Court File and Parties

Ontario Court of Justice

Date: 2018-04-20

Court File No.: Crown-15-10000102-00AP (Toronto)

Between:

Her Majesty the Queen

— and —

Walter Creglia

Before: Justice H. Pringle

Heard on: February 28, 2018 and April 12, 2018

Reasons for Judgment released on: April 20, 2018

Counsel

Frederick G. Bartley — counsel for the respondent/Crown

Thomas Surmanski — counsel for the applicant/accused

PRINGLE J.:

OVERVIEW

[1] The applicant, Walter Creglia, faces charges of Impaired Driving and Driving While Over 80 mg of Alcohol in 100 ml of Blood. These charges date back to November 2014. In November 2015, he was convicted after a one-day trial.

[2] That conviction was set aside on June 21, 2017 and a new trial ordered. That new trial is scheduled to commence on June 21, 2018.

[3] The applicant submits that his right to be tried in a constitutionally reasonable time has been breached. He seeks a stay of both charges.

EVIDENCE RELIED UPON IN THE APPLICATION

[4] I had the benefit of a full evidentiary record in this case. Transcripts of all set dates leading up to the applicant's 2015 conviction, as well as of all set-dates during the retrial process, were provided. The defence properly conceded that appellate delay was not to factor into my s. 11(b) analysis. However, the evidence helpfully includes the appellate cover page, establishing the date of the decision and the reason why the appellant's conviction was overturned. The record was completed by the applicant's affidavit, which asserted prejudice as the result of undue delay.

[5] Justice Goldstein, in his appellate decision in this case, characterized it as a "simple impaired driving case". It certainly started off that way. On November 17, 2014, the applicant was arrested for impaired driving and driving with over 80 mg of alcohol in 100 ml of blood. He was released the same day, on a Promise to Appear that mandated him to attend court on January 12, 2015. Shortly before that first court appearance, on December 30, 2014, a police officer swore the information that is now before the court.

[6] Through retained counsel, the applicant attended his first court appearance of January 12, 2015. Approximately two months had passed between the applicant's arrest and his first court appearance. Counsel appeared retained and filed a designation. Initial disclosure was provided and the case adjourned to February 2, 2015.

[7] On Feb. 2, 2015, defence counsel advised he had reviewed the disclosure but still needed to have a Crown pretrial. The case was adjourned two weeks, to February 17, 2015. On February 17, 2015, counsel appeared and confirmed a Crown pretrial was held on February 3. He requested one week to confirm his client's instructions. The Crown was ready to set a trial date on February 17.

[8] On February 24, counsel appeared and set a one-day trial for November 30, 2015. An earlier date of November 23, 2015 had been offered but the defence was unavailable.

[9] On November 30, 2015, the applicant was convicted by Zuker J. following a one-day trial. He appealed and on June 21, 2017, Goldstein J. overturned this conviction. The reasons for convicting the applicant, Justice Goldstein found, were insufficient despite the case being "a simple impaired driving case". He ordered a new trial.

[10] Between the applicant's 2015 conviction and the 2017 order for a new trial, on July 8, 2016, the Supreme Court released the decision of R. v. Jordan, 2016 SCC 27.

[11] On July 10, 2017, the applicant returned to #111 court pursuant to the order for a new trial. He was unrepresented, but had reached out to a new lawyer. He agreed to return on July 31, 2017 with an update about retaining counsel. The Court observed that on July 31 "the court will be eager to move your matter forward".

[12] On July 31, new counsel appeared with the applicant. Although his firm was not yet prepared to go on record, in order to move the case along they were willing to review the disclosure and conduct a Crown pretrial. Defence counsel requested a four week adjournment to August 28, to permit disclosure review and to "speak to my friend's office about how they are going to proceed with this charge". He added "…if the crown is indeed re-prosecuting this, it's – then it's likely we'll be retained."

[13] The Crown in #111 court said "I'm assuming that the Crown will be proceeding on these charges. The Crown's ready to move the matter forward, have a crown pre-trial and a judicial pre-trial if necessary. But it is a defence request". The case was adjourned to August 28th, 2017. Subsequent events prove that, at the time of this set-date, the Crown brief had not made its way from the Superior Court to Old City Hall.

[14] On August 28, 2017, counsel appeared prepared to set a trial date. He advised a Crown pretrial was held on August 15, 2017, and a trial estimate of three hours was reached. Counsel stated, "We determined there is no chance for resolution at this time. And Mr. Creglia has also already had a trial. And his – he cannot work with the current charges, so we're looking to resolve this one way or the other as quickly as possible".

