Court File and Parties

Court File No.: Brampton/13-7450 Date: 2015-07-08 Ontario Court of Justice

Between:

Her Majesty the Queen

• and -

Leslie McGregor

Before: Justice James Stribopoulos

Section 11(b) and 24(1) Charter Application

Heard on February 26, 2015 Reasons released on July 8, 2015

Counsel:

• Ms. Emily Beaton for the Crown / Respondent
• Mr. Douglas Lent for the Defendant / Applicant

Decision

STRIBOPOULOS, J.:

I. Introduction

[1] The defendant, Leslie McGregor, is charged with operating a motor vehicle while his blood alcohol concentration exceeded the legal limit contrary to section 253(1)(b) of the Criminal Code.

[2] The defendant's trial commenced before me on September 22, 2014. The trial was scheduled to continue on February 26, 2015. However, on that date, the defendant sought a stay of the proceedings alleging that his section 11(b) Charter right to be tried within a reasonable time had been violated. I heard argument on that application and reserved judgment.

[3] On June 26, 2015, I faxed a letter to the parties to advise that the section 11(b) Charter application would be dismissed for reasons to be provided on the scheduled continuation date, today, July 8, 2015. These are my reasons for dismissing the application.

II. Chronology of the Case

[4] Shortly after noon on June 3, 2013, the defendant drove into the parking lot of a plaza in the City of Brampton. As he did so, he was stopped by a police officer conducting a fixed point RIDE check stop. The officer apparently noted some indicia of alcohol consumption and made an approved screening device (ASD) breath demand. A "fail" on the ASD resulted in the defendant's arrest and an approved instrument breath demand. The results of that further breath testing led to the defendant being charged with the offence currently before the court.

[5] On June 17, 2013 the information charging the defendant was sworn. The first scheduled court appearance took place that very same day. On that date, an agent appeared for counsel and a designation was filed. Disclosure was not yet available. The Crown requested an adjournment so that it could furnish disclosure to the defence.

[6] The second court appearance took place on July 8, 2013. Disclosure was provided on that date. The defence requested a two-week adjournment for the purpose of conducting pre-trial discussions with the Crown.

[7] On July 22, 2013 the matter was again in court. By that point, the parties had met to discuss the case and were agreed that the case would take one day for trial. A trial date was scheduled for March 14, 2014. That was the first date offered to the parties by the court. The defence had a number of earlier dates available, beginning in the middle of August, 2013.

[8] On November 23, 2013, the Crown faxed a letter to defence counsel advising that the qualified (breath) technician, Constable Leonardo, would be overseas on the scheduled trial date. In the letter, the Crown indicated that from its standpoint Constable Leonardo was not a necessary witness and advised that it would be relying upon the Certificate of a Qualified Technician. The Crown closed its letter with the following:

If you intend to apply to cross-examine Cst. Leonardo as the qualified technician, or if you wish to call him as a witness on your Charter application, please advise me as soon as possible, as we will have to obtain trial time on a different day for that purpose.

Apparently, defence counsel did not respond to this letter. As a result, despite Constable Leonardo's unavailability on the scheduled trial date, neither side took any steps to secure additional trial time.

[9] On February 12, 2014, the defence served and filed an application alleging that the defendant's Charter rights pursuant sections 7, 8, 9, 10(a) and 10(b) had been infringed and seeking the exclusion of evidence and/or a stay of proceedings as remedies. On March 6, 2014, the Crown served and filed a response to that application. In its response, the Crown contested the defendant's various Charter claims.

[10] On the afternoon of March 14, 2014, the first scheduled trial date, when the defendant was about to be arraigned, the following exchange took place between defence counsel and the Court:

MR. LENT: Your Honour, the charge is a single count of over 80. The Crown cannot establish that the first test was taken within two hours and, therefore, is wanting to use the services of an expert, of course, Dr. Corbett, to establish blood alcohol concentration at the time of driving. The breathalyser technician is not here today. I've said to my friend that his evidence is extremely important from a defence point of view with respect to proper setting up of the instrument, testing, et cetera. And I think that it's fair to say that both my friend and I would like to have that witness here as well and we're asking that the matter be dealt with at one time with that witness. And if you are agreeable to this request, my client is saying that he would waive any s. 11(b) concerns from today's date to the next trial date.

