Court File and Parties

Court File No.: Not specified

Date: 2016-01-08

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Shalu Chopra

Ruling on Section 11(b) Motion

Before: Justice Sandra Bacchus

Heard: December 17, 2015

Counsel:

• F. Fedorsen, for the accused/applicant
• L. Weisz, for the Crown/respondent

Bacchus J.:

OVERVIEW

[1] On July 18, 2014, the applicant was arrested and charged in relation to one count of Impaired Operation and one count of Drive Over 80mg contrary to the Criminal Code. The information was sworn on July 22, 2014. On November 14, 2014, the matter was originally set for a 1.5 day trial to be heard October 22nd and 23rd, 2015.

[2] On July 20, 2015, the applicant filed its initial application to stay the proceedings based on an alleged violation of the applicant's section 11(b) Charter right. That application was argued on August 27, 2015.

[3] On October 5, 2015, I dismissed this application finding 10 months and 19 days of combined institutional and crown delay and finding that the applicant had not met its evidentiary burden to establish specific or inferred prejudice as a result of delay. (Ruling dated October 5, 2015 – Applicant's Application Record Tab 5)

[4] Although the trial technically commenced on October 22, 2015, no evidence was heard until late in the afternoon as a result of circumstances I will elaborate upon in my analysis of the nature of the delay in this case.

[5] On October 22, 2015, as a result of issues that arose on this first day of trial, further dates were necessary and January 20 and 21, 2016, were added. However, the October 23rd date had not been vacated and a further half day of evidence was heard on October 23, 2015, before the trial was adjourned.

[6] On November 16, 2015, the applicant filed this application. Submissions were heard on December 17, 2015.

[7] For the reasons to follow I allow this application and order a stay of these proceedings.

[8] On July 20, 2015, the applicant filed an application alleging an infringement of the Applicants Charter rights pursuant to ss. 7, 8, 9, 10(a) and 10(b). Amongst other grounds, the applicant alleged that the video recording of the applicant while he was in the cells and specifically while he used the toilet was an infringement of the applicant's section 7 and 8 Charter rights.

[9] The Charter issues pertaining to the video taping of the applicant while in custody were not new issues to the parties. The applicant had repeatedly raised the issue during its numerous requests for the disclosure of the cell video in the set date, pre-trial and judicial pre-trial stage of the proceedings prior to November 18, 2014. This issue was also referred to and relied upon during the submissions of both the parties at the section 11(b) hearing on August 27, 2015. (Ruling dated October 5, 2015 – Applicant's Application Record Tab 5)

[10] Despite the ample notice of the Charter issues provided by the applicant, the respondent failed to file its notice of response at least 15 days in advance of the October 22, 2015 hearing date in accordance with rule 3.1(2) of the Criminal Rules of the Ontario Court of Justice.

[11] On October 14, 2015, the respondent advised counsel for the applicant by phone that the clerks' office had lost the applicant's Charter materials but the crown had a copy and would provide their response by October 16, 2015. The respondent further advised that the response would include a copy of the Police Cell Videotaping Pilot Project. The respondent provided no explanation as to why the materials were late. (Transcripts of the Proceedings October 22, 2015, Applicant's Application Record Tab 6, p.3)

[12] On October 16, 2015, the respondent served its response on the applicant. No pilot project materials were attached to the response.

[13] In addition, the response included a list of witnesses whose evidence the respondent sought to call on the Charter voir dire. One of the witnesses listed, Staff Sergeant Coulson, was unknown to the applicant and his involvement in the matter was not discernible to the applicant from its disclosure. No will says or affidavits in relation to any of the listed anticipated witnesses were appended to the notice of response or provided to the applicant prior to the October 22, 2015 trial date. (Transcripts of the Proceedings October 22, 2015, Applicant's Application Record Tab 6, p.3)

[14] On October 22, 2015, the first day scheduled for trial, the respondent advised the applicant that the respondent would not be calling any of the witnesses listed in its response and now intended to call a different Staff Sergeant (Clamucha), on the section 7 and 8 issue. Again no will say from Sergeant Clamucha had been provided to the applicant in relation to this anticipated evidence. (Transcripts of the Proceedings October 22, 2015, Applicant's Application Record Tab 6, p.3)

[15] On October 22, 2015, the respondent provided the Toronto Police cell videotaping pilot project material. The respondent acknowledges that although this material contains a reference to Phase 1 of the project which had been the disclosure provided in prior cases on this issue, this material now also contained Phase 2 materials. The applicant would not have received these Phase 2 materials before and had no knowledge of its content; this was new disclosure.

