Ontario Court of Justice

Date: September 23, 2015

Court File No.: Halton 14-2289

Between:

HER MAJESTY THE QUEEN

— AND —

LISA DARLENE DROBOTENKO

Before: Justice Lesley M. Baldwin

Submissions Heard on: August 26, 2015

Reasons for Judgment on Section 11(b) Charter Application

Reserved to: October 26, 2015 – Brought Forward to September 23, 2015 for Release

Counsel:

• Laurie Jago, counsel for the Respondent (Crown)
• Aaron Harnett, counsel for the Applicant (Defendant) Lisa Drobotenko

BALDWIN J.:

[1] Section 11(b) of the Charter of Rights and Freedoms

[1] Section 11(b) of the Canadian Charter of Rights and Freedoms states that any person charged with an offence has the right to be tried within a reasonable time.

[2] An important factor in the 11(b) analysis includes institutional delay which is a central aspect of this particular Application. This period starts to run when the parties are ready for trial but the system cannot accommodate them due to a lack of institutional resources. There is a point in time at which the court will no longer tolerate delay based on the plea of inadequate resources.

[3] In R. v. Morin, [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1, the Supreme Court of Canada suggested that a period of institutional delay of between eight to ten months is an appropriate "guideline" for provincial courts to consider in the over-all s. 11(b) analysis.

The Analytical Framework for S. 11(b) Motions

[4] Section 11(b) Motions require the court to analyze four distinct factors: the overall length of delay from the laying of charges until the 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 s. 11(b). See: R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 (SCJ) Justice M.A. Code @ paragraph 3; R. v. Smith (1989), 52 C.C.C. (3d) 97 (S.C.C.); R. v. Askov (1990), 59 C.C.C. (3d) 449 (S.C.C.); R. v. Morin (1992), 71 C.C.C. (3d) 1.

[5] The Court must make findings about each of these four factors and then engage in a final balancing analysis which requires consideration of the societal interest in a trial on the merits. See: R. v. Lahiry, supra @ paragraph 4; R. v. Morin supra @ pp. 12-13; R. v. Seegmiller (2004), 191 C.C.C. (3d) 347 @ paras. 21-5 (Ont. C.A.); R. v. Qureshi (2004), 190 C.C.C. (3d) 453 at para. 41 (Ont. C.A.)

Summary of the Issues

[6] The Applicant is charged with Impaired Operation and Refusing to Provide Intoxilyzer Breath Samples with respect to events that occurred on August 3rd, 2014, in Milton.

[7] The allegations include a collision into a traffic light standard; civilian witnesses, police and ambulance attendants on scene. The Applicant was taken to hospital by ambulance. The Applicant allegedly refused to provide breath samples at the hospital. The Applicant is alleged to have said that she provided 2 samples of her breath to the ambulance drivers.

[8] The Applicant was released on a Promise to Appear with no conditions at the hospital.

[9] A summary of the allegations provided by the Respondent Crown on this Motion is attached as Appendix "A".

[10] The Information before the Court was sworn on August 12, 2014.

[11] The Applicant retained counsel, Mr. Aaron Harnett, before her first appearance date of September 15, 2014.

[12] On September 15, 2014, an agent appeared for Mr. Harnett and a designation of counsel was filed. The Crown screening form and initial disclosure were provided to the agent and the matter was remanded to September 29, 2014, at defence counsel's request to obtain further client instructions.

[13] The matter was spoken to in the set date Court in Milton on September 29th, October 20th, November 3rd, November 24th, and December 15th, 2014.

[14] On December 15, 2014, Mr. Harnett met with the Crown for pre-trial discussions wherein both counsel agreed that 2 days of trial would be required for the matter and trial dates were set.

[15] The first 2 days of trial offered by the trial co-ordinator were selected for November 5th and 6th, 2015 (10 months and 3 weeks later) in the Burlington Courthouse. A judicial pre-trial date was selected for January 23rd, 2015 in the Milton Courthouse.

[16] The Applicant asserts that her s. 11(b) right to have her trial held in a reasonable time has been infringed. She seeks the remedy of a stay of proceedings pursuant to s. 24(1) of the Charter.

