COURT FILE No.: Brampton 10-2252

DATE: February 7, 2012

Citation: R. v. Baxter, 2012 ONCJ 91

ONTARIO COURT OF JUSTICE

Central West Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ANDREw baxter

Before Justice Richard H.K. Schwarzl

Heard on December 17, 2010, May 18, October 11 and December 30, 2011

Reasons for Judgment released on February 7, 2012

Ms. Kerry Watson.................................................................................................... for the Crown

Mr. Douglas Lent for the Accused

SCHWARZL, J.:

1.0: Introduction

[1.] Andrew Baxter was charged on February 17, 2010 with impaired driving and driving with excess blood alcohol. A number of issues were raised:

(a) Has the Crown proven beyond a reasonable doubt that the ability of Mr. Baxter to operate a motor vehicle was impaired by the consumption of alcohol?

(b) Has the Crown proven beyond a reasonable doubt that Mr. Baxter operated a motor vehicle while his blood alcohol concentration exceeded the proscribed legal limit?

(c) Did the police fail to provide Mr. Baxter with a meaningful opportunity to reasonably exercise his right to counsel as guaranteed by section 10(b) of the Charter of Rights?

(d) Was Mr. Baxter’s right to be free from arbitrary detention guaranteed by section 9 of the Charter of Rights violated by detaining him for 5.5 hours after the breath tests were completed?

(e) Was Mr. Baxter’s right to be tried within a reasonable time guaranteed by section 11(b) of the Charter of Rights violated given that it took nearly two years to complete this matter?

2.0: Was the ability of Mr. Baxter to operate a motor vehicle impaired by the consumption of alcohol?

2.1: Positions of the Parties

[2.] The defence submits that the evidence of P.C. Cissek and P.C. Vanderhorden, the two police officers to have first contact with Mr. Baxter, was significantly inconsistent and therefore too unreliable to provide a safe foundation to believe that Mr. Baxter was impaired. The defence further submits that the evidence of the Qualified Technician, P.C. Rawlinson, was equivocal as to whether Mr. Baxter’s symptoms were the result of intoxication by alcohol or the result of Mr. Baxter’s feelings that he was being treated unfairly by the police.

[3.] The Crown submits that the totality of the evidence establishes beyond a reasonable doubt that Mr. Baxter’s ability to drive was impaired by his consumption of alcohol.

2.2: Analysis

[4.] There were some differences between the road officers. P.C. Cissek said that they were not pacing the Accused’s motor vehicle while P.C. Vanderhorden said they were. P.C. Cissek said that the Accused’s motor vehicle weaved only within its lane whereas Vanderhorden said it weaved a foot or more into another lane. P.C. Cissek said in chief that Mr. Baxter was unsteady on his feet but qualified that in cross-examination by saying that he was not confident on his feet and had to concentrate while walking. P.C. Vanderhorden notes the Accused was unsteady and swaying. P.C. Rawlinson testified that the signs of intoxication were obvious yet agreed that Mr. Baxter did not suffer any problems with his motor skills in the breath room.

[5.] Taking all of the evidence as a whole, I find that the Crown has proven impairment beyond a reasonable doubt. I do not view any differences between the road officers’ evidence to make the evidence frail, unsafe or diluted. P.C. Cissek and P.C. Vanderhorden observed the Accused to drive out of a bar parking lot at 2:34 a.m., roll through a stop sign, weave (whether wholly in one lane or partially in another), and drive faster than the speed limit. When stopped Mr. Baxter had an odour of alcohol on breath, his eyes were watery and glossy. His eye lids were droopy. His speech was slurred. He had balance problems. He tried to broker a break from the officers. When that didn’t work, he accused the officers of trying to lynch him. He got angry and stayed that way. He refused to listen, especially when being given his rights to counsel by the transporting officer, P.C. Matleshewski, and later by P.C. Rawlinson. Mr. Baxter’s level of impairment at the station did not change much from that at the roadside.

[6.] The Accused was unrestrained in his hostility at the police station. He made disparaging remarks about duty counsel. He told P.C. Vanderhorden, “You are charging me because you are pigs.” As shown on the breath room video, Mr. Baxter was verbally combative and obstreperous with P.C. Rawlinson, who was both patient and professional. Mr. Baxter refused to listen to P.C. Rawlinson and it seemed that he would not let the officer complete a sentence without interrupting. As further shown on the breath room video, Mr. Baxter’s voice often mumbled and faded towards the end of sentences and he slurred his words. Mr. Baxter refused to read or sign any documentation that P.C. Vanderhorden served on him.

[7.] In giving his evidence as to why he thought Mr. Baxter was impaired by alcohol to drive, P.C. Rawlinson did not merely rely on the Accused’s negative attitude but also on the strong odour of alcohol on his breath, bloodshot and watery eyes, and slurred speech. The absence of obvious impairment of motor skills in the breath room does not detract from the strength of Rawlinson’s other evidence, particularly when considered in the matrix of the other police officers’ evidence as well as the breath room video.

[8.] In addition to the police and video evidence, the forensic toxicologist, Dr. Michael Corbett, testified that in his opinion the blood alcohol concentration in this case at 2:34 a.m. was between 176 to 230 milligrams of alcohol in one hundred millilitres of blood. Dr. Corbett testified that this is a high blood alcohol concentration and that he would generally expect some impairment of the ability to operate a motor vehicle. He said that generally persons with this range of blood alcohol concentration would likely experience impairment of depth perception, perception, information processing, judgment, reaction time, muscle coordination, agility and divided attention.

[9.] In Mr. Baxter’s case, I find that his poor driving is illustrative of his perception, judgment and information processing being impaired. I find that his judgment was impaired by continually trying to get a break from the police, then accusing them of trying to lynch him when he didn’t get his way. I find that his slurred speech and lack of confidence walking are examples of loss of muscle coordination and agility, as was his weaving while steering. His comportment on the breath room video is a simultaneous reflection of both intoxication and agitation.

2.3: Conclusion

[10.] Considering the evidence as a whole I find that the Crown has proven beyond a reasonable doubt that the ability of Mr. Baxter to operate a motor vehicle was impaired by the consumption of alcohol.

3.0: Was the blood alcohol concentration of Mr. Baxter over the legal limit at 2:34 a.m.?

3.1: Facts

[11.] In this case, the Accused was seen driving out of a bar lot at 2:34 a.m. and stopped by police within that same minute. He did not consume any alcohol after being stopped. He provided two suitable samples of his breath into a properly operating approved instrument which was properly operated by the Qualified Technician, P.C. Rawlinson. The first sample was taken and analysed at 4:54 a.m. with a truncated blood alcohol concentration of 180 milligrams of alcohol in one hundred millilitres of blood. The second sample was taken and analysed at 5:15 a.m. with a truncated blood alcohol concentration of 170 milligrams of alcohol in one hundred millilitres of blood.

[12.] P.C. Rawlinson testified that Mr. Baxter was approximately 6’2” tall and weighed approximately 200 pounds. His evidence was based in part on the fact that his own father is that height and weight.

[13.] The first test was taken more than two hours after driving causing the Crown to lead expert toxicological evidence. In the opinion of Dr. Corbett, the blood alcohol concentration of Mr. Baxter at 2:34 a.m. was between 176 and 223 milligrams of alcohol in one hundred millilitres of blood, based on the lowest blood alcohol concentration of 170 milligrams of alcohol in one hundred millilitres of blood at 5:15 a.m. Dr. Corbett’s opinion rested on four assumptions, namely:

(a) A rate of elimination of between 10 and 20 milligrams of alcohol in one hundred millilitres of blood per hour;

(b) A two hour plateau;

(c) No consumption of alcohol between the time of driving until after the last test; and

(d) No significant consumption of alcohol just prior to, or an instant before, 2:34 a.m.

[14.] Dr. Corbett opined that for a 6’2”, 200 pound male, a blood alcohol concentration of 170 milligrams of alcohol in one hundred millilitres of blood at 5:15 a.m. represents the presence of 7.3 standard drinks in the subject’s system at the time of testing.