[16] As a result of the additional disclosure the applicant took the position that it needed time to review these materials but initially did not specify how long. In addition, the applicant requested a will say from Sergeant Clamucha which the respondent inexplicably resisted providing.

[17] Before any of these disclosure issues could be sorted out, the respondent was in the position of having to seek from the court an extension to allow for the proper filing of its notice of response which was nine days late. After hearing argument for the better part of the morning, the Court granted the extension.

[18] Recognizing that further time was now required for the trial as a result of the litigation of the extension issue and the burgeoning disclosure issues, the Court directed the parties to obtain further dates for trial.

[19] Prior to the lunch break the respondent inquired whether the second day, October 23, 2015, was to be vacated. The court indicated that it would not press the applicant to proceed the next day unless counsel for the application indicated they could be ready. Counsel for the applicant did not state its position at that time.

[20] In the afternoon the respondent provided the will say of Sergeant Clamucha to the applicant at the direction of the court and Sergeant Clamucha commenced his evidence in chief on the blended Charter voir dire. However, Sergeant Clamucha's evidence was not completed by the end of the court day and the examination in chief was adjourned to continue on October 23, 2015.

[21] Before the court recessed, counsel for the applicant advised that he was ready to deal with the evidence of the breath technician, the arresting officer and officer Gill, and complete the cross examination of Staff Sergeant Clamucha the next day and did not wish to further adjourn the matter. Having reviewed the pilot project materials over lunch it was the applicant's position that the matter could proceed. Counsel for the applicant reiterated the applicant's concern about delay and costs to the applicant: "there are financial issues with my client." (Transcripts of the Proceedings October 22, 2015, Applicant's Application Record Tab 6, p.3)

[22] On October 23, 2015, counsel for the applicant alerted the respondent and the court that upon further review of the pilot project materials the applicant was requesting further disclosure in respect of additional notes of police constable Gill and the booking sergeant. Phase 2 of the policy materials required officers to note in their memo books when they have advised prisoners of the video camera monitoring in the cell and toilet/sink area. As such, the applicant took the position that this disclosure was relevant to its assertion about the systemic nature of the breach alleged.

[23] In relation to this further disclosure request the respondent stated that although not an unreasonable request, the request was not routine and might take a long time to fulfill or, it might require a formal application by the applicant. (Transcript of the Proceedings of October 23, 2015, Application Record Tab 7, p. 4).

[24] In addition, the court was advised by the respondent that on October 22, 2015, during the break the arresting officer had booked an appointment out of town for October 23, 2015, and that it was: "…impossible for her to get here unfortunately." (Transcript of the Proceedings of October 23, 2015, Application Record Tab 7, p. 4).

[25] No further details were provided to the court as to the nature of the appointment or why the arresting officer was unable to make herself available to testify.

[26] The court heard the evidence of Sergeant Clamucha and Officer Shawn McConnell, the breath technician, in their entirety. At approximately 1:04 pm, the matter was adjourned to continue on January 20, 2016.

ANALYSIS

[27] There are three critical issues in the determination of whether the applicant has met its onus in this case. The first is: who caused the adjournment of the initial trial date or put another way, why were the additional trial dates necessary? The second is: how should the time between the first and second trial dates properly be apportioned? The third is whether this is a case in which actual prejudice, inferred prejudice or both have been established by the applicant on a balance of probabilities.

Calculation of Delay

[28] The overall length of delay in this matter is about 18 months commencing from July 22, 2014, the date the information was sworn, to January 21, 2016, the last day scheduled for trial. This quantity of delay is of sufficient length to raise an issue as to its reasonableness and merits further scrutiny. R. v. Morin, [1992] S.C.J. No. 25

[29] The applicant submits that the overall delay to be categorized as a combination of institutional and crown delay in this case is about 13 month and 19 days. The applicant argues that the entire period between October 23, 2016 and January 21, 2016, should be allocated as crown delay because the adjournment of the trial was caused by the respondent. R v. N.N.M., [2006] O.J. No. 1802 (C.A.) at para 23. R v Nguyen, 2013 ONCA 169, [2013] O.J. No. 1243 (C.A.) paras. 28, 30, 84-87.

[30] The respondent frames the institutional/crown delay in this case at approximately 11 months and 9 days, outside the Morin guidelines. The respondent submits that at most a further 21 days should be considered Crown delay as a fair acknowledgement of the late filing of its Charter response.