[17] The Respondent Crown opposes this Application and submits that the trial time set is not only within the Morin (supra) guidelines for a trial to be held within a reasonable time, but that the time to trial in this case actually falls below those guidelines. The Crown calculates the total institutional delay as being 7.5 months. In addition, the Crown calculates 5 weeks of Crown delay in the set date court.

[18] The Applicant calculates 2 months of Crown delay before the trial dates were set, and almost 11 months of institutional delay to get to trial.

1. Length of the Delay to Trial

[19] The total time from the charge date (August 12, 2014) to the scheduled end of the trial (November 6th, 2015) will be 14 months and 22 days, a time that warrants an analysis into the reasonableness of the delay. See: R. v. Kalanj, [1989] 1 S.C.R. 1594, 48 C.C.C. (3d) 459.

[20] As will be considered later in these reasons, there must also be a consideration of when this trial could realistically be completed, which includes the rendering of final reasons for judgment by the trial Judge and sentencing if required.

2. Waiver of Some or All of the Time Periods

[21] The Applicant did not expressly waive any section 11(b) rights on any of the court appearances.

3. Notice of 11(b) Jeopardy

[22] At the Judicial Pre-Trial held on January 23rd, 2015, the Applicant indicated that an 11(b) Application was possible and if brought, it would be filed in accordance with the Rules of the Ontario Court of Justice, which has been the case.

[23] The Applicant and the Respondent disagree as to when trial dates should have been set in this matter.

[24] Accordingly it is necessary to examine what happened at each of the set date appearances.

4. What Happened in the Set Date Courts

[25] First Appearance – September 15, 2014 – Agent (K. Netta) appeared and filed designation for counsel Aaron Harnett. Crown provided their screening form and "initial disclosure". Matter was adjourned to September 29th for counsel to obtain further instructions from his client.

[The parties agree on this Application that this 2-week adjournment is properly characterized as neutral/intake.]

[26] Second Appearance – September 29, 2014 – Agent Ms. Netta appeared and stated that Mr. Harnett has made an additional disclosure request by fax (dated September 26th) to the Crown and requested that the matter be adjourned to October 20th to receive and review that additional disclosure. The Crown agreed.

[The parties agree on this Application that this 3-week period is properly characterized as neutral/intake.]

[27] Third Appearance – October 20th, 2014 – Agent Ms. Netta appeared and stated that counsel is awaiting disclosure requested on September 26th. Ms. Netta asked the Crown when that might be available.

The Crown stated that they have to "look into see if those records exist, they may not".

The matter was adjourned to November 3rd, 2014, for the defence to obtain the requested disclosure.

[On this Application both parties agree that this 2-week delay is attributable to Crown delay.]

[28] Fourth Appearance – November 3rd, 2014 – Ms. Netta appeared as agent for defence counsel. She stated that counsel is requesting disclosure and inquired as to the status of that from the Crown.

The Crown stated that they have put in the request for the additional disclosure and they have not received it yet.

It was agreed that once the defence has received the additional disclosure that there will be a resolution meeting with the Crown. The matter was adjourned to November 24th on consent.

[On this Application the parties agree that this 3-week delay was Crown delay.]

[29] Fifth Appearance – November 24, 2014 – Duty Counsel appeared as agent for counsel and assisted Ms. Drobotenko who appeared in person. Duty Counsel indicated that counsel is awaiting (additional) disclosure.

The Crown stated that they have received it and sent a fax to Mr. Harnett's office on November 21st indicating that it was available. The Crown provided the ambulance call reports as well as the operational incident report and a memo regarding the medical records (which were not in their possession) to Ms. Drobotenko in court and requested that she pass them onto her lawyer.

Duty Counsel stated that since the disclosure is ready today, counsel is requesting the matter be adjourned to December 15th to "review it and discuss the disclosure with both Ms. Drobotenko and the Crown."

On consent the matter was adjourned to December 15th.

[30] On this Application the parties disagree as to the attribution of this 3-week adjournment.

[31] The Crown submits that this is inherent delay, akin to delay for counsel to review initial disclosure. The Applicant submits that it is Crown delay.

[32] Respondent Crown submits that the Applicant did not have to wait for this additional disclosure to set trial dates. It is the Crown's position that trial dates could have been set on September 29th (second appearance) after counsel had reviewed initial disclosure with his client. They submit that the Crown's duty to disclose is ongoing and not all disclosure must be received before trial dates are set.