THE COURT: Ms. Martins?

MS. MARTINS: I'm in agreement with all of that, Your Honour, and my friend accurately stated it.

THE COURT: All right. Is there any way that you could save Dr. Corbett coming back? He – he's here for the Crown?

MS. MARTINS: It is – that's true, yes, Your Honour.

THE COURT: Okay. That you could save him coming back on the next occasion by admitting the statement based on upon whatever the evidence is?

MR. LENT: I said to the Crown this morning that I would do that.

[11] Dr. Corbett is a toxicologist. The Crown required his evidence because the defendant's breath samples were ultimately taken outside of the two-hour window that would permit reliance upon the presumption of identity. Given the defence's concession that his report could be admitted in lieu of his viva voce evidence, the Court inquired as to whether the estimated length of trial should be adjusted; defence counsel advised that it should remain the same. A new trial date was set for September 22, 2014, with the matter being noted as still requiring a day for trial.

[12] On September 22, 2014, the defendant's case began in the "TBA" courtroom. Here in Brampton, matters are placed in that courtroom and then assigned out to other courtrooms as cases previously scheduled in those courtrooms are either adjourned or resolve. After the matter originally scheduled before me on that day was adjourned, the defendant's matter was transferred into my courtroom. It arrived before me at 11:20 a.m.

[13] At the start of trial, the parties were agreed that a blended proceeding should take place, with the evidence on the Charter voir dire to apply on the trial proper depending on how the Court ultimately ruled on the application. In addition, the Crown advised that if the defendant elected to testify at trial, it would seek to use some of his statements from inside the breath room for cross-examination purposes. The defence indicated that it was not conceding voluntariness, which meant that the Crown would need to prove it.

[14] The trial commenced with the Crown calling the arresting officer, Constable Bell. The recording from the breath room was played during that officer's evidence and admitted into evidence subject to the Charter application. The qualified (breath) technician, Constable Leonardo, as well as the toxicologist, Dr. Corbett, were also present in court while the recording was played. Constable Bell finished testifying at 3:45 p.m.

[15] At the completion of Constable Bell's evidence, given the hour, the Court inquired as to how the parties wished to proceed; they agreed that they would attend on the trial coordinator and return with a continuation date. In the meantime, Constable Leonardo was asked to remain, in the hope that his evidence might be started and/or possibly even completed that day.

[16] The parties finally returned from the trial coordinator's office at 4:30 p.m. At that time, they informed the Court that they had agreed that Constable Leonardo would not be required to testify. In that regard, the defence agreed that although it would not be conceding the voluntariness of the defendant's statements inside the breath room, it would not be contesting voluntariness based on anything said or done by Constable Leonardo. With that concession, the parties indicated that the only remaining witness for the Crown was the toxicologist, Dr. Corbett. Based on all of this, the parties estimated that four further hours would be required to complete the trial, which is just shy of a further court day. (The parties have not provided me with any explanation as to why the concession by the defence, made when the matter was adjourned on the first scheduled trial date (March 14, 2014), that Dr. Corbett's evidence would be admitted by way of a statement (i.e. his report), was no longer operative.)

[17] In terms of scheduling the continuation date, the record reflects that the Court had offered the parties a number of continuation dates, including four dates in October 2014, three dates in November 2014, one date in December 2014 and three dates in January 2015, and two dates in February 2015. Unfortunately, the first date offered that both sides were available was February 26, 2015. That date was therefore set as the continuation date. At the time, defence counsel filed a letter with the Court that set out the various dates he had available before February 26, 2015. Defence counsel did not however expressly voice any concern about delay or advise that he intended to bring a section 11(b) application on the scheduled continuation date.

