Court Information

Ontario Court of Justice

Date: July 13, 2017

Court File No.: Central East - Newmarket 4911-998-15-09818-00

Between:

Her Majesty the Queen

— and —

Chirag Patel

Before: Justice A. A. Ghosh

Ruling re: s. 11(b) Charter application

Heard on: June 27, 2017

Reasons delivered on: July 13, 2017

Counsel

T. Hamilton — counsel for the Crown

A. Sobcuff — for the applicant Chirag Patel

Decision

Ghosh J.:

Introduction and Overview

[1] Chirag Patel is charged with having care or control of a motor vehicle while impaired by alcohol and while having a blood alcohol concentration exceeding the legal limit, contrary to sections 253(1)(a) and (b). He applies to stay these charges, alleging a violation of his right to have his trial within a reasonable time, as protected by s. 11(b) of the Canadian Charter of Rights and Freedoms.

[2] The applicant was allegedly found unconscious in the driver's seat of his motor vehicle. He ultimately provided two samples of breath, registering readings of 339 milligrams of alcohol in 100 millilitres of blood and 351 milligrams of alcohol in 100 millilitres of blood. The total delay from the laying of the charges to the completion of his anticipated trial will have been 18 months and 27 days.

[3] This is a "transitional case" in that the prosecution was commenced under the previous "Morin" delay framework with the delay application decided after the Supreme Court decision revising the delay analysis in R. v. Jordan. This requires the court to apply the new "Jordan" framework flexibly and contextually being mindful of the litigants' reliance on the state of the law as it existed at the time.

Summary of the Procedural History

[4] The applicant was arrested on December 18, 2015. The information was sworn on December 24, 2015.

[5] On January 7, 2016, the applicant first appeared in court and received initial disclosure and the matter was remanded for its review.

[6] On January 21, the matter was remanded again as counsel sought further disclosure and a Crown pre-trial. On February 1, counsel sent a letter requesting further disclosure, including the statement of a prospective witness named "Avani Gautan". The next court date was on February 4, when the matter was remanded further for the Crown office to respond to the disclosure request.

[7] On March 3 the matter was again remanded for a Crown pre-trial to be held on March 9. On March 17, it was confirmed to the court that a Crown pre-trial had been completed and that further disclosure was available in the form of photographs and the recording of the 911 call. It is agreed that this call was made by Avani Gautan. The matter was remanded for further pre-trial discussions.

[8] On April 6, counsel confirmed a date for a judicial pre-trial. This was held on May 31 when it appears that resolution and a three-day trial estimate was discussed. The matter was remanded to June 10 when counsel requested further time in order for his client to consider the resolution proposed and to procure the statement of Ms. Gautan.

[9] On July 8 and July 22, the matter was remanded at the request of the applicant's counsel solely in pursuit of the statement of Ms. Gautan. On August 15, 2016, a three-day trial was set for July 19, 20 and 21, 2017. It is agreed that a statement was never taken by the police from Avani Gautan and that she is a family associate of the applicant.

Analysis

The Jordan Framework for s. 11(b) Unreasonable Delay

[10] On July 8, 2016, the Supreme Court released its decision in R. v. Jordan, 2016 SCC 27. The decision created a new procedural framework for determining unreasonable delay pursuant to s. 11(b) of the Charter, summarized at paragraph 105:

There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court… Defence delay does not count towards the presumptive ceiling.

Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case's complexity, the delay is reasonable.

Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.

For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties' reliance on the previous state of the law.

Determining the Net Delay

[11] The net delay, subtracting "defence delay" from total delay, must first be determined. The total delay in this case involves 18 months and 27 days spanning the swearing of the information to the end of the anticipated trial. "Defence delay" involves either a waiver of the s. 11(b) right or "delay solely caused by the conduct of the defence." Such conduct involves defence actions that directly caused delay or conduct that is shown to be a deliberate and calculated tactic employed to delay the trial. The applicant had not waived delay at any stage. It must, however, be determined whether or not any of the delay was "solely" attributable to the defence.

[12] It is important to examine the nature of the single disclosure item that appeared to visit some delay on the proceedings. It is agreed that Avani Gautan is closely associated with the family of the applicant, and I infer that she is "available" to the defence. She made the 911 call, and the recording was disclosed within three months of the arrest. The applicant submits that her evidence was "essential" to the issue of care or control. However, a police statement was never taken from her.

[13] Trial dates could have been set as early as the first judicial pre-trial on May 31, 2016. The Crown submits that the ensuing time until August 18 when the trial dates were set must be deducted as defence delay. I acknowledge that ten days after the May 31 judicial pre-trial, in requesting a five-week remand to June 10, the applicant's counsel submitted the dual prospects of further disclosure and resolution as the reasons for the remand.

[14] Surely by July 8 trial dates should have been set. By then the prospect of resolution had evaporated as far as the court record disclosed. The only issue preventing the setting of dates was counsel's continued insistence on receiving an answer regarding whether or not a statement was even taken from Ms. Gautan.