[33] The Respondent Crown references the Ontario Court of Appeal decision in R. v. Kovacs-Tatar, [2004] O.J. No. 4756 at para 47 which reads as follows:

Something should be said about counsel's refusal to set a date because the expert report was not available. The Crown is obliged to make initial disclosure before the accused is called upon to plead or to elect the mode of his trial. See the comments of Sopinka J. in R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.) at pp. 13-14. In this case, since the Crown had elected to proceed summarily, election of the mode of trial was not an issue. Having regard to the length of time before trial, the appellant's counsel knew the expert's report would be completed many months before the appellant had to plead and the appellant would have had ample time to obtain his own expert's report had he wished to do so. Also, because the obligation of the Crown to make disclosure is a continuing one, the Crown is not obliged to disclose every last bit of evidence before a trial date is set. The defence was not forfeiting its "Stinchcombe rights" by agreeing to set a trial date. Counsel for the appellant did not act reasonably in insisting that he receive the expert report before setting a trial date.

[34] The Crown also references Justice Code of the Ontario Superior Court of Justice sitting as a summary conviction appeal court in the case of R. v. Lahiry (supra) at para 114 which reads as follows:

In any event, as I read the above line of binding authority, outstanding disclosure can often be significant and it still cannot be used to hold up the setting of dates for trial or preliminary inquiry. Sophisticated forensic testing and ongoing investigative steps often take time and they cannot be allowed to hold the process hostage by preventing the setting of timely trial dates. It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay at these early stages. This is simply common sense. Lawyers can generally adapt and adjust their trial strategy to ongoing disclosure, received from the Crown while awaiting trial. If the Crown is not being diligent in providing disclosure sufficiently in advance of the trial date, then setting confirmation dates and target dates for trial will solve the problem. By bringing the case back to court, a month or two before the target trial date, defence counsel can create a check to prevent dilatory Crown disclosure practices. If the Crown has not completed all important disclosure by the confirmation date, the defence can then adjourn the target trial date and the Crown's actions will have caused the delay.

[35] I agree with the Applicant that trial time estimates could not be determined without statements from 2 potentially important witnesses for either the Crown or the Defence. The paramedics dealt with the Applicant at the scene of the accident, they transported her to hospital at her request, and they delivered her to the hospital where she was seen by medical personnel and later allegedly refused to provide suitable samples of her breath saying that she had given them to the ambulance drivers. They had evidence to give potentially regarding indicia of impairment, observations of any injuries sustained in the accident which may be relevant to a medical defence. Their involvement in the matter was known during the course of the investigation. This was not a case of new ongoing disclosure as represented by the Crown on this Application. This is not a case of waiting for an expert's report or for new issues to be investigated as referenced in the case law cited above. The Respondent Crown's case summary (Appendix A) makes it clear that the paramedics would have some evidence to give on relevant issues. They are referred to 9 times in the Crown's synopsis of events.

[36] The Respondent Crown takes the view that in the end, the statements of these 2 paramedics added very little to their case other than to confirm that the paramedics observed no injuries that would require the Applicant to be taken to the hospital. The Respondent Crown says the paramedic's evidence at trial will be "brief".

[37] On this Application, the Respondent Crown also stated that "the Crown would not have made the request for the ambulance report but for defence counsel's request. Since we received them and since counsel indicated on the record today that they were useless, it's my position that I'm compelled to point out that they're not useless, that we will be using them…" (Transcript August 26, 2015 p.103)

[38] I find that the Respondent Crown's characterization of the value of the ambulance attendant's account of events is contradictory and thus very confusing.

The Crown is required to vet initial disclosure for completeness. See: R. v. Lahiry supra at para 22. Obviously this was not done in this case. A vetting of initial disclosure in this case would reveal that the statements of 2 potentially important witnesses were not in the Crown brief. It was the duty of the Crown to arrange for these statements. There is no duty on the defence with respect to this.

[39] The Crown submitted that most of the 7 to 8 Crown witnesses' evidence at this trial will be brief. (Transcript dated August 26, 2015 at p. 39) The Respondent Crown also submitted that the trial in this matter is not simple. They have characterized it as being complex, and not a short trial. (Transcript dated August 25, 2015, at pp 58, 67, 91, 92)

[40] Further, the Respondent Crown provided no explanation as to why it took from September 26th to November 21st to provide the requested disclosure in this case.

