Court File and Parties

Court File No.: Brampton 15-014495 Date: 2017-06-14 Ontario Court of Justice

Between: Her Majesty the Queen — and — Arthur Osinski

Before: Justice M. M. Rahman

Heard on: March 28, 29 and 31, 2017

Reasons for ruling on s. 11(b) application released on: June 14, 2017

Counsel:

• Paul Renwick, counsel for the Crown
• Kate Robertson, counsel for the applicant Arthur Osinski

RAHMAN J.:

I. Overview

[1] The applicant was charged with impaired driving and driving with excess blood alcohol (over 80). He applied for a stay of proceedings on the grounds that his right to be tried within a reasonable time under s. 11(b) of the Charter was violated.

[2] The applicant was charged on November 18, 2015. Consequently, this is a so-called transitional case under the Supreme Court's new Jordan framework. The total delay between the date the applicant was charged and the end of his trial was seventeen months.

[3] The application turned in large part on a five-month period of delay that occurred after the parties were ready to set a date for trial. During that period, the applicant sought to resolve his charges with a non-Criminal Code disposition. The Crown ultimately did not agree to resolve the charges favourably for him.

[4] The applicant argued that the Crown's delay in communicating its position on the proposed resolution constituted Crown delay and rendered the delay unreasonable. The Crown countered that the applicant was content not to have his matter set down for trial during that five-month period, so he cannot complain that he was not tried in a reasonable time.

[5] On April 19, 2017, I dismissed the application with written reasons to follow. These are those reasons.

II. Procedural History

A. Arrest and Intake Appearances

[6] The applicant was arrested for impaired driving in the early morning hours of October 24, 2015. After Intoxilyzer tests that revealed his blood alcohol content to be more than the legal limit, he was released on a Promise to Appear for the offences of impaired driving and driving over 80. The Information charging the applicant with these two offences was laid on November 18, 2015.

[7] The applicant's lawyer, Ms Robertson, appeared on his behalf at his first appearance on November 27, 2015. At that appearance, the Crown provided her with initial disclosure. Ms Robertson asked that the matter return on January 8, 2016, to allow her to review disclosure.

[8] On December 22, Ms Robertson wrote to the Crown requesting several items of disclosure. Included in that list of items was a request for a copy of any in-car camera (ICC) footage.

[9] On January 8, 2016, the applicant's matter returned to court. Ms Robertson said that she was still waiting to receive outstanding disclosure. Crown counsel explained that there was no additional disclosure and suggested that defence counsel re-send her disclosure request. The matter was adjourned to January 29.

[10] Ms Robertson re-sent her disclosure request on January 19. She did not receive a response before the next court date. On January 29, Ms Robertson re-attended court and explained that she had still not received a response. She stated that there were a number of items of disclosure outstanding, including the ICC video. Crown counsel stated that there was no ICC footage in the Region of Peel. Crown counsel again suggested that Ms Robertson follow up with the assigned Crown on the file. The matter was adjourned to February 19.

[11] Ms Robertson re-sent the disclosure request on January 29, this time to the attention of assigned Crown counsel (not Mr. Renwick). Ms Robertson also followed up with an e-mail to Crown counsel regarding the outstanding disclosure. In that email, Ms. Robertson specifically referred to the ICC video, and asked for confirmation about whether such a video existed.

[12] Crown counsel responded to the defence's disclosure request by faxing a letter on February 4. Unfortunately, for some reason, Ms Robertson's firm did not receive the faxed letter. The letter said that the Crown was double-checking to determine whether there was any ICC footage, and that the Crown had requested some of the other items in defence counsel's letter.

[13] At the next court appearance, on February 26, the Crown provided additional disclosure to Ms Robertson. Crown counsel explained that the additional disclosure included a DVD with video from the breath room and the cell area. She also explained that, to her knowledge, the Ontario Provincial Police did not have ICCs, but that the Crown was double-checking. Crown counsel said that the assigned Crown had sent a letter to the defence responding to the disclosure request. Crown counsel suggested that both Crown and judicial pre-trials could be set in the matter. Ms Robertson asked for the matter to return on March 18 to allow her to review the additional disclosure. The matter was adjourned to that day.

[14] The same day, Ms Robertson faxed a letter to the assigned Crown asking for outstanding disclosure, including the booking and release videos, the ICC video (or ICAD report and audio of all radio communications, if no ICC video existed). Ms Robertson explained that she was agreeable to setting a judicial pre-trial date to move the matter forward if it was set a sufficient time in the future to allow her to receive and review the outstanding disclosure.