[18] On January 16, 2015 the defence served and filed an application for a stay of proceedings, alleging a violation of the defendant's right to be tried within a reasonable time, as guaranteed by section 11(b) of the Charter. The application was made returnable on the scheduled trial continuation date, February 26, 2015. The Crown served and filed its response on February 12, 2015, in which it contested the defendant's claim.

[19] On the scheduled trial continuation date, February 26, 2015, the Crown urged that the section 11(b) application be dismissed summarily because of the failure of the defence to comply with the Criminal Rules of the Ontario Court of Justice, which require that such an application be heard at least 60 days "before trial" and that notice of such an application be served and filed at least 30 days before the application is to be heard. The Crown argued that it would be prejudiced if the application proceeded as Dr. Corbett was again in attendance and ready to testify. In contrast, the defence argued that the rules were ambiguous on the timing of an unreasonable delay application in a case that is already underway. After briefly standing down, I ruled that the section 11(b) application should be deferred until the completion of Dr. Corbett's evidence.

[20] As a result, the Crown called Dr. Corbett to testify. His evidence began at 12:27 p.m. and was completed at 12:53 p.m. With the completion of Dr. Corbett's evidence, the Crown closed its case. After that, I heard evidence and argument on the section 11(b) application, which took the remainder of the court day. I reserved judgment on the application. I informed the parties that I would advise them of the outcome of the section 11(b) application in advance of the scheduled continuation date.

[21] The matter was then adjourned to March 2, 2015 to schedule a further continuation date. On that date, July 8, 2015 was scheduled as the continuation date.

[22] As noted above, on June 26, 2015, I faxed a letter to the parties to advise that the section 11(b) Charter application would be dismissed for reasons to be provided on today's date.

III. Law and Analysis

[23] Section 11(b) of the Charter provides that, "[a]ny person charged with an offence has the right to be tried within a reasonable time."

[24] The Supreme Court of Canada's decision in R. v. Morin remains the seminal decision interpreting section 11(b) of the Charter. The decision identifies the relevant factors to be considered in assessing whether or not the right to be tried within a reasonable time has been violated. I will therefore turn to a consideration of these factors in light of the circumstances of the defendant's case.

1. Length of the Delay

[25] For the purposes of section 11(b), time began to run in this case when the information charging the defendant was sworn on June 17, 2013. From that date until today is approximately 25 months.

2. Waiver of Time Periods

[26] In Morin, the Supreme Court of Canada made clear that, "[i]f by agreement or other conduct the accused has waived in whole or in part his or her rights to complain of delay then this will either dispose of the matter or allow for the period waived to be deducted."

[27] In seeking an adjournment on the first scheduled trial date, the defence expressly waived the 6 months and 1-week period of delay between March 14, 2014 and September 22, 2014.

3. Reasons for the Delay

[28] I am next required to consider why it has taken as long as it has to bring this case to completion. In Morin, in explaining how the reasons for delay should be catalogued and assessed, the Supreme Court identified a list of relevant variables, including the: (a) inherent time requirements of the case; (b) actions of the accused; (c) actions of the Crown; (d) limits on institutional resources, and (e) any other reasons for the delay. I will address each of these considerations in turn.

(a) Inherent Time Requirements

[29] Morin recognized that there are a number of variables that are an inevitable part of all criminal litigation that are said to form a part of the inherent delay in a given case.

[30] For example, the defendant must retain counsel, the Crown must provide disclosure, the lawyer hired must have an opportunity to review the disclosure, interview the person charged and any potential defence witnesses, conduct necessary legal research and participate in pre-trial discussions. This collection of steps is ordinarily said to form a part of the intake period of a case.

[31] In Morin the Supreme Court recognized that the length of time to be treated as part of the intake requirements for a given case would also be influenced by local practices and conditions. As a result, the period will tend to be the same in a particular region for most offences, but with some variation between some categories of offences.

[32] In Peel Region, two months has been described as the ordinary intake period for a routine drinking and driving case, such as this one. I note that this same intake period has also been held to apply to routine drinking and driving cases in Toronto.