[15] In the context of a potential witness who never provided a statement and whose 911 call was made available early in the process, the Crown and the system cannot be held responsible for any of the delay between July 8 and August 15. The case management judge even made mention of the recently released Jordan decision on July 22 in an effort to persuade the applicant's counsel to set trial dates. Counsel still insisted on remanding the matter one further time to August 15.

[16] I find that the delay of 39 days between July 8 and August 15, 2016 was "solely" and directly caused by the actions of the defence and must be deducted from the total delay. This time frame alone brings the net delay below the presumptive ceiling, triggering the next stage in the analysis.

[17] I appreciate the Crown respondent submitted other time periods may also be deducted as defence delay. For example, the 13 days between May 18 and May 31, 2016 was arguably defence-caused delay, due to counsel's unavailability for the judicial pre-trial. While the application of the Jordan framework by the Supreme Court in R. v. Williamson lends support that this time should be deducted as well, I need not make that determination. The net delay, regardless, is below the presumptive ceiling.

Net Delay Below the Presumptive Ceiling

[18] For cases below the presumptive ceiling, the defence bears the onus to establish that the time to trial is unreasonable. To do so, the defence must establish that it took "meaningful and sustained steps to expedite the proceedings" and that the case took "markedly longer than it reasonably should have."

[19] The Supreme Court observed in Jordan that it expected stays where the net delay falls below the ceiling to be "rare and limited to clear cases." Given counsel's repeated pursuit of a single, non-existent statement for months after the Crown and the court were ready to set trial dates, I find that the defence has not established that it took meaningful and sustained steps to expedite the matter. Applying the new framework to the delay in this case, the application must fail.

Transitional Analysis

[20] I am mindful of the Supreme Court's transitional concerns regarding the new Jordan framework. A raft of stays or Charter rights deferred during this period would only serve to undermine the integrity of the justice system. I am required to apply the new analysis flexibly and contextually, being mindful of the reliance of the parties on the delay analysis as it existed when key decisions were made. I do not propose to embark on an exhaustive Morin analysis for reasons that will become apparent, but I will highlight some key points relevant to the discussion.

[21] The well-known framework for the previous analysis was outlined by the Supreme Court in R. v. Morin. In determining whether or not the time to trial was reasonable, the court was required to consider the following factors:

1. the length of the delay;
2. waiver of time periods;
3. the 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, and
   • (e) other reasons for delay; and
4. prejudice to the accused.

[22] The decision in Jordan was released on July 8, 2016. This was also the return date after the judicial pre-trial had been completed for this matter – a rather lengthy period of 5 weeks. The proceedings were then remanded twice further due to counsel's pursuit of a statement that was never taken. Trial dates were ultimately set on August 15, 2016 for three consecutive days commencing July 19, 2017.

[23] From set-date to trial, 11 months and 7 days would pass. Defence counsel's earliest availability for a three-day trial was confirmed as October of 2016. For such a case, I would assign a month for counsel to prepare, as contemplated in R. v. Lahiri, 2011 ONSC 6780. I would have characterized the institutional delay as within the Morin guidelines: See the Court of Appeal's discussion of institutional delay in this jurisdiction for similar offences in R. v. Yen, [2014] O.J. No. 1663.

[24] I note, particularly in the context of this case, that for transitional cases where the net delay falls below the ceiling, the "defence initiative" consideration should be applied flexibly and contextually. Again, I must be mindful of defence counsel's reasonable reliance on the law as it then existed.

[25] Even under the previous framework, the applicant's insistence on an answer regarding the potential statement of Ms. Gautan should not have prevented the setting of trial dates: See our Court of Appeal's guidance in R. v. N.N.M.; and R. v. Kovacs-Tatar; and more recently, post-Jordan, from Justice Code of our Superior Court in R. v. Ghandi, 2016 ONSC 5612. Accordingly, most if not all of the delay between May 31 and August 15 would have been characterized as "actions of the accused" causing delay.

[26] In the Morin analysis, prejudice had to be qualitatively assessed and considered, as opposed to it now being incorporated into the new presumptive ceilings. The applicant testified in support of this application. Mr. Patel has been anxious and stressed at the prospect of a criminal conviction and has been preoccupied with the attendant consequence of losing his licence for a time. While there are other compounding stresses in the applicant's life relating to employment, his aging parents and the dissolution of his marriage, these additional concerns cannot reasonably be associated with the delay in this proceeding.

[27] Even with the prospect of some limited prejudice suffered by the applicant as a consequence of the delay, I would not have granted the application under the previous delay framework. Applying both frameworks to determine the reasonableness of the delay, the application fails and the trial dates stand. My thanks to counsel for their helpful advocacy.

Released: July 13, 2017

Signed: Justice A. A. Ghosh