[41] Additionally, at no time in the set date court, did the Crown suggest that trial dates could be set without the disclosure being requested by the Applicant. This arises for the first time on the s. 11(b) Motion.

[42] I reject the Crown's submission on this Application that trial dates can be set without the statements of witnesses who were involved in the incident being considered by the Crown and provided to defence counsel or the accused party. Without potentially important witness statements it is not possible to accurately set trial time because potentially important parts of the case have not yet been reviewed. I repeat that these witnesses may have provided evidence of a medical defence in the case and/or had evidence to give regarding indicia of impairment. This issue was addressed at numerous points in the submissions on this Application. (Transcript of August 26th, 2015, at pp. 36, 39, 40, 62, 62, 98, 103, 104). The inherent time requirements of the case could not be accurately assessed without them.

[43] The setting of inadequate time to complete trials has become a chronic problem in Halton Region. The Crown's failure to recognize their role in this problem is reflected in the submissions made on this Application.

[I find that the 21-day delay until December 15, 2014, was caused by Crown delay.]

[44] Sixth Appearance – December 15th, 2014 – Mr. Harnett appeared and advised the Court that he has attended today for a Crown pre-trial and as a result "we're going to set a two day trial and I attended at the trial coordinator's office and took the first date that was offered which is November 5 and 6." Mr. Harnett stated that he has "dates available for a two-day trial in the month of January and thereafter every month through to November."

Mr. Harnett advised that he was given a Judicial Pre-Trial date of January 23rd, 2015, and the matter was adjourned to that date accordingly with the 2 days of trial set for November 5 and 6, 2015.

The Applicant submits that the 326 days (11 month) period from the setting of the trial dates on December 15, 2014, through to the anticipated start of this trial on November 5th, 2015 is institutional delay.

[45] The Respondent Crown submits that the 6 week adjournment up to the Judicial Pre-Trial is inherent delay and that institutional delay does not begin until after the Judicial Pre-Trial was held until the anticipated start of the trial on November 5th, 2015, which they calculate as being 9.5 months.

[46] The Crown relies on R. v. Lahiry (supra) and R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (ONCA) in support of their position.

[47] I disagree with the Respondent Crown. The case law does not say that periods up to a Judicial Pre-Trial is considered inherent delay when target trial dates have already been set. The case law speaks to delay calculations at the time trial dates are set which in some jurisdictions are done after the Judicial Pre-Trial is completed to ensure accurate trial time estimates.

[48] On December 15, 2014, counsel set the 2 earliest days Halton had to offer for a 2 day trial for an out-of-custody case. The trial time was not adjusted at the Judicial Pre-Trial. (Unfortunately the number of witnesses to be called at trial was not filled out). If more trial time had been added at the Judicial Pre-Trial, trial dates would have been pushed further out from the November 5th start date.

[49] I also disagree with the Applicant that institutional delay in this case starts from December 15, 2014. Mr. Harnett placed on the record that he had time to accommodate a 2 day trial starting in January of 2015 and every month thereafter.

Because the January 23, 2015, JPT date was selected, it is fair to infer that Mr. Harnett's availability begins on this date.

[50] I therefore conclude that the period between December 15, 2014 and January 23rd, 2015 (6 weeks) is not institutional delay, but is inherent delay required to clear one's calendar and prepare for the case.

[51] I find that the total (Part One) institutional delay in this case is from January 23rd, 2015, to the anticipated end of the trial on November 6th, 2015 which equals 9 months and 14 days. (This is before a Part Two factor is built in, which is the time it would take to complete the trial as discussed in R. v. Morin, supra.)

[52] The total Crown delay with respect to providing disclosure in the set date court is 2 months.

[53] The total 'delay' period is therefore 11 months and 2 weeks.

5. The Unreasonableness of the Trial Estimate in this Case (Part Two Factor)

[54] During the course of this Application, the Respondent Crown stated that they will be calling 7 to 8 witnesses and most of the evidence will be brief. The Crown also submitted that the case is complex.