[15.] With respect to the question of “significant consumption of alcohol just prior to the time of interest”, Dr. Corbett testified that both a blood alcohol concentration of 80 at 2:34 and 170 at 5:15 could be achieved by an alcohol-free 6’2”, 200 pound male eliminating alcohol at the rate of 10 milligrams of alcohol in one hundred millilitres of blood per hour by consuming:

(i) 5.0 standard drinks an instant prior;

(ii) 5.1 standard drinks 15 minutes prior;

(iii) 5.2 standard drinks 30 minutes prior; and

(iv) 5.3 standard drinks 45 minutes prior.

[16.] In other words, consuming approximately five drinks at a rate of between one drink every twelve seconds over one minute to one drink every nine minutes over 45 minutes before driving can constitute “significant consumption of alcohol just prior to the time of interest.”

[17.] No evidence was led as to how much alcohol Mr. Baxter actually drank, when he started to drink, or when he finished drinking prior to being stopped by police.

[18.] Mr. Baxter did not consume any alcohol while in the custody of the police.

[19.] Mr. Baxter was intoxicated by alcohol and his ability to operate a motor vehicle was impaired by that consumption of alcohol when the police stopped him at 2:34 a.m.

3.2: Positions of the Parties

[20.] The defence submits that Dr. Corbett’s opinions regarding the extrapolated blood alcohol concentration at the time of driving is not founded on a proper foundation. In particular, the defence submits that there was no evidence led of Mr. Baxter’s age and no reliable evidence of his height and weight. Furthermore, the defence submits that the Crown has failed to negative “significant consumption of alcohol just prior to the time of interest.”

[21.] The Crown submits that there is reliable and undisputed evidence of Mr. Baxter’s height and weight. They submit that weight, height and gender were relevant only in calculating how many drinks would be in the system assuming a blood alcohol concentration of 170 at 5:15 a.m. Lastly, the Crown submits that it has negatived bolus drinking, in part because Mr. Baxter was already obviously intoxicated when he was stopped only a minute of two after leaving the bar.

3.3: Analysis

3.3.1: Physical Characteristics of Mr. Baxter as part of the expert’s opinion re blood alcohol concentration

[22.] P.C. Rawlinson testified that Mr. Baxter is approximately 6’2” tall and weighs approximately 200 pounds. He did not measure Mr. Baxter and has no special training in estimating heights and weights of humans. However, ordinary people with ordinary experience are permitted to give opinion evidence as to identity of individuals, the apparent age and size of a person, the speed of a vehicle and whether a person was sober or not: R. v. Graat, 1982 33 (SCC), [1982] 2 S.CR. 819.

[23.] Here, Rawlinson was able to make a mental comparison between the known height and weight of his father and the size of the Accused and found them to be very similar. From my own observations of Mr. Baxter both on the video and in court, he appears to the height and weight stated by P.C. Rawlinson. Age-wise Mr. Baxter appeared to be in his early thirties.

[24.] I find there is reliable evidence of Mr. Baxter’s height and weight.

[25.] It is clear from Dr. Corbett’s evidence that height, weight and gender only came into play when asked to opine what the beverage equivalent of 170 milligrams of alcohol in one hundred millilitres of blood would be at 5:15 a.m. Dr. Corbett was asked in cross-examination, “And am I correct in saying for you to come to these calculations about amounts of standard drinks you need to know the height and weight of the hypothetical individual?” He replied, “Yes. In terms of talking about standard drinks in relation to a measurement, that’s where the height and weight and gender of the individual come in.”

[26.] Height, weight and gender are only necessary to calculate a beverage equivalent at time of testing. They are not elements required, or relied upon, by Dr. Corbett in order to give an opinion of blood alcohol concentration at the time of driving. The Crown does not need to establish the Accused’s physical characteristics in order to prove the Over 80 charge.

3.3.2: Has the Crown proven the expert’s necessary assumption that there was no significant consumption of alcohol just prior to the time of interest/driving?

[27.] Significant consumption of alcohol just prior to drinking is also known as bolus drinking, which is a relatively rare phenomenon: R. v. Paszczenko, 2010 ONCA 615, [2010] O.J. No. 3974 (C.A.) at ¶ 27. In order for the court to rely on the expert’s opinion, the Crown must disprove bolus drinking on a case-by-case basis. However, there exists a practical evidentiary burden on the accused, not to persuade or convince the trier of fact that there was bolus drinking involved, but to point to something in the evidence (either in the Crown's case, or in evidence led by the defence) that at least puts the possibility that the accused had engaged in bolus drinking in play: R. v. Paszczenko, at ¶ 32 and 34. In assessing whether or not bolus drinking is in play in a given case, triers of fact may resort to a common sense inference in such circumstances, namely, that people do not normally ingest large amounts of alcohol just prior to, or while, driving: R. v. Paszczenko, at ¶ 29

[28.] In Mr. Baxter’s case, the defence submits that because the police saw him leave a bar and was stopped within a minute of driving, bolus drinking is in play. The defence also points to Dr. Corbett’s evidence that drinking 5.3 standard drinks within forty-five minutes of driving may render a driver’s blood alcohol concentration at 2:34 a.m. to be 80 and be 170 at 5:15 a.m.

[29.] In assessing whether bolus drinking was in play in this case, I take into account all of the evidence including the following:

(a) Mr. Baxter was driving his car in an unusual manner;

(b) Mr. Baxter was obviously intoxicated by alcohol when he was stopped after driving for less than one minute after leaving the bar;

(c) Mr. Baxter had nothing alcoholic to drink after he was stopped;

(d) Mr. Baxter’s level of intoxication remained reasonably constant from the time he was stopped until the end of the breath testing procedures; and

(e) The common sense inference that normal people do not ingest large amounts of alcohol shortly before getting into their car and driving. In particular, it is difficult to picture anyone swallowing a whole drink every nine minutes over forty-five minutes.

[30.] In all of the circumstances of this case, I do not find that bolus drinking is in play. If it is, I am satisfied that the Crown has disproved bolus drinking.

3.4: Conclusion

[31.] For the reasons given, I find that Dr. Corbett’s expert opinion regarding the blood alcohol concentration of Mr. Baxter when he was driving at 2:34 a.m. was based on assumptions that were all proven. Therefore, the Crown has proven beyond a reasonable doubt that Mr. Baxter operated a motor vehicle with a blood alcohol concentration in the range of 176 to 223 milligrams of alcohol per one hundred millilitres of blood, well in excess of the proscribed limit.

4.0: Was Mr. Baxter’s right under s.10(b) of the Charter violated?

4.1: Facts

[32.] Mr. Baxter was stopped by the police at 2:34 a.m. He was arrested for impaired driving at 2:38 a.m. Between 2:40 and 2:41 a.m. P.C. Cissek provided Mr. Baxter with detailed rights to counsel. Mr. Baxter told the officer that he did not wish to speak to a lawyer right away but did wish to speak with officers to dispose of the matter then and there without charges being pressed.

[33.] On arriving at the police station at 3:02 a.m. P.C. Cissek was asked by Mr. Baxter to call his father, Douglas Baxter, because his father knew a lawyer. At 3:14 a.m., P.C. Cissek called Douglas Baxter who provided the name and address of a lawyer, one Denzel Walker, but not the lawyer’s phone number. P.C. Cissek did not permit Mr. Baxter to speak with his father directly because Mr. Baxter was being belligerent with police. P.C. Cissek also said that he usually does not let detainees speak with anyone other than lawyers because he does not know what they will talk about. P.C. Cissek always calls third parties on behalf of detainees.

[34.] P.C. Cissek found a phone number for a lawyer named Walker Dalzell in Mississauga. At 3:22 a.m., and in the presence of Mr. Baxter, P.C. Cissek called Mr. Dalzell’s number. No one answered the phone and there was no way to leave a message. P.C. Cissek told Mr. Baxter that he could not contact Mr. Dalzell. P.C. Cissek did not give Mr. Baxter an opportunity to look for the lawyer’s phone number, nor did Mr. Baxter ask to do so.

[35.] At 3:24 a.m., P.C. Cissek called Duty Counsel to provide Mr. Baxter with legal advice. P.C. Cissek could not recall if Mr. Baxter requested Duty Counsel and could not recall if Mr. Baxter complained about Duty Counsel being called for him.

