Court File and Parties

Court File No.: 13-209 Brampton

Date: January 3, 2014

Ontario Court of Justice

Central West Region

Between:

Her Majesty the Queen

— and —

Jaspal Bhatti

Before: Justice Richard H.K. Schwarzl

Application heard on: December 20, 2013

Reasons for section 11(b) Charter Ruling released on: January 3, 2014

Counsel:

Ms. Angela McArthur — for the Crown/Respondent

Mr. Glenn Henderson — for the Accused/Applicant

SCHWARZL, J.:

Section 11(b) Charter Ruling

1.0: INTRODUCTION

[1] On December 11, 2012 the Applicant, Mr. Jaspal Bhatti, was charged by the Peel Regional Police with a single count of driving with excess blood alcohol contrary to section 253(1)(b) of the Criminal Code. His case was scheduled for trial on October 3, 2013 but was not reached that day. As a result, a second trial date had to be fixed, this time for January 3, 2014.

[2] Mr. Bhatti has applied to the Court to find that in the circumstances of this case his right to be tried within a reasonable time as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") has been violated and as a remedy he seeks a stay of proceedings. The Crown opposes the application.

2.0: CHRONOLOGY OF EVENTS

2.1: Date of Alleged Offence to Setting the First Trial Date: December 11, 2012 to February 28, 2013

[3] The alleged offence occurred on December 11, 2012 at the City of Brampton. The Applicant was released unconditionally with a first appearance date of January 15, 2013. The Information was sworn on January 4, 2013.

[4] On January 15, 2013 counsel appeared with the Applicant and received initial disclosure. The matter was adjourned for two weeks to January 30, 2013.

[5] On January 30, 2013 the matter was adjourned for three weeks to February 20, 2013 for potential resolution.

[6] On February 20, 2013 additional disclosure was provided to the defence. The matter was remanded one week to February 28, 2013 to allow the defence to confer further. On February 28, 2013 a date was fixed for a four-hour trial on October 3, 2013.

[7] The time between the alleged offence date and the setting of the first trial date was 2½ months.

2.2: Setting the First Trial Date to the First Trial Date: February 28 to October 3, 2013

2.2.1: Setting the First Trial Date

[8] When the first trial date was fixed, counsel for the Applicant advised the Court that he had dates of availability commencing April 11, 2013 and "dates every month thereafter" without any further specificity. The first date the Court offered was August 2, 2013 which was not available to the defence. Four other dates in August were offered, but none were available to the defence and only two were available to the Crown. Five dates were offered by the Court in September. Of these, one was available to the defence but not to the Crown; four were available to the Crown but not to the defence; and one was not available to either side. Two dates were offered in October, of which the first date was available to the Crown but not the defence. Both parties accepted October 3, 2013 for trial.

[9] The trial sheet filed with the Court on February 28, 2013 (Tab 3, Application Record) notes that the four-hour trial time estimate was predicated on a number of factors including: (a) the need for an interpreter for the Applicant; (b) the Crown "possibly" seeking a ruling on the voluntariness of utterances made by Mr. Bhatti to persons in authority; (c) the parties calling up to three witnesses in total; and (d) an application by the defence alleging violations of the Applicant's sections 8 and 9 Charter rights.

[10] The time between setting the first trial date and the trial date was 7¼ months.

2.2.2: The First Trial Date – Not Reached

[11] The trial did take place as scheduled on October 3, 2013. The case was preceded by another trial in its assigned courtroom and it would appear that no other court was available to accommodate it. After the lunch recess Mr. Bhatti's case was sent before a judge who was told that there was no reasonable prospect of reaching the matter that day despite both parties being ready. Accordingly, the Crown sought to adjourn the case stating, "This is Crown delay, I think."

2.3: First Trial Date to Second Trial Date: October 3, 2013 to January 3, 2014

[12] The trial sheet filed with the Court on October 3, 2013 (Tab 3, Application Record) reveals the following: Crown witnesses were not available until dates starting November 5, 2013; and after December 16 the defence was not available until January 3, 2014. There is no evidence as to the availability of the defence prior to November 19, being the first date offered by the Court. Of the five dates offered by the Court between November 19, 2013 and January 3, 2014 the only date open to the defence was January 3. The trial was remanded accordingly to the new date.

[13] The time between the first trial date and the second trial date is three months.

2.4: Total Time: December 11, 2012 to January 3, 2014

[14] The total time this matter has been extant is 12¾ months.

3.0: PREJUDICE TO THE APPLICANT

[15] The Applicant swore an affidavit in which he declared the following prejudice:

(a) A concern about losing his driver's licence should he be found guilty as he is a truck driver;

(b) A concern about losing his driver's licence should he be found guilty because he is also a real estate salesman;

(c) He has suffered daily anxiety since being charged, causing stress to him and his family, including his marriage. He has trouble sleeping, his blood pressure has increased, and he is losing hair; and

(d) The worry he suffers has increased as the matter has dragged on.

