Court File and Parties

Ontario Court of Justice

Date: 2014-05-05

Court File No.: St. Thomas, 12-328

Between:

Her Majesty the Queen

— and —

Pavo Ilic

Before: Justice A. Thomas McKay

Heard on: April 3, 2014

Reasons for Judgment released on: May 5, 2014

Counsel:

• Douglas Walker, for the Crown
• Lisa Gunn, for the defendant Pavo Ilic

MCKAY J.:

BACKGROUND

[1] This decision deals with an Application under section 11(b) of the Charter of Rights brought by the defence for a stay of proceedings due to unreasonable delay in this matter reaching a trial date. Mr. Ilic is charged with drinking and driving offences under sections 253(1)(a) and 253(1)(b) of the Criminal Code. The offences are alleged to have occurred on or about 27 January, 2012. First appearance in court took place on February 7, 2012. The Crown elected to proceed by summary conviction.

[2] The case management system in place in St. Thomas provides that when a trial date is set, a confirmation hearing date is also set for a date in advance of the trial date to confirm that the parties are ready to proceed. Both Crown and defence are required to file arraignment hearing reports which confirm the issues which will be raised at trial, and the time needed for trial. The system is designed to avoid high collapse rates and the loss of valuable trial time.

[3] After a relatively brief intake period, the matter was set for trial on June 7, 2012. The matter did not proceed to trial on June 7, 2012, as a result of a defence application for adjournment. The matter was rescheduled for trial October 31, 2012. The matter did not proceed to trial on October 31, 2012, as a result of an application by the defence for an adjournment. The matter was then adjourned to April 17, 2013 for trial, with the confirmation hearing to be held on March 5, 2013.

[4] At the confirmation hearing on March 5, 2013, the defence indicated that on February 13, 2013 the office of the Crown Attorney served an expert report which it intended to rely upon at the trial. There had not been any reference to an expert report at earlier court appearances or in trial confirmation forms which had been filed at earlier hearings. Upon receipt of the expert report, the defence requested additional disclosure. At the confirmation hearing, the defence counsel indicated that rather than confirm the trial on that date, her preference was to have a brief adjournment of the confirmation hearing to deal with the issues arising out of the expert report. The court expressed concern about the state of readiness of the matter for trial and the court struck the matter from the April 17, 2013 trial list.

[5] On April 23, 2013, the parties appeared in court. The defence indicated that there was a possibility of an application pursuant to section 11(b) of the Charter. There was a discussion of potential trial dates. Court offered trial dates of May 29, 2013, and September 12, 16 or 25, 2013. Those dates were available to the Crown, but defence counsel was not available. The court fixed October 23, 2013 as the trial date. The court also fixed September 3, 2013 as the confirmation hearing date, and indicated that any motion brought under section 11(b) of the Charter must be brought far enough in advance of the trial date in order that a decision could be given in advance of the trial date.

[6] On October 23, 2013, the trial did not proceed because of a disclosure issue. While finalizing preparation for the trial, the Crown Attorney with carriage of the file noted that the video of the events which transpired in the Breathalyzer room only depicted the events up to the completion of the first breath test. Upon discovering this, he contacted the police for an explanation. On the morning of October 23, 2013, he was provided with a video which depicted all of the events which transpired in the Breathalyzer room, and he disclosed it to defence counsel that morning.

[7] Given that both parties had expert witnesses present who needed to review the video evidence, the trial was adjourned. The transcript indicates that defence counsel and Crown counsel canvassed dates with all of the witnesses, and arrived at a new trial date of April 3, 2014. There was trial time available February 27, 2014; March 10, 12, 13, 17, 19, 20, and 31, 2014; and April 2 and 3, 2014. Those dates were suitable for the Crown, but not the defence. The matter was set for trial April 3, 2014.

