Court File and Parties

Ontario Court of Justice

Date: 2013-11-19

Court File No.: Kitchener 4461 999 00 5491512A 00

In the Matter of: An appeal under subsection 135(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

Her Majesty the Queen Applicant

— And —

Douglas Quan Respondent

Before: Justice P.A. Hardman

Heard on: May 9, 2013

Reasons for Judgment released on: November 19, 2013

Counsel:

• Mr. D. Dwyer, counsel for the prosecution
• Mr. A. Hamilton, counsel for the defendant Douglas Quan

Reasons for Judgment

Hardman, J.:

Introduction

[1] This is an appeal of the decision made by Justice of the Peace Cuthbertson released January 22, 2013.

[2] The first ruling challenged is the dismissal of the application for a stay under s.11(b) of the Charter seeking a stay for delay. The defendant also challenges his conviction for failing to comply with section 159(3) of the Highway Traffic Act (HTA).

The Charter Motion

[3] The defendant was charged July 2, 2011 and went to trial July 27, 2012. At trial the application seeking a stay of the proceedings due to delay was dismissed.

Chronology of Events

• July 2, 2011 – The defendant was charged; prosecution ready to proceed to trial
• October 14, 2011 – First attendance meeting attended by counsel; a student-at-law from the defendant's lawyer's law firm met with the prosecution to obtain the original disclosure and to set a date for trial; agent advised that the counsel of record was not available for any trial date for five months (March)
• January 12, 2012 – Notice of Trial sent to the defence; trial date set March 28, 2012
• February 27, 2012 – Correspondence from the defendant's counsel seeking further disclosure
• March 12, 2012 – Motion record served seeking a stay of proceedings or in the alternative further disclosure; returnable on the trial date
• March 15, 2012 – Responding correspondence from the prosecution
• March 23, 2012 – Reply correspondence from the defendant's counsel
• March 28, 2012 – Motion and trial before Justice of the Peace Ziegler; motion seeking stay and the trial were adjourned; dates reviewed; clear that counsel and/or defendant not available in the limited open dates in April and May or the seven available dates in June (available two dates but officer not); two dates in July offered by defendant's counsel, second one booked
• July 27, 2012 – Section 11(b) Charter motion and trial

[4] In R. v. Tran 2012 ONCA 18, the Ontario Court of Appeal set out the analytical framework to be used in the consideration of a stay under section 11(b) of the Charter.

[5] First there is the consideration of the overall length of the delay between the laying of the charges and the end of the trial. The question at this stage is whether the delay is enough to warrant the court's scrutiny.

In my view the fact that a trial under the HTA took a year to be heard triggers the scrutiny of the court.

[6] The next step is to consider whether the defendant waived any delay. This is not a factor in this matter. The third step is the analysis of the reasons for the delay.

[7] As I understand it, there is no issue regarding the time frame from July to August.

[8] The first time counsel by agent met with the prosecution and collected the disclosure was October 14, 2011, a date requested by the defendant. It would seem to me that given the comments regarding pre-trials by the Ontario Court of Appeal in Tran and those of subsequent cases such as Mississauga (City) v. Lam, the time from charge to the first attendance meeting should be characterized in this matter as a reasonable delay for intake and a reasonable time to conduct pretrial discussions about possible resolution (Tran, paragraph 34).

[9] On October 14, 2011, as there was no resolution, a date for the trial was being considered. At the meeting, the student at law agent for the defendant's counsel said that the trial could not be booked until March as counsel was not available.

[10] While the trial court seemed unaware of why no trial was booked between October and March 1, 2012, it was the evidence before this court that counsel for the accused was not available. However, that court was aware that counsel was not available between March 1 and March 14, 2012. Therefore the trial date of March 28, 2012 was scheduled.

[11] In R. v. Morin, the Supreme Court acknowledged that there are inherent time requirements to counsel preparing for and being available for trial. That court noted that neither counsel nor prosecutor can be expected to devote all their time to one case (Paragraph 41).

[12] Certainly counsel require time to clear their schedules so they can be available for the hearing as well as time to prepare for the hearing. These time frames are noted in Tran to be "part of the inherent time requirements of the case". That court went on to note that "institutional delay only begins to run when counsel are ready to proceed but the court is unable to accommodate them".

[13] As Code J. noted in R. v. Lahiry (2011) 2011 ONSC 6780, if counsel is "very busy", it may be a considerable length of time before counsel is ready for trial (paragraph 34). This time is necessary for the defendant's counsel of choice to prepare for trial and cannot be said to be caused by "systemic congestion of the court". That court stated that until counsel is available the time does not count. As the court noted, this delay is a "good and useful delay which would have occurred in any event even if the court had earlier dates."