[33] In this case, the defendant retained counsel within a week of his arrest. Thereafter, the case moved rather quickly through the preliminary steps of the process, i.e. disclosure, pre-trial discussions, and the setting of a trial date. All of that took place by July 22, 2013, approximately five weeks from when the information was sworn. As a result, despite the usual period allotted for intake in Peel Region for a case like this one, I think it would be artificial to conclude that two months should be attributed as "intake" in this case when that process in actuality took only five weeks. As a result, five weeks will be treated as intake and be considered as part of the inherent delay in this case.

[34] In Morin the Supreme Court also recognized that counsel require time to clear their schedules so that they can be available for trial and they also require time to prepare for trial. According to the Court, this period also forms a part of the inherent time requirements. The Court of Appeal has observed that the parties should not automatically be deemed to be ready to conduct a trial as of the date the trial date is set. Rather, the Court has instructed that, "[i]nstitutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them." In this case, when the first trial date was scheduled, defence counsel filed a letter setting out his availability. At that time, defence counsel had dates available for trial beginning in the middle of August, 2013. Accordingly, an additional three weeks should be added to the period of inherent delay in this case.

[35] As noted above, in February 2014, the defence served and filed an application alleging that a number of the defendant's Charter rights were violated during the course of the police investigation. The section 11(b) case law in this province has established that where a Charter application is filed the notice periods for the serving and filing of such applications, which are specified in the Criminal Rules of the Ontario Court of Justice, should be taken into account in determining the amount of time to be attributed to inherent delay. Under the Rules, the defendant was required to serve and file his application at least 30 days prior to the scheduled trial date. As a result, that amount of time should be considered as part of the inherent delay in this case.

[36] Finally, I am also of the view that a fair amount of the delay that took place in this case resulted from the parties underestimating the time required for trial. The case law establishes that delay of this nature is not be attributable to either party and must be treated as neutral and counted as part of inherent delay when deciding whether or not there has been a violation of section 11(b) of the Charter.

[37] As noted above, when the original trial date was scheduled, the parties agreed that the case would take one day for trial. (In fairness to the prosecutor present in court when the trial date was scheduled, she did express scepticism with respect to this estimate; but agreed to defer to the estimate arrived at following a pre-trial between her colleague and defence counsel.)

[38] It is important to remember the actual length of a "court day". Court usually sits from 10:00 a.m. to 1:00 p.m., and from 2:15 p.m. to 4:30 p.m., less time for a morning and (occasionally) an afternoon break. Realistically, there are therefore only 5 sitting hours in the ordinary court day.

[39] On September 22, 2014 this matter commenced before me at 11:20 a.m. That delayed start is unfortunate and a by-product of how the TBA system operates here in Brampton. Delays occasioned by that system are clearly institutional. However, I think that comparatively short delay played at most a very minor role in necessitating the eventual adjournment of this case from September 22, 2014 to February 26, 2015.

[40] Once the case got underway on September 22, 2014, the testimony of the arresting officer and the viewing of the breath room video consumed most of the day. At 3:45 p.m. the parties stepped away to the trial coordinator's office to secure a continuation date because it was apparent that the case would not be completed that day. At that point, the case had consumed a little more than three hours of court time. As the parties left for the trial co-ordinator's office, in terms of the Crown's case, there was an expectation that Constable Leonardo and Dr. Corbett would still need to testify. Even assuming that the defence would refrain from calling any evidence, there would still be the need for submissions regarding voluntariness, the Charter application, and on the trial proper. As a result, even though the parties returned from the trial coordinator's office with an agreement to forego Constable Leonardo's testimony, they were understandably estimating that a further four hours of court time would be required to complete the case.

[41] Given all of this, I am of the view the original trial estimate (that this case could be completed in a single day) was inadequate. Prior to the decision to forego the evidence of Constable Leonardo, I think a two-day trial estimate would have been much closer to the mark. Even with the benefit of that late breaking agreement, the case would still have required at least a day-and-a-half of court time to complete. Given this, it is rather obvious that the delayed start on September 22, 2014 played an inconsequential role in necessitating the adjournment from September 22, 2014 to February 26, 2015. Rather, the principal cause for that delay was the original underestimate of the time required to complete this matter. I have therefore concluded that the five months and one-week of delay from September 22, 2014 to February 26, 2015 should be treated as part of the inherent delay in this case.

