Court File and Parties

Court File No.: TORONTO Date: 2013-04-22 Ontario Court of Justice

Between: Her Majesty the Queen — and — Nickolas Katrakis

Before: Justice F. Bhabha

Heard on: February 21st, 2013

S. 11(b) Ruling released on: Monday, April 22nd, 2013

Counsel:

• M. Galluzzo, for the Crown
• A. Gold, for the accused Nickolas Katrakis

Decision

BHABHA, J.:

[1] Nickolas Katrakis is charged with one count of impaired driving and one count of driving with excess blood alcohol. His trial is scheduled to take place on April 22, 2013.

[2] On February 21st, 2013 he brought an application for stay of proceedings under section 24(1) of the Charter on the basis that his right to be tried within a reasonable time has been violated.

[3] By his calculation the total delay is in excess of thirteen months. He begins his calculation from the date of his arrest to the trial date with no allowances for intake etcetera. On this basis, it exceeds the upper guideline by more than three months.

[4] Having reviewed the materials filed on the application, the submissions of counsel and the authorities referred to, I have concluded that the application ought to be dismissed. In essence, I find the institutional delay falls within the Morin guidelines. Moreover, there is little to no evidence of real prejudice. Finally, the societal interest in a trial on the merits militates against a stay. These are my reasons for my ruling.

The Test for Unreasonable Delay

[5] The test for assessing whether the applicant has met the onus of satisfying the court that there has been unreasonable delay is well established. The court is required to consider the following four factors before the final balancing stage of the analysis which requires consideration of the societal interest in a trial on the merits:

i) the length of the delay; ii) waiver of any time periods; iii) reason or explanation for the delay; and iv) prejudice.

Application of the Test to the Present Case

i) Length of Delay

[6] In the seminal decisions of R. v. Askov (1990), 59 C.C.C. (3d) 449 (S.C.C.) and R. v. Morin (1992), 1 C.C.C. (3d) 1 at p. 18 (S.C.C.) the Supreme Court of Canada set a guideline of eight to ten months institutional delay for most cases in the Ontario Court of Justice.

[7] The applicant submits that the guideline has been exceeded in the circumstances of this case and that the stay is therefore warranted in all the circumstances having regard to all four of the factors enumerated above. The overall delay in this case whether calculated from the arrest or the laying of the Information warrants scrutiny. The two most relevant factors are the reasons for the delay and prejudice.

Relevant Timeline

[8] The relevant history and dates in this case are as follows:

• March 1st 2012 – the applicant is arrested, charged with impaired driving and driving "over 80" and released on a Promise to Appear and an Undertaking with a court date of April 12th 2012;

• March 27th 2012 – the Information is sworn.

• April 12th 2012 – the applicant has his 1st court appearance and receives initial disclosure.

• April 18th 2012 – defence counsel request additional disclosure of sixteen (16) specified items.

• April 24th 2012 – the applicant has his 2nd court appearance. The Crown requires time to review the request for additional disclosure and follow-up.

• May 8th 2012 – the Crown advises the defence that some of the requested items have been ordered.

• May 14th 2012 – the defence reminds the Crown that disclosure remains outstanding.

• May 15th 2012 – the applicant has his 3rd court appearance. Further disclosure is provided, but "substantial" disclosure remains outstanding. Crown suggests Crown pre-trial be conducted and defence submits a pre-trial request form.

• May 29th 2012 – the Crown advises the defence that some disclosure has been ordered.

• June 4th 2012 – the defence sends a follow up letter to the Crown advising that disclosure remains outstanding.

• June 5th 2012 – the applicant has his 4th appearance. No pre-trial has been set despite a defence request that one be set. The matter is adjourned to June 19, 2012.

• June 14th 2012 – the Crown pre-trial is conducted and the defence is advised that any outstanding disclosure has been ordered.

• June 19th 2012 – the applicant has his 5th appearance. The trial date is scheduled for the first available date: April 22, 2013. The defence states earlier availability on the record and reiterates that although some disclosure was provided, a number of items remain outstanding.

