Court Information

Ontario Court of Justice – Brampton

Between: Her Majesty the Queen And: Raffaele Farano

Counsel:

• M. Morris, for the Crown
• B. Fox, for the Defendant

Heard: July 23, 2012

Reasons for Ruling

(Re Charter Section 11(b) Application)

Justice Melvyn Green

A. INTRODUCTION

[1] Raffaele Farano was arrested for drinking and driving offences on April 24, 2011. His first scheduled trial date was July 24, 2012, exactly 15 months later. Pursuant to proper notice, Mr. Farano (hereafter, the applicant) moved at the commencement of his trial to have the charges against him judicially stayed as a remedy for a claimed infringement of his Charter s. 11(b)-guaranteed right to be tried within a reasonable time. My reasons for dismissing this application follow.

B. EVIDENCE

(a) Introduction

[2] The applicant was pulled over by the police while driving on a multi-lane highway. It was a few minutes after midnight on April 24, 2011. Following a failed roadside screening test and breathalyzer testing at the police station, he was charged with driving with a legally excessive blood alcohol concentration (BAC) and while impaired by alcohol. The Information respecting these two charges was not sworn until May 25, 2011, approximately a month after his arrest. The Crown withdrew the latter charge, that of impaired driving, moments before the defendant's arraignment on July 23, 2012.

[3] The defendant was released from the station by way of a Promise to Appear approximately three hours after his arrest. Given the form of release, the applicant was not subject to any restrictions on his liberty or other material restraint while he awaited his trial. The applicant promptly retained counsel who, in turn, filed a designation on the applicant's behalf. In the result, the applicant was not obliged to appear personally in court until his scheduled trial date and, indeed, did not.

[4] The applicant is a 57 year old, single and childless Canadian. Other than that, I know nothing about his antecedents, education, occupational history or current circumstances. By way of affidavit, the applicant claims to have experienced stress as a result of the charges he faces and their prolongation. Defence counsel fairly concedes that any delay-related "actual" prejudice suffered by the applicant is, here, effectively indistinguishable from that which would be otherwise captured by the s. 11(b) doctrine of "inferred" or "inherent" prejudice.

[5] The chronology of the delay between the applicant's arrest and his scheduled trial date may be conveniently divided into five periods:

1. April 24 – May 25, 2011 (1 Month): This is the interval between the applicant's arrest and the swearing of the Information.

2. May 25 – June 20, 2011 (3 Weeks): Initial disclosure provided on the applicant's first scheduled court appearance, June 20, 2011, approximately three weeks after the Information was sworn.

3. June 20 – September 20, 2011 (3 Months): Repeated remand appearances while the applicant's counsel awaits a response to several letters requesting additional disclosure.

4. September 20 – December 29, 2011 (3 Months + 1 Week): Additional disclosure provided on September 20, 2011; defence requests still further disclosure until December 29, 2011 when a Judicial Pre-Trial is conducted and trial dates of July 23 and 24, 2012 are fixed.

5. December 29, 2011 and July 23-24, 2012 (almost 7 Months): The period between the final set-date appearance and the applicant's scheduled trial dates.

Some further detail is essential to appreciate the s. 11(b) implications of several of these intervals.

[6] First, the initial disclosure, provided at the applicant's first scheduled appearance, included copies of all the officers' notes and the appropriate certificates and notices, and a DVD of the video recording of the applicant's Intoxilyzer testing in the breath room. Defence counsel's persistent requests for further disclosure focused on: calibration and maintenance records (which were provided by the Crown on September 20, 2011); in-car videos of the applicant's transport from the scene of his arrest to the police station and video recordings of his attendance in the station's sallyport, booking room and cells; and, finally, any expert toxicology report prepared at the request of the Crown. The latter request rested on the applicant's counsel's view that the Intoxilyzer results were the only arguably probative evidence of impaired driving and that, absent expert interpretation, they were of no inculpatory value with respect to this count. Further letters requesting this additional disclosure followed. The Crown replied to none of them in writing. However, at a remand appearance on November 1, 2011, Crown counsel asserted on the record that "all videos have [already] been submitted" and that the toxicology report, although not yet prepared, "would be served on defence counsel in compliance with the rules" which, as he further explained, under s. 657.3 of the Code did not require service "until 30 days prior to trial". The same day, Crown counsel also urged that the matter be set down for trial. Defence counsel, instead, continued to forward disclosure letters to the Crown, requesting "confirmation in writing" of the unavailability of additional video recordings.

[7] Second, the applicant on several occasions requested and was granted adjournments. These periods include from July 11 to August 15, 2011 (almost 5 weeks) and November 22 to December 6, 2011 (over 2 weeks). In addition, defence counsel fairly concedes that, for s. 11(b) purposes, the 3-week period between November 1 and 22, 2011 is properly treated as neutral if not, in fact and law, attributable to the defence. These three periods alone amount to 10 weeks or 2½ months.