[36.] At 3:41 a.m. Mr. Baxter told P.C. Rawlinson that he just wanted to blow and get it over with. He also said, “What good is a lawyer going to do me?”

[37.] At 3:46 a.m. Duty Counsel called the station. Mr. Baxter spoke with Duty Counsel for three minutes, completing his conversation at 3:49 a.m. P.C. Cissek did not recall Mr. Baxter complaining about Duty Counsel to him and could not recall if Mr. Baxter made any other requests regarding legal advice. Later, Mr. Baxter complained to P.C. Rawlinson that he could not understand Duty Counsel because the lawyer was Asian. He said he wanted a lawyer who spoke English. He told P.C. Rawlinson “I couldn’t fucking understand the first Duty Counsel Shing Shaw Wong or something like that.” He also said, “The first lawyer spoke very bad English and I couldn’t understand what he said. Many immigrants can’t illiterate English.”

[38.] P.C. Rawlinson testified that although he did not speak with the first Duty Counsel personally, he believed the lawyer spoke English because standard protocol for Legal Aid is to supply English-speaking lawyers unless a subject requests otherwise.

[39.] At 4:10 a.m. Duty Counsel called back and Mr. Baxter was taken out to speak with Duty Counsel again, but he did not wish to speak with the lawyer because he wanted one who spoke English. There was no evidence whether the Duty Counsel who called back was the same lawyer with whom Mr. Baxter had spoken earlier. Mr. Baxter did not speak to the second Duty Counsel to determine whether or not there was a language problem.

[40.] P.C. Rawlinson told Mr. Baxter that Duty Counsel recorded their calls with clients. P.C. Rawlinson testified that he was not sure of the source of this belief, but figured that any lawyer would keep a record of his conversation with a client in case of a complaint. This was a reasonable belief, whether it was true or not. Mr. Baxter was upset at the suggestion Duty Counsel recorded their calls. He questioned the confidentiality of his call with Duty Counsel by telling P.C. Rawlinson “Since they are a police lawyer, you will hear it.” P.C. Rawlinson tried to tell Mr. Baxter he was wrong but had a hard time getting a word in edge-wise with Mr. Baxter.

[41.] P.C. Rawlinson called Mr. Baxter’s father to get an alternative phone number for Mr. Dalzell. No such number was forthcoming at that time but the police were given three phone numbers for Mr. Dalzell’s associate Mr. Dean Allison. Mr. Allison was called immediately by Rawlinson at all three numbers in the Accused’s presence. For each number called, no one answered but Rawlinson left messages for Mr. Allison to call back as soon as possible. Neither Mr. Dalzell nor Mr. Allison ever called the station.

[42.] At 4:22 a.m. Mr. Baxter asked to speak with an English-speaking Duty Counsel, who was again called on his behalf.

[43.] At 4:27 a.m., Duty Counsel called back. Mr. Baxter said he wouldn’t speak with Duty Counsel until he had gone to the washroom. When he was finished, Mr. Baxter did not want to speak with Duty Counsel and was returned to the breath room where he continued to insist on speaking with Walker Dalzell. Mr. Baxter was asked why he would not speak with a different Duty Counsel. He said, “Because I want to speak with my own lawyer. It’s not my fault he can’t be reached at five in the morning!”

[44.] P.C. Rawlinson asked Mr. Baxter if there was someone else whom the police could call to get an alternative phone number for Mr. Dalzell. The Accused said that he wanted to call his bookkeeper, Erline Hale, but did not know her phone number. Consequently, P.C. Rawlinson called Mr. Baxter’s father again to try to get a number for Ms. Hale, who could not supply her phone number, but he did give P.C. Rawlinson another number for Mr. Dalzell. When Rawlinson called the second phone number for Mr. Dalzell, the phone just kept ringing without ever being picked up.

[45.] When Mr. Baxter insisted on speaking with his father, P.C. Rawlinson refused. Mr. Baxter then stated, “I’m pissed off. I’m hammered and I am belligerent. I need a lawyer. I need Walker.” Mr. Baxter told P.C. Rawlinson that he did not trust the police to speak with his father to contact a lawyer and wanted to speak with his father personally. P.C. Rawlinson explained that the only reason to allow a person to speak with a third party was to get contact information for counsel. Since Mr. Baxter’s father had already given that information to the police, there was no need to permit direct contact between him and his father.

[46.] P.C. Rawlinson read Mr. Baxter’s right to counsel after calling Mr. Dalzell and Mr. Allison, but it seemed that he could not get through a sentence without being interrupted by Mr. Baxter. When asked if he understood that he has the right to call a lawyer, Mr. Baxter stated, “No.” When asked if he understood he could speak with the lawyer of his choice, Mr. Baxter said, “No.” When told he could speak with a legal aid lawyer now, Mr. Baxter said, “No.” When P.C. Rawlinson told Mr. Baxter that the police had exhausted all efforts to call his lawyer and that Mr. Baxter had two opportunities to speak with Duty Counsel, Mr. Baxter exclaimed, “I’ve been jimmy jacked!”

[47.] P.C. Rawlinson asked Mr. Baxter if he was injured. Mr. Baxter replied, “I have been mentally injured by nonsense and my wrists hurt from the cuffs.” Later on Mr. Baxter insisted on being cuffed, which the police declined to do. When asked if he had any physical handicaps, Mr. Baxter stated, “My inability to understand how police officers pick and choose about what to do and where to go.” P.C. Rawlinson told Mr. Baxter that he did not have to answer any questions, but he did have to provide breath samples, to which Mr. Baxter said, “You are putting me in a mind trap.”

[48.] The breath room video was played as part of a voluntariness voir dire, but both counsel agreed it was also germane to Mr. Baxter’s s.10(b) Charter application. With respect to demeanour, P.C. Rawlinson was plain spoken, patient and professional. Mr. Baxter, on the other hand, was always aggressive, interrupting, and unwilling to listen.

[49.] Mr. Baxter constantly insisted that he did not understand his rights, to which P.C. Rawlinson kept telling Mr. Baxter that he was refusing to listen. Mr. Baxter repeatedly stated that the police were intimidating and threatening him.

4.2: Applicable Legal Principles

[50.] The police must give rights to counsel to a detained or arrested person before acquiring and testing breath samples and they must provide the person a reasonable opportunity to exercise those rights; R. v. Brydges (1990), 1990 123 (SCC), 53 C.C.C. (3d) 330 (S.C.C.). What constitutes a reasonable opportunity will depend on all the surrounding circumstances: R. v. Prosper, (1994) 1994 65 (SCC), 92 C.C.C. (3d) 353 (S.C.C.), p. 375.

[51.] Where the police assist the Accused in exercising his rights to counsel, the police must be reasonably diligent: R. v. Wilding, 2006 40497 (ON SC), [2006] O.J. No. 4784 (S.C.J.), aff’d 2007 ONCA 853, [2007] O.J. No. 4776 (C.A.). While police must be reasonably diligent in assisting the Accused in exercising his right to counsel, they are not required to exhaust all reasonable means for a detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288, [2010] O.J. No. 952 (S.C.J.) ¶ 46 – 67. Police are not required to provide the detainee with a phone book: R. v. Sharma, [2004] O.J. No. 2991 (S.C.J.) at ¶ 9.

[52.] Where the police make good faith efforts, the detainee cannot prove a breach of s. 10(b) by simply identifying some feasible act the police failed to take in order to contact counsel of choice: R. v. Blackett, [2006] O.J. No. 2999 (S.C.J.). The test is not whether the police could have done more, but whether the police provided the accused with the necessary information and assistance to allow the accused a reasonable opportunity to exercise his rights: R. v. Gentile, [2008] O.J. No. 3664 (S.C.J.) at ¶ 24.

[53.] A detainee is required to be reasonably diligent in the pursuit of his rights. The detainee has the right to choose his own counsel and it is only if the lawyer chosen cannot be available after a reasonable delay that the detainee should be expected to exercise his right to counsel by calling another lawyer, including Duty Counsel: R. v. Leclair and Ross (1989), 1989 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at page 135; R. v. Littleford, 2001 8559 (ON CA), [2001] O.J. No. 2437 (C.A.); R. v. Richfield (2003), 2003 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.); R. v. Van Binnendyk, [2007] O.J. No. 2899 (C.A.); R. v. Brown, 2009 NBCA 27, [2009] N.B.J. No. 143 (C.A.) at ¶ 20 – 27; R. v. Willier (2010), 2010 ONSC 5067, 259 C.C.C. (3d) 353 (S.C.C.).