[15] The Crown in #111 court that day was not the Crown who conducted the pretrial. He expressed surprise at a 3 hour time estimate, and asked if a Charter application would be brought. Defence advised that one was not anticipated, except that "if the matter is delayed greatly, we may be bringing an 11(b)". The Crown asked the case be held down, to facilitate contact with the Crown who did the pretrial and confirm this estimate.

[16] Sometime later, the Crown who conducted the pretrial attended 111 court to speak to this case personally. She stated:

That matter was sent back for re-trial, Your Worship. And I do not have the brief yet. I received communication, I was indicating to my friend, either last week or the week before, that it would be coming down personally with officers on our next trial dates when they would be seeing us. And that was either last Monday or today at the latest. I just can't recall. But no one has the file yet, and so we haven't really assessed the case and how it's going to proceed. So that crown pre-trial needs to continue once I have the materials in my hand. And it may be that my office actually already has them, but it's the end of summer and unfortunately that hasn't been communicated to me yet. So I will be following up on that when I get back to my office. And hopefully if we have a remand of – well, if it's going to be a shorter remand, then I won't be able to have a pre-trial in the interim 'cause I'm away the next week. But if we leave it for about three weeks, then I should be able to get a pre-trial in as well and conclude it. We did begin discussions, but nobody had a file and so it, it didn't go very far.

[17] Defence counsel replied,

Our position is that we – if we set a trial date it's gonna be so far ahead we can resolve all these issues in the meantime. However, you know, we're looking – Mr. Creglia cannot work with these current charges pending, and we'd like to set a trial date as soon as possible. And we're sure we can resolve any meetings or, or view any disclosure we get between now and then.

[18] In response to this concern, the Crown assured the defence and court that early trial dates should be available, based on her recent experience with another case. The following exchange occurred:

CROWN: I'm available – the trial date was offered to me of January the 5th. So we're not looking too far into the future, shockingly, for A court.

THE COURT: Sorry.

CROWN: They seem to be finding us some room. And up at the trial court they…

THE COURT: Was that with the trial coordinator, was it?

CROWN: It was with the trial coordinator.

THE COURT: Just that – yeah, because my – the dates in this book…

CROWN: Two weeks ago I was setting July, Your Worship. But for some reason they've opened up some spots for us or things that collapsed and cancelled.

THE COURT: Now, the first available date here is in March, so you're better off with that trial coordinator's date.

DEFENCE: Okay.

THE COURT: So if you want to go and secure that from the trial coordinator and put a hold on it, you can do that.

DEFENCE: Sure. That'd be great.

THE COURT: Okay. So we'll hold the matter – so do you still want to come back in – [Crown counsel]…

CROWN: Yes.

THE COURT: …to come back in three weeks or…

CROWN: Please. And I'll book a pretrial…

THE COURT: And then can that…

CROWN: …with my friend in the interim.

DEFENCE: Mm hm.

THE COURT: ….can a hold be put on that January trial date, please?

CROWN: Probably not. But I was offered January 5th and counsel wasn't available to take it, so we ended up with January the – whatever the last date I just said was. Things are not looking too bad. I'm not too worried.

THE COURT: I didn't hear a second January date.

CROWN: Whichever one I just said on cross [1].

THE COURT: I don't know – oh, for cross, January 16th.

CROWN: So I – yeah, so 5th and 16th had both been available. I don't think they're the only January dates we have.

THE COURT: The concern is, ma'am, that the – if in three weeks all those great early dates will be snapped up.

CROWN: They won't hold them, Your Worship, unfortunately.

THE COURT: Well, I don't know if you can have a word with the trial coordinator because, again, as I said, I don't have anything until March in this book.

DEFENCE: We can go talk to the trial coordinator and see if we can do that, and then …

THE COURT: You can try. You can only but try. Take a cup of coffee with you.

CROWN: My friend can ask if they will hold them. I don't know about any officer availability because we have no brief. I don't even know who my officers are.

THE COURT: So…

CROWN: That's why we can't set it.

THE COURT: So are you still assessing whether or not you're gonna be re-prosecuting as well, or you don't know yet?

CROWN: I would assume that that would be part of the consideration, yes.

[19] To place this conversation in context, by this point over two months had passed since Justice Goldstein ordered the new trial. Given the Crown's inability to set a trial date or even to try and target one, the case was adjourned to September 26.