[8] Prior to the April 3, 2014 trial date, the defence brought this Application under section 11(b) of the Charter of Rights, which was served upon the Crown 30 days before the trial date, returnable on the date of trial. This court's rules require that a pretrial application of this nature be heard at least 60 days before the scheduled trial date. The court had directed the defence at an earlier appearance to ensure that if a section 11(b) Application was being brought, it was served and filed early enough that it could be heard well in advance of the scheduled trial date.

[9] This is a relatively straightforward matter. It is a summary conviction trial under section 253. The Crown is seeking to qualify an expert witness from the Center for Forensic Sciences. The defence will also seek to qualify its own expert witness. It is the type of evidence and the type of case that this court hears frequently. It is set for a one day trial.

THE ANALYTICAL FRAMEWORK FOR SECTION 11(b) MOTIONS

[10] Appellate case law makes it clear that motions of this type require the court to analyze four distinct factors: the overall length of delay from the laying of charges until trial concludes; waiver of any individual time periods; the reasons for the various periods of delay; and prejudice to the particular interests of the accused protected by section 11(b). After making a finding of each of these factors, the final balancing stage of the analysis requires consideration of the societal interest in a trial on the merits.

[11] The first factor, the overall length of delay, is simply a triggering mechanism or threshold determination of the excessiveness of the delay. The remaining three factors only need to be considered if the overall period of delay is sufficient in length to raise an issue as to its reasonableness.

[12] The second factor relates to any waiver by the accused of any of the time frames related to delay. The waiver can be expressed or implied, but it must be clear and unequivocal and made with full knowledge of the rights the procedure was enacted to protect. Waiver can be implied from consent to a period of delay where a choice has been made between available options and the actions of the accused amounted to an agreement to the delay rather than mere acquiescence in the inevitable. If a waiver has been found, the period of time which it relates to is simply removed from the section 11(b) analysis and the overall delay is effectively shortened.

[13] The third factor relates to the reasons for delay. It does not involve findings of fault, as there are periods of delay which take place for good or necessary reasons. However, this factor requires an objective analysis of each period of delay in order to determine its cause. The five traditional causes of delay are: the inherent time requirements of the case; any actions of the defence; any actions of the Crown; limits on institutional resources; and other miscellaneous causes such as judicial delays. Once the cause of each period of delay has been objectively determined based upon the evidence, the court then assigns a weight to that period. Delays can be said to weigh against the defence, the Crown, or be neutral. Delays caused by the Crown or by inadequate resources cannot be used to explain delay which is otherwise unreasonable.

[14] The fourth factor relates to prejudice to those interests of the accused which section 11(b) is designed to protect. Specifically, those interests relate to liberty, security of the person, and a fair trial. Prejudice to one or more of those interests may be inferred, without extrinsic evidence, from a very long and unreasonable delay. In other cases where the period of unjustified delay is closer to what might be justifiable, the accused may lead evidence of actual prejudice to one or more of his or her protected interests.

[15] When the four factors have been assessed, the Court should arrive at a period of unjustified or unreasonable delay which weighs against the Crown. The Court should also assess the strength or weakness of the claim to prejudice, as section 11(b) only protects against unreasonable periods of delay which cause prejudice. The court then balances those factors against the societal interest in a trial on the merits.

THE THRESHOLD QUESTION

[16] In this case, a delay of nearly 26 months between the date that the charges were laid and the trial date is sufficiently lengthy to trigger an inquiry into the factors related to the delay.

ANALYSIS OF PERIODS OF DELAY

[17] Counsel have outlined their positions regarding the various time periods of delay. In a number of situations they are in agreement. The Court is not bound by any characterization made by counsel even if counsel agree to a particular characterization. It is the responsibility of the Court to conduct its own analysis. In R. v. Morin, [1992] 1 S.C.R. 771, the Supreme Court established guidelines for institutional delay. Those guidelines have been referred to in additional decisions, including R. v. Godin 2009 SCC 26, [2009] 2 S.C.R. 3. The guideline refers to a period of eight to ten months for institutional delay in provincial courts for a single stage proceeding.