• January 15th 2013 – the defence receives disclosure relating to the ASD calibration and maintenance and three DVDs regarding the applicant's booking and in car video. Sound is lacking from much of the in car video.

• January 18th 2013 – the defence follows up on a disclosure request for a better copy of the in car video (one with sound) as well as other disclosure items.

Applicant's Position

[9] Firstly, relating to the length of the delay the applicant calculates the total length of the delay in this case to be thirteen (13) months and twenty (22) days starting from the applicant's arrest until the trial date. This is a departure from the long and well-established practice of calculating the delay beginning with the laying of the Information. See: R. v. Kalanj; R. v. Morin, R. v. Lahiry. I will address the correctness of the applicant's approach in including pre-charge delay in calculating overall delay for s.11(b) purposes further in these reasons.

[10] Using the conventional methodology, the applicant notes that the length of the total delay from the laying of the Information until the trial date to be twelve (12) months and twenty (26) days. This period of time does not account for what is referred to as "intake" period or for "trial preparation or readiness", both of which are recognized and considered in the established and binding jurisprudence.

[11] The applicant calculates the delay from the day the trial date was set the trial date to be ten (10) months and three (3) days. The respondent does not take issue with this calculation. It represents the "pure" or minimum institutional delay in this case.

[12] The applicant relies to a great extent on the recent decision of my colleague Clements, J in R. v. Murphy which was released in February of this year. In Murphy, the period of institutional delay was nine and a half months which when combined with Crown delay amounted to a total of ten months and five days. This period of time was slightly in excess of the Morin guideline. A stay was entered. In my view there are a number of reasons why I ought not to adopt the reasoning of my esteemed colleague in Murphy.

[13] Firstly, in calculating the delay in Murphy, Clements, J also calculated the delay beginning with the date of the charge. Unlike this case, the delay was a matter of days not weeks. Nevertheless, the decision is silent on the Kalanj issue.

[14] Secondly, the factual circumstances in Murphy are different from those in this case in that the applicant was required to return to court to address disclosure issues even after the trial date was set. Clements, J found that given the delay in providing disclosure that the applicant had in fact suffered prejudice in that he did not know for several months after setting the date, the full nature or extent of the case he had to meet. [There was no specific allegation of prejudice].

[15] Lastly, while the Murphy decision speaks specifically to delay issues experienced in this courthouse, the decision is currently under appeal.

Waiver

[16] Turning now to the issue of waiver. Neither party alleges any waiver by the defence of any portion of the delay in this case.

Explanation for the Delay

[17] The Applicant submits that "virtually the entirety of the delay in this matter is attributable to the Crown and institutional delay, and that none of the delay can be attributed to the applicant".

[18] The record confirms and I accept that the defendant acted with dispatch in: retaining counsel, making timely disclosure requests, following up with the Crown and requesting a Crown pre-trial. However, the applicant's submission and calculation of total delay and the institutional delay ignores three important aspects of assessing delay. Firstly, on the issue of pre-charge delay, this court is bound by jurisprudence from the Supreme Court of Canada and the Ontario Court of Appeal. Secondly, with respect to delay related to intake, it is a well-accepted notion that allowance must be made for a reasonable amount of delay to complete intake functions. Lastly, even for counsel who are extremely experienced in a particular area of the law such as drinking and driving cases, a reasonable amount of time must be allowed for trial preparation and readiness. However minimal the trial preparation required by experienced counsel, it cannot be assumed in every case that counsel either needs no time at all to prepare for the trial or that the trial can be immediately accommodated into his or her schedule.

The Pre-Charge Delay

[19] In this case three weeks passed between the date of arrest (March 1st 2012) and the date the Information was sworn (March 21st 2012). The applicant asks the court to include these three weeks of "pre-charge" delay into the s. 11(b) calculus.

[20] In criminal courts across Canada it is widely understood and accepted as a binding proposition that section 11(b) protects persons "charged with an offence". In the seminal case of R. v. Kalanj, [1998] S.C.J. No. 71, the Supreme Court of Canada held that for the purposes of s. 11(b), a person is "charged with an offence" within the meaning of the provision "when an Information has been sworn alleging an offence against him or her..."