[31] The respondent resists the position that it is responsible for the entire period of the delay because the late disclosure in this case was information relating strictly to the Charter challenge. The respondent takes the position that it had no obligation to provide the Applicant with any evidence in relation to the Charter application until October 7, 2015, the date by when it should have properly filed its notice of response. As the disclosure was only provided nine days late the respondent argues that its actions in this case are distinguishable from that of the crown in Nguyen, supra, where voluminous substantive disclosure had been provided to the defense two days before the trial.

[32] Even accepting the respondent's position as to when it was technically required to provide disclosure, it is clear that the respondent failed to do so in timely fashion.

[33] I have no difficulty in finding that the adjournment/additional trial time necessary in this case was caused by the actions of the respondent on three fronts.

[34] Firstly, as a result of laches on the part of the respondent in failing to provide timely notice of its Charter response a half day of the first day of the trial was devoted to litigating the crown's application to extend the time of filing eating into the 1.5day scheduled trial time.

[35] Secondly, the actions of the respondent in failing to provide timely disclosure in relation to its response also caused the first day set for trial to be way laid by argument and submissions regarding the impact of the late disclosure on the manner in which the evidence might reasonably be called.

[36] Thirdly, although by the morning of October 23, 2015, the applicant was able to specifically outline the nature of its request for further disclosure, the respondent was not in a position to take a position about the request or respond to it. Nor had the respondent, at the time the matter was adjourned, as yet articulated its position about whether the notes should be disclosed.

[37] In addition, a key crown witness, the arresting officer was unavailable to give evidence on October 23, 2015, despite the fact that this date had not been vacated, nor the officer formally excused, and despite the fact that counsel for the applicant had indicated on October 22, 2015, that he would be prepared to complete his cross examination of the arresting officer the next day.

[38] I find that this trial ultimately was adjourned primarily as a result of the late disclosure provided by the respondent. Had the disclosure in question been filed with the respondent's Charter notice in accordance with the rules the outstanding disclosure issues would have crystallized in advance of the trial as would have the respondent's position. These matters could have properly been dealt with before the trial date or at the commencement of the trial in a focussed and efficient fashion.

[39] Certainly had the disclosure been properly provided in a timely fashion there would be little basis to find that the respondent's actions necessitated the adjournment.

[40] It was the actions of the respondent, flowing from the late notice to late disclosure as well as the unavailability of a key crown witness that cumulatively protracted the proceedings, requiring further trial dates and necessitating an adjournment to allow for disclosure to be provided to the applicant or a motion and ruling in respect of the further disclosure request.

Allocating Periods of Delay

[41] In setting the January 20 and 21, 2016, continuation dates seventeen dates were available to the crown and the court which were not available to the applicant. These dates were: October 27, 28, 29 and 30, 2015; November 2, 4, 5, 6, 9, 10, 12, 2015; December 2, 14, 15, 16, 17, 2015, and January 18, 2016. (Applicant's Application Record, Tab 6 p.52).

[42] Though not available for the dates offered, counsel for the applicant had twenty nine available dates within this period of time: one date in October, twelve dates in November, seven dates in December and nine dates in January. (Applicant's Application Record, Tab 6 p.53).

[43] In Nguyen, supra, following the adjournment of the first trial date as a result of the late disclosure, the defense did not propose any available dates for trial and did not press for earlier dates. The Court of Appeal noted that the record was "barren" as to the defense's earlier available dates (para.86). Despite this finding the Court still attributed the seven month delay between the first and second trial to the crown finding that the crown necessitated the adjournment by providing late voluminous disclosure.

[44] To an extent I agree with the respondent that there is some distinction to be made between the impact of the late disclosure provided in Nguyen supra and the impact of the disclosure provided in the case at hand.

[45] In Nguyen, supra an adjournment of the entirety of the trial outright was necessary. However, in relation to the matter at hand much of the evidence could be heard and was not, upon further review by the applicant, impacted by its receipt of late disclosure. However, the penultimate disclosure issue could not be addressed nor the trial be completed in the allotted time because of the late disclosure.

[46] It is not in the circumstance of this case, appropriate to attribute the entirety of this time frame to the applicant who's actions did not cause the delay and who had early dates to continue. This is not a case like R v K.E., 2013 ONCA 175, [2013] O.J. No. 1280, where the applicant was not available for the entire five month period during which trial dates were offered. Counsel for the applicant had ample and early available dates.

[47] Nor is it appropriate to attribute the time frame as entirely neutral; the further delay was occasioned by the actions of the respondent. Again I distinguish the matter before me from K.E., supra where the adjournment of the trial was necessitated due to the unavailability of a jury panel and not the specific actions of the crown.

