Court Information

Ontario Court of Justice

Date: February 16, 2017

Court File No.: Newmarket Information 15-06851

Parties

Between:

Her Majesty the Queen

— and —

Ye Tang

Judicial Officer and Counsel

Before: Justice David S. Rose

Heard on: January 26, 2017

Reasons for Judgment released on: February 16, 2017

Counsel:

• Jeffrey Costain — Counsel for the Crown
• Michael Engel — Counsel for the Defendant Ye Tang

Decision

Rose J.:

Background

[1] Mr. Tang is charged with the offence of Over 80 from August 16, 2015. His trial is to take place March 29, 2017. During argument on January 26, 2017 the Crown stayed an Impaired Driving charge. Mr. Tang now applies for a Stay of proceedings because of an infringement of s. 11(b) of the Charter.

[2] Mr. Tang was arrested on August 16, 2015, was released from custody by the police and ordered to appear on September 11, 2015. On that day Mr. Engel appeared by an agent who filed a designation. Initial disclosure was received. On September 28, 2015 further disclosure was requested. Notably, the first follow up disclosure request asked for materials specific to Standard Field Sobriety (SFST) and Drug Recognition Expert (DRE) materials.

[3] On October 2, 2015 the case was back in Court with the expectation that the requested disclosure would be available, but it wasn't. The Crown said that there was no letter from the Defence about the disclosure and Agent for Mr. Engel said that he would pass that information along to him.

[4] On October 30 further disclosure was provided in the form of an in car camera and some officer notes. Agent for Mr. Engel said that this "…looks like the bulk of the disclosure counsel was waiting for".

[5] On November 27 agent for the agent who was appearing for Mr. Engel addressed the matter. There was confusion about whether it was Mitchel Engel or Michael Engel who was the lawyer. The request was to put it over until December 18 for further disclosure.

[6] On December 18 Agent for Mr. Engel again appeared and said that there was outstanding disclosure. The Crown attorney commented that "C2 disclosure" isn't being handed out pursuant to the Ontario Court of Appeal ruling in R. v. Jackson 2015 ONCA 832. Agent for Mr. Engel said that it is the C2 Disclosure which was outstanding.

[7] On January 8, 2016 Agent for Mr. Engel did say that the outstanding disclosure was in fact not C2 disclosure but DRE disclosure. That led to more confusion about the nature of the outstanding disclosure. Notably the Crown commented that there still has been no Pre-Trial. It was put over 3 weeks peremptory to set a date.

[8] On January 28, 2016 a follow up disclosure letter was sent. The very next day an agent again appeared for Mr. Engel and indicated that a Crown Pre-Trial had been scheduled for February 24, 2016. On that appearance the disclosure letter of January 27, 2016 was not in the file. The case was put over peremptory on the defence to set a date.

[9] On February 26, 2016 Agent for Mr. Engel asked to set a judicial pre-trial. April 21, 2016 was set for that purpose. On April 21, 2016 it appears from the transcript that the issue of the DRE disclosure was raised, and the case was put over until May 4. The transcript reveals that the defence did advise the Crown that it had retained an expert on the SFST/DRE issue. There is no evidence on the transcript that the Pre-trial judge ordered the Crown to provide the SFST/DRE disclosure.

[10] On May 4 an agent again appeared for Mr. Engel, who said that the defence is still waiting for crucial disclosure in the form of a CV for an officer.

[11] On May 25 Mr. Engel appeared and indicated that he had sent expert reports to resolve the case but that resolution has not been forthcoming. Mr. Engel said that the qualifications of the officer who gave the SFST was outstanding. Despite the outstanding disclosure Mr. Tang wanted to set a trial date. March 29 – 31, 2017 were set as trial dates.

[12] The Application evidence was completed with the viva voce evidence from Mr. Tang. In his supporting affidavit he said that at the April 21, 2016 Judicial Pre-Trial the presiding Justice said that the Defence was entitled to a copy of the SFST qualifications for the officer who administered the tests on Mr. Tang. In Cross-examination he admitted that he did not hear the judge say that, and was not present in the judicial pre-trial.