[21] The applicant submits that Kalanj, supra, ought not to be given the broad and blanket application is has come to be given regarding pre-charge delay. Mr. Gold, relying on R. v. Eadie, [2005] O.J. No. 5711, a decision of Babe, J of the Ontario Court of Justice argues that on the facts of the Kalanj case, prior to the laying of the Information, the defendants were simply under investigation. Their liberty was not formally restricted nor were they subject to any process, such as a Promise to Appear. In contrast, in the case at bar, the defendant was required to attend court and was in jeopardy of criminal consequences had he failed to comply with the Promise to Appear and Undertaking. Mr. Gold submits that in a very real sense, he had the looming charge hanging over his head from the time of his arrest. For all intents he submits his client was charged: the Promise to Appear indicated the charge he would be responding to.

[22] Firstly, the facts in Eadie, supra, were somewhat unique. After his arrest the accused was released on a promise to appear. There was a one month delay between the date of arrest and the first appearance date. When the defendant did appear in court one month as required there was an administrative "glitch" in that a sworn Information was not before the court. The defendant was released again and nothing happened in terms of moving the case forward between the first appearance until four months later when an Information was ultimately laid. In that case the defendant was rearrested and appeared in court after new process was issued. Obviously, the defendant was considerably inconvenienced by the administrative "foul-up".

[23] The Supreme Court of Canada noted at paragraph 21 of Kalanj that in such cases, other remedies both under other provisions of the Charter or at common law may be available and more appropriate:

It has been considered that special circumstances could arise which, in the interests of justice, would require some consideration of pre-charge delay because of prejudice which could result from its occurrence. In my view, however, the exceptional cases should be dealt with by reliance on the general rules of law and, where necessary, the other sections of the Charter. This approach would take account of and meet the concerns caused by the possibility of pre-charge delays. Delays which occur at the pre-charge stage are not immune from the law outside the scope of s. 11(b). The Criminal Code itself in ss. 577(3) and 737(1) protects the right to make full answer and defence should it be prejudiced by pre-charge delay. Section 455.1 provides for a prompt swearing of an information where an appearance notice has been issued or an accused has been released from custody under ss. 452 or 453. As well, the doctrine of abuse of process may be called in aid and as early as 1844 the common law demonstrated that it was capable of dealing with pre-information delays. // …//

In addition, given the broad wording of s. 7 and the other Charter provisions referred to above, it is not, in my view, necessary to distort the words of s. 11(b) in order to guard against a pre-charge delay. (Emphasis added)

[24] Secondly, the position the applicant advances in this case was in fact carefully considered by the Supreme Court of Canada in Kalanj and rejected. At paragraphs 11 of the decision the court observed that:

The word "charged" or "charge" is not one of fixed or unvarying meaning at law. It may be and is used in a variety of ways to describe a variety of events. A person is clearly charged with an offence when a charge is read out to him in court and he is called upon to plead. Many authorities support this view if authorities support this view if authority is necessary: see R. v. Chabot, [1980] 2 S.C.R. 985, and the cases cited therein. A person could be considered in a general or popular sense to be charged with an offence when informed by one in authority that "you will be summoned to court" or upon an arrest when in answer to a demand to know what all this is about an officer replies: "You are arrested for murder". There are many other occasions when in the popular mind a person may be said to be charged for, according to Professor Mewett in An Introduction to the Criminal Process in Canada (1988), the word "charge" has no precise meaning at law but merely means that steps are being taken which in the normal course will lead to a criminal prosecution. However, despite what may be termed the imprecision of the word "charge" or the phrase "a person charged", the courts are faced with the task of developing a meaning of the word as used in s.11 of the Charter.

[25] The Court ultimately concluded at paragraph 16 that the term "charged" does not have a flexible meaning varying with the circumstances of the case". //...// A person is "charged with an offence" within the meaning of s.11 of the Charter when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn. As such, the Court concluded that "pre-charge delay is not a factor for consideration under s.11(b)".