[20] On September 26, the defence again attempted to set a trial date, pursuant to his client's instructions. Defence advised, again, that the time estimate reached during the August 15 pretrial was three hours. The Crown, who was not the Crown who conducted this pretrial, replied that the "original estimate" was a day and a half. Defence counsel stated this was a retrial and there were not "a lot of issues to re-litigate". The matter was then held down by the Crown:

But I think my office is trying to confirm that from our end, whether, whether we have the view that three hours is the proper estimate. Mr. Goddard, who's here today, was looking into it.

[21] After the matter was held down, the Crown who did the August 15 pretrial attended and told the Court:

….this is a case where it's been ordered after appeal for a re-trial. Counsel has just received their disclosure. I was hoping that we could have it ready for him earlier, but we didn't, so that I could've had a pre-trial in advance of today's date. However, they now have just received it in the last few days.

I am going to have to have a pre-trial with counsel to discuss time estimates. And I understand that there is likely a Charter application coming, which means this is going to require a judicial pre-trial.

We are asking for October 10, which is three weeks. The anticipation is that I will be having a pre-trial with counsel this week, and we will be having the judicial pre-trial before or on October the 10th. So on the next date we will actually be able to set that trial date.

[22] But on October 10, no trial date was set and no judicial pretrial was held. The Crown failed, without known explanation on this record, to attend the judicial pretrial. A second judicial pretrial was scheduled and held on October 25. On October 30, a half-day motion was set for February 28, 2018. This was the date the 11b was argued. In addition, two days were scheduled for trial, these being June 21 and June 22, 2018. In an unchallenged affidavit sworn on January 24, 2018, the applicant asserted prejudice has occasioned due to delay.

WHAT IS THE APPLICABLE CEILING FOR RETRIALS?

[23] Jordan set an 18-month ceiling for cases to reach trial in the Ontario Court of Justice. Unfortunately and unsurprisingly, there is little jurisprudential guidance for cases tried pre-Jordan and ordered re-tried post-Jordan. As a result, different structural approaches to the "retrial ceiling" were advanced here. For example, it was argued that the total time to reach both trials should simply be added together and measured against the Jordan 18 month ceiling. While there is an attractiveness to this approach, given that retrials are not generally a defendant's fault but are ordered due to judicial error, I cannot accept this analysis. In practice, it would cause results that run contrary to common sense and to the Supreme Court's intention in Jordan.

[24] A hypothetical will exemplify the problem with the "global 18 month ceiling" approach. An accused is brought to trial, his first trial date, within seventeen and one-half months. No complaint of unreasonable delay is made. At the end of that trial, the accused is acquitted. The Crown launches a successful appeal, a retrial is ordered, and a retrial date is secured for three weeks after that retrial order.

[25] On this hypothetical, the time to trial and retrial would exceed a Jordan 18 month ceiling by one week. Yet at the first trial, the accused's right to trial in a reasonable time was not breached and in setting down a date for retrial, the accused benefitted from a scheduling miracle. The combination of those two factors cannot, in my view, reasonably create a violation of an accused's s. 11(b) right. The 18 month guideline was meant to apply to cases reaching their first trial date.

[26] The opposite approach would see an 18 month ceiling for the first trial, and an 18 month ceiling for the second trial. I disagree with this approach too. Jordan was meant to break down complacent systemic attitudes towards delay. Stacking two 18 month ceilings on top of one another would invite a complacent attitude towards scheduling retrials. Doubling the 18 month ceiling would also fly in the face of pre-Jordan appellate direction that retrials be expedited.

[27] Although there may be some distinguishing facts, I consider the analysis in the recent appellate decision of R. v. Crant, 2018 ONSC 1479 to bind my approach. At paras. 18 and 19 of Crant, Nakatsuru J. considered this precise question:

…what remains undecided is how the presumptive ceilings set out in Jordan are affected, given that this is a retrial. In other words, given that this is a second trial in the Ontario Court of Justice, does 18 months remain the presumptive ceiling? Logically, it does not make sense that it would. Jordan only dealt with an initial trial. The fact an appeal has been heard and the case was set down for a new trial would invariably require further time. Thus, the presumptive ceiling for a retrial should be longer. That much seems obvious to me.

However, the question is how much longer? There is little authority that post-dates Jordan on this issue. Pre-Jordan, as I will discuss below, there was some guidance. In my view, any figure chosen would be arbitrary to some degree. That said, it seems to me that it would not be right to simply double the 18 month presumptive ceiling. This would not recognize the fact that most of the intake and preparation requirements for trial would already have been completed. It would also not reflect the spirit of Jordan. It would fail to encourage the parties and the system to properly expedite a retrial. Thus, any presumptive ceilings for a retrial should take these factors into account and be set at a significantly lower threshold.