[8] Finally, reference need be made to the scheduling of the trial and counsels' availability. The trial dates of July 23 and 24, 2012 were fixed on December 29, 2011. Although the viability of any related motion may well have depended on the trial dates ultimately afforded the applicant, I note that no notice was then – or on any prior occasion – given by the defence of the risk of Charter s. 11(b) jeopardy or of a related application. As to counsel availability, the defendant's counsel provided dates commencing January 16, 2012 (less than three weeks after the set-date appearance) and dates in every subsequent month through January of 2013. The earliest dates provided by the court were July 6 and 9, 2012, but defence counsel was unavailable until the 11th of that month. The Crown, for unexplained reasons, was not available until July 20, 2012. The next dates offered by the court – those of July 23 and 24, 2012 – were accepted by Crown and defence counsel.

C. ANALYSIS

(a) Introduction: The Analytical Framework

[9] The interests and principles that inform s. 11(b) jurisprudence are well rehearsed, as is the analytical framework employed in assessing claims of unreasonable trial delay. Rather than endeavouring to reinvent the wheel, I here simply cut and paste the relevant discussion from an earlier s. 11(b) ruling, that of R. v. Howser, 2011 O.J. No. 4866, at paras. 4-8:

Section 11(b) of the Charter guarantees every person charged with an offence the right to be tried within a reasonable time. The primary interests protected by this provision are those of the defendant: security of the person, liberty and fair trial rights. Societal interests (including that criminal charges, particularly serious ones, are tried on their merits and ensuring that those charged with criminal transgressions are not only brought to trial but quickly and fairly) are also of concern: R. v. Askov (1990), 59 C.C.C. (3d) 449, at 474 (S.C.C.); R. v. Qureshi (2005), 128 C.C.C. (3d) 453, at 458 (Ont. C.A.) and R. v. Godin (2009), 2009 SCC 26, 245 C.C.C. (3d) 271, at para. 40.

The factors that inform the calculus of s. 11(b) analysis have been settled since R. v. Morin (1992), 71 C.C.C. (3d) 1:

1. Length of the delay;
2. Waiver of time periods;
3. The reasons for the delay, including:
   • (a) Inherent time requirements of the case;
   • (b) Actions of the defendant;
   • (c) Actions of the Crown;
   • (d) Limits on institutional resources, and
   • (e) Other reasons for delay; and
4. Prejudice to the defendant.

As said by McLachlin J. (as she then was) in her concurring opinion in Morin, supra, at p. 30, "What is important is how those factors interact and what weight is to be accorded to each".

A s. 11(b) analysis requires a judicial "balancing" of the length of the delay as assessed in light of these factors and the interests protected by s. 11(b). As summarized by the Supreme Court in R. v. Godin, supra, at para. 18:

Whether delay has been unreasonable is assessed by looking at the [total] length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect.

Unsurprisingly, adjudication of s. 11(b) claims often turns, as here, on the legal characterization and allocation by factor of particular periods of delay.

As with all assertions of a Charter breach, the applicant bears the burden of establishing a violation of his s. 11(b) rights. No mathematical formula determines the reasonableness of pre-trial delay. Some assistance, however, may be found in the administrative guidelines first articulated by the Supreme Court in Morin. As set out in that case, the standard for permissible institutional or systemic delay in the case, as here, of a provincial court trial is eight to ten months. (See R. v. G.(C.R.), (2005), 77 O.R.(3d) 308 (C.A.), at 315.) This metric must not be confused with a fixed limitation period; its dimensions have a certain elastic quality and depend on a variety of factors.

Finally, by way of introduction to the governing legal principles, I note that the Court of Appeal in R. v. Thomson (2009), 2009 ONCA 771, 248 C.C.C. (3d) 477 at paras. 9-10, re-affirmed that a stay of proceedings is the only appropriate remedy once the s. 11(b) hurdle of "unreasonable delay" is crested. Unlike other claims for such relief, the standard of "clearest of cases" has no application, nor need prejudice to a defendant's right to a fair trial or right to make full answer and defence be established to attract the constitutional remedy here sought.

(b) Applying the Analytical Framework

[10] Counsel agree that the trial is not complicated; it is the kind of prosecution requiring no great effort to collect and provide disclosure, on the one hand, or to prepare the defense, on the other. Prosecution of "impaired" and "blow over" charges are among the most common in provincial court. Accordingly, the overall delay of 15 months in moving from charge to trial date in this case warrants constitutional inquiry. I immediately note that there were no express waivers of s. 11(b) rights by the defence. As in most such applications, its resolution primarily depends on consideration of the reasons for the delay and the gravity of that delay's prejudicial impact on the applicant's protected interests.

[11] In summary, the reasons for the delay in this case include institutional factors, defence instigated adjournments, some Crown tardiness in responding to disclosure requests, and the defence's unexplained refusal to take 'no' for an answer to at least some of these requests. Once those periods of neutral value or properly attributable to the defence are subtracted from the overall delay, the remaining period is well within the Morin guidelines which, in the instant case, are not abbreviated due to any palpable prejudice arising from that delay.