INTAKE PERIOD: January 27, 2012 to June 7, 2012

[18] The timeframe involved in the intake period through to the first trial date, approximately 4 and ½ months, is modest and falls within normal parameters. It is inherent delay.

THE FIRST TRIAL DATE: June 7, 2012

[19] The first trial date on June 7, 2012 did not proceed at the request of the defence. The period of time from June 7, 2012 to the second trial date, October 31, 2012, approximately five months, is attributable to the defence.

THE SECOND TRIAL DATE: October 31, 2012

[20] The second trial date on October 31, 2012 did not proceed at the request of the defence. The period of time from October 31, 2012 to the third trial date, April 17, 2013, approximately 5 ½ months, is attributable to the defence.

THE THIRD TRIAL DATE: April 17, 2013

[21] The third trial date of April 17, 2013, did not proceed because the Justice presiding at the confirmation hearing on March 5, 2013 struck the matter from the April 17th trial list. The issue which arose was the readiness of the parties to proceed to trial on April 17, 2013. The confirmation hearing system is part of the scheduling protocol through which the St. Thomas court location manages its process and attempts to ensure the efficient use of court time.

[22] The issue of readiness for trial arose when the defence raised an issue regarding being served by the Crown with an expert report on February 13, 2013, 20 days before the confirmation hearing, and 63 days before the trial. The defence made the following submission to the Court:

"I also have requested the instructions letter to the expert. I made that request to the Crown's office on February 19, 2013. I haven't received that back yet or response to my request from the Crown. The input that I have, it appears that I will now need to produce a report. I'm waiting for the response to my disclosure request. And so my preference would be not to confirm today, to come back before you again because I may be asking for an adjournment to deal with the expert issues that have now been raised."

[23] The Court then questioned the readiness of the parties for trial. That is understandable, given that the trial was scheduled to take place in 43 days. The uncertainty about whether there would be a request for adjournment led to a concern regarding a trial collapse and the waste of valuable trial time. Given the uncertainty, the Court struck the April 17, 2013 trial date.

[24] There is a significant issue regarding the period of approximately 6 ¼ months between the April 17, 2013 trial date, and the October 23, 2013 trial date. The Crown takes the position that none of this delay should be attributable to the Crown. The Crown properly served notice of its expert report well within the required time frames. The Crown did not request an adjournment of the trial. The defence takes the position that this time frame is not attributable to the defence. The defence position is that it did not ask for an adjournment of the trial date. Rather, it simply identified the fact that it might have to ask for an adjournment to deal with the issues related to the expert report which the Crown now intended to rely upon. Those issues had not been part of the planning for trial on the earlier trial dates which had been adjourned. The defence therefore simply suggested an adjournment of the trial confirmation hearings. The defence position is that the delay for this period is attributable to either the Crown, due to the fact that the Crown had decided to call an expert to give evidence just 63 days before the third trial date, when the Crown had not intended to call an expert on the first two trial dates that had been set. Alternatively, the delay should be attributed to institutional delay, as the court struck the trial date without either counsel asking for an adjournment of the trial.

[25] I agree that the delay is not attributable to the Crown. A criminal prosecution is an evolving matter, and the fact that the Crown decided 63 days before the third trial date to call expert evidence is simply a new development in the trial. The Crown complied with all rules in serving its notice and any delay caused by the matter being struck from the trial list in April is not attributable to the Crown.

[26] I also find that the delay in this period is not attributable to the defence. When faced with a new development in the trial, counsel suggested an adjournment of the confirmation hearing in order to complete addressing all of the issues which arose from that new development.

[27] The Ontario Court of Appeal has provided useful guidance in R. v. Tran 2012 ONCA 18. In that decision, the court reviewed issues related to applications under section 11(b) of the Charter. At paragraph 32 of the decision, the court stated the following:

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

[28] In the Tran decision, the court commented on delay occasioned by the requirement that a judicial pretrial be held. The court commented that a judicial pretrial requirement before a date set is a reasonable and necessary case management tool in busy judicial centers designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in the presentation of their cases. The court held that some reasonable period of delay in arranging a judicial pretrial should be treated as part of the inherent time requirements of the case.