[42] I wish to also note that I have considered whether or not some portion of the delay from September 22, 2014 to February 26, 2015 should be treated as part of the institutional delay in this case. In the end, I have decided against this. In doing so, I have taken into account that a five month delay to secure almost one day of court time in a busy jurisdiction like Brampton is far from inordinate. Had the delay to secure a continuation date been much longer than that, however, I would have been inclined to include any additional period of delay as stemming from institutional rather than inherent causes.

[43] Therefore, based on the above, inclusive of the intake period, defence counsel's availability, the time requirements for serving and filing the Charter application, and the delay occasioned by the underestimate of the amount of time required to try this case, I have concluded that 8 months and one-week should be treated as part of the inherent delay in this case.

(b) Actions of the Defendant

[44] I am next required to consider whether any actions by the defendant may have contributed to the delay. The object here is not to assign blame. Rather, this simply reflects the reality that in our adversarial system the way in which the defence is conducted may play a role in prolonging the proceedings. A defendant is not expected to forego procedures and strategy in advancing a defence, but to the extent that such choices impact on how long it takes for a case to complete they are relevant in determining the reasonableness of the delay in bringing a case to conclusion.

[45] After carefully considering the procedural history of this matter, I have concluded that some portion of the delay in this case should be attributed to the actions of the defence. I will explain that conclusion by drawing upon the chronology detailed above.

[46] I will begin with the significance of the letter sent by the Crown to the defence on November 23, 2013. In that letter, the Crown made clear that the qualified (breath) technician, Constable Leonardo, would be out of the country on the then scheduled trial date (March 14, 2014). The Crown explained that it was not planning on calling Constable Leonardo and that it intended to prove its case by relying upon the certificate of analysis. In closing, the letter made clear that if the defence intended to apply to cross-examine Constable Leonardo or planned on calling him as a witness on its Charter application, then defence counsel should be in touch with the Crown so that arrangements could be made to secure additional trial time. Unfortunately, it would appear that the defence failed to take any steps in response to that letter.

[47] Instead, almost four months later, on the first scheduled trial date, March 14, 2014, the defence requested an adjournment because Constable Leonardo was not present. Although in requesting this adjournment, the defence expressly waived the delay between that day and the next scheduled trial date, September 22, 2014, I do not think that that waiver encompasses the full extent of the delay that this course of inaction by the defence occasioned. I will briefly explain why I have come to that conclusion.

[48] In my view, the defence's failure to take action in response to the Crown's letter meant valuable time was lost between November 23, 2013 and March 14, 2014. Had the defence provided a timely response, additional court time could have been secured on a date that Constable Leonardo was available, long before what ended up being the scheduled continuation date (September 22, 2014). This case could therefore have at least begun on March 14, 2014 and been continued to completion possibly as early as the spring rather than the fall of 2014. Given this, I think the defence's inaction in response to the Crown's letter of November 23, 2013 actually served to delay this case more than the period that was subject to an express waiver by the defence. Nevertheless, I find it difficult to quantify the resulting delay, given the absence of evidence before me as to how events may have unfolded differently if the parties had taken steps in early December 2013 to secure additional court time. Given this, although I am noting the potential implications of the defence inaction here, I am refraining from adding a specific period of additional time to the defence side of the section 11(b) ledger because of it.

[49] Further, the decision by the defence to advance a section 11(b) Charter application on the scheduled trial continuation date, February 26, 2015, meant that much of that day was consumed by evidence and argument on that application. Although the defence could have arranged to secure an earlier date for that application to be heard, it did not do so, even though that is the established practice in this jurisdiction. As a result, I am of the view that the four months of delay between February 26, 2015 and today's date (July 8, 2015) is attributable to the actions of the defence.