[54.] The right to counsel is not breached where the police do not allow a second consultation on the basis of the detainee’s bald statement that he did not understand his rights. R. v. Sinclair, 2011 SCC 40, [2011] S.C.J. No. 40 established a two-pronged test to determine if a detained person is entitled to a second consultation with counsel: first there must be a change in circumstances and second the change must establish on an objective basis that the defendant requires further consultation: R. v. Harhay, 2011 ONSC 1605 (S.C.J.)

[55.] The police must generally permit the detainee to contact a third party, such as a spouse, parent, neighbour, or paralegal, etc. to facilitate contact with counsel: R. v. Tremblay (1987), 1987 28 (SCC), 37 C.C.C. (3d) 565 (S.C.C.); R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.). There is no obligation on the police to permit the detainee to speak to the third party directly so long as the police make contact in order to facilitate the exercise of the right to counsel.

4.3: Analysis

[56.] In the case at bar, Mr. Baxter had three opportunities to speak with Duty Counsel. He actually spoke to Duty Counsel between 3:46 and 3:49 a.m. He did not speak to the second Duty Counsel when they called back at 4:10. At 4:22 he asked to speak with an English-speaking Duty Counsel. Mr. Baxter did not want to talk to the third Duty Counsel who called the station at 4:27 a.m.

[57.] Mr. Baxter complained to the police that the first Duty Counsel did not speak English well enough for him to understand. Mr. Baxter did not testify nor was any evidence led that the legal aid lawyer was not proficient in English. The purpose of the legal aid Duty Counsel is to communicate immediate legal advice to a detainee. In a province where the first language of most citizens is English, it is common sense that Legal Aid would not use a lawyer as Duty Counsel unless he was able to communicate proficiently in English. When Duty Counsel called back at 4:10 a.m., Mr. Baxter declined to speak with that lawyer because he wanted one who spoke English. He made no effort to talk to the second or third lawyers to be satisfied that they spoke English. It was unreasonable for Mr. Baxter to have taken this course of action.

[58.] On the video, Mr. Baxter also complained that Duty Counsel were “police lawyers” and did not trust the confidentiality of the conversation. I am asked to conclude that this was because P.C. Rawlinson said that he believed the calls were recorded but there was no evidence led at trial of this. It was unreasonable for Mr. Baxter to not even speak to Duty Counsel to ask questions for himself regarding confidentiality, especially when he asked to speak with an English-speaking Duty Counsel at 4:22 a.m. and then declined to talk to them when they called at 4:27 a.m..

[59.] Mr. Baxter complains that he was not allowed to speak to his father, or have access to the internet or phone books to look up numbers for a lawyer. The purpose of permitting self-directed inquiries or inquiries of third parties is to get contact information for a lawyer. Here, there was no need to allow Mr. Baxter to personally conduct the searches because the police did it for him and did so more than once. The police obtained numbers and alternate numbers for two lawyers, neither of whom could be reached. The police made many reasonable efforts to reach private counsel and to put Mr. Baxter in consultation with Duty Counsel over a period of nearly one and three-quarter hours between 3:14 and 4:54 a.m.

[60.] Assessing all of the circumstances, two things are clear. The first is that the police acted reasonably and diligently in attempting to facilitate Mr. Baxter’s right to counsel. The second is that Mr. Baxter was not reasonably diligent in pursuing legal advice. His exclamation, “I want to speak with my own lawyer. It’s not my fault he can’t be reached at five in the morning!” spoke volumes about the limited responsibility Mr. Baxter took in exercising his right to counsel diligently. It was unreasonable for Mr. Baxter not to speak with Duty Counsel, particularly on the second and third occasions when he could have discussed his concerns about language and confidentiality with them but he chose not to at his own peril.

4.4: Conclusion

[61.] I find that Mr. Baxter has failed to establish on a balance of probabilities that his right to counsel pursuant to s.10(b) of the Charter was breached in this case.

5.0: Was Mr. Baxter’s right under s.9 of the Charter violated?

5.1: Facts

[62.] The last breath test was at 5:15 a.m. Mr. Baxter was served with the usual documentation associated with drinking and driving offences at 5:40 a.m. and he was released unconditionally on a Promise to Appear at 10:48 a.m., just over five hours later.

[63.] The decisions to release a person and the timing of that release is the responsibility of the Staff Sergeant in charge of the police division, and not of any of the investigating officers. The Staff Sergeant did not testify at this trial. P.C. Cissek told the Staff Sergeant results of Mr. Baxter’s breath tests. P.C. Vanderhorden testified that the Staff Sergeant had dealings with Mr. Baxter when he was lodged into the station and booked, at time during which Mr. Baxter was belligerent and drunk.

[64.] P.C. Cissek testified that in his experience, blood alcohol concentration is taken into account. He said that intoxicated persons charged with driving offences are not released until their blood alcohol concentration drops to the legal limit, based on a rate of elimination of 20 milligrams of alcohol in one hundred millilitres of blood per hour. He said this is done for the person’s safety and to prevent repetition of a driving offence.

[65.] The police were aware that Mr. Baxter had no criminal record and no outstanding charges. They knew his motor vehicle had been seized and towed. They were not concerned that Mr. Baxter would not appear in court. P.C. Rawlinson told Mr. Baxter in the breath room that he would be released when he sobered up. When Mr. Baxter asked Rawlinson if his father was coming to the station, Rawlinson told him that he was. P.C. Rawlinson saw Mr. Baxter’s father in the parking lot as the officer was leaving the station, but Rawlinson could not recall what time that was.

[66.] Mr. Baxter led no evidence concerning his s.9 Charter application. In particular no evidence was led as to what his father did, or did not do, once he got to the police station.

[67.] Mr. Baxter submits that he was arbitrarily detained because he was “over held” by the police; that is, he should have been released from custody long before he was. He further submits that the appropriate remedy is a judicial stay of proceedings pursuant to section 24(1) of the Charter.

5.2: Applicable Legal Principles

[68.] Mr. Baxter filed numerous precedents stretching from 1985 to 2009 in support of his argument. Many of these cases are from Peel Region. They include R. v. Handley (unreported summary conviction appeal endorsement of Langdon, SCJ April 5, 1993); R. v. Metlin (unreported decision of Duncan, OCJ April 2, 1998); R. v. Ewart (unreported decision of Hawke, OCJ April 15, 1999); R. v. Badrinarayan (unreported decision of Duncan, OCJ December 1, 1999); R. v. Owen (unreported decision of Hawke, OCJ July 26, 2001); R. v. Patterson (unreported summary conviction appeal judgment of Wein, SCJ September 2, 2004); R. v. Longfield (unreported decision of Campling, OCJ December 28, 2007); R. v. Tikaram, 2008 ONCJ 124, [2008] O.J. No. 1086 (OCJ); R. v. Dunn (unreported decision of Campling, OCJ March 6, 2009); R. v. Price (unreported decision of Duncan, OCJ April 9, 2009); and R. v. Alcorn (unreported summary conviction appeal judgment of Van Rensburg, SCJ September 25, 2009).

[69.] Section 9 of the Charter guarantees that everyone has the right to be free from arbitrary detention. The burden is upon the applicant to present a prima facie case that calls for an answer by the Crown. The length of the detention itself may establish a prima facie case where the duration is considerable: R. v. Iseler (2004), 2004 34583 (ON CA), 190 C.C.C. (3d) 11 (Ont. C.A.) at ¶ 22.

