Court Information

Ontario Court of Justice

Date: January 17, 2017

Between: Her Majesty the Queen — and — Patrick O'Gallagher

Before: Justice Bhabha

Heard: Monday, January 16, 2017

Amended Section 11(b) Ruling Released: Tuesday, January 17, 2017

Counsel:

• Evan Akriotis, counsel for the Crown
• David Landesman, counsel for the Applicant/Defendant Patrick O'Gallagher

Decision

Bhabha, J.:

Introduction

[1] This is an application for a stay of the proceedings alleging unreasonable delay under s. 11(b) of the Charter.

[2] The Applicant submits that the total and net delay from charge to trial exceeds the eighteen (18) month Jordan presumptive ceiling by two (2) weeks and that the reasons for the delay are attributable entirely to delayed disclosure of a defence-requested item and institutional delay.

[3] The Crown submits that while the total delay exceeds eighteen (18) months, the net delay is two (2) weeks under the eighteen month threshold and therefore not presumptively unreasonable. The Crown submits that a four week delay in setting the judicial pre-trial is attributed entirely to the "unreasonable actions of the defence" in requiring specific disclosure before conducting the judicial pre-trial. Relying on R. v. Gandhi, the Crown submits that timeframe ought to be deducted from the total delay, and in assessing the reasonableness of the seventeen and a half (17.5) month net delay.

[4] The alleged offences occurred in June of 2015, two full years before the Supreme Court of Canada's decision in Jordan. Consequently, most of the delay in this case occurred prior to the release of the judgement in Jordan. Both the Applicant and the Crown agree that this is a "transitional case" that requires a more flexible analysis.

The Charge

[5] In the early morning hours of June 26th 2015 Patrick O'Gallagher was involved in a single car collision while he was driving on Bayview Avenue at Blythwood. There was severe damage to the front end of the vehicle which had struck a pole.

[6] A civilian called 911 and the police arrived to find Mr. O'Gallagher standing outside the vehicle. During the course of investigation the police smelled the odour of alcohol. He was asked about his consumption of alcohol and based on his response and the odour of alcohol, the officer made and approved instrument demand. Mr. O'Gallagher failed the roadside test. As a result he was placed under arrest for operation over 80 mgs. Thereafter the investigating officer made an approved instrument demand.

[7] The breath tests were conducted at 31 Division. The results revealed readings well in excess of twice the legal limit at 184mg and 186mg of alcohol respectively. Mr. O'Gallagher was released from the station on a promise to appear.

[8] On July 3rd 2015 Mr. O'Gallagher was charged with one count of driving with excess blood alcohol. Through an administrative error, his first appearance on August 19th, 2015 was at Old City Hall instead of College Park. That error was rectified and his second appearance was on September 9th 2015 at College Park.

[9] The history of the proceedings shows that there are two broad periods: the initial intake period and the institutional delay.

The Intake Period

[10] The intake period was exceptionally long for an ordinary case such as this. It started on the charge date of July 3rd 2015 and ended on the date of the judicial pre-trial on March 7th 2016 when the trial date was set. This is a period of slightly in excess of eight (8) months. Part of this period, the Crown submits, is attributable to actions of the defence and ought to be factored into assessing reasonable delay.

[11] The institutional delay is in excess of ten (10) months and one week. This period is not contentious.

The Pace of Disclosure

[12] There were nine (9) court appearances in total before the trial date was set. The dates of the appearances and the actions taken are set out below. In essence there was something happening each month from June 2015 to March of 2016:

• June 26th 2015 – the date of the incident, arrest, and investigation
• July 3rd 2015 – the date the charge is laid
• August 19th 2015 – 1st appearance at Old City Hall – no disclosure
• Sept. 9th 2015 – 2nd appearance at College Park – initial disclosure provided
• Sept. 11th 2015 – At request of the defence, the Crown asks police to disclose additional officer notes, and radio communications
• Oct. 7th 2015 – officer notes, and (unexpected) civilian witness statement disclosed, but not the radio communications requested
• Nov. 4th 2015 – no additional disclosure available
• Dec. 2nd 2015 – no additional disclosure available
• Jan. 6th 2016 – s. 11(b) raised by defence – parties agree to set judicial pre-trial for Feb. 4th 2016 – Police advise Crown earlier disclosure request ignored because considered to be in error. Crown renews request for radio communications and ask it be expedited. Police confirm disclosure will be available "by February 4th"
• Feb. 4th 2016 – no additional disclosure available notwithstanding police assurance radio communications would be ready "by February 4th". Crown and defence both agree to re-schedule judicial pre-trial to March 7th while they wait for the disclosure
• March 7th 2016 – Judicial pre-trial held and trial estimated at 1.5 days. 11(b) not raised at JPT – trial dates set for January 16th and 17th 2017. No s. 11(b) dates sought or set by defence between March and November 2016 as required by Rules
• November 29th 2016 – Crown discloses 911 tape and Defence files application materials which are not in compliance with rules
• Dec. 7th 2016 – matter addressed before local administrative Judge to have Application heard before or on the trial date instead of well in advance of trial date
• Jan. 16th – s. 11(b) application heard on what was to be the first day of 1.5 day trial

Issue Before the Court

[13] The narrow issue before the court is how to attribute the delay occasioned by the defence request for disclosure of the radio communications between the investigating officer and dispatch, and in particular the defence request to adjourn the first scheduled judicial pre-trial pending imminent receipt of the requested disclosure. Is this "delay attributable to the defence" that must be excluded from the calculation of s. 11(b) delay? Or, was it an ordinary, appropriate request in the circumstances of this case?

[14] The crown responding to the application is not the same crown who had carriage of the matter as the "case management crown". The crown responding to the application submits that the defendant had sufficient disclosure before the additional disclosure was requested to conduct a judicial pre-trial and to arrive at a reasonable trial estimate. He points out that the defendant had the ICAD report which summarized the radio communications, the witness statement, and the officers' notes. He submits that in insisting on the additional disclosure, the defendant was not acting responsibly or was indifferent to the delay that would result. He submits the Applicant ought not to be permitted to rely on delay that he was indirectly responsible for in seeking the extreme remedy of a stay of the proceedings.

[15] The defence contends that the additional disclosure was not a frivolous request; it was one that was necessary to properly evaluate the potential defences available to the defendant. Counsel stated as much on January 6th when the request was still outstanding some four (4) months after it was requested. See: Transcript of Proceedings of January 6th 2016, p. 1, ll. 10-15

[16] The communications between the crown who case managed the matter and counsel for the Applicant are instructive on the issue, as are the transcripts of the various appearances. On a fair reading of the exchanges and the transcripts, I conclude that the case management crown did not take the view now taken by the crown that the defence request to wait to review the disclosure before the pre-trial was unreasonable, and that the disclosure requested was superfluous.

[17] The case-management crown, Mr. Patterson, in September of 2015 agreed to request the additional disclosure. He was of the view that the outstanding disclosure did not "preclude [them] from estimating trial" which he estimate would be a six (6) hour trial. The defence did not share that view and reiterated that review of the audio communications will assist in deciding how to proceed": Applicant's factum, tab 3, pages 3-, paragraphs 9-13; Transcript of Proceedings of January 6th 2016, p. 3, ll. 19-21

[18] In court on November 4th 2015, an agent for the Applicant attended and noted that the outstanding disclosure had not yet been received. He noted that "the Crown had agreed that the radio calls …they seem to be an important part of the case". Mr. Patterson was the crown calling the list in court that day. He did not correct the agent's comments regarding the significance of the outstanding disclosure. He simply confirmed that the disclosure was ordered and stated: "I have no problem with the December 2nd adjournment".

[19] The disclosure was still not ready on December 2nd 2015. The matter was adjourned to January 2nd 2016. On that date the Crown wrote to the officer in charge of the case, Ralph Reloza, requesting that the disclosure be expedited. On January 11th crown counsel Patterson was informed by the officer that his initial requests were ignored on the assumption they were made in error since these requests are not normally made before a trial date is set. On January 19th crown counsel followed up once again with the officer in charge requesting the radio communications. It was only on January 26th that the officer responded advising the disclosure would be ready by February 4th.

