Court File and Parties

Ontario Court of Justice

Date: March 6, 2017

Court File No.: Brampton 15-8193

Between:

Her Majesty the Queen

— and —

Bogdan Mares

Before: Justice Louise A. Botham

Reasons for Judgment released on: March 6, 2017

Counsel:

• S. Scully, counsel for the Crown
• N. Stanford, counsel for the defendant Mares

Judgment

BOTHAM J.:

Background

[1] Mr. Mares is charged with over 80. He was arrested on July 2, 2015 and the Information was sworn as of July 9, 2015. June 16, 2016 was the date first scheduled for trial. The matter did not proceed on that day and on June 22, 2016, a four day trial was scheduled to begin on May 15, 2017. The change in time estimate was occasioned by the defence decision to call expert evidence on the issue of whether the approved instrument was malfunctioning or operated improperly.

[2] Mr. Mares has applied for an order staying these proceedings on the grounds that his right to be tried within a constitutionally tolerable time has been breached.

The Jordan Framework

[3] Subsequent to the adjournment of the June 2016 trial, the Supreme Court of Canada (SCC) released their reasons in the case of R. v. Jordan setting out a new framework for the analysis of an assertion of an 11(b) breach.

[4] There is now a presumptive ceiling of 18 months for a cases tried in the Ontario Court of Justice beyond which delay to trial becomes presumptively unreasonable. That presumption can be rebutted where the Crown establishes that a portion of that delay was occasioned by an exceptional circumstance, defined as events reasonably unforeseen or unavoidable and not capable of remediation or where the Crown can demonstrate that the delay was as a result of a case's complexity.

[5] For cases such as these which were already in the system prior to the Jordan decision being released the court may decide not to apply the presumptive ceiling where the Crown can establish that the delay in bringing the matter to trial was occasioned by either the parties' reliance on the Morin framework of analysis or where the case is "in a jurisdiction with significant institutional delay problems."

Total Delay to Trial

[6] It has taken 22 months and 10 days for this matter to come to trial.

[7] The Crown submits however that when those portions of defence delay are subtracted from the equation, the delay in bringing this matter to trial does not exceed the 18 month presumptive ceiling.

Contentious Periods of Delay

[8] There are two periods of delay which are contentious in this matter.

First Period: The Expert Evidence Notice

[9] It is agreed that the matter could not proceed as scheduled because on June 14 2016, the defence served notice of its intention to produce an expert's report and a copy of that report. Crown counsel was not prepared to concede the credentials of the report's author or the filing of that report without cross-examination and the opportunity to call expert evidence in reply. The trial had been scheduled to be heard by a retired judge, rather than one regularly scheduled in this court house, so the option of hearing the Crown's case and then setting continuation dates was felt not to be the most expeditious way of dealing with the matter and it was agreed by all parties that the better course of action was to reschedule.

[10] On the June 16th date, it was conceded by Crown counsel that 'part of the reason for the late notice with respect to the calling of expert evidence was due to the difficulty of the Crown producing a working copy of the Intoxilyzer's operating and maintenance records.' Although the trial estimate form clearly showed that 4 hours was initially scheduled and that there was no indication that expert evidence would be called it was the position of the applicant that the possibility of expert evidence, depending on the content of the records, had been canvassed at the time of the crown pre-trial.

[11] The matter was then adjourned to June 22, 2016 for defence counsel to confirm his expert witness' availability. On that day, May 15th to 19, 2017 were set for trial.

Second Period: Scheduling Conflicts

[12] The Crown was available to conduct this trial on July 25, 2016, the defence was not. The next date offered to begin this trial was January 3rd and then January 31, 2017. Neither party was available for those dates. The Crown was available to proceed on February 6th but not February 21st, 27th, March 6th or March 13th. March 20th and 27th were offered and both were available to the Crown but not the defence who was available for April 18 and May 1st; however, the Crown was not. Ultimately, the May 15th date was selected for trial.