[16] Counsel for the Applicant advised the Court, without objection by the Crown, that Mr. Bhatti has incurred additional legal costs due to a second trial date being necessitated.

4.0: POSITIONS OF THE PARTIES

4.1: Applicant/Accused

[17] The Applicant submits that the matrix of circumstances including (i) the first appearance being a whole month after the alleged offence date, double what is usual for Peel Region; (ii) the failure of the Court to provide the Applicant his trial on the first scheduled date; and (iii) the extra stress and legal expenses caused by having to come to a second trial date three months later has resulted in Mr. Bhatti's right to be tried within a reasonable time being violated thereby requiring a stay of proceedings.

4.2: Respondent/Crown

[18] The Crown acknowledges that the fault for not proceeding with this trial on the first scheduled date is not that of the Applicant. However, the Crown submits that when taking the situation as a whole Mr. Bhatti's section 11(b) Charter right has not been infringed.

5.0: APPLICABLE LEGAL PRINCIPLES

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

[20] 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), 110 C.C.C. (3d) 331 (Ont. C.A.), affirmed, 119 C.C.C. (3d) 1 (S.C.C.); R. v. Morin, supra at ¶ 32 – 36.

[21] 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.

[22] With respect to the concept of "inherent time requirements" it encompasses four different aspects: (a) the intake period of the case[1]; (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. 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, [2005] O.J. No. 3442 (S.C.J.) at ¶140 – 149; R. v. Shyshkin, [2007] O.J. No. 1821 (S.C.J.).

[23] Booking heavy trial court dockets is a legitimate and necessary practice which recognizes significant collapse and resolution rates in our courts. It is inevitable that there will be days when cases cannot be reached or completed. While it is undesirable to underutilize courts by booking lists too lightly it is equally important not to regularly load lists to the point where trial dates become a matter of "hit or miss". In bringing a section 11(b) Charter application there is an onus on the Applicant to present evidence as to what occurred on his trial date as it is not enough to point to the mere fact that his case was not reached: R. v. Barnes, [2003] O.J. No. 3217 (O.C.J.); R. v. Meisener, [2003] O.J. No. 1948 (S.C.J.); R. v. Amyotte, [2009] O.J. No. 5122 (S.C.J.).

[24] Significant prejudice can be caused by having to pay for additional counsel fees where a trial is not reached or completed due to reasons beyond the Applicant's control: R. v. McBride, [2011] O.J. No. 1077 (O.C.J.); R. v. Kamboj, [2013] O.J. No. 5478 (O.C.J.).

6.0: ANALYSIS

6.1: Reasons for Delay

[25] The total delay from the date of the alleged offence to the second trial date is 12¾ months. It appears that the total delay is sufficiently long to require an assessment of whether the Applicant's section 11(b) Charter right has been violated.

[26] There has been no explicit waiver by the Applicant in this case.

[27] Both parties appear to have been moving this case along with promptness. I am not troubled by the fact that the first appearance was beyond that usually experienced in Peel Region. If the first appearance had been two weeks as is customary, it would have fallen on Christmas, when the courts are closed for several days. It was reasonable to defer the Applicant's first appearance a couple of weeks longer than usual in these circumstances.

[28] This case is not unduly complex. However, the Applicant does require an interpreter, there are potential issues regarding voluntariness of statements he made to police, and there are claims of breaches of two of his Charter rights. In Brampton the court day in Ontario Court of Justice 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. From experience, the Trial Coordinator for the Ontario Court of Justice in Peel Region will book two four-hour matters on a trial docket. The setting of two four-hour trials on a docket appropriately takes into account the attrition rate most frequently experienced on trial dates in the Ontario Court of Justice in Peel Region. If the parties in a case want to capture an entire docket for themselves, they know they should set a "one day" trial.

[29] Since the advent of the Charter over thirty years ago, trial time for many cases involving Charter claims, particularly in drink-drive cases, has ballooned. It is common that drink-drive cases with Charter issues take at least one full court day or more to complete. This reality was recognized by Code, J in R. v. Lahiry, supra, 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), 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. ...

[30] In Mr. Bhatti's case, counsel for both parties estimated that the case would take four hours. When they did this, they would have reasonably expected that one other four-hour trial would be booked for the same trial docket. No evidence was led as to what else was on the docket for the court to which this case was assigned on October 3, 2013. What we do know is that another trial went first and did not allow this case to be heard in that court.

[31] Given that this case involves a drink-drive charge with an interpreter, evidentiary applications, and a Charter application it is my respectful opinion that four hours was not sufficient time for a trial. This case should have been booked for a full court day. Had this happened, it was less likely that other trials would have been placed on the same docket thereby increasing the likelihood that this case would be reached as scheduled.