[28] Unfortunately, for this motion judge at least, Nakatsuru J. declined to set a presumptive ceiling for retrials, stating at para. 20:

Whatever the presumptive ceiling is, I am prepared to find that this case exceeds such a ceiling. In my view, this case is best analyzed under the transitional exceptional circumstance. This important issue of the presumptive ceiling for retrials is best left for some other case, decided by some other appellate court.

[29] In Crant, the net delay (total delay minus defence delay) was twenty seven months and nineteen days to get to trial, or thirty one months and thirteen days if time to sentencing was factored in. Either figure, Nakatsuru J. assumed, would exceed the presumptive ceiling for retrials and trigger the transitional exceptional circumstance analysis.

NET DELAY IN THE CASE AT BAR

[30] I begin with an assessment of net delay. The total delay in this case, after subtracting appellate delay is 745 days or twenty four months and two weeks:

• 379 days to first trial date - November 17, 2014 [2] to November 30, 2015 (1 year and 2 weeks);
• 366 days from retrial order to retrial date - June 21, 2017 to June 21, 2018 (1 year and 1 day).

[31] From this figure, defence delay must then be subtracted. Unlike Morin, the concept of defence delay is defined restrictively. It is either delay waived by the defence clearly and unequivocally, or delay caused solely by the conduct of the defence. A valid waiver means "[t]he accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights": Jordan at para. 61.

[32] Defence delay caused by defence conduct includes where the accused's acts caused the delay directly, where his or her conduct was calculated to delay the trial, or where the Crown and Court were ready to proceed but the defence was not. At paragraph 66 of Jordan, the Court held that "Defence actions legitimately taken to respond to the charges do not constitute defence delay".

[33] The applicant concedes that prior to reaching his first trial date, there were seven days of defence delay. He was unavailable for the first date the Court and Crown offered as available. I agree that the defence, directly and solely, caused seven days of delay from November 23 to November 30, 2015. I also find defence delay occurred from February 17, 2015 to February 24, 2015. On February 17, 2015, the Crown was clearly ready to set a trial date but the applicant had not provided his counsel with instructions to do so. The failure to provide instructions directly and solely caused that adjournment as well.

[34] The applicant argues no defence delay occurred between the retrial order and the retrial date. Considering the definition of defence delay in Jordan, I agree with this. Following the retrial order, the transcript record establishes there was:

• no waiver;
• no delay caused solely by defence conduct, and;
• no occasion where both Court and Crown were ready to set a trial date but the defence was not.

[35] I find that, following the retrial order, the Crown was not ready to set a trial date until October 30. I based this conclusion on the evidentiary record as a whole, but following a close inspection of the August 28 transcript. On that day, the applicant tried to set a three-hour trial date. He expressed the need for urgency and explained the impact of delay on his ability to work. A Crown pretrial had earlier been held, ostensibly justifying this three-hour estimate.

[36] However, it then became clear that the Crown did not have the case brief when she conducted this first pretrial, rendering it somewhat meaningless. The absence of the brief appears attributable, based on the Crown's submissions, to the fact that it had not yet been sent back by the Summary Conviction Appeal court at 361 University Avenue. Without a brief, the Crown submitted, she was completely unable to set a retrial date:

CROWN: That matter was sent back for re-trial, Your Worship. And I do not have the brief yet. I received communication, I was indicating to my friend, either last week or the week before, that it would be coming down personally with officers on our next trial dates when they would be seeing us. And that was either last Monday or today at the latest. I just can't recall.

But no one has the file yet, and so we haven't really assessed the case and how it's going to proceed. So that crown pre-trial needs to continue once I have the materials in my hand. And it may be that my office actually already has them, but it's the end of summer and unfortunately that hasn't been communicated to me yet…

…But if we leave it for about three weeks, then I should be able to get a pre-trial in as well and conclude it. We did begin discussions, but nobody had a file and so it, it didn't go very far.

[37] When the Court suggested attempting to hold early January trial dates with the trial co-ordinator's office, again the Crown's response was:

CROWN: My friend can ask if they will hold them. I don't know about any officer availability because we have no brief. I don't even know who my officers are.

THE COURT: So…

CROWN: That's why we can't set it.

[38] I appreciate why the Crown could not set a trial date without their brief. However, this transcript proves the Crown was not ready to set a trial date, either on August 28 or on any preceding set-date appearance.