[13] On June 22nd when the trial date was confirmed, counsel for the applicant stated that he was prepared to conduct the trial with his expert as early as July 18th and then every month until the end of January 2017. He conceded that his witness was not available in February or March of 2017.

[14] The Crown submits that the time from July 25, 2016 to April 18, 2017 should be subtracted from the total time to trial because defence counsel was not available to continue this matter on the earlier dates offered by the court.

Analysis of Defence Delay Attribution

[15] The Crown relies on para. 64 of Jordan which states that:

… the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the Court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance.

[16] It is not clear to me that the matter is as simple as a literal application of that paragraph. The Court and Crown were prepared to proceed as of July 25 2017. However, for a period of over 5 months, there were no other dates available to reschedule this matter, which had already been in the system for 12 months. The Crown was not available again to prosecute this matter until February 6 2017 and then not available again until March 20th and 27th and then unavailable until May 15th.

[17] I think it unreasonable to hold the defence responsible for all of the delay from July 25th to April 18th, solely because counsel was not available on July 25th, when no other dates were offered between June 22nd and January 3rd. However, as of January 3rd 2017, there were a number of dates available to the Court and any delay in scheduling this matter is solely attributable to the availability of the parties. As of February 6th, the Crown was available to proceed. Defence was not. 15 days later on February 21st neither party was able to utilize the dates offered until March 20th when the Crown again was available but the matter could not be scheduled. The trial however could have proceeded 28 days later on April 18th, had the Crown been available.

[18] Had defence counsel been available to proceed on February 6th, the trial could have commenced that day, as it could on March 21st or 27th. It seems to me that any fair apportioning of the delay occasioned by the unavailability of counsel should reflect the reality that neither party was available for the majority of the dates offered for this matter, while taking into account as well that the Crown was available earlier than the defence.

[19] One mechanism would be to deduct from the total time to trial, two periods of delay occasioned solely by the unavailability of the defence, namely the 15 days between February 6th when the Crown was available and February 21st when neither side could conduct the trial and the 28 days from March 21st when the Crown was again available to April 18th when the defence was available but the matter could not be scheduled due to Crown unavailability. This would reduce the total time to trial by 43 days or one month and 13 days, resulting in a total time to trial of 20 months and 27 days.

[20] In the alternative, the delay occasioned by the unavailability of the defence could be calculated as beginning as of February 6, 2017, when the Crown was first available and ending on April 18, 2017, when the defence was available and the Crown was not for a total time of two months and 13 days deducted from the total delay to trial, leaving a time of 19 months and 27 days. On either analysis the total period of delay is still in excess of the presumptive ceiling.

The Expert Evidence Rescheduling

[21] There can be no dispute that the rescheduling of the first trial date occurred as a result of the defence decision to call expert evidence and the fact that notice of its intention to do so, was filed too late to remedy the scheduling difficulties resulting from that.

[22] The Crown has argued that either the defence should be held responsible for all of the delay occasioned by the rescheduling of this matter or that there should be an apportioning of responsibility between both parties.

[23] I think it important to review the history of this matter as it relates to the request for production of the Intoxilyzer's service, maintenance and historical records. On July 27, 2015, a written request was made for those records. Although the Crown's office did not resist production of the records, the matter was adjourned 5 times to obtain that disclosure. On October 2, 2015, the Crown confirmed that the disclosure would be provided but that a trial date could be set without the maintenance records. The matter was adjourned to October 23rd and in the meantime the disclosure DVD was provided. A Crown telephone pre-trial was held on November 18th at which time the Crown's office was informed that the DVD containing the maintenance records could not be opened. The defence sent the DVD to his expert to see if he could open it, however that was unsuccessful and on November 24, 2015, a letter was faxed to the Crown's office explaining that the expert had also been unable to read the DVD and requesting that counsel be provided with a replacement DVD or instructions as to how the file could be opened.