[26] The Supreme Court of Canada and the Court of Appeal for Ontario in number of cases following Kalanj have adopted the reasoning in Kalanj, without making any distinction for cases where some sort of process has been issued requiring the accused to attend court or otherwise.

[27] For example, four years following Kalanj, the Supreme Court of Canada in another seminal case: R. v. Morin, [1992] S.C.J. No. 25 at paragraph 35, held that: "pre-charge delay may in certain circumstances have an influence on the overall determination as to whether post-charge delay is unreasonable but of itself is not counted in determining the length of the delay." (emphasis added)

[28] Thirteen years following the Morin decision the Court of Appeal for Ontario in the case of R. v. Kporwodu, [2005] O.J. No. 1405 at paragraph 31 reiterated that: "a trial judge may not include pre-charge delay in a s. 11(b) analysis as a remedy for perceived s. 7 and s. 11(d) breaches.

[29] In the more recent case of R. v. Lahiry, [2011] O.J. No. 5071, Justice Code of the Superior Court of Justice sitting as a summary conviction appeal court in summarizing the history the proceedings in that case began with the date on which accused was charged rather than the arrest date. This is a clear indication of the binding authority of Kalanj.

[30] This court considers itself bound by the long line of established authorities following Kalanj. In the absence of any clear and binding authority from a Superior Court to the contrary, the three weeks of pre-charge delay in this case cannot be considered in calculating the total delay.

The Intake Period

[31] The applicant has failed to make any allowance for a reasonable intake period in calculating the total delay in this case. This is in error and contrary to well-established and binding authority.

[32] In R. v. Lahiry, [2011] ONSC 6780 (S.C.J.) at paragraphs 19-24, Justice Code reiterated that binding authorities such as R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.) and R. v. Meisner (2003), 57 W.C.B. recognize that even in an "extremely simple case with one Crown witness" such as Lahiry, supra, a normal and neutral intake period" and of the disclosure process in particular that takes place during this time.

[33] In the particular circumstance of this case, the defence made a request for sixteen (16) additional items of disclosure six days after the applicant's first appearance on April 12, 2012.

[34] The request for additional disclosure included:

1. the notes of all officers who had dealings with the applicant, including cell and booking officers;

2. complete copies of the demands read to the applicant;

3. any videotape or images of the applicant in police custody, including booking, cell, in car and any other videos;

4. notes of any ambulance and fire crews were tendered the scene of the incident;

5. all relevant police, fire crew and ambulance communications with corresponding communication logs, and mobile data transmissions or searches, including complete copies of all recordings, computer screens and printouts, and 911 communications (this request includes any and all audio communications as well as ICAD reports, event details or other logs of any such transmissions) [Receipt of the Event Chronology provided in disclosure was confirmed];

6. all information from any computer inquiries and answers of any police databases in relation to the applicant or his vehicle;

7. complete copies of any and all photographs or other images taken at the scene of the incident;

8. all records regarding the Standard Alcohol Solution;

9. a copy of all paper Intoxylizer Test recordings of diagnostic tests, calibration checks, maintenance records, and usage logs for 30 days prior to the investigation of the present charge;

10. the electronic data (including ADAMS or COBRA data) or a print out of it from the instrument used to analyze samples of the applicant's breath from and including the earliest data that has been retained by the instrument up to two years before the applicant's breath samples were tested to the most recent data retained by the instrument up to one year after the date when the applicant's breath samples were tested including the data from the subject tests (tests conducted in the normal testing mode initiated with the start test button), calibration checks (tests conducted in ACA mode), diagnostics tests (at initial start-up and any diagnostics test that are not a programmed part of a subject test) and error messages. Data from any fields identifying the subjects tested relating to the applicant;

11. all reports created at the booking of the applicant including any reports listing the property taken from the applicant;

12. all information including any reports filled out, with respect to searches done on the applicant while in police custody, including strip searches;

13. all disciplinary proceedings, either completed or still pending, for all officers involved;

14. complete copies of the criminal record of all other witnesses including disclosure listing charges, previous police reports, and other material affecting credibility. In the case of police officers, disclosure of all the discipline records;

15. all witness statements including complete copies of all audio/video statements made by any witnesses with corresponding transcript;

16. an inventory, with justifications, of all other material in the possession of the Crown or other authorities relating to this matter and the person involved in this case that is not being disclosed the reason including lack of relevance.