[20] Because February 4th was the date of the scheduled judicial pre-trial, Mr. Patterson once again telephoned Toronto Police Service's audio and data services department to advise that there was some urgency given the date of the pre-trial.

[21] In email exchanges between the two counsel, Mr. Patterson indicated on February 2nd: "Yes, I think this has to be rescheduled" (emphasis added). He was referring to rescheduling pre-trial, the reason being because the disclosure was still outstanding and only expected on the same day as the pre-trial.

[22] Mr. Patterson diligently followed up with an email on February 3rd, the day before the pre-trial asking for the disclosure. It still did not arrive on February 4th as promised and as a result the pre-trial was rescheduled. The disclosure arrived sometime in February and was reviewed by counsel in preparation for the pre-trial scheduled for March 7th 2016 before Justice Blouin.

[23] On March 7th immediately after the pre-trial, the trial was set for 1.5 days. Although counsel for the Applicant had expressed concerns about delay throughout the proceedings, the pre-trial notes do not disclose any discussions about an anticipated s. 11(b) Charter application. Other Charter applications were noted. As well, there was no mention of the Crown calling any expert evidence such a toxicologist.

The Different Positions of the Case Management Crown and the Trial Crown

[24] It is an accepted concept and principle in the administration of justice that the Crown is indivisible. The position taken by one assistant crown attorney is usually considered to be binding on another crown attorney, absent extenuating circumstances.

[25] There is nothing in the record to suggest that crown counsel managing the case was of the view that the defence request for disclosure was frivolous, unnecessary, superfluous, or designed to create delay. More significantly, when the police ignored the Crown's requests for disclosure, Mr. Patterson did not force the issue or signal to the court or counsel that the pre-trial ought to proceed regardless of the additional disclosure. Nor did he bring the matter forward to a practice court judge to signal concern about the pace of disclosure. Instead, he agreed in clear, unequivocal language with the Applicant's counsel that the pre-trial had to be rescheduled. There is no other way to interpret his words other than that he also recognized the necessity of the outstanding disclosure.

[26] In this respect, this case is much different from Gandhi, supra, where counsel was found to have acted unreasonably and refused to heed the Crown's suggestion that a judicial pre-trial be scheduled until one more piece of disclosure was provided. As well, in Gandhi, the Applicant changed counsel contributing significantly to the delay.

[27] I find that it is not available to the crown now assigned to the application to argue that Mr. Patterson was simply being agreeable or affable in the face of a defence counsel who was not acting reasonably and creating the very delay now complained of. Mr. Patterson is a senior and very experienced crown who vigorously prosecutes matters where such vigor is called for. The record simply does not support this revisionist view of how matters might have unfolded and why they unfolded the way they did.

[28] If there is any fault to be apportioned, it lies, in my view, with the Toronto Police Service. They took from September 11th 2015 to mid-February 2016, a period of five (5) months to finally respond to Mr. Patterson's simple request for disclosure of the audio communications. It is difficult to fathom how it came to be that the crown's request was ignored for many months based on assumptions without any inquiry whatsoever requesting clarification. Even when Mr. Patterson noted that the matter was urgent, it took much prodding by the crown to get the officer in charge to act. This unacceptable inaction followed by further delay in meeting the request is the reason for much of the overall delay in the case. This is a prime example, in my view, of "the culture of complacency" that Justice Moldaver referenced in Jordan.

[29] Having found that the delay arising from the rescheduled pre-trial is not attributable to the defence, I find that the total and net delay in this case exceeds the eighteen (18 month) ceiling for tolerable delay set out in Jordan. The Crown has not satisfied me that there were any exceptional circumstances that would justify any delay beyond eighteen months. This was a routine drinking and driving case that happened to involve a single car collision. At the pre-trial there was no mention of toxicologist who was expected to testify. Yet, inexplicably, someone in the Crown's office ordered a toxicologist's report. That report, the court is advised, was served on the Applicant's sister in March of 2016, even though the Applicant had retained counsel very early in the proceedings in the summer of 2015. Also inexplicably, the Applicant's counsel only received disclosure of the report from the Crown in November of 2016. Now, on the trial date, notwithstanding all the effort and expense involved in obtaining the expert report, the trial crown advised during this application that he would not in fact be relying on the report if the matter proceeds to trial on the merits. Something broke down in the prosecution of this case and there is a lot that called out for further explanation that was not forthcoming.