[55] The Applicant stated that up to 3 witnesses will be called for the Defence and a s. 10(b) Charter Application will be filed.

[56] Both Applicant and Respondent asserted again on this s. 11(b) Application that 2 days would be sufficient to complete this trial including the Judge's final reasons in the matter. (Transcript p. 106)

[57] With the greatest of respect to both counsel, they are wrong. This is not a 2 day trial. An 11 witness trial in a case such as this should have been set for 4 consecutive days. There is simply no way for the trial Judge to hear all the evidence, hear and consider submissions, and then render a s. 10(b) Ruling and final Reasons for Judgment. This is yet another example of an upcoming under-estimated trial that will result in a split-up trial and a reserved judgment for the trial Judge and delayed justice for all.

[58] It is evident from the case summary filed as Appendix 'A' to these reasons that this is not a simple drinking and driving case like the summary conviction court in R. v. Lahiry (supra) dealt with when over-turning 4 different 11(b) stays imposed by 4 different Judges of the Ontario Court of Justice.

[59] This case involves 2 charges and up to 11 witnesses. The alleged refusal took place in a hospital where there is no video-tape to assist in fact-finding. The proposed s. 10(b) is not straight-forward as characterized by the Applicant. It will be alleged that one of the Applicant's relatives was insisting that she speak to counsel at the hospital.

The State of the Docket for November 5th and 6th, 2015

[60] At the time of writing this decision, there are 3 trials scheduled to start in Milton Courtroom #16 on November 5th.

[61] This trial is listed as day 1 of 2. There is another trial listed as day 1 of 2. There is a 3rd trial listed with a time estimate of 1 day. All have retained counsel and JPTs were held. The other 2-day trial is a Refuse Breath Demand (s. 254(3)(a)); Drive Suspended and Stunt Driving. The defence intends to call expert evidence. The 1-day trial is Refuse ASD Demand (s. 254(5)) and 3 HTA charges.

[62] There is no other Criminal Courtroom in Halton Region (Milton or Burlington locations) available to assist with this list.

[63] The chances for this matter to even get started on November 5th are poor. Even if the other 2 trials turn into pleas or collapse for reasons presently unknown, addressing them will take some court time, which will not leave the Drobotenko matter with one full court day.

[64] Looking next to the scheduled second day for this matter on November 6th, there is day 2 in this matter and day 2 of one of the other trials from November 5th. Once again there is no other Criminal Courtroom in Halton to assist this trial Court.

[65] I conclude that this trial, even if it did start on November 5th 2015, would not complete on November 6th, 2015.

6. Prejudice

[66] Ms. Drobotenko filed an Affidavit with her Application and she testified viva voce.

[67] She is 27 years of age and lives in Milton with her father and husband. She has been employed with Manheim Auto Auctions for 4 years as a lot administrative coordinator.

[68] Ms. Drobotenko has pre-existing mental health medical issues which date back 5 years. She has been treated for depression, sleep issues, racing thoughts and panic attacks stemming from the suicide deaths of her sister (2004) and her mother (2007).

[69] Ms. Drobotenko testified that after being arrested in this matter, her condition worsened and in the Fall of 2014 her family doctor referred her to a psychiatrist. There was a long wait list.

[70] She finally was able to see a psychiatrist in March of 2015 and was diagnosed with bipolar spectrum disorder (the same condition as her sister and mother). Her current medications are set out in the Affidavit.

[71] Ms. Drobotenko states that she is very anxious about this case and the delay to trial means that she has more time to "stew about it". She is struggling to remain mentally well.

[72] Ms. Drobotenko states that she has been through the criminal justice system before. Once for an Over 80 in 2007 (her car hit a pole and median on the Highway and rolled over) and a drive disqualified in 2009.

[73] "However, in those cases I never had the stress and crushing anxiety that I feel this time. It is still many months until my trial, and I know that the worry will only get worse as the case drags on."

Applicant's Submissions on Prejudice

[74] The Applicant submits that there is more than 'inferred' prejudice caused by the trial delay in this matter. It is submitted that due to her unique personal circumstances, she has suffered mental health issues that are more than 'merely trifling'.

Respondent's Submissions on Prejudice

[75] The Respondent Crown complains that the fragility of the Applicant has only first come to light on this 11(b) Application.

