Court Information

Ontario Court of Justice

Date: January 9, 2017

Court File No.: Halton 15-588

Parties

Between:

Her Majesty the Queen

— And —

Jeffrey Rice

Before: Justice D.A. Harris

Heard on: November 2, 2016

Reasons for Ruling on Section 11(b) Application released on: January 9, 2017

Counsel

Lindsay Bandini — counsel for the Crown

Don Clarke — counsel for the defendant Jeffrey Rice

Decision

HARRIS J.:

INTRODUCTION

[1] Jeffrey Rice was charged with operating a motor vehicle when (1) his ability to operate a motor vehicle was impaired by alcohol, and (2) his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of his blood.

[2] Counsel for Mr. Rice brought an application, seeking an order to stay these charges pursuant to the Canadian Charter of Rights and Freedoms on the basis that Mr. Rice's right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter had been infringed.

[3] Crown counsel argued that Mr. Rice had not complied with the Criminal Rules of the Ontario Court of Justice in that he did not serve or file his application in a timely fashion. She asked me to simply dismiss the application in summary fashion.

[4] Counsel for Mr. Rice asked to be relieved of the obligation to comply with the Rules on the basis that proceeding otherwise would deprive Mr. Rice of his right to argue that he was not being tried within a reasonable time as guaranteed by section 11(b) of the Charter.

[5] I chose to hear the submissions of counsel for Mr. Rice. I did not call upon Crown counsel to respond. I dismissed the application, indicating that I would provide written reasons later.

[6] Those reasons are as follows.

THE CRIMINAL RULES OF THE ONTARIO COURT OF JUSTICE

[7] I have previously reviewed at some length the portions of the Criminal Rules of the Ontario Court of Justice that apply to 11(b) applications. Crown counsel in fact referred to my Reasons for Judgment in R. v. da Silva as support for her request for summary dismissal of this application. I am not going to reproduce that summary of the law here. I simply observe that I adopt those reasons in their entirety.

[8] In R. v. da Silva, I noted how the facts of that case were different from the facts in R. v. Blom. More particularly, in R. v. Blom, the issue was whether Crown counsel was prejudiced by inadequate notice whereas in R. v. da Silva the issue was whether counsel should continue to be allowed to ignore the Rules which were designed to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently including scheduling court time.

[9] I was satisfied that the issue in the present case was whether Crown counsel was prejudiced by inadequate notice. If she was, that could be remedied by providing her with a short adjournment so that she could better prepare her submissions.

[10] That turned out to be unnecessary when I found that Mr. Rice had failed to satisfy me that his section 11(b) rights had been infringed.

[11] I will be referring to the failure of counsel to comply with the Rules of the Court throughout my reasons however. I will be noting where I find that the disregard for the Rules actually contributed to the delay here. I will also be noting where the absence of a supporting Affidavit and other materials leaves me in the dark as to what happened outside of the courtroom in this case.

PRE-JORDAN OR POST-JORDAN?

[12] On July 8, 2016, the Supreme Court of Canada released its judgment in R. v. Jordan. This has greatly changed the framework for deciding 11(b) applications.

[13] Both counsel agreed that I should apply the pre-Jordan analysis here. However, the Supreme Court in R. v. Jordan expressly stated that the new framework applies to cases already in the system although this must be applied contextually and flexibly. Accordingly, I also applied a post-Jordan analysis before deciding to dismiss the application and these reasons address both frameworks of analysis.

[14] I will deal with my pre-Jordan analysis first. This was very straight-forward. I had summarized the existing law regarding section 11(b) in several earlier decisions. R. v. da Silva also fell into this category. R. v. Jordan was released after I had dismissed that application but before I released my written reasons.

SECTION 11(b) OF THE CHARTER OF RIGHTS

[15] Section 11(b) of the Canadian Charter of Rights and Freedoms provides that, "Any person charged with an offence has the right to be tried within a reasonable time".