[39] The judicial pretrial was not held until October 25, 2017. The following appearance was October 30, 2017. By that date, the Crown, the Court, and the defence were all ready to set a trial date. The June 21 and 22 trial dates, along with the s. 11(b) motion date, were then set. Despite the applicant raising prejudice and his wish to expedite setting the retrial, this case appears to have received no scheduling priority.

[40] Total delay being twenty-four months and two weeks, and defence delay being two weeks, the net delay in this case, therefore, is twenty-four months or two years globally.

PRESUMING THE RETRIAL CEILING WAS EXCEEDED BY NET DELAY

[41] At twenty-seven months and nineteen days of net delay, Justice Nakatsuru was prepared to assume the presumptive retrial ceiling was exceeded. There is no clear appellate direction on the range of reasonableness for retrials. There are pre-Jordan cases that, in my opinion, suggest a total range of between five to eight months to bring a case to retrial.

[42] For example, in R. v. Yakymiw (1993), 68 O.A.C. 237, there was an initial delay of thirteen months to reach a first trial date, and following a successful appeal, another five months to conduct the retrial. The Court held that "[w]e think that the five months post appeal delay, whether taken in isolation or in combination with the previous 13 months, was within an acceptable range."

[43] In R. v. Konnafis, [1996] O.J. No. 3961, Boyko J. of the Ontario Court (General Division) held at para. 17 that "…scheduling a matter for a new trial should take no more than 6 to 8 months, with the lesser period being appropriate for uncomplicated matters such as the case before me."

[44] In R. v. Satkunananthan, (2001), 143 O.A.C. 1, a multi-accused indictment reached its trial date after some significant delay. At trial, a mistrial was ordered due to the Crown's failure to provide a qualified interpreter. A new trial, estimated to take six weeks, was scheduled to begin six and one-half months later. Our Court of Appeal characterized this 6 ½ month retrial period as too long, in the circumstances. The Court said, at para. 45:

…it is difficult to justify the one-year delay from committal for trial to the initial trial date. No explanation was provided by the respondent. Indeed, the respondent tendered no evidence before the trial judge in an attempt to explain, or to justify, the various delays. In our view, a portion of this period must be regarded as unacceptable. We are of a similar view in respect to the six-and-one-half month period between the adjournment of the proceedings by Hawkins J. and the next scheduled trial date. This case illustrates, as Sopinka J. stated in R. v. Smith, [1989] 2 S.C.R. 1120 at 1135, that there may be circumstances in the course of a criminal proceeding where it is incumbent upon the Crown to select, or arrange for, a hearing date more commensurate with the right of an accused person to be tried within a reasonable time. Indeed, the longer the proceeding is in the system, the greater the responsibility of the Crown to expedite the hearing date to get the case on for trial.

[45] These cases also establish that the state undisputedly bears an obligation to expedite retrials: see also R. v. Brace, 2010 ONCA 689 at paras. 14-15 and R. v. G.V.E. [2016] O.J. No. 91 at para. 76. This is logically practical when you consider the reason why a retrial is ordered. As Paciocco J. (as he then was) observed in R. v. Fitts, [2015] O.J. No. 6941 at para. 5:

…accused persons are not ordinarily responsible for the need for a second trial. A second trial becomes necessary because of judicial error, or extenuating circumstances requiring a mistrial at the first hearing. Accused persons should not, in my view, be expected to undergo unacknowledged subjection to the stress and challenges of delay simply because, through no fault of their own, the first trial failed to dispose of the matter.

[46] While to me it seems logical to adopt a five to eight month timeframe as a presumptive retrial ceiling, based on Yakymiw, Satkunananthan, and Konnafis, in the absence of clear appellate direction I will not hazard my view of a presumptive retrial ceiling as the correct one.

[47] Instead, I have analyzed the applicant's s. 11(b) application in two ways. I have analyzed it by presuming net delay in this case exceeds the presumptive ceiling for retrials, as was done in Crant. I have also analyzed it based on the assumption that the net delay falls below the presumptive ceiling for retrials. Because I have reached the same conclusion under both analytical frameworks, it is unnecessary for me to suggest a presumptive retrial ceiling.

NET DELAY EXCEEDS THE PRESUMPTIVE RETRIAL CEILING

[48] Assuming the net delay exceeds the presumptive ceiling for retrials places an onus on the Crown to justify the delay based on "the parties' reasonable reliance on the framework that existed for the determination of s. 11(b) claims prior to Jordan": Manasseri, at para. 362.