[15] On March 8, the assigned Crown faxed her response to the defence disclosure request. Crown counsel re-sent the letter from February 4 that the defence had not received, and added a portion updating the original letter. In the letter, she confirmed that the OPP does not use an ICC. She also explained that the ICAD reports and radio communications had been requested by the officer on February 10, and that he expected to receive them in a few weeks.

[16] On March 9, Ms Robertson sent an email to the assigned Crown suggesting that they set a judicial pre-trial date in advance of the next court appearance to secure a date. On March 18, Ms Robertson appeared in court, received further disclosure, and explained that a judicial pre-trial had been scheduled for April 26. The matter was adjourned to that day.

B. Judicial Pre-trial and Subsequent Discussions

[17] The judicial pre-trial, scheduled for April 26, could not be held because defence counsel was unexpectedly still in the middle of an unrelated trial. The judicial pre-trial was re-scheduled and conducted on May 16. After the judicial pre-trial, on May 26, Ms Robertson sent an email to the assigned Crown to confirm that the assigned Crown planned to send a resolution position to the defence.

[18] On May 27, when the matter was addressed in court, Ms Robertson explained that pre-trial discussions were ongoing with the assigned Crown. She asked that the matter return on June 17.

[19] On June 3, Ms Robertson sent a follow-up email to the assigned Crown, to confirm that the latter would be providing a resolution position. Crown counsel responded on June 13 to say that a response would be provided. On June 15, Ms Robertson emailed the assigned Crown to say that the defence would be providing information to the Crown in furtherance of their resolution discussions.

[20] The matter was addressed in court on June 17. Ms Robertson asked for the matter to be adjourned until July 15. She said that "Pre-trial discussions have been ongoing in this matter, and I would ask that the matter return on July 15, it's a defence request, in order to continue those discussions."

[21] The defence sent a "package of information" to the assigned Crown on June 30 to allow the Crown to consider its position.

C. The Matter is Adjourned Awaiting a Response from the Crown

[22] After the defence sent the package of information to the Crown, the matter was repeatedly adjourned until November 22. On each occasion, Ms Robertson appeared and explained that the defence had sent information to the Crown and that pre-trial discussions were ongoing.

[23] During that period, Ms Robertson followed up by email with the assigned Crown on four occasions. She received no response. Consequently, on October 3, Ms Robertson set up a telephone pre-trial with the assigned Crown. That pre-trial was conducted on October 18. During that discussion, the assigned Crown informed Ms Robertson that she was not in a position to consider a non-criminal resolution of the applicant's charges. Crown counsel told Ms Robertson to contact her office's Deputy Crown Attorney.

[24] On November 22, the Deputy Crown Attorney emailed Ms Robertson, acknowledging receipt (on that day) of the defence's materials, and explaining that she would not be able to provide a position to Ms Robertson before the court appearance that day. When the matter was addressed in court that day, Ms Robertson explained that "this is a matter where pre-trial discussions have been ongoing." She also said that she had provided additional materials to the Crown the previous week, and asked for the matter to return on December 6 "in order for that discussion to complete."

[25] When the matter returned on December 6, an agent appeared for defence counsel and explained that the Crown had asked for some further information, and that defence counsel was preparing that further information. The defence waived any delay until December 20.

[26] On December 19, the Deputy Crown Attorney emailed Ms Robertson with the Crown's resolution position. As a result, the defence provided further information to the Deputy Crown Attorney on January 16. The Deputy Crown Attorney responded the same day to confirm the Crown's earlier resolution position.

[27] The matter was addressed in court on January 17, 2017. The defence asked for a one-week adjournment to discuss the Crown's position with the applicant. Due to a clerical error, the matter was improperly adjourned to January 23, instead of January 24.

[28] When the matter was addressed in court on January 23, it was adjourned to February 6 because nobody appeared for the applicant. Ms Robertson attended court on the correct day, January 24. She unsuccessfully tried to have the information brought forward to address the matter that day.

[29] On February 6, the parties set the trial for March 28 and 29. An extra day, March 31, was ultimately required to finish hearing submissions. The trial finished on April 19, 2017 when I informed the parties of my Charter rulings and verdict.

III. Parties' Positions

[30] The only significant issue between the parties is the characterization of the five-month period between July 1 and December 6. Although the new Jordan framework is intended to avoid laying blame for specific periods of delay, much of the argument in this case necessarily focused on whether this five-month period was Crown delay or defence delay.

[31] Applicant's counsel, Ms Robertson, argued that the entire five-month period was Crown delay. She argued that the Crown's failure to respond to the defence request for a resolution position means that the delay falls at the feet of the Crown. Ms Robertson said that the defence put the Crown on notice as early as December 22, 2015 that delay was an issue. She argued that s. 11(b) should "prevent the Crown from inexplicably shelving the provision of a position…without even a hint of a suggestion that trial dates should be set in the interim."