[30] Having examined the record, I find that there was nothing about this case to make it "exceptional" such that would justify any delay beyond the eighteen month (18) presumptive ceiling. There were also no circumstances that were beyond the Crown's control that could explain the delay.

[31] It bears noting that for the purposes of a Jordan analysis, and timely disclosure in particular, that the police have an obligation to disclose to the Crown all material pertaining to its investigation of the accused. "For the purposes of fulfilling [this] obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather it acts on the same first party footing as the Crown." See: R. v. MacNeil 2009 SCC 3, [2009] 1 S.C.R. 66 at para. 14. The Crown, therefore bears responsibility for any delay caused by the police in failing to make timely disclosure.

Transitional Cases

[32] For cases in the system prior to the release of Jordan, such as this one, the Supreme Court of Canada imposed a flexible, contextual approach, noting that the new framework applied subject to two qualifications. The first is a "transitional exceptional circumstance". This applies where the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed. The parties' behaviour is not to be judged strictly against a standard of which they had no notice.

[33] I note that for the standard drinking and driving case, applying the Morin guidelines, institutional delay of eight to 10 months was deemed generally acceptable. In the case at bar, the old framework was even less forgiving. The institutional delay alone in this case alone is ten months and one week. This is the period from March 7th when the trial date was set to January 16th, the first day of trial.

[34] What must be added to the institutional delay is the delay caused by the police in ignoring a disclosure request for months and then only acting on it afterwards providing disclosure beyond their own delivery expectations. Five months to provide ordinary disclosure is wholly unacceptable. Even if only three months of the delay were added to the institutional delay (allowing for a generous eight (8) weeks to provide the disclosure), the total delay would be in excess of fifteen months which was more often than not unreasonable under the Morin framework.

[35] There was no exceptional circumstance the Crown could point to or rely on in justifying the net delay. Nor were there any "discrete events", such as the illness of counsel for example, that could explain the delay.

[36] In terms of defence initiative, I note that the Applicant retained counsel without delay. Counsel reviewed disclosure made available to him very soon after he received it. He was in frequent communication with the Crown. He alerted the crown and the court to delay concerns when they arose. The defence had no control over the pace of disclosure coming from the police. Even then, counsel followed up closely with the case management crown by email to ensure the request was being attended to. The only other action the defence could possibly have taken, which I recommend, was to have the matter addressed before a practice court to alert a judge to the growing and unacceptable delay in receiving disclosure. That and/or scheduling a judicial pre-trial even if just to highlight the issues preventing a case from progressing to trial readiness as expeditiously as possible.

Result

[37] Applying the revised framework for analysis, the delay exceeds the presumptive ceiling and a stay is the result. The delay in this case exceeds the presumptive ceiling by a matter of weeks not months and it bears keeping in mind that this was a transitional case. There is no evidence of actual prejudice that was adduced before me; evidence which was common under the old framework. Even applying the old framework and balancing all of the factors, I arrive at the same result. I find that, while there is a societal interest in adjudicating cases such as this involving a collision with readings alleged to be twice the legal limit on their merits, when I also consider the fair treatment and prompt trial of accused persons, this is a case where exceeding the inherent and institutional requirements of the case cannot be justified. The delay is unreasonable. As a result, there would have been a stay of the proceedings, even under the former framework.

Released: January 17th 2017

Signed: "Justice Bhabha"

Footnotes

[1] 2016 SCC 27, [2016] S.C.J. No. 27; 335 C.C.C. (3d) 403

[2] 2016 ONSC 5612, [2016] O.J. No. 4638 (S.C.J.) (Code, J.)