[70.] Section 498 of the Criminal Code mandates the release of an arrested person as soon as practicable unless it is believed on reasonable grounds that it is necessary in the public interest that the person be detained. Reasonable public interest grounds include the need to detain charged intoxicated persons until they are sober and safe to be released: R. v. Sapusak, supra.; R. v. Coulter, [2000] O.J. No. 3452 (O.C.J.), affirmed [2001] O.J. No. 5608 (S.C.J.); R. v. Padda, [2003] O.J. No. 5502 (O.C.J.); R. v. Gaudette, [2005] O.J. No. 2399 (O.C.J.), reversed for other reasons, [2006] O.J. No. 3732 (S.C.J); R. v. Kisil, 2009 ONCJ 424, [2009] O.J. No. 3821 (O.C.J.); and R. v. Prentice, 2009 ONCJ 708, [2009] O.J. No 6001 (O.C.J.).

[71.] A police policy that looks to the level of intoxication of the detainee is a reasonable component in the assessment of when to release a detainee: R. v. Handley (unreported summary conviction appeal endorsement of Langdon, SCJ April 5, 1993); Coulter, [2001] O.J. No. 5608 (S.C.J.); R. v. Campbell, [1995] O.J. No. 2975 (S.C.J.); R. v. McGovern, supra.; and R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.) at ¶ 92. However, relying solely on the blood alcohol level is too narrow a focus. The releasing officer must also take into account all of the circumstances: R. v. Price at ¶ 93.

5.3: Analysis

[72.] In my view, the five hour period of detention in this case was not long enough to establish a prima facie breach of s.9 of the Charter. The detention, while not short, was of a modest duration. This case does not fall within the class of cases where the Crown should be required to explain the detention.

[73.] If an explanation by the police was required, it is found in the evidence led. Although Mr. Baxter did not have outstanding charges, had no criminal record, his car was towed, and he was subject to an administrative licence suspension, there were a number of factors that militated against immediate release. They included the following: Mr. Baxter was volatile and belligerent. He was drunk. He was charged with impaired driving as well as driving with excess alcohol. Mr. Baxter insisted to the police that he did not comprehend what was going on. His decision to drive while intoxicated disclosed recent poor judgment. It is not at all clear that there was a responsible person willing to pick him up. Although his father drove to station, there was no evidence that he ever entered the station to retrieve his son or what happened after his arrival.

[74.] The police in this case did not slavishly adhere to the Peel Police policy of tying the timing of release to the decrease in blood alcohol concentration. Mr. Baxter was released well before the policy would have otherwise dictated had it been strictly followed. Had they done so, Mr. Baxter would not have been released before 8.5 hours had passed.[^1] From P.C. Cissek’s evidence, it would appear that consideration was also taken for Mr. Baxter’s safety and a desire to prevent repetition of the offence.

[75.] Assessing the totality of the known circumstances, I cannot conclude that the approximately five hour detention was arbitrary in the sense of it being capricious, despotic, tyrannical or autocratic. There is no evidence that Mr. Baxter was detained for an improper purpose. The burden was upon him to prove an arbitrary detention on a balance of probabilities. Given Mr. Baxter’s intoxication, his blood alcohol concentration of more than twice the legal limit, his belligerent attitude, and the absence of any evidence that his father would have taken responsibility for him, I find that he has failed to demonstrate that his post-offence detention was arbitrary.

5.4: Conclusion

[76.] Mr. Baxter’s s.9 Charter application is dismissed.Even if Mr. Baxter’s s.9 Charter right had been breached in this case, a stay of proceedings would not have been an appropriate remedy: Iseler, supra. Perhaps a reduction in sentence may have been an appropriate remedy had a breach been established: Price, supra.

6.0: Was Mr. Baxter’s right under s.11(b) of the Charter violated?

6.1: Facts

Charge to First Trial Date

[77.] On February 17, 2010 the Applicant was charged and released unconditionally by means of a Promise to Appear.

[78.] The Applicant’s first appearance in court was one-half month later on March 4, 2010. He appeared personally and disclosure was provided to him at that time. The matter was adjourned at his request for one month to April 1, 2010 in order to retain counsel.

[79.] On April 1, 2010 Mr. Lent appeared as counsel. At his request, the case was adjourned for three weeks to April 22, 2010 to set a date for trial. On April 1, 2010 the Crown was prepared to set a trial at that time.

[80.] On April 19, 2010 Mr. Lent conducted a resolution meeting with counsel from the Peel Crown Attorney’s Office. The parties agreed that the Crown intended to call three witnesses, including two police officers. When asked if he anticipated any motions or applications, Mr. Lent said that he would be bringing his usual, broad Charter application. The parties mutually decided that one full day of court time was required. In discussing the trial time needed, Mr. Lent did not say that he was bringing a section 9 post-offence arbitrary detention application.

[81.] On April 22, 2010 the matter was set down for a one day trial eight months in the future on December 17, 2010in Court 307. When the trial date was set, the Applicant did not appear personally, but was represented by an agent who appeared for both him and counsel. December 17 was the first date offered by the trial coordinator to the parties. When the trial date was set, a letter from Mr. Lent was filed stating that he was available on any one of fifty-three days between May 26, 2010 and the trial date offered.

[82.] On December 2, 2010 Mr. Lent filed an omnibus Application alleging breaches of the Applicant’s rights under sections 7, 8, 9, 10(a), and 10(b) of the Charter. His application also included a claim of post-offence arbitrary detention.

The First Trial Date: December 17, 2010

[83.] On the first trial date, the matter was moved from its scheduled trial court list and placed in what is known in Peel Region as the “T.B.A. Court” which is a hub for matters waiting to find a home for trial. The matter came before me at 11:45 a.m. when my court had become available to hear the case. I was told that the central issues were the sections 8, 9 and 10(b) Charter applications. When asked about admissions, Mr. Lent admitted the expertise of the Crown’s toxicologist and the identity of his client as the driver. The Applicant was arraigned on both charges and the trial commenced. The Crown told me that she was calling five witnesses, two more than discussed at the resolution meeting.

[84.] The evidence of the first prosecution witness, P.C. Cissek, occupied the entirety of the available court time that day. More court time was required to complete the matter. Crown counsel, Ms. Watson, and Mr. Lent both assured me that one more court date was needed for the four remaining prosecution witnesses and for a defence.

[85.] Both counsel attended the trial coordinator’s office to set a continuation date. The trial coordinator offered six dates: January 4, 5; April 28; May 10, 17 and 18, 2011. The defence was not available for the first five dates offered. The defence did not indicate that it was available for any dates beyond those offered. The prosecution was not available for January 4 or May 10. Both parties accepted May 18, 2011 and the trial was adjourned to that date.

The Second Trial Date: May 18, 2011

[86.] This 11(b) Charter Application was dated and filed on May 2, 2011. The factum that accompanied the application lacked any specifics as to how the legal principles of such matters apply to this case. The application record contained an affidavit sworn by the Applicant on March 3, 2011. Mr. Baxter was in a position to bring this application in advance of the second trial date but made no efforts to do so. Equally important, he was in a position to address the matter much earlier on a “speak to” basis to inform the court of the 11(b) Application and to attempt to adjust the amount of court time required to not only complete the trial, but to argue the 11(b) whether in advance or at the end of the evidence, but he did not do so.

[87.] At the outset of the second trial date of May 18, 2011 I decided to complete the evidentiary portion of the trial before considering this Application. Prior to hearing more evidence, Ms. Watson informed me that she was required to appear before another judge on a sentencing matter at 11:00 a.m. for about twenty minutes. I said that we would take the customary twenty minute morning break at that time to accommodate her. Ms. Watson did not return until an hour had passed.

[88.] Despite the interruption due to Ms. Watson’s double booking, further trial evidence was taken and completed from P.C. Vanderhorden and P.C. Matlashewski, as well as the forensic toxicologist, Dr. Michael Corbett.

[89.] After the two officers and the toxicologist had come and gone, Ms. Watson informed me that she would be seeking a ruling of the voluntariness of utterances made by the Applicant to the qualified technician, P.C. Rawlinson, on video over the course of one and a-half hours in the breath room. She was seeking the ruling so as to be able to cross-examine the Applicant if he testified and gave contradictory evidence. Both counsel acknowledged that the issue of voluntariness had not been discussed either at the resolution meeting in April, 2010 or at any time before or during the trial itself. Mr. Lent was not prepared to make any admissions.