[16] The primary purpose of section 11(b) is to protect the individual rights of the accused to liberty, security of the person and to a fair trial. There is a secondary societal interest in having cases tried on their merits, a matter important to the maintenance of respect for the administration of justice.

[17] This application requires a judicial balancing with an examination of the delay and its evaluation in light of other factors in order to determine whether the delay is reasonable. This balancing requires consideration of:

1. The length of the delay;
2. Waiver of time periods;
3. Reasons for the delay, including
   • (a) inherent time requirements of the case,
   • (b) actions of the accused,
   • (c) actions of the Crown,
   • (d) limits on institutional resources,
   • (e) other reasons for delay, and
4. Prejudice to the accused.

[18] Having made findings about each of these four factors, the final balancing stage of analysis requires consideration of the societal interest in a trial on the merits.

THE LENGTH OF THE DELAY

[19] The total delay in this case was 16 months as of June 20, 2016, the date which counsel for Mr. Rice argued was applicable here. This delay was of sufficient length to warrant judicial inquiry.

[20] Mr. Rice was charged on February 21, 2015.

[21] Court appearances occurred on March 17, April 14, April 21, May 19, June 9, June 16, July 15 and July 24. On July 24, a judicial pre-trial took place. Following that, the trial was scheduled to take place on April 25, 2016.

[22] The case was not reached on that day and the matter was adjourned until June 22, 2016.

[23] At the request of Mr. Rice, the case was brought forward to June 20, 2016 so that he could commence this application. The June 22 trial date was vacated after counsel indicated that Mr. Rice waived his 11(b) rights with regard to any ensuing delay. The matter was then adjourned until June 28 and then until July 12 and July 26 so that counsel could order transcripts and obtain a copy of the Information.

[24] A second judicial pre-trial took place on September 9, 2016. This application was then scheduled to take place on November 2, 2016 and the trial was scheduled to take place on January 9, 2017.

[25] The Charter application was received by the court on October 28, 2016.

WAIVER OF TIME PERIODS

[26] The onus is on the Crown to prove or establish waiver. A waiver must be clear and unequivocal with full knowledge of the rights the procedure was enacted to protect and of the effect a waiver will have on these rights. The notion of waiver contemplates a choice has been made between available options. Where no real choice or option exists there can be no waiver. Agreement to a date within the proceedings in question does not constitute waiver where the agreement can be reasonably and fairly characterized as mere acquiescence in the inevitable.

[27] It is the duty of the Crown to bring an accused person to trial. This requires that the prosecution apparatus and the government strive to expedite the trial to minimize the effect that is inherent in delay in the disposition of criminal litigation. There is no constitutional imperative upon the accused to bring himself to trial. The protection of section 11(b) of the Charter is not restricted to those who demonstrate a desire for a speedy resolution by asserting the section 11(b) right.

[28] Silence and acquiescence in the face of Crown requests for adjournments or in accepting the trial date that is offered clearly do not constitute waiver.

[29] I was satisfied that there was no waiver in this case prior to June 20, 2016.

REASONS FOR THE DELAY

[30] Mr. Rice faces drinking-driving charges. Counsel agreed that this should be a relatively straightforward trial which should not take more than five hours.

[31] Having said that, I note that there are certain time requirements inherent in any case. These would include the intake period. This intake process would include such things as obtaining and reviewing disclosure, a Crown/defence resolution meeting, a judicial pre-trial and defence preparation for trial.

[32] In this case, the judicial pre-trial was held on July 24, 2015. Only then was counsel ready to set the dates for trial.

[33] Counsel for Mr. Rice did not indicate then, or later before me, when he would have been prepared to actually conduct the trial. I am satisfied however that the witnesses could not be summonsed or counsel ready to proceed in less than a month. That is when the 11(b) clock would have started. The delay between that date and June 20, 2016 was just under 10 months.

ACTIONS OF THE ACCUSED

[34] As I stated above, it is the duty of the Crown to bring an accused person to trial. There is no constitutional imperative upon the accused to bring himself to trial. Having said that, I note that Mr. Rice and his counsel did nothing to move this case along. Indeed, on the one occasion their actions may well have contributed significantly to the delay here.