[49] There were no discrete events or complex exceptional circumstances advanced by the Crown in this case. Following Crant, and presuming the ceiling to have been exceeded in the case at bar, the transitional exceptional circumstances analysis is triggered. As per Manasseri at para. 321, this involves assessing whether delay above the presumptive ceiling is justified, considering:

• The complexity of the case;
• The period of delay in excess of the Morin guidelines;
• The Crown's response, if any, to institutional delay;
• The defence efforts to move the case along, and;
• Prejudice to the accused.

The Complexity of the Case

[50] No one seriously argued this impaired driving case was complex, and I conclude it was not. The case was straightforward enough that the applicant's first trial was scheduled for one day and, at the end of that one day, the applicant had been tried, convicted, and sentenced.

[51] While the respondent's factum submits the time estimate was 'inexplicably' increased to two days, it is a logical jump to conclude the two-day time estimate is due to an increased complexity in trying this case. The evidence before me does not explain this incremental increase in time estimate. In concluding this case is not complex, I have also relied on Justice Goldstein's appellate decision, where he described the case at bar as a "simple impaired driving case".

The period of delay in excess of the Morin guidelines

[52] I then move to comparing any delay in this case to delay in excess of the Morin guidelines. The Morin guidelines balance:

• The length of the delay;
• Any waiver of time periods;
• The reasons for delay, including:
  • (i) inherent time requirements of the case;
  • (ii) the actions of the accused;
  • (iii) the actions of the Crown;
  • (iv) limits on institutional resources;
  • (v) other reasons for delay, and;
• Prejudice to the accused.

[53] As Nakatsuru J. observed in Crant at para. 53, the Morin analysis does provide guidance on retrial timelines:

The authorities decided under Morin have, in cases of a retrial, extended the guidelines of 8 to 10 months to complete a trial in the provincial court. In the case of R. v. Fitts, 2015 ONCJ 746, 127 W.C.B.(2d) 245, at paras. 21-22, Paciocco J. (as he then was) determined that for a retrial, the guidelines should be extended a further 6-8 months. See also R. v. Si, 2014 ONSC 4178, 114 W.C.B. (2d) 477, at paras. 17 and 24. Thus, the operative delay in this case falls at the lower end of and well within the Morin guideline for retrials of 14 to 18 months.

[54] Having affirmed the Morin guideline for retrials at between fourteen to eighteen months of operative delay, Nakatsuru J. found the operative delay in his case, of fourteen months and twenty two days, to fall easily within it. In the case at bar, I have found the operative delay, globally, does not.

[55] Operative delay, as I understand the term, is pure Crown and systemic delay: see Crant at para. 47. It does not include any neutral delay, including intake delay or time to finish a case once it commences. It does not include time periods waived by the defence.

[56] As stated above, the total trial and re-trial time is twenty-four months and two weeks. There were no time periods waived by the defence, although the defence caused two weeks of delay. The inherent time requirements of the case were minimal. There was no dispute that this is a standard impaired driving / drive over 80 case. At his first trial, the applicant was tried, including advancing a Charter application, and was convicted and sentenced – all in one day. This speaks volumes about the simplicity of organizing this case for trial and retrial.

[57] Following the applicant's arrest, two months of neutral intake time should have sufficed to provide disclosure, conduct a Crown pretrial, and reach trial time estimates. A trial date could have been set close to two months after his arrest. Instead, the applicant's first appearance was scheduled almost two months after his arrest. Disclosure being provided at that first appearance, it took five weeks for disclosure to be reviewed, for a Crown pretrial to be held, and for trial estimates to be reached. Again, the case is clearly a simple one and the triable issues not complex. The appropriate intake period for this type of case would be between two months and two and one-half months. I have used the latter figure in my subsequent calculations.

[58] Under actions of the accused, I would attribute two weeks as defence delay. This was due to the lack of instructions in February 2015, causing one week of delay, and the defence unavailability for trial between November 23 and November 30, 2015, causing a second week of delay. Subtracting neutral intake time and time arising from the actions of the accused, this leaves an operative delay of approximately nine months in the first trial. This operative delay falls precisely in the middle of the eight to ten month Morin guideline.

[59] This is not the case, however, when assessing operative delay in the applicant's retrial. The total delay from order of retrial to the retrial date is 366 days or one year and one day. Again, even in a retrial there should be time allotted as neutral intake. The case needed to be transferred back to the trial court. Retainer, disclosure, and pretrial discussions need to be confirmed.