[14] In Lahiry, the court said that "it would be a fiction to characterize this kind of useful delay as unwarranted or unreasonable or prejudicial". Therefore the only institutional delay in this matter is from the time that counsel was ready for trial to the trial date.

[15] Further, that trial date in March ended up not being used for trial because of actions taken by the defendant. Counsel for the defendant sought late disclosure from the prosecution and decided to have a motion for disclosure returnable to that trial day. Then on that day, having had the opportunity to clarify certain evidence from the officer, the defendant did not have his witnesses there to speak to and perhaps be in a position to continue with the trial. The trial had to be adjourned.

[16] Despite having had disclosure since October 14, 2011, there was no request for clarification until February 27, 2012. Then, instead of having the motion returnable ahead of the trial date, the defendant brought the motion to be heard on the trial date. This compromised the ability of the court and the parties to proceed on that date that had only been scheduled for trial.

[17] It is clear that there were a number of dates made available to the parties and that it took until July 27 to find a suitable date.

[18] This was not a case where there were actions by the prosecutor that compromised the time schedule. Nor were there concerns about institutional delay. The court only sits Tuesdays and Thursdays but that appeared to provide ample opportunity to book a trial. The reason for the trial being changed from March 28, 2012 to July 27, 2012 was not the institutional delay that Charter applications attempt to address but simply the actions taken by the defendant.

[19] It is clear that actions voluntarily taken by a defendant should be taken into account in determining what delay is reasonable (Morin, paragraph 44).

[20] I want to comment on the issue of the disclosure sought by the defendant. Certainly the Supreme Court of Canada in R. v. Stinchcombe directed that all relevant information must be disclosed to the defence.

[21] In this matter, there are a number of considerations. First, the request for additional disclosure was not brief and as the court found in R v. O'Bright, October 23, 1997 a number of the items the defendant could have obtained himself.

Secondly, there is no obligation to provide the full evidence of the prosecution's witnesses to the defence. If there were, there could be no direct evidence at trial. Further, the defendant could not be surprised that the officer was going to provide evidence to the court about his failure to comply with section 159 as she was the one who laid the charge.

[22] However, it must be remembered regardless of the nature of the disclosure sought, it was not a failure of proper disclosure that delayed the trial but rather the defendant's decision to bring a late motion seeking disclosure returnable on the date of trial.

[23] Therefore that delay is attributable to the defendant.

[24] The last consideration is whether as a result of the delay there has been prejudice to the defendant. Given the nature of the matter, the defendant has not suffered actual prejudice as he has not been in custody or on strict terms of release that would have interfered with his "security of person" or "liberty". Further, there is no suggestion that the delay has interfered with his ability to have a fair trial as a result of the impairment of the evidence or his ability to meet the case.

[25] Certainly a court can infer prejudice if the time from charge to trial is just too long (Tran, paragraph 23; R. v. Dehaney 2005 ONCJ 468). However, in this matter, there is very little institutional delay that can form the basis for a complaint under 11(b) and support the remedy of a stay. In this case other than inherent delay, the only delay was caused by the late disclosure request and section 11(b) motion returnable on the trial date.

[26] Therefore I apportion the total delay from being charged to trial as one year and twenty five days:

• Inherent requirement of the case – intake and counsel not ready/available for trial: about 7 months+
• Institutional delay: less than a month
• Defendant's delay (to second trial date): 4 months+

[27] At this stage a court is expected to weigh the competing interests between the state and the accused. In her additional reasons, McLachlin J in Morin noted at paragraph 87 the following:

"The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis, the judge before staying the charges, must be satisfied that the interest of the accused and the society in a prompt trial outweighs the interest of society in bringing the accused to trial."

[28] In my view in looking at the reasons for delay, I am satisfied that the application must fail. The threshold case for unreasonable delay has not been made out. The reasons for the delay are in large part attributable to the defendant (Morin, 89).

[29] Even based on the evidentiary findings of the trial court and the time found by that court to be attributable to limits on institutional resources, I agree that the total time found of six months and five days would be below the standard and would not be an unreasonable delay.

[30] I conclude as did His Worship Justice of the Peace Cuthbertson that the Charter Motion should be denied.

The Conviction

Evidence

[31] The evidence before the Justice of the Peace was that of Officer Gamble and Douglas Quan.

[32] Officer Gamble, an officer with 22 years experience with the Ontario Provincial Police, stated that she was on patrol on Highway 401 on July 2, 2011. She testified that there were three lanes in each direction separated by a cement median. She also noted that there was a shoulder to the left of lane number 1, the fast lane, and a shoulder on the right of lane number 3, the slow lane. She said that it was not "pitch black" out but dusk, about 8:30 pm.