[50] In summary, I am of the view that a total period of four months of the delay in this case is attributable to the actions of the defence.

(c) Actions of the Crown

[51] I turn next to consider the actions of the Crown. Like with the conduct of the defendant, the Supreme Court of Canada made clear in Morin that, "this factor does not serve to assign blame." Having carefully considered the procedural history in this matter, I do not think that any of the delay that has taken place in bringing this case to completion can be fairly attributed to the Crown.

(d) Limits on Institutional Resources

[52] In Morin the Supreme Court identified 8 to 10 months of institutional delay in the provincial court as a guideline to assist trial judges in adjudicating section 11(b) Charter claims. It explained that this time period is not meant to be an inflexible limitation period; it is simply a guideline. As such, the Court expressly contemplated that trial courts in different regions across the country might adjust the period to take into account local conditions and changing circumstances. Further, the Court anticipated that the court of appeal in each province would play a supervisory role with respect to such local adjustments.

[53] In Brampton, the guideline for a straightforward drinking and driving case like this one has been adjusted downward. The amount of constitutionally tolerable institutional delay in the Ontario Court of Justice is said to be about 8 months, with the expectation being that such delay should not exceed 9 months.

[54] Based on the analysis above, the total delay of just slightly more than 25 months in this case should be apportioned as follows: delay subject to waiver = 6 months; inherent time requirements = 8 months and 1-week; actions of the defence = 4 months; and institutional delay = 7 months.

[55] In summary, the total period of delay in this case that is attributable either to institutional delay or to the actions of the Crown is only 7 months. This delay is below the guideline set down in Morin, as well as the adjusted guideline that has been established here in Peel Region.

4. Prejudice to the Accused

[56] The next factor to consider is whether the accused has suffered any prejudice. Here, the object is to measure any specific impact on the particular claimant in relation to the various constitutional interests that section 11(b) of the Charter aims to protect, i.e. the right to liberty, to right to security of the person and the right to a fair trial.

[57] The defendant claims that the delay in bringing his case to trial has prejudiced him. He submitted an affidavit in support of his application and was subject to cross-examination on it. The defendant asserts that the delay in bringing this case to completion has caused him considerable stress, which has resulted in him losing sleep. He deposed that these feelings have only been exacerbated by the three separate trial dates that he has faced, which he has described as "an emotional roller-coaster ride". The three separate trial dates have also apparently served to double the defendant's legal costs. Finally, he has expressed anxiety that with the passage of time witnesses' memories may fade which could compromise his ability to receive a fair trial.

[58] The Supreme Court has made clear that the question of prejudice under section 11(b) cannot be considered separately from the length of the delay. When it comes to assessing prejudice for the purposes of section 11(b) of the Charter, there is a difference between prejudice arising from merely being charged with a criminal offence and prejudice occasioned by delay. The former cannot factor into the section 11(b) calculus, while the latter must.

[59] I accept that having the charge outstanding against him for as long as it has been has occasioned much stress for the defendant. Nevertheless, when I look at the entire chronology of this case, including the defence's failure to take any steps to secure additional trial time when it became apparent that Constable Leonardo would not be available to testify on the first scheduled trial date, the decision to seek an adjournment of that date, and the late-breaking nature of defence concessions that would have served to expedite the trial process, I am far from satisfied that the defendant falls into that category of accused who truly wanted to have his trial proceed as expeditiously as possible. To the contrary, the record in its totality gives rise to a distinct impression that the defendant was willing to endure delay in the hope that it might ultimately furnish him a defence. Where a defendant's conduct reveals that he has used section 11(b) as a sword rather than as a protective shield, such behaviour will serve to negative a claim of prejudice.

IV. Conclusion

[60] Given the above analysis, I have concluded that the institutional delay in this case falls below the established guidelines. Further, I am not satisfied that the defendant has established actual prejudice resulting from the delay in bringing his case to completion. As a result, the defendant's application pursuant to sections 11(b) and 24(1) of the Charter is dismissed.

Released: July 8, 2015

Justice James Stribopoulos