[35] On March 17, 2015, Mr. Rice attended court for his first appearance. He had not retained a lawyer and did not have a particular lawyer in mind. He was given his disclosure and the Crown screening form. The case was adjourned until April 14 so that he could retain counsel.

[36] On April 14, 2015, an agent for counsel K. Hepburn appeared in court. He confirmed that Ms. Hepburn had been retained, although he did not say when this had happened. Mr. Rice was not present and no Designation of Counsel was filed. The agent asked that the matter be adjourned one week so that counsel could obtain instructions and that a warrant be issued "with discretion". The case was adjourned until April 21.

[37] On April 21, 2015, an agent for counsel K. Hepburn appeared in court again. Again, Mr. Rice was not present and no Designation was filed. The agent asked that the matter be adjourned to May 19 so that counsel could arrange for a resolution meeting with Crown counsel. The case was adjourned until May 19 with the warrant continued.

[38] On May 19, 2015, an agent for counsel K. Hepburn appeared in court again. Again, Mr. Rice was not present and no Designation was filed. The agent asked that the matter be adjourned to June 9 so that counsel could have a resolution meeting with Crown counsel that day. No information has been put before me to indicate whether that was the first date available for the resolution meeting or if there was some other reason for it being put off so long. The case was adjourned until June 9 with the warrant continued.

[39] On June 9, 2015, an agent for counsel K. Hepburn appeared in court again, arriving late. Again, Mr. Rice was not present and no Designation was filed. The agent advised that the resolution meeting had taken place but that counsel "needed to work out a detail". The case was adjourned until June 16 with the warrant continued.

[40] On June 16, 2015, an agent for counsel K Hepburn appeared in court again. Again, Mr. Rice was not present and no Designation was filed. The agent indicated that Mr. Don Clarke would be replacing Ms. Hepburn as counsel for Mr. Rice. Crown counsel elected to proceed by summary conviction. The warrant was deemed executed and the case was adjourned until July 15 for a judicial pre-trial.

[41] On July 15, 2015, no one appeared in court for Mr. Rice, apparently as a result of a mix-up. A new warrant was issued "with discretion" and the case was adjourned until July 24 for a judicial pre-trial.

[42] On July 24, 2015, Mr. Clarke appeared on behalf of Mr. Rice. Mr. Rice was not present although he had been advised by counsel that there was a practice direction in Halton that defendants were to appear personally at judicial pre-trials.

[43] Mr. Clarke informed the court of his view of the judicial pre-trial, stating that "This is just a formality. The client wants to fight the charge". He expressed a similar attitude during submissions before me, where he referred to resolution meetings and judicial pre-trials as hurdles that needed to be got over.

[44] The judicial pre-trial then took place. Mr. Clarke then went to the trial coordinator who informed him that, in Halton, a 5 hour trial estimate required that two days be set for trial. She arranged to give him the first two-day trial slot that was available, being April 25 and 26, 2016.

[45] When he returned before the court, Mr. Clarke insisted that one day was all that was needed. Crown counsel agreed. What happened next had a significant effect on the delay that ultimately occurred in this case.

[46] There were two ways in which the matter could have been dealt with in accordance with the local practice directions.

[47] In the first option, both counsel could have agreed that only one day was needed and the judicial pre-trial judge could have endorsed that decision. Mr. Clarke would then return to the trial coordinator to obtain a date for a one-day trial which would likely have been earlier than the two-day slot already assigned. Had he done this, Mr. Rice might have had his trial well before April 25, 2016. We will never know this for certain, however, because Mr. Clarke did not want to go back to the trial coordinator and he did not do so.

[48] The second option was that counsel could have accepted the two-day trial slot. Had he done so, the system that was designed to account for eventualities such as those that arose here might have worked and the trial might have been heard within those two days despite the issues that arose on the first day. Again we will never know for certain because counsel chose not to do this either.

[49] Rather he chose to set the matter over for a one-day trial on April 25, 2016 only. Crown counsel and the presiding judge went along with this.