[90.] P.C. Rawlinson commenced his evidence in chief but time ran out, bringing the second trial date to a close. More time was required to complete P.C. Rawlinson’s evidence and for the Crown to recall Officers Cissek, Vanderhorden, and Matlashewski on the voluntariness voir dire. Time was also needed for any possible defence evidence on (a) the evidentiary voir dire and, (b) on the Charter Applications and the trial itself. In her responding factum on the 11(b) Charter Application, Ms. Watson had forecasted that two more days might be needed to complete the case. However, in court both she and Mr. Lent agreed that only one more day was needed.

[91.] When they went to the trial coordinator, counsel were offered May 19, June 9, July 19, August 16 and 30, September 13, October 3, 5 and 11, 2011. The Crown was available for all dates offered by the court. The first five available dates for the defence were May 25, July 8, 14 and 15 October 11. The parties agreed to continue the trial on October 11, 2011.

The Third Trial Date: October 11, 2011

[92.] The trial continued for a third day on October 11, 2011. P.C. Rawlinson completed his trial evidence. Officers Cissek, Vanderhorden, and Matlashewski gave evidence on the voluntariness voir dire. The defence called no evidence on the voluntariness voir dire. Following submissions, I gave an oral ruling that the utterances made by the Applicant to P.C. Rawlinson were voluntary. This brought the Crown’s case to a close. The defence called no evidence on the Charter Applications or the trial proper. The evidentiary portion of the trial completed at around 3:30 p.m. on the third trial date. Rather than commence their submissions, both counsel asked to start and complete them on another day. Both counsel agreed that a full day would be necessary in order to make submissions and, if possible, receive rulings and judgment if needed.

[93.] When they went to the trial coordinator counsel were offered October 17, 24 and December 30, 2011 as continuation dates. The Crown was available for all dates offered by the court except October 17. The first available dates for the defence were November 4, 28, 29; December 6, 16, 22 and 30. The parties agreed to continue the trial on December 30, 2011.

The Fourth Trial Date: December 30, 2011

[94.] On December 30, 2011 counsel made submissions. Both counsel’s submissions on the merits of the case and the sections 9 and 10(b) Charter applications took over three hours. Their submissions on the 11(b) Charter application took nearly one and a-half hours.

[95.] The entire day was consumed by submissions. No time was left for me to make any rulings or give judgment. Both counsel agreed to return on February 7, 2012 for judgment.

The Fifth Trial Date: February 7, 2012

[96.] On February 7, 2012 I was able to provide my judgment and reasons.

6.2: Applicable Legal Principles

[97.] All citizens enjoy the right to be tried within a reasonable time as enshrined in section 11(b) of the Canadian Charter of Rights and Freedoms. It is presumed that the state has respected that right and the burden is on the Applicant to establish on a balance of a probabilities that he was not tried within a reasonable time: R. v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.).

[98.] There is no cut-off or stale date at which the length of the trial process becomes automatically unreasonable. The determination of whether a delay has been unreasonable requires an assessment of the entire time from the time of the charge to the end of the trial: R. v. Allen (1997), 1996 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.), affirmed 1997 331 (SCC), 119 C.C.C. (3d) 1 (S.C.C.); R. v. Morin, supra at ¶ 32 – 36.

[99.] Some delay in bringing a matter to trial is inevitable. In assessing whether the entire time is unreasonable, courts must balance a myriad of factors identified by the Supreme Court in Morin, supra. Those factors are:

(a) The length of the delay;

(b) The waiver of any delay by the Applicant;

(c) The reasons for the delay, including:

(i.) The inherent time requirements of the case;

(ii.) The actions of the Accused/Applicant;

(iii.) The actions of the Crown including the police;

(iv.) Limits on institutional resources; and

(v.) Other reasons for delay; and

(d) Prejudice to the Applicant caused by the delay.

6.3: Analysis of the Morin Factors

6.3.1: Length of the Delay

[100.] An inquiry under section 11(b) of the Charter should only happen where the total delay of the case is sufficiently lengthy to mandate a review. In this case, the Applicant was charged on February 17, 2010. The trial started on December 17, 2010 but did not finish. Since then matter has been dealt with on May 18, October 11, December 30, 2011 and February 7, 2012. The total length of the delay in this case is 23¾ months. The parties agree that the delay is sufficient to require an assessment of the unreasonableness, if any, of that time period.

6.3.2: Waiver of Time Periods

[101.] The parties agree that the Applicant has not waived any delay in this case.

6.3.3: The Reasons for the Delay

(i) Inherent Time Requirements

[102.] The concept of “inherent time requirements” encompasses several different aspects: (a) the intake period of the case; (b) the court time required to try the case; (c) adjournments required to find additional court time to try the case when the initial time estimates prove inaccurate; and (d) the complexity of the case: R. v. Ferguson, 2005 28538 (ON SC), [2005] O.J. No. 3442 (S.C.J.) at ¶140 – 149. Reasonable time to prepare is considered part of the inherent time requirements of a case: R. v. M.(N.N.) (2006), 2006 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.). The inherent time requirements of a case are considered neutral in the 11(b) analysis and are not included in systemic delay: R. v. Ferguson, supra.; R. v. Shyshkin, [2007] O.J. No. 1821 (S.C.J.).

(a) Intake

[103.] In this case, the intake period was two months, being February 17 to April 22, 2010 which was the time between the laying of the charges and the setting of the first trial date.

(b) Court Time to Try the Case

[104.] At the resolution meeting prior to setting the trial date of April 22, 2011, it was agreed between Mr. Lent and Crown counsel that the case would take one day to adjudicate. This estimate was made on the basis that the Crown case comprised three witnesses with the defence advancing only the “usual” applications. The estimate did not include consideration of a voluntariness voir dire by the Crown nor of a post-offence arbitrary detention Charter application by the Defence.

[105.] In Brampton the court day in Ontario Court commences at 10:00 a.m. and concludes at 4:30 p.m. Out of that six and one-half hour period, there are nearly two hours in breaks to accommodate recesses and lunch. Therefore, a court day in Peel Region allows for a maximum of four and a-half hours for actual litigation.

[106.] Since the advent of the Charter nearly thirty years ago, trial time for many cases involving Charter claims, particularly in drink-drive cases, has ballooned. It is very common that drink-drive cases with Charter issues take more than one court day to complete. This reality was recently recognized by Code, J in the case of R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 where he noted:

158 ... It will be remembered that Darlene Morin was charged with both impaired driving and "over 80". On the trial date, in early 1989, her counsel argued the s. 11(b) Motion unsuccessfully and then conducted the trial on the merits. The Crown called the arresting officer and the breathalyzer technician and filed one exhibit (the breathalyzer certificate of analysis). No defence evidence was called. The trial evidence was described as "brief, covering only thirty-eight pages of trial transcript". The entire case, including the s. 11(b) Motion, must have taken no more than an hour, or two hours at the most. See: R. v. Morin (1990), 1990 10952 (ON CA), 55 C.C.C. (3d) 209 at pp. 217-218 (Ont. C.A.).

159 Modern drinking and driving trials, such as the cases under appeal, bear no resemblance to Morin's Case. In Lahiry, a full day was set aside for a one witness trial and Motion. In Davidson, two full days were set aside for the trial and a further half day was set aside for the Motion. In Carreira, four hours was scheduled for trial but then it expanded and ended up taking between two and three full days. Four hours was scheduled for the Shelson trial.

160 The Supreme Court of Canada was setting standards for short, efficient, high volume summary trials in Morin's Case. The four cases under appeal do not fit this description….

[107.] In this case, as in many others I have been involved with, Mr. Lent was exhaustive in his examination of witnesses and in his submissions. His thorough and detailed style in this matter is typical of the extreme care with which he approaches all of his cases. However, in order to conduct trials in this way, the price Mr. Lent and his clients must pay is to recognize that this stratagem will probably result in a great deal more time being needed to conduct the trial. I find that more often than not, a matter in which Mr. Lent is counsel will take more than one day to complete. This is not in any way a criticism of counsel who is a highly skilled and capable barrister, but is an acknowledgment of the reality that his cases usually require a large amount of time to litigate.