[35] Not surprisingly, not all of the items requested were ready to be disclosed on the second appearance date which was six days later on April 24th, 2012 or even by the time of the third appearance on May 15th, 2012. At the applicant's second appearance on April 24th, 2012, the Crown described the disclosure request as "fairly extensive" and requested a few weeks to allow a response and to make follow-up requests for disclosure to the police. This request by the Crown for time to respond to the extensive disclosure request, I find, was not unreasonable.

[36] Based on my experience in matters involving drinking and driving charges, it would be fair to say that the Crown's description of the disclosure request was accurate. The lengthy disclosure request was extremely thorough and detailed. The Crown did not contest the relevance or appropriateness of any of the items sought. That said, I find that the "extensive" list of additional disclosure in this case can justify a longer than normal intake period. It takes this case outside the "simple" or "ordinary", "run of the mill" drinking and driving case.

[37] In the circumstances of this case it is not necessary for me to determine exactly how much longer an intake period would be appropriate since the trial date was set approximately two months and three weeks from the date the Information was sworn (the period from March 27th to June 19th, 2012).

[38] On the May 15th appearance, the Crown indicated that "initial disclosure was provided on April 12th and further disclosure was made on the 15th of May. The Crown believed that only one item of disclosure was outstanding. Defence advised that a letter had been faxed on May 8th reiterating the request for "all historical data for the Intoxylizer", as well as some officers' notes. At the request of the defence, the matter was put over three weeks. The Crown suggested a Crown pre-trial even without the historical data. The defence obliged but the Crown did not respond. As a result the Crown pre-trial was not conducted until June 14th, 2012. On June 19th, 2012 the trial date was set. The record indicates that all outstanding disclosure was made available to the defence.

[39] Even if the request had been substantially fulfilled at an earlier date, the defence likely would have required some time to review the disclosure.

[40] In the circumstances of this case, given the extensive request for additional disclosure, I find that a two month and three week intake period was not unreasonable. The defence needed some of this time to make the request. The Crown needed time to review it, respond to it and make additional requests of the police, and in turn fulfill some if not all of the request.

[41] Once the intake period is deducted from the equation, the total institutional delay is ten (10) months and 3 days. This calculus does not include trial preparation. Even very experienced counsel will likely require at least a few days to prepare for trial. The delay in this case therefore falls squarely within the eight to ten month guideline set in Morin.

[42] The defence submits that the institutional delay in this case should be at lower end of range, because this was a "routine" case. Even so, the guideline set in Morin is just that, a guideline and not a limit. The absence or presence of other factors such as prejudice may affect the tolerable length of the delay even if it falls within the guideline.

Prejudice

[43] Turning now to the issue of prejudice. The defendant did not file an affidavit setting out any specific prejudice suffered as a result of the delay in getting this matter to trial. Of the three interests that section 11(b) seeks to protect namely, liberty, security of the person, and the right to a fair trial, the only interest that was addressed on this application relating to prejudice was with respect to the security of the person.

[44] Counsel for the applicant relied primarily on the conditions of the applicant's Promise to Appear and Undertaking that required him to notify the officer in charge of any change of address, employment or occupation and to abstain from the consumption of alcohol or other intoxicating substances.

[45] There is no evidence on the record that the applicant ever sought to vary the conditions of his release. In response to an inquiry from the bench counsel submitted that seeking a formal variation would have incurred further costs to the applicant. I find this submission difficult to accept on its face. It is not uncommon for counsel to approach the Crown on an informal basis such as during a Crown pre-trial, for example, to seek a consent variation to the conditions of release. Sometimes the Crown is amenable and sometimes it is not.

[46] There is no evidence in this case that such a request was made or, if made, that it was denied. As such, it is difficult to accept the submission that the applicant was particularly prejudiced by the conditions of his Promise to Appear and Undertaking.