[50] As it turned out, things did not work out on April 25, 2016. Court was delayed as a result of all Halton judges attending the funeral of a retired colleague, Justice J.E.C. Robinson. There was also another matter on that day's list. There was not time for Mr. Rice's trial and it was adjourned until June 22, 2016.

[51] On June 20, 2016, Mr. Rice applied to have the trial adjourned again, this time so that he could bring this application. He waived any delay resulting from this. As a result, the trial date was vacated. The matter was then adjourned until June 28 and then again until July 12 and July 26 so that counsel could order transcripts and obtain a copy of the Information. No material was put before me to explain why this had not already been done in the two months leading up to June 20.

[52] A second judicial pre-trial took place on September 9, 2016. This application was then scheduled to take place on November 2, 2016 and the trial was scheduled to take place on January 9, 2017.

[53] The formal Charter application was received by the court on October 28, 2016. It consisted of the Form 1 Application, and loose transcripts of all of the court appearances. The Application stated that: "This is an Application for an Order staying the charges for delay". The grounds to be argued were: "There has been an unreasonable delay since the laying of the charge that has caused the Applicant prejudice". A "Detailed Statement of the Specific Factual Basis for the Application" contained a 13 line summary of the facts. There was no factum. There were no affidavits or other supporting materials.

[54] In light of the late service of these rather limited materials, Crown counsel had not prepared a Response.

ACTIONS OF THE CROWN

[55] I did not attribute any delay to the actions of the Crown.

[56] Counsel for Mr. Rice argued that the judicial pre-trial could not be scheduled until after the Crown had elected how they were proceeding and that the delay in making that election caused delay in the trial date being set.

[57] I disagree.

[58] The Crown election was indicated on the screening form which was given to Mr. Rice at his first court appearance.

[59] Further, these cases are almost invariably dealt with summarily. I am sure that had there been any questions about this, counsel would have addressed those during the resolution meeting with the Crown.

[60] In any event, it would certainly have been addressed early on in the judicial pre-trial where the Crown election is one of the first matters to be addressed on the standard form used in Halton.

[61] Finally, I note that there was nothing in the materials before me to show that this was causing the defence any concern. Of course, other than the transcripts of the court appearances, there are no materials before me. In the absence of copies of any correspondence between counsel expressing these concerns or an affidavit setting it out, it is not appropriate for counsel to raise these allegations as issues during oral argument.

LIMITS ON INSTITUTIONAL RESOURCES

[62] I attributed any remaining delay to the limits on institutional resources in our courts here in Halton. Mr. Rice was offered the earliest two days that were available for trial within a reasonable proximity of each other.

OTHER REASONS FOR DELAY

[63] There were no other reasons for the delay here.

PREJUDICE TO THE ACCUSED

[64] Everyone suffers prejudice as a result of being charged. This is inherent in the process itself. The prejudice of concern in the s. 11(b) analysis is not prejudice associated with the laying of criminal charges but the prejudice arising from the delay in processing or disposing of the charges. A court may infer or presume the existence of prejudice or it may be otherwise proven. Prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn. The inference of prejudice from a very long delay becomes nearly irrebuttable.

[65] In this case, I was provided with no materials suggesting that Mr. Rice suffered actual prejudice as a result of the time taken to bring his charges to trial.

[66] There was nothing before me to indicate that he was subject to restrictive bail terms. He never attended court personally between his first appearance and the first trial date.

[67] There was nothing to indicate emotional stress or financial hardship arising out of any delay.

[68] I was not satisfied that the delay in this case is such that I should infer that Mr. Rice suffered prejudice.

[69] His behaviour in fact suggested an absence of prejudice.

[70] Mr. Rice could have been tried on June 22. He decided however that it was more important to him to pursue this application. It was so important that he be able to do so that rather than have his trial on June 22, he was prepared to wait until November for this application to be heard and if necessary wait until January of the following year for the trial to proceed.