[32] Ms Robertson also said that the defence had been persistent in trying to advance the matter from the outset. She pointed to the following as showing that the defence had been proactive from the outset:

(1) The applicant had retained counsel before the first appearance.

(2) The defence brought outstanding disclosure issues to the Crown's attention.

(3) The defence took initiative to schedule the judicial pre-trial outside of court in advance of the court appearance.

(4) The defence took steps to obtain a position from the Crown, and followed up several times.

(5) The defence took steps to remedy an erroneous adjournment by having the matter brought forward.

[33] Mr. Renwick, on behalf of the Crown, asked rhetorically why the applicant waited until January 2017 to set a trial date, when he was available in May 2016. He argued that the five-month period in issue cannot be laid at the feet of the Crown because, after the release of Jordan, the defence did not alert the court or the Crown to the fact that delay was an issue.

[34] Mr. Renwick also argued that the defence did not take initiative in setting any meaningful type of court appearances (such as a judicial pre-trial, or a trial date) during the five-month period. He said that if the applicant wanted to have a trial, he could have set a trial date at any point after the judicial pre-trial on May 16, 2016, and that this would not have prejudiced his ability to continue resolution discussions with the Crown in the interim. Mr. Renwick observed that the applicant's repeated adjournment of the matter after the judicial pre-trial demonstrates "a satisfaction with the pace of the litigation."

IV. Analysis

A. The Total Delay

[35] There is no question that the total delay, however it is calculated, is below the presumptive ceiling of eighteen months. The applicant did not suggest otherwise. The applicant was charged on November 18, 2015. His trial was completed on April 19, 2017. The total delay is seventeen months.

[36] Where the delay is below the presumptive ceiling, the onus is on the defence to demonstrate that the delay is unreasonable. Strictly speaking, it may not be necessary here to calculate the net delay, which is the total delay, minus any defence delay. If the delay is below the presumptive ceiling, the analysis skips to determining whether the defence can establish two conditions (discussed below) that demonstrate the delay is unreasonable. However, it remains important to determine the net delay in this case, and how far it falls below the ceiling, in determining whether the delay is unreasonable.

B. Defence Delay

[37] Under Jordan, defence delay has two components – waiver and delay caused solely by the defence.

[38] The concept of waiver has not changed under Jordan. Waiver can be explicit or implicit but must be clear and unequivocal and made with full knowledge of the effect the waiver will have on the accused's rights.

[39] Delay attributable solely to the defence includes deliberate tactics employed to delay the trial, but does not include actions "legitimately taken to respond to the charges." Defence delay also includes situations where "the court and the Crown are ready to proceed, but the defence is not." Defence delay is not limited to unavailability to proceed with hearing dates. The Supreme Court held that "it will of course be open to trial judges to find that other defence actions or conduct have caused delay."

[40] I agree with the Crown's position that all of the delay after May 16, 2016, including the disputed five-month period of delay, was defence delay.

[41] The parties were ready to set a trial date after the judicial pre-trial on May 16. The defence chose not to set a trial date in hopes of having the Crown accept a non-criminal resolution of the matter. As Mr. Renwick observed, had the applicant wanted a speedy trial, he could have set a trial date and still pursued resolution in the interim. The applicant was content to adjourn his matter repeatedly pending the outcome of resolution discussions, no matter how slow that process was proceeding. The record reflects that the matter was adjourned at the defence's request on each occasion it was in court. The fact that he was content to adjourn his matter, without setting a trial date, constitutes an implicit waiver of his s. 11(b) rights or, alternatively, delay attributable solely to the defence.

[42] Even if this delay is not characterized as defence delay, this application fails on the next stage of the Jordan analysis.

C. Defence Initiative

[43] The net delay in this case, however calculated, whether or not there was any defence delay, is below the presumptive ceiling. Because this is a transitional case below the presumptive ceiling, the defence must establish the following two conditions to succeed in its application:

(1) The defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings (defence initiative).

(2) The case took markedly longer than it reasonably should have.

[44] Defence initiative is new to the s. 11(b) analysis. It was not required before the Jordan. Therefore, the defence is not required to demonstrate defence initiative to expedite the matter "for the period of delay preceding" the release of Jordan. The defence is required to show it took initiative to expedite matters after July 8, 2016.

[45] Jordan held that defence initiative requires more than token efforts, such as simply stating on the record that the defence wanted an earlier trial date. Rather, the defence must demonstrate "having taken meaningful and sustained steps to be tried quickly." The defence must show that it attempted to set the earliest possible hearing dates, was cooperative with the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and that it conducted all applications reasonably and expeditiously.