[76] The Crown submits that this information should have been put to them earlier if trial delay was a realistic concern.

[77] The Crown submits that in any event the Applicant's mental health issues pre-existed her arrest and the Court should not find any specific prejudice in this case.

Finding on Prejudice

[78] There is no question that the Applicant has special mental health needs that have been augmented by not only her arrest in this matter, but also the delay in getting to trial. This is before the additional time to complete it is factored in.

[79] It is to her credit that she has been able to maintain employment.

[80] I do not accept that an accused's person's life has to be completely unhinged before specific prejudice is found. In the case of an accused with special needs such as this, the system should be able to accommodate them.

[81] There is no evidence whatsoever that if the Applicant's special needs had been brought to the earlier attention of the Crown, that this trial could have been expedited.

7. Balancing Societal Interests in a Trial on the Merits

[82] The Supreme Court of Canada in R. v. Bernshaw, [1995] 1 S.C.R. 254; 95 C.C.C. (3d) 193 @ pp. 204, 205 (S.C.C.) has commented on the seriousness of drinking and driving offences:

Every year, drunk driving leaves a terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has a far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalizations, drunk driving is clearly the crime which causes the most significant social loss to the country… The social cost of the crime, great as it is, fades in comparison to the personal loss suffered by the victims of this crime through the death and injury of their loved ones.

[83] The Respondent Crown submits that there is a strong societal interest in having a trial on the merits in this case, particularly when the Applicant has a related record. The Crown submits that the institutional delay here has occasioned no real prejudice and given the seriousness of the offence and the Applicant's antecedents, a stay of proceedings is not justified.

Decision

[84] The total Crown delay in this case is 2 months due to incomplete vetting of disclosure for completeness.

[85] The total institutional delay is at minimum 9 months and 14 days due to a chronic lack of appropriate Court resources for Halton Region. See: R. v. Czerczak, [2015] O. J. No 1652, Justice S.D. Brown; R. v. Ibrahim, [2015] O. J. No. 1244, Justice S.D. Brown; R. v. Abreu, [2015] O. J. No. 231, Justice A.D. Cooper.

[86] The trial time required to complete the matter has been under-estimated. A realistic trial time estimate of 4 days back to back in one court location would have pushed the trial time out even further.

[87] The delay at issue here is at minimum 11.5 months.

[88] The Applicant has demonstrated real prejudice. Her criminal record is irrelevant to this Application. I do not read any of the foundation cases dealing with the s. 11(b) remedy as watering it down for those individuals that come before the court with a criminal record.

[89] Society's interest in having a trial on the merits does not outweigh society's interest "in having a properly funded and properly run justice system that will allow for the resolution of criminal cases within a reasonable time." (R. v. Ibrahim (supra) at para. 90.)

[90] In the days of Morin and Askov, they were talking about a reasonable time to trial as being in the 8 to 10 month range based on simple trial time estimates. It was expected that once a simple trial started it would be completed in the allotted time frame. Those days have been long gone. The vast majority of trials in the Ontario Court of Justice have not been simple one-day matters.

[91] Time to start the trial is not the same as time to complete the trial. There confusion and distortion of what was being spoken of starting 25 years ago in the case law, and the realities of what is happening in the Ontario Court of Justice in 2015. This has covered-up inexcusable institutional delay in our trial courts. It is the responsibility of the Ministry of the Attorney General to address these problems. The Court, which has responsibility for trial scheduling, cannot do so without adequate facilities and resources.

[92] The Applicant has met her onus of proof on a balance of probabilities.

[93] I conclude that her right to a trial within a reasonable time has been infringed and the 2 charges before the court are stayed.

Released: September 23, 2015

Signed: "Justice Lesley M. Baldwin"

Appendix "A"

At approximately 2:20 a.m. on August 3, 2014, the Applicant was the lone occupant and driver of her motor vehicle. She was proceeding north on Ontario Street in Milton, Ontario. She hit the traffic light standard on the centre median at Woodward Avenue and Ontario Street. Two brothers saw her car proceeding north on Ontario Street before it hit the light standard and they saw another civilian, who lived in a second floor apartment at 235 Ontario Street, assist the Applicant after the collision. One of the brothers called 911. Chris Dando, who lived in the second floor apartment, heard the crash and ran out to assist the Applicant. Dando said the Applicant was passed out to the right side of the wheel of her vehicle. Dando yelled at her and she opened her eyes, which were glossy and red. He pulled her from her car because it was smoking, but she kept asking him if he was okay. The Applicant also said to Dando a number of times "please let's go". When she spoke, Dando said her speech was "slur". The two brothers had no direct contact with the Applicant.