[29] Finally, I note the following passage from paragraph 48 of the Tran decision:

"Judges should be cautious about engaging in a minute analysis of the normal vicissitudes of a trial for the purpose of allocating delay to the Crown or to the defence on section 11(b) Charter applications - for example, the need to pause to consider unforeseen developments during the trial, the customary requirement to juggle the lineup and availability of witnesses, insignificant administrative glitches or early adjournments. Except in rare cases where unreasonable delay arising from such issues can readily be attributed to one side or the other or to the court system, I would think the delays arising from these sorts of factors during the normal evolution of a trial would be part of the inherent time requirements of the case."

[30] In my view, the requirement to have a trial confirmation hearing is similar in nature to the requirements of a judicial pretrial. Given the concern over the potential loss of valuable trial time if the matter was adjourned shortly before the trial date, the court was acting to ensure the overall timeliness of the system. In addition, while I am mindful that counsel are not expected to be in a perpetual state of readiness, I note that after the matter was struck from the April 17, 2013 trial list, the court offered the following new trial dates: May 29, September 12, 16 and 25th. Each of those dates was suitable to the Crown, but none of them were suitable to the defence. Given the court's comments in Tran, institutional delay would not begin to run until the defence was ready to proceed, but the court could not accommodate them. Defence counsel was not available on the earlier dates offered by the court. Therefore, the period from April 17, 2013 to September 25, 2013, approximately 5 and ¼ months, is inherent delay. The period from September 26, 2013 to October 17, 2013, approximately ¾ of one month is attributable to institutional delay.

THE FOURTH TRIAL DATE: October 23, 2013

[31] The fourth trial date on October 23, 2013, did not proceed because of a disclosure issue. The Crown had disclosed all of the evidence in its possession. However, in final trial preparation, the Crown discovered that the video recording was incomplete. Upon learning of the issue, the Crown promptly contacted the police asking for clarification. Unfortunately, the complete video was provided to the Crown until the morning of trial. The Crown promptly identified the issue and disclosed the video to the defence. In order to allow for full answer and defence, the trial was adjourned. While the Crown Attorney assigned to the file acted appropriately throughout, the Crown is indivisible and the disclosure issue which originated with the police is attributable to the Crown.

[32] The transcript of the proceedings on October 23, 2013 simply indicated that counsel canvassed their own schedules, the court schedule and the schedules of the witnesses and arrived at a new trial date of April 3, 2014. That period of delay, approximately 5 ½ months, is attributable to the Crown.

ALLOCATION OF DELAY

[33] In view of the foregoing, I have found that of the period from the date of arrest to the scheduled trial date on April 3, 2014, nine and ¾ months of delay is attributable to inherent delay; 10 ½ months is attributable to the defence; 5 ½ months is attributable to the Crown, and three quarters of one month is attributable to institutional delay.

[34] I note that the trial was not completed on April 3, 2014, due to the fact that only the section 11(b) argument was heard. This will cause a further delay in the completion of the trial. However, that delay arises because of the fact that, in spite of being directed to bring the section 11(b) application well in advance of the trial date, the defence did not do so, and in fact did not comply with the criminal court rules for the service and filing of the application accordingly, that delay is attributable to the defence.

[35] Returning to the allocation of delay in the earlier paragraph, only the periods 5 ½ months attributable to the Crown, and three quarters of one month attributable to institutional delay can be regarded as unreasonable delay. Accordingly, this case is still within the guidelines suggested in R. v. Morin. Accordingly, there is no need to deal with what the court views as a fairly weak argument regarding prejudice to the accused. The application under section 11(b) of the Charter is dismissed.

Released: May 5, 2014

Signed: "Justice A. Thomas McKay"