[47] As the court observed in R. v. Kovacs-Tatar, [2004] O.J. No. 4756 (C.A.) at paragraph 37:

Some forms of prejudice such as incarceration pending trial are obvious. Others, such as whether a particular bail condition is an onerous one or whether an accused's health is suffering due to institutional delay, are not so readily apparent. As Arbour, J.A. pointed out at p. 478 of Bennett, 64 C.C.C. (3d) 449 (Ont. C.A.) affirmed [1992] S.C.R. 168: "if an accused is being prejudiced by delay in a less than apparent way, he or she must bear the responsibility for taking the initiative in alleviating that prejudice."

[48] On the issue of inferred prejudice, the applicant cites the decisions of R. v. Kovacs-Tatar, [2004] O.J. No. 4756 (C.A.) and R. v. Osei in support of his position that "an inference of prejudice can, and ought to be drawn from the mere length of the delay".

[49] In the case of Kovacs-Tatar the Court of Appeal at paragraph 33 of the decision noted that "[t]he focus of prejudice under s. 11(b) is the prejudice "flowing form a situation prolonged by delay rather than the mere fact of being charged with a criminal offence".

[50] It is to be noted that the period of institutional delay in Kovacs-Tatar was twelve months, and the total delay from the charge (Information) date to trial was sixteen (16) months, well in excess of the delay in this case. Yet, the court ultimately agreed with the Summary Conviction Appeal court that the delay in those circumstances was not so excessive that a stay was warranted.

[51] In R. v. Osei, [2007] O.J. No. 768 (S.C.J.) Justice Nordheimer in granting a stay of proceedings considered that the delay in that "two step" case was between six and ten months outside the guidelines. Mr. Osei faced serious gun charges and was first denied bail. The Crown twice opposed Mr. Osei's application for release before he was released on a bail review. Even then, he was subject to strict and onerous conditions. In the circumstances, Justice Nordheimer found it was not reasonable for the Crown to expect the applicant to believe that the Crown would be more receptive to his release or terms thereof than it had previously demonstrated. This is different from the circumstances at bar where there was no indication that the Crown was not amenable to a variation of the defendant's bail conditions.

[52] In particular circumstances of Osei, the court concluded that it was clear that the applicant had suffered prejudice arising from the prosecution of serious charges and that that prejudice was exacerbated from the failure of the matter to proceed expeditiously to trial. The circumstances of Osei, I find, stand in sharp contrast to those before me in this case and Justice Nordheimer's comments and findings therefore must be considered in the specific context of the case before him.

[53] Finally, as noted above one cannot lose sight of the fact that while the Morin guideline for constitutionally tolerable delay in the Ontario Court of Justice is eight to ten months. The guideline is just that: a guideline, not a limitation period. Deviations of several months in either direction can be justified by the presence or absence of prejudice: Morin, at p. 807.

[54] In the circumstances, I find that the length of the delay in this case, while on the edge of what is constitutionally tolerable, is not such that the court may simply infer prejudice.

Final Balancing

[55] Even if the court had found that the delay in this case was too "close to the line", or slightly over the line of what is tolerable, the court is still required to balance the four Morin factors against the societal interest in a trial on the merits. In R. v. Godin, 2009 SCC 26, the Supreme Court of Canada revisited and confirmed the R. v. Morin analysis. At paragraph eighteen the court cautions that: "It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka, J. Noted in Morin, at page 787, 'the general approach is not by the application of a mathematical or administrative formula, but rather, by a judicial determination balancing the interest which section 11(b) is designed to protect against factors, which either inevitably lead to delay or are otherwise the cause of".

[56] Drinking and driving is recognized as a serious offence. It has been said to have a far greater impact on Canadian society that any other crime. Given these pronouncements, balancing the societal interest in a trial on the merits is particularly important in drinking and driving cases. See R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 at para. 16 (S.C.C.); R. v. Lahiry, supra, at para. 89. Having balanced the relevant factors, I am of the view that there is a strong societal interest in a trial on the merits. The application is therefore dismissed.

Released: April 22, 2013

Signed: "Justice F. Bhabha"