[48] I find that the fairest allocation of the delay, taking into account the availability of the parties in the intervening time period and considering the cause and impact of the delay is to allocated half of the time between the two trial dates as neutral and the other half as crown delay; essentially adding 45 days of actionable crown delay.

[49] As such, in light of the 10 months and 19 days institutional delay already present on October 22, 2015, the total institutional/ crown delay to be considered in this case is 12 months and 4 days, a period of time which substantially exceeds the Morin guidelines.

Prejudice

[50] The applicant argues that delay of this duration is substantially outside the guidelines in respect of acceptable delay established by the Supreme Court of Canada in Morin, supra and that it is appropriate for the Court to infer prejudice to the accused in this case.

[51] The applicant further submits that there is compelling evidence that the applicant has suffered actual prejudice to its fair trial interests and security of the person as a result of the delay. The applicant submits that the delay has had a "huge" financial impact on the applicant resulting in a significant impairment to his security of the person. The applicant submits that the delay has forced him to incur additional, substantial legal fees. (Application Record Tab 3, Affidavit of Shalu Chopra)

[52] I have no other evidence before me on this application regarding the applicant's income, current state of employment or any other financial pressures which may be consistent with a finding of actual prejudice. However, the substance of the applicant's affidavit is unchallenged.

[53] In addition, counsel for the applicant made references to the stress and financial costs to the applicant as a result of the protraction of the proceedings on October 22 and 23, 2015. It was evident that in light of these concerns counsel for the applicant sought to expedite the proceedings in a manner I find consistent with the financial prejudice the applicant alleges. (Applicant's Application Record, Transcript of the Proceedings Tab 6, pp.78-79).

[54] I find no suggestion in the conduct of the applicant of any intention to manufacture delay in this case; quite the contrary. Delay has been a live issue in this case for quite some time, formalized by the first 11(b) application brought by the applicant on July 20, 2015. This is not a case in which the applicant is being opportunistic in its attempt to seek a remedy.

[55] Further, the applicant is not to be faulted for seeking further disclosure on matters which appeared central to the Charter allegations alleged. I do not find the applicant's conduct in doing so in the circumstances of this case inconsistent with a desire to have its trial heard within a reasonable time.

[56] In the circumstances I am prepared to find that the applicant experienced actual prejudice to his security of the person in the form of financial stress resulting from the delay in these proceedings caused by the actions of the respondent.

[57] In addition, I find the combination of institutional and crown delay is of sufficient length that it is appropriate to infer prejudice to the applicant in this case.

[58] I note that between August 27, 2015 and the date of the second section 11(b) hearing December 17, 2015, three different assistant crown attorneys dealt with this prosecution; two different crowns each argued the section 11(b) applications and a further crown dealt with the initial trial proceedings of October 22nd and 23rd 2015. In the isolated role that each counsel seemed to have in this case, I find that the individually each dealt with this matter as diligently as they could in the circumstances. There was however an institutional failure on the part of the state to deal with the matter in a manner consistent with the applicant's section 11(b) Charter right.

[59] The casual pace adopted by the state in its overall approach to this prosecution resulted, in my view, in laches in the manner the prosecution was conducted following the ruling of October 5, 2015.

[60] In effect the respondent was not ready on day one of the trial. It could not rely on its Charter response without an extension for the filing of notice ordered by the Court and it had not provided timely and relevant disclosure in the form of the Police Pilot project materials relevant not only to the applicant's Charter application but also in aid of its response and the onus the respondent bears in respect of the section 8 Charter issues. Nor was the respondent in a position to complete its evidence on October 23, 2015 given the absence of a key witness.

CONCLUSION

[61] There is a strong societal interest in seeing that charges in relation to drinking and driving be heard on their merits. There is no issue that this type of offense can lead to injury, death and destruction, and that those who operate motor vehicles while impaired place the entire community at risk. The societal interest in seeing these matters prosecuted however cannot override the individual's constitutional right to a trial within a reasonable time particularly where the length of delay has significantly exceeded the Morin guidelines, as is this case.

[62] In this case the 12 months and 4 days of combined institutional and crown delay substantially exceeds the Morin guidelines.

[63] I find that it is appropriate to infer prejudice given the duration of the delay. In addition, there is before me compelling evidence of specific prejudice. I find that I am satisfied that the applicant has met its onus.

[64] The applicant has established a violation of his right to be tried within a reasonable time and accordingly the application for Charter relief is allowed.

Reasons released: January 8, 2016

Signed: Justice Sandra Bacchus