[108.] In this case, the trial estimate of one day (or 4.5 real hours) was utterly inadequate. In my view, the inherent time needed to litigate a case with three prosecution witnesses, no voluntariness application and with no defence applications may well be finished in one day. However, where video statements greater than an hour in length and comprehensive defence Charter challenges such the ones made here are involved, more time would be needed. For a three-witness prosecution case and a full Charter defence probably not less than 1.5 to 2 days would be needed. Where, as here, the Crown nearly doubled its complement of witnesses to prove voluntariness of a 1.5 hour breath room DVD recording, even more trial is required, probably in the range of two-plus days.

[109.] Had both counsel made more realistic time estimates back in April 2010 I am sure that two or more days would have been easier to find, and closer together, in the winter of 2010 or spring of 2011 instead of spreading the case piecemeal into late 2011 and early 2012.

(c) Adjournments to find additional time to try the case

[110.] On the first trial date the case got off to a slow start. It did not come before a judge until 11:45 a.m. from the “T.B.A. court” thereby reducing the available court time by nearly half. Evidence was heard from only one of five Crown witnesses over the time that was available. Counsel estimated that another full day was needed to finish the trial.

[111.] In calculating the time requirements for the next day, Mr. Lent did not tell the Crown or me that he would be necessarily increasing court time by filing this application. Had I been made aware on December 17, 2010 that this application would be made, more than one day would have been selected including a date in advance of the second trial date to deal with the 11(b) application.

[112.] On May 18, 2011 the trial continued after I abated the adjudication of the 11(b) Charter Application. But for Ms. Watson going to another court for an hour to deal with an unrelated case, the entire day was consumed with prosecution evidence. Even if this case had not been interrupted by Ms. Watson’s absence, the case would not have been completed on the second day. This is borne out by the fact that on the third date, October 11, P.C. Rawlinson’s evidence alone took 2.5 hours to complete.

[113.] The proceedings on October 11 included three officers on the voluntariness voir dire and my ruling on that topic. The defence elected to call no evidence. The proceedings ended at around 3:30 so that the parties could make their submissions on the case without having to bifurcate them. Submissions were then made on December 30, 2011 at which time the entire day was taken up with those submissions, leaving no time for judgment.

[114.] The delay between December 30, 2011 and February 7, 2012 to permit time to consider and prepare my judgment and reasons is neutral time.

[115.] The case was originally estimated by both sides to take one court day, but it actually took four days and had to be adjourned to a fifth day for judgment. In total, more than half a day was lost because of the late start on the first trial day and because of Ms. Watson’s obligations to another court on the second trial date. Despite this lost time, many adjournments were necessary to accommodate what had now become a three-plus day trial due mainly to entirely inadequate estimates of time and incomplete pre-trial assessment of issues by both sides.

(d) Complexity of the case

[116.] This case involves two charges of drinking and driving offences. It involves an expert witness for the prosecution in addition to the usual police witnesses. It involves an evidentiary issue of voluntariness. The case involves claims that the Applicant’s rights were violated at the time of the investigation and after. Thus, there are some complexities to the matter that elevates it beyond a straightforward case. This was a case that would warrant more, and not less, time to try by its nature and characteristics.

(ii) Actions of the Applicant

[117.] The Applicant submits that he has done nothing to cause the delay. He submits that he has acted promptly to move the matter on to trial by setting a trial after being in the system for only two months. He submits that on the first trial date he was ready and able to commence at ten o'clock and complete the case by 4:30.

[118.] I find that the Applicant has contributed to the delay of the case due to a serious underestimation of trial time. As Justice Durno observed in Ferguson, supra at paragraph 152:

152 While an accused is not obliged to facilitate a prosecution, defence counsel as officers of the court owe a duty to the court, and to their client, to be candid in their trial time estimates, providing informed opinions as to the anticipated length of trial, so that the case and others are appropriately scheduled. Court time is a precious commodity. Counsel providing an uninformed or misleading (unintentionally or otherwise) opinion as to the time required for trial, fails in his or her duty to the court and to the client. In addition, counsel who provides such an opinion, places the client's chances of succeeding on an alleged of s. 11(b) in serious jeopardy.

[119.] A motion for a stay of proceedings for a section 11(b) breach is ordinarily argued before trial absent unusual circumstances: R. v. Pioneer Construction Inc., 2006 15621 (ON CA), [2006] O.J. No. 1874 (C.A.). Where an accused believes that his or her s. 11(b) rights have been infringed or are in jeopardy, there is an obligation on the accused and counsel to bring it to the attention of the court: R. v. Ampofo, [2005] O.J. No. 188 (S.C.J.) at ¶ 24. An applicant is entitled to bring their application, however he must accept the reasonable delays that occur as a consequence of the additional step in the procedure: R. v. N.N.M., 2006 14957 (ON CA), [2006] O.J. No. 1802 (C.A.). If a defendant feels the date for the trial offends s. 11(b) of the Charter, then an Application should be brought on in a timely way, preferably in advance of the trial date: R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 (S.C.J.) at ¶ 40.

[120.] The Applicant’s affidavit in support of this application was sworn March 2, 2011, two months before it was filed on May 2, 2011. Clearly counsel was prepared to bring this application well ahead of the second trial date but chose not do so. It is not uncommon, for example, that counsel wishing to adjourn a case will bring an application on notice well in advance of the fixed date. It would have been both possible and desirable for the Applicant to have brought this application to the attention of the Crown, the trial coordinator and the court on December 17, 2010 when setting the second trial date.

[121.] By (a) not discussing the time needed to bring this application with the court, the Crown, or the trial coordinator on April 18 and (b) not scheduling the application for a date in advance of the second trial date, the Applicant generated unnecessary delay. Most importantly, extra time should have been booked as soon as Mr. Baxter decided to bring the 11(b) Charter application. This could have been easily accomplished by bringing the matter forward to do so.

[122.] The defence’s gross underestimation of trial time, including the failure to discuss the s. 9 Charter “overholding” application contributed to the delay. Mr. Lent took more than half a day to make submissions on the trial proper, and too further time to make detailed submissions for this 11(b) Charter application. Considering that the Defence submissions for the trial issue took half a day, there was no way that the entire trial could every have started and finished in one day.

(iii) Actions of the Crown

[123.] The actions of the Crown have also contributed to the delay in this case. Those actions include (a) the strategic decision by the Crown to add two more witness to the original roster of three, and (b) raising the voluntariness issue in the middle of trial that required witnesses to be recalled for the voir dire. These actions all added to the trial time requirements. To a lesser degree, the unfortunate double-booking by Ms. Watson on the second trial date contributed to delay by causing this case to lose about one hour, or just under a quarter of a day of trial time.

[124.] In addition, the prosecution bears equal responsibility alongside the defence for severely underestimating the time required to try this case. The Crown should have considered the size of its complement of witnesses and the issue of voluntariness before setting a trial date in the first instance. The Crown, like the defence, continued to make poor time estimates whenever a subsequent trial date was required

(iv) Limitations on Institutional Resources

[125.] The Applicant submits that limitations on institutional resources contributed to an unreasonable delay of his trial. He submits that he was always ready and able to move the case forward quickly. He submits further that he was denied the opportunity to begin his case at ten o'clock by being bumped from his assigned trial court to the “TBA Court”.

[126.] With respect to being ready to proceed without delay, defence counsel was available for more than fifty dates between May 26 and December 17, 2010. The first date the court offered for a one day trial was December 17, 2010.

[127.] The trial coordinator offered the parties numerous dates on each occasion when additional trial time was being sought. Many of those dates were rejected by either or both of the Crown and the defence. In setting the first trial date, the trial coordinator offered dates starting very close to the date that had just finished.

[128.] On the facts before me, there was an 8 month delay between the set date and the first trial date. The earliest date Mr. Lent was ready to proceed was May 26, or one month after the set date. I would view one month as neutral and seven months as institutional delay in this time period: R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.) at ¶ 32.

[129.] There was a five month delay between the first trial date and the second trial date. Mr. Lent rejected all dates offered by the court between January 4 and May 17, 2011. The Crown rejected January 4 and May 10. Of these five months, none appears to be the result of limits on institutional resources but rather the unavailability of one or both counsel.