[33] She told the court that just prior to this offence she had stopped a motor vehicle on the left shoulder of the 401 for a speeding offence and was dealing with the motorist. All her emergency lighting was on including blue, white and red lights that flashed intermittently. She had issued the Provincial offence notice for speeding to that other party and was walking back toward her patrol vehicle.

[34] The officer noted that it was her practice to watch approaching vehicles while on the side of the road even while issuing a ticket in order to scan for potentially dangerous situations. She said that the shoulder is narrow, just large enough for one vehicle. She noticed that vehicles in the fast lane and the middle lane were moving over to the right lane as they approached her vehicle. She testified that she had seen about 10-11 vehicles in the fast lane pull over to the next lane prior to seeing the defendant's vehicle. She testified that the defendant's vehicle was the only one that failed to pull over into the next lane.

[35] She noticed the defendant's silver Honda approaching her location in the fast lane as she was returning to her vehicle. She said that she got in to the vehicle and watched the car come right by her. She noted that she was in the vehicle waiting for him to pass in order to get out behind him.

She observed that he was going 100 km/hour and while there was no "excessive" speed, there was no reduction of speed.

[36] She told the court that as the defendant's vehicle was approaching her location, he did not move to a different lane despite the fact that there was no traffic obstructing him either behind or beside from doing so. She said that it was not unsafe for the defendant to move over into lane 2.

[37] The officer stated that she left the shoulder with her emergency lighting still on and got behind the vehicle which then moved from lane three to two to one and then on to the right shoulder. She said that when she got out behind him there was no obstruction of the traffic for his vehicle or hers to move from lane one, the left lane, all the way over to the right shoulder. She said that the movement was completed within hundred metres of where she had been parked.

[38] Douglas Quan was the driver of that vehicle and there was a female passenger in the front seat and children in the rear.

[39] The defendant acknowledged that he saw the officer stopped on the left shoulder. He stated that as a result of a left curve he didn't think that he saw her until more or less the last minute. He said that the traffic was normal.

[40] He said that he felt that it was unsafe or not necessarily safe to just pull right over into the next lane. There was other traffic around so he did not change lanes.

[41] In cross-examination, he admitted that he was driving around 100 km/hour as the officer had noted. He acknowledged that that was the maximum posted speed for the 401. When asked if, as he approached the officer, to confirm that he had not changed his speed, the defendant acknowledged that he could not recall whether he had "lifted off on the accelerator". He said that he recalled that it was "fairly light out".

[42] He could not remember seeing other vehicles moving over as they were passing the officer's vehicle but acknowledged that that could have happened. He acknowledged seeing that the officer's emergency lights were on but could not recall if he slowed down. He said that there was traffic, or at least cars, behind him and that he did not feel that it was safe to pull over. He then said that there was traffic in all the lanes.

[43] When asked if there were vehicles behind him he could not recall. Then he said that he "would have" looked in his rear view mirror. The defendant told the court that he did not look in his side-view mirrors.

[44] When asked to describe any vehicles in the lane beside him when he observed the officer's car, he said that there were no vehicles immediately beside him. He said that he did not see the officer in time to shoulder check and move over. He admitted that he did not look to see if it was safe to switch lanes. He said that he was about 100-150 metres from the cruiser when he first saw it.

Analysis

[45] Section 159 deals with "approaching, following emergency vehicles".

Section 159(3) states as follows:

Upon approaching an emergency vehicle with its lamp producing intermittent flashes of red light or red and blue light that is stopped on a highway with two or more lanes of traffic on the same side of the highway as the side on which the emergency vehicle is stopped, the driver of a vehicle travelling in the same lane that the emergency vehicle is stopped in or in a lane that is adjacent to the emergency vehicle, in addition to slowing down and proceeding with caution as required by subsection (2), shall move into another lane if the movement can be made in safety.

[46] Section 159(2) referred to in subsection (3) states:

Upon approaching an emergency vehicle with its lamp producing intermittent flashes of red light or red and blue light that is stopped on a highway, the driver of the vehicle travelling on the same side of the highway shall slow down and proceed with caution, having due regard for traffic on and the conditions of the highway and the weather, to ensure that the driver does not collide with the emergency vehicle or endanger any person outside a motor vehicle.

[47] I agree with Bourque J in York (Regional Municipality) v. Freiman that the offence can be committed in two ways, by not slowing down and proceeding with caution, or not moving to another lane if the movement can be made safely or a combination of the two. However, it is important to note that a driver must both slow down and proceed with caution in the first part of the section.

[48] Therefore it is my view that upon seeing an emergency vehicle on the shoulder of a multi-lane road with its intermittent lights, a driver in the lane next to the shoulder has three obligations: to slow down, proceed with caution AND to change lanes if safe to do so. A failure to comply with any one of these obligations may result in a conviction under section 159(3).