[13] I was also handed an email string from Mr. Engel to Mr. Jurianz of the Crown office. In those emails Mr. Engel discussed a number of topics relevant to the case, including his request for the "…qualifications of the officer who conducted the SFST as well as either the manual he was trained on…".

Legal Framework

[14] In R. v. Coulter 2016 ONCA 704 the Court of Appeal summarized, at paras 34 - 41 the post-Jordan framework for 11(b) applications.

[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

[35] Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

[37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

[38] Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

[39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

[40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

[41] The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases") (Jordan, para. 96).

Findings re: Delay

[15] The total delay in this case is agreed by Crown and Defence to be 19.5 months.

[16] Defence delay is delay which is caused solely by the defence. Defence delay includes periods waived by the defence, which does not arise in this case but it also includes delay caused if the Court and Crown are ready to proceed but the defence is not see R. v. Jordan at par. 64 – 65.

[17] Justice Code added gloss to this in R. v. Ghandi 2016 ONSC 5612, when he found that defence delay included,

• Defence unwillingness to proceed or defence unavailability or "other defence actions or conduct" may also directly cause delay, provided "the court and the Crown are ready to proceed." For example, on the facts of R. v. Jordan, supra, at paras. 14 and 120-124, the accused "changed counsel and requested an adjournment" shortly before trial. In addition, counsel was unavailable on the "last day scheduled for the preliminary inquiry," which resulted in the need to set a "continuation date." These two events caused delays of four months and one and a half months, which were both attributed to the defence. In the companion case, R. v. Williamson, 2016 SCC 28 (S.C.C.) at paras. 21-2, the Court attributed one and a half months' delay to the defence because the accused was not available until the last of four dates offered by the Court for his first appearance after committal. There appears to be no change to the s. 11(b) law, in these circumstances;

[18] Defence delay may include adjournments which are not associated with legitimate defence preparation time, see Jordan at par. 22. This does not, however, squarely answer the question of whether defence adjournments of the type which occurred here from October 2, 2015 to January 28, 2016 amount to defence delay. I am mindful of, and guided by, Pacciocco J.'s comments in R. v. M.J. 2017 ONCJ 4 that,

…determinations of defence delay cannot be made simplistically. These guidelines naturally require the exercise of judgement to apply. Appropriately, the Jordan Court recognized that determinations of net delay are not an exact science. They are left to the judgment of trial judges who "are uniquely positioned to gauge the legitimacy of defence actions": Jordan, supra at par. 65.

[19] In the case at Bar Mr. Engel wrote for disclosure on October 2, 2015 and again on January 29, 2016 which included a copy of the SFST or DRE manual, and the officer's qualifications. On February 4, 2016 the Crown office wrote to Mr. Engel that the manual is a 3d Party Record, and the officer's CV has been requested. I agree with Caldwell J. who found that, where SFST tests were used to base an officer's demand for a breath sample, the SFST manual used by the officer is disclosure in law and it is incumbent on the Crown to disclose it, see R. v. Khemraj 2010 ONCJ 36. I would however find that it is not core disclosure required before the defence is required to set a trial date. In the case at Bar the defence concedes that from the initial disclosure a peace officer tested the Applicant with SFST procedures in order to obtain grounds for a breath demand.