First Time Period: December 11, 2012 to February 28, 2013

[32] The delay between the charge date and the date when the first trial was set was caused by inherent time requirements, to wit: intake. The parties were not ready to set a trial date in this neutral 2½ month period.

Second Time Period: February 28, 2013 to October 3, 2013

[33] The delay of 7¼ months between setting the first trial date and the trial date itself was caused by four reasons. The first reason is due to an allowance for reasonable preparation time by both parties. The second reason is that the defence was not available for trial until at least April 11, 2013 being some 1½ months into the future. The third reason is the defence was not available for most days offered in August and September 2013. The fourth reason is limits on institutional resources because the first trial dates offered were not until August, 2013.

[34] In this case, reasonable preparation time and defence counsel's schedule overlap one another. For these, I apportion 1½ months as neutral time. I assign one month due to restrictions on counsel's availability for a number of dates in August and September 2013, and 4¾ months as institutional delay during this period.

Third Time Period: October 3, 2013 to January 3, 2014

[35] The three month delay between the first and second trial dates was caused by two reasons. The first reason is that the trial was not reached despite both parties being ready and able to do so. The second reason is that one or both of the parties were not available for certain dates which limited what the Court could offer to them.

[36] As I said earlier, had this case been estimated for a full day trial as it should have been, it was less likely that this case would have had other matters to compete with on the docket. Unfortunately, the case as estimated was not reached. This was partly a function of the parties underestimating the inherent time requirements, but was also due insufficient court resources on the first trial date. However, there is no evidence to suggest that the list upon which the Applicant's case was placed was overloaded. It may well be that this case suffered one of those inevitable instances contemplated in Barnes, supra, where a trial simply could not be reached or completed.

[37] The fact that the parties had restricted availability also contributed to the delay in setting the second trial date.

[38] In consideration of all of the various factors at play between the two trial dates, I apportion one month as neutral because of restrictions on the availability of the parties and two months as limitations on institutional resources.

6.2: Prejudice Caused to the Applicant by the Overall Delay

6.2.1: General Prejudice

[39] 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 only the second and third rights that must be assessed given that the Applicant is out of custody.

[40] 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.).

[41] 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. In this case, there is nothing to suggest that the Applicant has been content with the pace of this litigation. The Applicant, like the Crown, appears to have moved this matter forward with reasonable diligence.

[42] 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] O.J. No. 5004 (C.A.); R. v. Kporwodu, [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. No one would doubt that drink-drive crimes are serious: R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.).

[43] In Mr. Bhatti's case some, but not much, general prejudice has occurred due to delay. The vast bulk of the general prejudice in this case arises not from delay, but from being charged in the first place.

6.2.2: Specific Prejudice

[44] Mr. Bhatti's specific prejudice arises from the enhanced anxiety of not being reached on his first trial date and for having to pay extra legal fees. In balancing this specific prejudice with all of the circumstances and weighing it against society's interest in proceeding with a trial on its merits, I am not persuaded that the specific prejudice in this case is sufficient to find a violation of Mr. Bhatti's rights.

7.0: CONCLUSIONS

[45] For the foregoing reasons, I have apportioned the delay over the entire 12¾ months of this case as follows:

Inherent Time Requirements (neutral): 5 months[2]

Restrictions on counsel's schedules: 1 month[3]

Limitations on Institutional Resources: 6¾ months[4]

TOTAL: 12¾ months

[46] In assessing whether or not the overall delay in this case was unreasonable, I have taken into account the following: (a) both parties have acted reasonably and with due diligence other than underestimating the true trial time requirements; (b) the institutional delay is within the accepted reasonable range for Peel Region; (c) the parties had restrictions on their availability when setting the second trial date; and (d) while there was some prejudice to the Applicant caused by the overall delay, it is not unreasonable in all of the circumstances.

[47] Balancing all of the circumstances and the reasons for delay, I find that the Applicant has failed to demonstrate that his right to be tried within a reasonable time as guaranteed by section 11(b) of the Charter was probably violated. The application is dismissed.

ORIGINAL SIGNED BY JUSTICE R.H.K. SCHWARZL

Richard H.K. Schwarzl,

Justice of the Ontario Court of Justice

Footnotes

[1] The intake period for a case represents not only the time it takes from the laying of the Information until the parties are meaningfully ready to set a trial, but also a reasonable period of time for the parties to prepare once the trial date is set: R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 at ¶ 27 – 30.

[2] 2½ months as intake; 1½ months for trial preparation/unavailability of counsel; and 1 month for underestimating the trial time requirements and the limited availability of the parties between the two trial dates.

[3] Counsel had restricted availability in August or September 2013 and both sides had restrictions following the first trial date.

[4] 4¾ months leading up to the first trial date; 2 months between the first and second trial dates.