[46] The Supreme Court also addressed how defence initiative prior to the release of Jordan should factor in to the s. 11(b) analysis. The court said that "in close cases, any defence initiative during that time [i.e. pre-Jordan] would assist the defence in showing that the delay markedly exceeds what was reasonably required." The court also cautioned that a court "must also still consider action or inaction by the accused that may be inconsistent with a desire for a timely trial."

[47] Nearly all of the delay during the five-month period between July and December took place after the release of Jordan. This is the crucial period that the applicant argued pushed the delay here into unreasonable territory. The applicant was on notice after July 8, 2016, that he had to take steps to expedite the proceedings.

[48] The defence did not take meaningful steps demonstrating a sustained effort to expedite the proceedings during this period. Significantly, the applicant did not show that he attempted to set the earliest possible hearing date. Similarly, the applicant did not put the Crown on timely notice that delay was becoming a problem. Instead, as mentioned above, the applicant simply adjourned his matter repeatedly hoping that he would obtain a favourable resolution. The fact that he was unable to resolve the matter favourably may be unfortunate for him, but it does not permit him to now retroactively claim that he was anxious to set a trial date during the resolution process.

[49] Most of the steps that the applicant took to expedite the matter occurred before the release of Jordan. Those steps are relevant in "close cases" to show that the case took markedly longer than it reasonably should have. In addition, those steps must be considered alongside any action or inaction that might be inconsistent with the desire for a timely trial. The applicant's decision to pursue resolution from July to December, rather than press to set a trial date, is inconsistent with the desire for a timely trial.

[50] In making this finding, I do not wish to condone the dilatory attitude that the assigned Crown (not Mr. Renwick) displayed towards resolution discussions from July to October. The defence's repeated requests for a response from Crown counsel were met with radio silence. That attitude is not acceptable and is counter to the spirit of parties working cooperatively. This poor response does not give rise to a remedy in this case because the applicant did not counter the Crown's tardiness with an assertion of his right to a timely trial. The applicant did the opposite of what Jordan required him to do after July 8. His actions were inconsistent with the desire to have a timely trial. Contrary to the applicant's submissions, it was not up to the Crown to suggest trial dates while the case was on the resolution track.

V. Conclusion

[51] During his submissions, Mr. Renwick said that he did not know of a single case where a s. 11(b) claimant had obtained a stay in circumstances where he or she did not want to set a trial date. The applicant in this case did not want to set a trial date when the Crown and the court were ready to do so. Instead, he chose to pursue resolution of his charges. He cannot now claim that he really wanted a timely trial all along simply because he did not get a resolution position he could accept.

[52] The application for a stay of proceedings is dismissed.

Released: June 14, 2017

Justice M.M. Rahman

Footnotes

[1] The trial dates in this matter were set within 60 days. Consequently, this s. 11(b) application could not be heard in advance of the trial as is the normal practice. I exercised my discretion to hear the s. 11(b) application after the trial evidence to make use of the time that had been set aside: see R. v. Montoya, 2015 ONCA 786 at para. 12.

[2] R. v. Jordan, 2016 SCC 27.

[3] Mr. Renwick is not the assigned Crown to whom I will be referring in this judgment. He also was not involved in any of the procedural steps that I refer to. His first involvement in this matter, of which I am aware, is when the matter appeared before me for trial.

[4] The applicant missed the February 19 court appearance because it had been mis-diarized.

[5] The matter was adjourned until January 17, 2017 rather than the date the defence requested, which was December 20.

[6] I infer from subsequent events that that position was not accepted by the defence.

[7] The applicant also took issue with other periods of delay, including from December 20, 2016 to January 17, 2017 and an additional two-week period in February 2017. However, without the five-month period of delay, these periods of delay would not render the delay unreasonable, even on the applicant's own calculation of the delay.

[8] I recognize some decisions have held that, in certain circumstance, the s. 11(b) clock ought to start running on the date of the defendant's arrest, rather than the date the information was laid: see for example R. v. Luoma, 2016 ONCJ 670, where there was a significant delay between the arrest and the laying of the charge. Since this issue was not argued before me, I will use the date that the applicant was formally charged because that is normally the date when the s. 11(b) clock begins: R. v. Kalanj, [1989] 1 S.C.R. 1594. Whether I start the calculation on the date of the applicant's arrest or the date he was formally charged does not affect my conclusion, because in both circumstances the delay is below the eighteen-month ceiling.

[9] Jordan, supra at para. 61.

[10] Ibid. at para. 63-65.

[11] Ibid. at para. 99.

[12] Ibid. para. 85.

[13] Ibid. para 99.