[20] The governing Regulation for SFST demands under s. 254 of the Criminal Code is SOR 2008-196. That Regulation permits physical coordination tests under s. 254(2)(a) of the Criminal Code if those tests fall within a specified list. S. 254(2)(a) itself is of assistance insofar as it requires only that the person administering the SFST is a peace officer. Mr. Engel fairly conceded that, from the initial disclosure provided in the case at Bar the dashcam video captured a peace officer, namely PC Paterson, doing such tests on Mr. Tang the night of his arrest. With that information in hand, Mr. Tang was entitled to request disclosure of Cst. Paterson's SFST manual so that the defence could challenge the objective results of the test, but the lack of that disclosure was not a basis to delay moving the case forward. The core disclosure told the Applicant that a peace officer performed Standard Field Sobriety Tests to formulate grounds. In this regard, the case at Bar falls squarely within the judgement from the Court of Appeal in R. v. Kovacs-Tatar (2004), 73 O.R. (3d) 161 at par. 47 that the Crown obligation to disclose is a continuing one and the Crown need not disclose "…every last bit of disclosure before a trial date is set".

[21] I find that the adjournments from October 2, 2015 until January 28, 2016 are defence delay because, with the disclosure in the hands of the defence, a Crown Pre-Trial could have been conducted with the Crown who is available each day outside 205 Court. Here in Newmarket a Crown is available each day outside 205 Court for purposes of rapidly pre-trying cases. Other than the issue of the SFST this case appears sufficiently straightforward that it could have been Pre-Tried much earlier than it was by means of a stand down pre-trial. The Crown office provides a Crown Attorney each day for this purpose, and the failure by the defence to avail itself of this service counts as defence delay.

[22] I would also add that the record of the Applicant's appearances in the fall of 2015 into early 2016 indicate that the agent appearing for Mr. Tang had little in the way of detailed instructions in order to move the case forward. That is clear from the appearances on October 2, November 27 and December 18, 2015, and January 8, 2016. Throughout this period it appears that the Crown was of the view that the outstanding disclosure was in the form of Intoxilyzer calibration and maintenance records. This could have been cleared up with a brief stand down Crown pre-trial with the duty Crown who occupies the resolution office outside 205 Court any day.

[23] On January 29, 2016 the case was put over so that a Crown-Pre-Trial could be held on February 24. Nothing substantive happened from October 30 until the Crown pre-trial date of February 24, 2016. On various days it appears that the agent appearing in Court for Mr. Engel was not sufficiently instructed to advise about what the outstanding disclosure was, much less have a stand down pre-trial. For these reasons I find that the period from October 30, 2015 when the in car camera and officers notes was provided, until January 29, 2016 is defence delay.

[24] On April 21, 2016 a Judicial Pre-trial was held and the lack of disclosure for SFST protocols held up setting a trial date. That state carried forward until May 25, 2016 when the trial dates were set. My comments about defence delay apply to this period as well.

[25] The total amount of defence delay is therefore 4 months, 4 days. The net delay is therefore 15 months 1 week. This is below the 18 month ceiling set in Jordan. Of the remaining time I would find that the defence did take steps to move the case forward. That said, the net delay period of 15 months 1 week is longer than it reasonably should have. This is a close case. In my judicial experience here in Newmarket, a 3 day trial should take about 13 – 14 months to be completed. This case is longer than that, but not markedly so. This is not a matter of precise calculation but rather of taking a birds-eye view of the case see Jordan at par. 91.

[26] This is a case where I feel obliged to find that, had the previous Morin framework been applied the institutional delay would be from May 25, 2016 to March 29 – 31, 2016 subtracting about 2 weeks for Mr. Engel to prepare for trial and deliver Charter Applications (see R. v. Lahiry 2011 ONSC 6780). The time period from January 28, to April 21, 2016 is either defence delay because of failure to conduct a timely pre-trial, or neutral because time periods spent setting up a Judicial Pre-trial are considered inherent see R. v. Tran 2012 ONCA 18. The remaining time is neutral because it is properly part of the intake process. In other words under the previous jurisprudence the institutional delay would be 9.5 months. That would not have been sufficient to find an 11(b) violation. As Moldaver J. pointed out at par. 102, the release of Jordan should not automatically transform what would have been considered a reasonable delay into an unreasonable one.

Disposition

[27] The 11(b) Application is dismissed.

Released: February 16, 2017

Signed: Justice David S. Rose