When Cst Murray, the investigating officer, arrived at the scene of the collision, the Applicant was crouched down leaning against a fence on the west side of Ontario Street. She was with Chris Dando. The Applicant told Cst Murray that she was okay and that she fell asleep at the wheel. She kept apologizing to the officer ("I'm sorry. I'm sorry"). While Cst Murray spoke with the Applicant, she covered her mouth with her hands. Cst Murray noticed "drying" blood near her nose. When Cst Murray asked her where she was coming from, the Applicant said she worked at a bar called Shark's. She told Cst Murray she had nothing to drink – no alcohol – the entire night. When Cst Murray told her she could smell a strong odour of alcohol, the Applicant said she had had one drink at 6 p.m. the evening of August 2, 2014. Cst Murray noted that the Applicant's eyes were watery, her pupils were very large and her speech was slurred and fast. As well, she noticed that the Applicant swayed slightly as she stood. Cst Murray formed the opinion that the Applicant had been operating her motor vehicle while impaired by alcohol and placed the Applicant under arrest.

The Applicant said she understood but argued that she fell asleep and she only needed to get home, which was a few houses away. She begged Cst Lindsay to let her go. At one point, the Applicant made a comment about not wanting to be "that girl", referring to drinking and driving. Paramedics arrived and Cst Lindsay stepped back to allow the Applicant to be assessed.

On arrival, the paramedics found the Applicant alert standing on the sidewalk talking to police. The paramedics said the Applicant said she was on her way home from work in Oakville when she fell asleep at the wheel. The Applicant insisted she was uninjured, but requested to be transported to hospital for a further assessment by a doctor. The paramedics noted dried blood around her mouth and a fat lip that the Applicant said was caused by the airbag. The physical findings by the paramedics were "no obvious trauma" and, where applicable, "no pain on palpation". Cst Murray remained with the Applicant and paramedics while the Applicant was in the ambulance. Cst Murray said the Applicant said she had just had surgery for the removal of a cyst. She had been prescribed percocets, but said she never takes them when she drives. Cst Murray remained in the ambulance while the Applicant was transported to the hospital. Before leaving the scene of the collision, the Applicant's boyfriend attended.

Once the Applicant was done being treated by paramedics, Cst Murray read the applicant her right to counsel, caution and breath demand. When asked if she understood the concept of duty counsel, she said "Yes, umm hmm". When asked if she wished to call a lawyer now, she responded "No, I don't need one". When read the breath demand, she said "Yes, yes". When asked if she understood the caution, she said "Yes. 100%".

When the Applicant arrived at Milton Hospital, the paramedics provided hospital staff with background information. The qualified technician arrived at the hospital with the approved instrument. They were put in the quiet room on the north side of the emergency room. Hospital staff and Dr. Watada saw the Applicant. Either the Applicant said or Dr. Watada advised that there was no loss of consciousness. The Applicant showed no sign of fractures to her face from the collision, but x-rays were ordered as a precaution.

At 3:49, the qualified technician, Cst Evans, was advised by Dr. Watada that the Applicant was able to provide breath samples. Cst Evans received custody of the Applicant and noted a strong smell of alcohol on her breath and red, bloodshot eyes. He clarified that she understood the reason for her arrest. When asked if she understood, she said "I do". When asked if she understood the breath demand, she replied "yeah". Her right to counsel was re-read to her and when asked if she understood, the Applicant said "Yes, I do". When asked if she wanted to call a lawyer, she said "No, I trust you guys. I don't want to speak to a lawyer". Cst Evans noted her speech was slurred. When asked if she understood the secondary caution, she said "yeah, I do".