[130.] There was a delay of 4¾ months between the second and third trial dates. This delay was caused by two main reasons. The first and most important reason is that the parties had yet again not adequately estimated the trial time when setting the time needed after the first trial date. The second reason was the Crown’s decision to conduct a voluntariness voir dire, thereby requiring witnesses to be recalled. I attribute two months of the delay to actions of the Crown and 1¾ months as neutral.

[131.] With respect to the delay of 2¾ months between the third and fourth trial dates, this delay was caused by the parties’ ongoing woeful time-estimating abilities and in part to accommodate the time requirements to deal with this 11(b) Charter application. I assign one month of delay to actions of the applicant and 1¾ months as neutral time.

[132.] I find that the total institutional delay is seven months. In Peel Region, the guideline for bringing a matter to trial in Ontario Court is eight to nine months of institutional delay: R. v. Meisner, [2003] O.J. No. 1948 (S.C.J.) affirmed 2004 30221 (ON CA), [2004] O.J. No. 3812 (C.A.); R. v. Rego, 2005 40718 (ON CA), [2005] O.J. No. 4768 (C.A.); R. v. Reed, [2005] O.J. No. 5618 (S.C.J.). A guideline, by definition, is not a bright line or hard-and-fast rule: R. v. Amyotte, [2009] O.J. No. 5122 (S.C.J.).

[133.] I disagree with the Applicant that the majority of the delay was caused by limits on institutional resources. Most of the delay was caused by adjournments required to find additional court time when the initial time estimates proved inaccurate: R. v. Allen, supra; R. v. Qureshi, 2004 40657 (ON CA), [2004] O.J. No. 4711 (C.A.). The actions of both parties also contributed to the delay.

[134.] Overall, the trial coordinator offered a number of dates over meaningful ranges of times when further time was required. This was not a case where only a small number dates were offered too close to the most recent court date.

[135.] With respect to the delay in commencing the trial on time on December 17, 2010, the defence submits that this contributed to the unreasonableness of the delay. Even though everybody wants their trial to start spot-on at 10:00 a.m., the reality is that our trial system tolerates some delay caused by overbooking provincial court trial lists. Sometimes this means that cases do not start on time, such as here. Sometimes, the case is not reached at all on the day that it was scheduled for.

[136.] This case was brought before me at 11:45. It was certainly after the start of court, but early enough to begin the trial and get a meaningful piece of it done. However, as I have repeatedly said in this ruling, even if this case was placed before a judge and evidence started promptly at ten o'clock, it would not have finished in one day due to the grossly insufficient time booked for it.

(v) Other Reasons for Delay

[137.] I am not able to find any other reasons for delay beyond the ones I have already discussed.

6.4: Prejudice

[138.] The Applicant submits both general and specific prejudice due to the delay in concluding this matter within 23¾ months. The Crown submits that the Applicant has suffered no prejudice that should attract any remedy by this court.

6.4.1: General Prejudice

[139.] Section 11(b) of the Charter is designed to guard against prejudicing a person’s rights to (i) liberty, (ii) security of the person, and (iii) to make full answer and defence: R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26 (S.C.C.). In the case at bar, it is the second and third rights that must be assessed as Mr. Baxter’s liberty interests were not affected.

[140.] Prejudice to these rights can be inferred the longer the overall delay. Delay, in and of itself, can be expected to have a detrimental effect on a fair trial: R. v. Godin, supra.; R. v. Brace (2010), 2010 ONCA 689, 104 O.R. (3d) 32 (C.A.). Suffering the effects of overloading court lists can cause prejudice: R. v. Yorke, unreported decision of Cowan, O.C.J. (March 9, 2007).

[141.] Conduct of the Applicant which is inconsistent with a desire for a timely trial is something that the court must consider in evaluating the degree of prejudice, if any, suffered by the accused: R. v. Morin, supra, at ¶ 62.

[142.] Prejudice to the Applicant must be balanced with society’s interest in adjudicating matters on their merits: Morin, supra at ¶ 26 – 30; R. v. Seegmiller, 2004 46219 (ON CA), [2004] O.J. No. 5004 (C.A.); R. v. Kporwodu, 2005 11389 (ON CA), [2005] O.J. No. 1405 (C.A.). This balancing of the Applicant’s interests and society’s interest in a trial on the merits is even more important where the charges are serious: R. v. Seegmiller, supra. Drinking and driving offences are serious crimes: R. v. Bernshaw (1995), 1995 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.).

6.4.2: Specific Prejudice

[143.] In his affidavit, the Applicant states that since being charged he has suffered emotional stress associated with the potential penal and other consequences of conviction. This stress is due mainly to being charged. Accordingly such stress has a modest impact on the 11(b) analysis.

[144.] The Applicant also says that he has suffered specific prejudice from having to pay legal fees for several trial dates. Had the lawyers for both sides made realistic trial time estimates, the Applicant was going to have to pay for more well more than one day of his counsel’s time in any event.

[145.] He also submits that the passage of time may adversely affect the memory of all witnesses including him. The prejudice that may inure due to memory lapse is nearly absent given his decision to not testify. Erosion of the memories of prosecution witnesses could only be to his advantage.

[146.] Actions of the Applicant are relevant to the assessment of specific prejudice such as whether he puts the Crown on notice, on a timely basis, of the prejudice he is suffering. See: R. v. Vertlib, [2006] O.J. No. 660 (S.C.J.), affirmed [2008] O.J. No. 1223 (C.A.).

6.4.3: Assessment of Prejudice

[147.] In assessing the general and specific prejudice alleged or inferred, much of it is a self-inflicted wound created by (a) the manifestly inadequate initial and subsequent trial time estimates and (b) the time-consuming strategy of highly detailed and exhaustive examination of witnesses and submissions: R. v. Zardo, [2009] O.J. No. 1215 (S.C.J.).

[148.] Had this case been more efficiently and effectively managed starting at the resolution meeting in April 2010, it would have been completed a long time ago instead of being spread out intermittently over many, many extra months. I find that any prejudice suffered by the Applicant in the totality of these circumstances to be marginal and not extraordinary.

6.5: Conclusions

[149.] The delay in this case between February 19, 2010 and February 7, 2012 is 23¾ months. My findings of the reasons for delay and their apportionment are as follows:

Inherent Time Requirements: 13¾ months

(intake, not ready for trial,

inadequate trial time and issue estimates,

and time to prepare judgment and reasons)

Actions of the Applicant: 1 month

Actions of the Crown: 2 months

Limits on Institutional Resources: 7 months

Total Delay: 23¾ months

[150.] In assessing whether or not the delay in this case was unreasonable, I have taken into account the following:

(a) The actions of both sides contributed to the delay. Each made tactical and strategic choices that caused delay;

(b) Multiple trial dates were needed because both parties were completely unrealistic in their time estimates and each made incomplete assessments of the issues prior to setting the matter down for trial;

(c) Institutional delay was within the guidelines for Peel Region;

(d) Systemic delay and actions by the Crown account for 9 months of the delay, and

(e) The prejudice to the Applicant was minimal as there is no detrimental impact on the Applicant’s fair trial rights and security interests.

[151.] Balancing all of the factors set out by the Supreme Court in Morin, and for all the reasons set out herein, I find that the Applicant has failed to establish on a balance of probabilities that the delay between February 17, 2010 and February 7, 2012 is unreasonable in all of the circumstances. The sum of the systemic delay and delay caused by actions of the Crown is nine months, which is within the tolerable range for Peel Region. The large majority of the delay was the result of the inherent time requirements and is neutral. Mr. Baxter’s application under section 11(b) of the Charter is dismissed.

7.0: Conclusions

[152.] The Crown has proven both counts beyond a reasonable doubt. Mr. Baxter has not established that any of his rights under sections 9, 10(b) and 11(b) of the Charter have been violated.

[153.] Mr. Baxter is found guilty of count 1, Impaired Driving and he is found guilty of count 2, Driving with Excess Blood Alcohol. The Crown will advise me which count a conviction is to be registered and which count I should judicially stay.

Richard H.K. Schwarzl,

Justice of the Ontario Court of Justice

[^1]: The lowest test result of 170mg% divided by a rate of elimination of 20 mg%/hr.