[49] The main issue identified for this court is whether the court should rely on the officer's evidence that the defendant's car did not slow down. Counsel for the defendant acknowledged that this was a change from the trial in the "theory of the case" as speed on its own had not been the "centerpiece" of the trial.

[50] I have a number of concerns about the process. First the trial justice of the peace noted that it was not disputed before him that the defendant "did not reduce his speed while passing the police officer". Now that conclusion is disputed. Further, the police officer's ability to provide the evidence regarding speed was not challenged in the trial, nor was the officer cross-examined on her ability to determine that the defendant had not slowed down. However, both counsel seemed content to deal with the matter on appeal in this fashion.

[51] Counsel for the defendant argued that the officer was not qualified to testify that the vehicle did not slow down. He noted the difficulties faced by the court that accepted bite mark evidence from a police officer in R. v. J.A.A.. He emphasized the fact that in that case the officer's evidence was merely corroborative where in this case the officer's opinion is the central evidence.

[52] While the court must be mindful about the danger of testimony that wanders into the arena of expert opinion, it is clear that police officers do not need to be qualified in a particular way in order to give evidence of a car's failure to slow down. Indeed, a civilian would be able to provide his or her observations regarding a vehicle's speed and change of speed. It would be up to counsel to challenge the reliability of their evidence in cross-examination.

[53] In this case, the officer had actually just finished dealing with another vehicle and a speeding offence. The officer testified that she had been an OPP officer for 22 years. It would seem likely that she had had experience with highway traffic offences.

[54] This section of the Highway Traffic Act was intended to enhance the safety of emergency personnel on the road or side of the road. Someone who happens to be at the roadside may witness the driving of a vehicle in a manner that is unsafe and does not comply with the motorist's obligation. There is no expectation that the police will have to set up a speed gun at every stop to monitor the traffic around them.

[55] As was noted by the Supreme Court of Canada in R. v. Graat, an opinion is an inference from observed fact and that it can be virtually impossible to separate a witness' inference from the facts on which the inference is based. In that case, the court identified a number of areas where non-expert witnesses are allowed to give opinion evidence and included estimates of speed and distance (p. 12). Commenting on the ability of a witness to provide evidence regarding a person's level of impairment, the court noted that the defence could be hampered by the denial of their right to call someone in their company to testify with their opinion. The same difficulty for a defendant could occur if only experts could comment on a vehicle's speed.

[56] While Justice of the Peace Wright in R. v. White commented on the officer's four years of training, that case does not stand for the proposition that only a person with special training can give evidence that a vehicle has or has not slowed down. That is not the case.

[57] In this matter, the defendant told the court that:

• He was traveling on the 401 at the maximum speed of 100 km/hour;
• He acknowledged that he saw the officer on the road some 100-150 metres away with the intermittent lights flashing although he acknowledged that it could have been further;
• He did not recall if he "lifted off the accelerator" to slow down;
• It was "fairly light out" and traffic was normal;
• There was no car beside him;
• He did not shoulder check to see if he could move over; he did not look to see if it was safe to move over;
• He did not check his side view mirror.

[58] There was no evidence at all that the defendant even attempted to brake his vehicle. His evidence about whether he bothered to look in the rear view mirror is somewhat vague. There is no evidence that he tried to slow down.

[59] The officer said that the defendant did not slow his vehicle or make any attempt to move into the middle lane. She noted that she had witnessed 10-11 other vehicles approaching her position on the side of the road that did pull over. Those drivers would have had the same opportunity to view the cruiser as the defendant and yet the defendant was the only one who did not move over. She said it was safe for him to do so. Since the defendant did not even check to see if it was safe to change lanes, he can hardly assert that it was not.

[60] Further, it was the evidence of the officer that in the space of 100 metres she pulled out behind the defendant and followed him across all three lanes to the far shoulder where both vehicles stopped. Surely then the defendant having seen the police cruiser at least 100 metres away would have had time to do something in respect of his obligation to reduce the risk to those stopped on the side of the highway.

[61] The defendant made no effort to try to change lanes. He did not even bother looking to see if it was safe to do so. In order to comply with section 159(3), a driver must actively assess the situation and try to move over.

[62] The only disagreement that this court has with the findings of the trial justice of the peace is this: it would be my view that generally a person who does not attempt to slow down from the maximum posted speed cannot be said to be "proceeding with caution".

[63] Therefore the evidence is clear: the defendant failed to slow down, he failed to proceed with caution and he failed to change lanes when it was safe to do so. Any one of these findings is sufficient to support the conviction.

Decision

Appeal dismissed.

Released: November 19, 2013

Signed: "Justice P.A. Hardman"