[12] A helpful place to start the s. 11(b) analysis is at the beginning. Undoubtedly the applicant's exposure to criminal prosecution commenced with his arrest. Further, his obligations to attend court began with his release on a Promise to Appear on that same day, April 24, 2011. Nonetheless, as decided by the Supreme Court in R. v. Kalanj (1989), 48 C.C.C. (3d) 459, the calculation of delay under s. 11(b) does not begin until an Information is sworn. That critical act did not here occur until May 25, 2011. In the result, the total delay subject to constitutional scrutiny is 14, not 15, months.

[13] The month between the swearing of the Information and the applicant's first scheduled appearance is properly viewed as necessary "intake" and, thus, an inherent time requirement and of neutral value in the calculation of delay. Significantly, the applicant was provided with that disclosure generally considered adequate to proceed to trial on his first appearance, June 20, 2011.

[14] The defence sought additional disclosure, as detailed earlier. Regrettably, the Crown did not answer defence counsel's letters and took some three months to materially respond. As a result, the matter was repeatedly adjourned. At least one of these adjournments, from July 11 to August 15, 2011, was at the request of defence counsel's agent "so counsel can review disclosure and have a Crown pre-trial". This representation is inconsistent with defence counsel's position on this application that it was unanswered disclosure requests, and not any lack of diligence in reviewing that disclosure already provided, which impeded the prosecution's progress. These five weeks are properly attributable to the defence as the granted adjournment was founded on the agent's (mis)-representation. Taking into consideration the ill-substantiated defence adjournment request, I am of the view that allocation, for s. 11(b) purposes, of the three-month interval between June and September 20, 2011 is properly divided between the defence and the Crown.

[15] I am of the same view respecting the two-and-a-bit months between September 20 and November 1, 2011. Further defence disclosure requests followed, culminating in Crown counsel assertions at the remand appearance on November 1, 2011 that there were no additional videos to disclose and, secondly, that the requested toxicological report would be made available in due but timely course. I see little reason for any defence resistance to fixing a trial date following that appearance. The defendant faced two charges. He had, under any view, full disclosure with respect to one of them (that of driving with an excessive BAC) by September 20th and had been advised on November 1, 2011 that any toxicological report bearing on the second, that of driving while impaired, would be provided by, at latest, 30 days in advance of trial. If, indeed, the defendant's interest was to minimize any prejudice attending delay, I fail to see why he, at that point, would not have agreed to set the matter down for trial. Had it transpired that the Crown's expert report was not produced in a timely manner, that tardiness would either have precluded the report's adduction into evidence or have supported an application for adjournment founded on Crown conduct. The subsequent and repeated defence insistence on written confirmation of the assertions made by Crown counsel on November 1st respecting the non-existence of additional video recordings appears, to me, more dilatory than substantial.

[16] In any event, and as earlier noted, the defence rightly concedes that five weeks of the interval from November 1 to December 29, 2011 is "neutral" if not directly attributable to the defence. In addition, the remaining three-week period (that from December 6th to 29th) was dictated by judicial pre-trial requirements. As said by the Court of Appeal in R. v. Tran (2012), 2012 ONCA 18, 287 O.A.C. 94, at para. 34, "some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case". In short, but for the last couple of days in the year none of two months consumed by November and December 2011 forms part of the calculation of delay for purposes of 11(b) analysis.

[17] Once the scheduling of a trial date was finally addressed, defence counsel was prepared to proceed with dispatch and, in any event, within less than three weeks of the set date appearance. Regrettably, the court was not able to accommodate a trial with the same alacrity and much of the ensuing seven months – indeed, about six months in total – is properly assigned to institutional factors. The remainder falls to counsel's unavailability. As said in Tran, supra, at para. 32, "[i]nstitutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them".

[18] Subtracting those periods attributable to the conduct of the defence and the inherent time requirements of the case or other neutral considerations from the 14 months subject to s. 11(b) review results in an institutional and, in much lesser part, Crown-attributable delay of approximately eight months. This duration of delay is at the lower end of the Morin guideline for relatively straightforward, single-stage provincial court trials such as the one before me. Nor, in my view, does the minimal prejudice – actual or inferred – suffered by the applicant command any stricter scrutiny or abbreviated timelines to adequately respect the interests protected by s. 11(b). Indeed, I see no evidence of actual prejudice, at least none arising from any delay, to the applicant's liberty, security or fair trial concerns, nor, given the length of justiciable delay, is there any inherent prejudice of consequence to any of these interests.

D. CONCLUSION

[19] On application of the appropriate analytical framework, I find no violation of the applicant's right to be tried within a reasonable time. Accordingly his application pursuant to s. 11(b) of the Charter is dismissed.

Released on July 25, 2012

Justice Melvyn Green