[71] After considering all of these factors, I was not satisfied that Mr. Rice suffered prejudice arising from the delay in processing or disposing of the charges.

BALANCING THE SOCIETAL INTEREST IN A TRIAL ON THE MERITS

[72] Appeal courts have repeatedly stated that there are societal interests in ensuring that an accused is tried within a reasonable time, in order to minimize the prejudice to the accused and to ensure that they are treated humanely and fairly. There is also a societal interest in ensuring that accused are tried on their merits. As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial.

[73] With that in mind, I note the comments of Code J. in R. v. Lahiry with respect to the seriousness of drinking and driving offences, that:

It must be remembered that, for over twenty-five years now, drinking and driving has been regarded as a very serious offence. Indeed, it has been authoritatively stated that "it has a far greater impact on Canadian society than any other crime", that it is "clearly the crime which causes the most significant social loss to the country", and that "every drinking driver is a potential killer". ... Given these pronouncements, balancing the societal interest in a trial on the merits is particularly important in drinking and driving cases.

ANALYSIS AND CONCLUSION

[74] In R. v. Morin, the Supreme Court of Canada stated that "it is appropriate for this Court to suggest a period of institutional delay of between eight and ten months as a guide to Provincial Courts". However, "deviations of several months in either direction can be justified by the presence or absence of prejudice".

[75] This Supreme Court of Canada guideline is neither a limitation period nor a tariff. It is however, an instructive device for measuring the constitutional state of the inventory of cases before the Court. Still, it is necessary to examine the particular circumstances of each case.

[76] I note as well the comments of Code J. in R. v. Lahiry that "the Supreme Court of Canada was setting guidelines for short, efficient, high volume summary trials in Morin". He further noted that the trial in Morin took no more than two hours of court time and that modern drinking driving cases bear no resemblance to Morin in that respect. The case of Mr. Rice does not either.

[77] This application failed at a number of levels.

[78] Firstly, I was not satisfied that the delay between April 25 and June 20 should be attributed to anyone other than Mr. Rice and his counsel. I have already set out my reasons for reaching this conclusion.

[79] Secondly, even assuming that this time could be classified as institutional delay, as I stated earlier, the institutional delay in this case would have fallen somewhere just under 10 months. That would have brought it within the guidelines set out in R. v. Morin.

[80] Finally, in light of the 5 hour trial time estimate and the absence of prejudice to Mr. Rice, I found that a period of up to 12 months of institutional delay would have been reasonable in this case.

[81] The application fared no better with a post-Jordan analysis.

POST-JORDAN ANALYSIS

[82] The time between the charge and June 20, 2016 was 16 months. This was below the new presumptive ceiling of 18 months in provincial court.

[83] The onus in such cases is on the defence to show that the delay is nonetheless unreasonable. To do this, the defence has to show that (1) it took meaningful and sustained steps to expedite the proceeding, and (2) the case took markedly longer than it should have.

[84] As for the first point, the defence must show that it attempted to get the earliest possible date, that it brought delay and prejudice to the attention of the Crown and that it cooperated and conducted itself reasonably and expeditiously.

[85] The Crown has a duty to respond to these efforts.

[86] The conduct of both Crown and defence counsel should not be measured against a standard of perfection. The question is whether they acted reasonably.

[87] As for the second point, the question of whether the case has taken longer than it should have includes consideration of the complexity of the case, local considerations and whether the Crown took reasonable steps to expedite the proceedings.

[88] This new framework applies to cases already in the system but this must be applied contextually and flexibly.

[89] In transitional cases falling below the ceiling, such as this one, the defence need not show that it took initiative to expedite the case, although I must still consider the actions or inactions of the defendant or counsel that may be inconsistent with a desire for a timely trial. I have already addressed examples of such actions and inactions previously.

[90] Given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system.

[91] In this case, I found, for all of the reasons that I discussed earlier, that Mr. Rice had not shown that the delay was unreasonable.

CONCLUSION

[92] For those reasons, the application was dismissed.

Released: January 9, 2017

Signed: "Justice D.A. Harris"