When providing the first attempt of her breath sample, the Applicant put her teeth against the mouthpiece and puffed up her cheeks. It was not a proper sample. During the second attempt, she blew breath through the left side of her mouth and no breath went into the mouthpiece. It was not a proper sample. Cst Lindsay spoke with the Applicant and outlined the consequences of not providing a sample. The Applicant said she would do it and was trying. Cst Evans changed the mouthpiece. Either Cst Evans or the Applicant put the mouthpiece in the right side of her mouth and blew a full breath out the left side of her mouth. Cst Evans used a third mouthpiece to demonstrate a breath sample to the Applicant. The Applicant became angry and said "Fuck you. I did nothing".

The Applicant's boyfriend, who was earlier at the scene of the collision, and the Applicant's father came into the room with Cst Evans and the Applicant. The father yelled that it wasn't fair and "you can't do this". They were escorted to the front door and the boyfriend said they would get a cab.

Cst Evans told the Applicant that refusing to provide a sample would result in criminal charges and that he was going to start a new test sequence. The Applicant said she already provided 2 samples in the ambulance.

The Applicant said "Fuck off. I provided a sample to the ambulance drivers". She had not.

Although she had already been checked by the doctor, the Applicant complained of stomach pains and wanted to use the washroom. After she did, she complained of bleeding when urinating. A nurse checked the toilet and found urine, but no blood in it. She became more "dramatic" thereafter. She pulled an ambulance monitor sticker off, nearly collapsed to the floor in pain, cried and said she couldn't hear so she couldn't blow, fell off a chair while screaming that she was going to die repeatedly and pretended to heave into the garbage can repeatedly. Her boyfriend reattended and was very helpful in calming her down for a time. The Applicant continued to cry and said "I gave a sample in the ambulance". "I was cooperative". Her boyfriend remained to avoid further anxiety and escalation, according to Cst Evans, and because Cst Evans wanted to avoid any physical confrontation.

The Applicant was charged with Impaired Driving and Refusing to Provide a Breath Sample and was released on a Form 9 – an appearance notice – with no conditions attached. The Applicant refused to sign the appearance notice.

Footnotes

[1] The request is for the notes/statements of the 2 paramedics who transported the Applicant to hospital from the accident scene and any medical records from the hospital in the possession of the Crown.

[2] These meetings are also referred to as Crown pre-trial meetings here in Halton Region.

[3] Although Justice Code in Lahiry, supra, describes a best practice for defence counsel to set out every available date they have for trial up to the selected date(s), I do not find this to be a pre-requisite on this Application as submitted by the Respondent Crown.

[4] In Halton, out-of-custody trial dates are set approximately 11 months after the parties indicate that they are ready to set them. This has been the case for many years now due to lack of courtroom space and judicial resources.

The Judicial Pre-Trials are held 3 days a month in the Milton Courthouse. Those lists are extremely heavy with 15 or more Judicial Pre-Trials scheduled on a list for each of those 3 days. In-custody or continuing Judicial Pre-Trials are conducted on pre-booked plea court or trial lists.

The purposes of the Judicial Pre-Trial are to accurately report trial issues, ensure trial time estimates are accurate, and result in a compressed and highly focused Trial.

If it is determined that more trial time is required at the Judicial Pre-Trial, the originally selected trial dates are adjusted. The aim is to get all the trial dates consecutively set in the same Courthouse location and to include time for the Judge to deliver reasons for judgment and complete the matter.

Because counsel are often not prepared to conduct such a focused Judicial Pre-Trial, Judicial Pre-Trials are continued into a Judge's regular Court schedule to be re-addressed. This congests our busy trial dockets even more.

I also note from the Trial Co-ordinator's notes on the 'Request for Trial' Form, that November 2, 3 and 4, 2015, were offered for trial. The Defence was available; the Crown was not.

[5] It is fair to state that for a number of years now the 5 Criminal Court Judges who preside in Halton have been carrying at least 30 trial continuation matters at any given time. This is not consistent with the s. 11(b) Charter rights that are addressed in this case.

I have picked up 7 Trial/Preliminary Hearing continuations since I heard submissions and reserved judgment in this matter on August 26th, 2015, through to today's release date of September 23, 2015. That number is shockingly unacceptable and speaks to the urgency in bringing this matter forward today for release. (Trial continuations – August 27th; August 31st; September 10th; September 16th (in-custody); September 17th; September 21st, P.H. continuation September 22nd (in-custody)).