[60] However, that neutral intake period should have been much shorter in the retrial process than it was the first time around. For example, in Crant a retrial was ordered by the Superior Court on October 29, 2014 and by November 20, 2014, the case had been returned to Old City Hall and a retrial already scheduled. There were a commendable three weeks of intake time.

[61] In the case at bar, a new trial was ordered by the Superior Court on June 21, 2017 and yet it took until October 30, 2017 to set a date for retrial. Put otherwise, it took over four months to set a retrial date for a "simple impaired driving case". Although in my opinion the state should have been ready to schedule the retrial within one month of returning it from the Superior Court of Justice, because of the apparent requirement of a judicial pretrial, I have assessed the outside limit of a reasonable second intake period to be two months.

[62] Utilizing a two-month intake period for the retrial closely coincides with when the applicant began to try, actively and unsuccessfully, to set his date for retrial. A two-month intake period should have sufficed to conduct a judicial pretrial, presuming one was necessary on these facts. The issues had already been litigated once, including a Charter application. No judicial pretrial was required in the first trial. That said, accepting that some policy mandated a judicial pretrial before the retrial date could be set, the case should have been prioritized so that these steps could occur expeditiously.

[63] From the order for a new trial to the time the retrial date was set, the actions of the defence caused no delay. Indeed, as I will discuss, his actions were entirely consistent with the desire to be brought to retrial as quickly as possible. Characterizing two months as neutral intake time, and with no delay attributable to the defence, the operative delay during the applicant's retrial period is ten months.

Crown and Defence Efforts to Expedite Case

[64] Stepping away from mathematical calculations for a moment, I must observe here that the applicant, whose first conviction was overturned due to judicial error, caused no delay at all during the retrial process, and yet had to wait precisely the same time to reach his retrial date. Clearly, something went wrong here, and the responsibility for this lies at the feet of the Crown and the state.

[65] For months following intake, the applicant kept trying to set a retrial date and no one would let him do it. It apparently took months for a Crown brief to get from the Superior Court of Justice at 361 University to the Ontario Court of Justice across the street. It was apparently impossible to set a retrial date without the pieces of paper inside that Crown brief. An adjournment from between October 10 and October 30 was driven by the Crown's unexplained absence from the first scheduled judicial pretrial. The institutional delay from October 30, 2017 to June 21, 2018, should have been recognized as unacceptable for a retrial.

[66] I mean no disrespect to the individual prosecutors who handled this case during its set-date phase (none of whom, I note, were Mr. Bartley). But during the retrial phase, the prosecution's treatment of this case epitomized complacency. The fact remains that this retrial was ordered in a post-Jordan world and still, the Crown made little to no effort to expedite any part of the process. The underlying message here was that the applicant's case was not a priority. It was a retrial. It should have been.

[67] Returning to mathematical calculations, the total retrial delay was one year. With two months of neutral intake time subtracted, and no defence delay as defined in Jordan, this still left ten months of operative delay in the retrial. The total operative delay, between both trials, is nineteen months. This exceeds the "Morin guideline for retrials of 14 to 18 months": see Crant, at para. 53 and Fitts, at paras. 21-22. I turn to prejudice.

Prejudice

[68] Unlike Crant, prejudice was established on the record before me. The applicant's affidavit established compelling evidence of prejudice. He was not cross-examined and his evidence of prejudice went unchallenged. This was likely because the set-date transcripts corroborated the affidavit's assertions, and prove the applicant wanted an early retrial date to mitigate prejudice. On this transcript record, the applicant repeatedly raised the desire to set an early trial date, or expressed prejudice, or both.

[69] Before being charged back in 2014, the applicant was a professional driver with steady, reliable employment. He had been employed as a professional driver since the age of seventeen. After being charged, he lost his job because he was "unable to perform (his) duties". This designation prevented him from receiving employment insurance, despite applying three times. For years, he has struggled to pay his bills and keep his home.

[70] No employer would hire the applicant as a driver with these charges outstanding, and thus he has lost the ability to work in the field of his choice and his experience. While appearing in court during retrial set-dates, the applicant's desire to move the case forward was directly linked to the fact that delay prolonged his inability to work. Financial prejudice has been established.

[71] So has emotional prejudice. Unemployed at age fifty-nine, the applicant experienced feelings of worthlessness and dehumanization, thinking himself too old to start over again in a new line of work. His use of alcohol and sleeping pills as coping mechanisms grew, over time, into an addiction so strong he had to seek medical withdrawal management. His affidavit states that "[t]he uncertainty of knowing what will happen has been the most difficult thing for me as it has persisted for so many years and has created a prolonged state of stressfulness and financial instability." Clearly, the length of time occasioned in trying and re-trying this case has exacerbated prejudice.