[24] On November 27th, the June trial dates were set. On May 16, 2016, a section 8 Charter application was filed and a letter was sent to the Crown's office reiterating the request for a replacement DVD. On June 6th the replacement DVD was couriered to the counsel for the defence with a covering letter in which Crown counsel took the position that the historical records sought were irrelevant and any defence request for an adjournment based on the late production of the DVD would be opposed. In fact, there was no defence request for adjournment because upon receipt of the materials, the applicant arranged for his expert to review them and prepare a report, which was served on the Crown's office. The Crown was not prepared to argue the case on the basis of the expert's report and the matter was adjourned so that further time could be scheduled for the witness to testify, subject to a voir dire into his credentials and for the Crown to call expert evidence to contradict the defence opinion.

Defence Actions in Response to Charges

[25] In Jordan, the majority at paras. 65 and 66 writes:

To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions. To summarize, as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence's conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay.

[26] Counsel for the Applicant has quite fairly conceded that he could have been more diligent about pursuing the delayed disclosure and followed up on his November letter. Having said that, there is no evidence as to why the Crown's office did not respond to his November correspondence, seeking a reformatted disk. When a further request was sent in May, it appeared that the matter was able to be resolved in short order. Had the materials been provided earlier, it may well be that the rescheduling issues resulting from the defence decision to call expert evidence could have been remedied in a timely manner. That is of course speculation but the reality remains that the rescheduling of the first trial date cannot be said to be caused solely or directly by the defence conduct, and any resultant delay occurring from defence unavailability to reschedule the matter has already been taken into account and deducted from the total time to trial.

Exceptional Circumstances

[27] I am not satisfied that the need to reschedule this matter to accommodate the defence decision to lead evidence to rebut the presumption of identity, per s. 258(1)(c) of the Criminal Code constitutes an exceptional circumstance as defined in Jordan so as to rebut the presumption of unreasonableness. Had the Crown responded in a timely manner to the defence November 2016 request for a reformatted disk, I am far from satisfied that it would not have been possible to have scheduled what became a 4 day trial within a reasonable time frame and within the overall allowable 18 months. Nor am I persuaded that the simple fact that 4 days, rather than 4 hours is now required for trial, justifies a longer time to trial, given that the first date available in November 2015 for a 4 hour trial was in June 2016, some 6 to 7 months in the future and that as of June 2016, the now 4 day trial was able to be accommodated by January 2017.

Transitional Provisions

[28] The Crown submits that the transitional provisions should apply in this case because the delay in bringing the matter to trial was occasioned by the parties' reliance on the Morin framework of analysis.

[29] I can see no support for the proposition that this jurisdiction has in fact tolerated periods of delay to trial in excess of the 18 month ceiling set out in Jordan.

[30] Summary conviction appeal decisions in Peel had consistently found 8 to 9 months to be the appropriate guideline for institutional delay. In the summary conviction appeal cases of R. v. Ratneswaran, (2013) O.J. No 5037 and R. v. Purewal, (2014) O.J. No 2824, Durno, J. acknowledged that 8 to 9 months of institutional delay as set out by the Court of Appeal in R. v. Rego, (2005), O.J. No. 4768 was still appropriate in Peel for a straightforward case. Even accounting for an intake period of some 3 to 4 months, the total period of constitutionally acceptable delay in this region would have fallen below the now presumptive 18 month ceiling.

[31] There has not been a culture in this jurisdiction of tolerating lengthy institutional or Crown delay when assessing an 11(b) claim. There is no basis to find that Crown or Defence could have been lulled into a false sense of security that the delay occasioned in this case was somehow constitutionally tolerable. In fact, at the time that the second trial date was set, this motion was scheduled as well.

Conclusion

[32] I am satisfied that there has been a breach of Mr. Mares' rights under section 11(b) of the Charter and I direct that the proceedings against him be stayed pursuant to section 24(1) of the Charter of Rights and Freedoms.

Released: March 6, 2017

Justice Louise A. Botham