 20th appearance, no further time had been secured for trial. As I have already noted, when the matter was set for the second trial date, again only four hours were secured. It was not until the Court pressed the point during argument of this application on January 5th, 2012 that a full second day to complete the trial was secured by the Crown and Defence. Prior to January 5th, counsel had been content to limit scheduled Court time to four hours which was well less than actually required for trial. This approach to the scheduling of this criminal trial is troubling.

20. The Ontario Court of Justice at Orangeville, goes to great lengths through case management procedures to secure accurate estimates for trial. In doing so the Court must rely on the best efforts of counsel to make accurate estimates to ensure that all of the issues that they wish to raise can be dealt with within the time reserved. The decision by the Defence to challenge the constitutional validity of the drink/driving sections of the Criminal Code was made on the eve of the first trial date and after the trial had been confirmed by counsel. The Court pointed out to defence on that date that that choice would fundamentally change the nature of the case including the time required to complete. It is not clear from the record whether the defence put their mind to an accurate estimate of the actual time for trial during the appearance on May 20th and or during any subsequent appearances before January 5th, 2012. While the decision to raise such important issues by defence was entirely appropriate, it was incumbent upon the Defence to accurately assess the time required to argue and present supporting evidence. The Defence remained content to maintain the original estimate. While the Defence which raised these revised issues bears primary responsibility for their failure to accurately assess trial time, the Crown on all appearances acquiesced in an inadequate time estimate. As early as May 20th, 2011, the Crown was aware that a four hour estimate was completely insufficient.

21. Accordingly, while the decision of the Crown to proceed on another matter on June 29th prevented the Sanderson trial from commencing (and I do not fault the Crown for proceeding with an in custody matter in priority) in my view the Crown and Defence bear shared responsibility for delay from the first trial date.

22. The period from July 8th, 2011 (the first Defence available date) to February 6th, 2012, is seven months. Applying the principle of reasonable availability of counsel, I already noted that I would not assess institutional delay beyond November 7th, 2011, which was the second of a series of trial dates offered by the Trial Co-ordinator. That is four months institutional delay. If such earlier dates had not been offered by the Trial Co-ordinator, or if I am in error in that assessment, I would have apportioned no more than three months of this seven month period to institutional delay due to the inadequate trial assessment. That is, due to the responsibility of the Defence and their Crown for the failure to accurately estimate the time for trial after the case substantially changed on May 20th, 2011. The balance of the seven month period to the second trial date on February 6th can then be characterized as inherent. On this assessment, the time to trial to the second date includes no more than three months institutional delay and possibly four months if my allocation of these issues is in error.

23. In the result, the total institutional delay from the commencement of these proceedings is either seven or eight months on this assessment. Finally, while the trial has reserved a further full day on March 12th, 2012 (reserved on January 5th), I assess no institutional delay from February 6th to the second date. Such delay clearly was as a result of complete failure on the part of counsel to reserve sufficient trial time. This period is also inherent.

PREJUDICE

24. Given an assessment by the Court of institutional delay which is well within the administrative guidelines period of eight to ten months it is, perhaps, academic to consider the issue of prejudice. Clearly this will not be a case where prejudice can and should be inferred from the period of delay. I will indicate that the affidavit of Laurie Sanderson filed in Exhibit “A” does not set out specific prejudice beyond her indication that the matter did not proceed on the first trial date. That added to her costs of defence. However, it was apparent that this trial would be adjourned in any event as Defence was not in a position to argue the constitutional challenge on the first trial date. I do not find prejudice to be established on the evidence before me.

25. For these reasons, the application shall be dismissed and the trial shall proceed on February 6th, 2012.

26. Before leaving these reasons I make the following comment. In the past decade and certainly since Bill C-2 came into effect in July, 2008, this Judge has noticed a growing difficulty in case management for drink/driving offences. Given the complexity of the challenges and legal issues emerging for these types of offences, drink/drive offences have consumed a disproportionate and increasing amount of trial resources in the Ontario Court of Justice. As this increasingly complex area of the law has evolved, I have noted a consistent inability (in some cases I would describe it as a wilful failure) on the part of some counsel to accurately and realistically assess the time required to deal with the issues they seek to litigate.

27. The public duty of criminal trial courts is to attempt to provide sufficient trial resources to deal with the important issues brought before our courts. The duty of counsel, particularly in a fixed appointment system of trial scheduling such as in this Court, is to assist the Court and the process with accurate estimates for trial. While not what I would call a trend, I have noticed a growing number of drink/drive charges where counsel make trial estimates without any real consideration of the time which will be required. Even experienced counsel often take the position that as little as four hours will be sufficient to deal with the trial evidence and extensive Charter issues to be argued. That was the case in the matter before me. I cannot imagine that the very careful and thorough approach to these issues in this case by Mr. Lent would or could ever consume merely four hours. Indeed that has not been my experience to date with Mr. Lent’s cases. (In this regard I agree with and adopt the comments of my colleague, Justice Pugsley in R. v. John Joseph Finnerty (Ont C.J.) (Jan. 13, 2012)).

28. The failure by counsel to properly estimate trial time creates the difficult problem of continuations, often weeks or months after the commencement of trials. Continuations are completely unsatisfactory and unfair to litigants, counsel and the Courts and should be avoided.

29. It seems to me that if this problem continues, this Court may have to implement even stricter Court management to ensure that trials which are commenced can be readily completed within the times reserved. This may include requiring judicial pre-trials for all drink/driving offences; or alternatively, compelling counsel to continue cases which cannot be completed on consecutive days. It is my hope that counsel will recognize this concern and act cooperatively in the best interests of their clients and the Court.

Released: January 25, 2012.

Justice Douglas B. Maund