[72] Finally, I must consider the seriousness of the charges. All cases of impaired driving are serious and there is a strong societal interest in having them tried on their merits. But the facts of this case fall on the lower end of the spectrum of seriousness: see the Applicant's Factum at para. 2.

[73] Balancing and weighing the Morin factors, I find the Crown has not discharged the onus of bringing this case within the transitional exceptional circumstance. The first trial was a model of efficiency. The retrial process was the opposite. His case received no meaningful state attention despite the fact that it was a retrial and despite clear directive from our Court of Appeal to prioritize such cases. Indeed, this case received so little individual attention that it took months to locate a Crown brief and set a retrial date. His complaints of prejudice went unheeded in set-date court.

[74] All this occurred at the exact same time that the state should have been, in response to Jordan, changing behaviours that cause delay and adjusting attitudes towards delay. The operative delay, as between the two trials, exceeded the Morin guideline of fourteen to eighteen months for retrials. There was no substantive defence delay other than two weeks, and prejudice was palpable. The charges fall on the lower end of the spectrum of seriousness.

[75] On the transitional circumstance exception analysis, I find s. 11(b) has been breached and I would stay the charges.

PRESUMING THE RETRIAL CEILING WAS NOT EXCEEDED BY NET DELAY

[76] I reach the same conclusion even when the onus is shifted to the applicant to establish delay as unreasonable. In order to establish this, Jordan holds the defence must prove (1) the defence took meaningful steps in a sustained effort to expedite the proceedings, and (2) that the case took markedly longer than it reasonably should have.

[77] Again, while I am considering the timeframe of both trial and retrial as a whole, my analysis is strongly guided by events that occurred following the order for a retrial. Counsel was retained in short order for both trial and retrial. In reaching the first trial date, other than two separate one-week periods, nothing the defence did contributed to delay and all actions were consistent with wanting to proceed to trial quickly.

[78] That attitude remained consistent after a retrial was ordered, despite the need to retain new counsel. The conduct of the defence in this case falls squarely into the category of behaviour described in Jordan at para. 85:

…while the defence might not be able to resolve the Crown's or the trial court's challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously.

[79] Indeed, the applicant's new counsel moved the case forward despite not being retained. Following his August 15 pretrial, which included reaching a three hour trial estimate, he repeatedly tried to set a trial date. He offered to try and hold early dates with the trial co-ordinator's office, upon being told some were available. The Crown said this would be fruitless without a Crown brief. Every step of the way, the applicant's actions proved he was actively trying to expedite the proceedings. None of these were token gestures.

[80] The applicant also put the Crown on notice that delay was a problem and they needed to mitigate it. For example, on August 28, 2017, defence counsel told the court this was a second trial, that the applicant "cannot work with the current charges" and needed to finish his case "as quickly as possible".

[81] I also find that the applicant has proven the case took markedly longer than it should have. This analysis includes consideration of local considerations, complexity of the case, and whether the Crown took reasonable steps to expedite the applicant's case. I have already found this case is not complex. I have also found that the Crown made no effort to expedite this case. I reiterate that the retrial proceedings entirely took place in a post-Jordan court system. The state, meaning court administration as well as the Crown, were on notice that lackadaisical attitudes towards delay were no longer acceptable. Yet the Supreme Court's call to action was entirely ignored here.

[82] As discussed previously appellate jurisprudence mandates that retrials be expedited. This is not new law. In 1993, the Court of Appeal for Ontario said in R. v. Yakymiw, supra at para. 4 that "Considering the interruption caused by the appellate procedures, the Crown faced an obligation to bring the matter to trial expeditiously afterwards". I reiterate, without repeating, the events following the retrial order as set out in paragraphs 14 through 22 of this judgment.

[83] When I compare those events to the spirit and intention of Jordan, and to the case law directing the Crown to expedite retrials, it is clear this case took markedly longer than it should have. Indeed, in reaching a retrial date, the operative delay in the applicant's case was longer than it was the first time around. The intake period was longer than it was the first time around. On October 30, 2017, a retrial date was set for June 21, 2018, some eight months away. It was obvious the applicant was unhappy with this: he scheduled this s. 11(b) application commensurate with scheduling the trial date.

[84] Weighing all the circumstances, I find the defence has discharged the onus it bore, if global operative delay did not exceed the presumptive retrial ceiling. They have proven both that the defence took meaningful steps in a sustained effort to expedite the proceedings and that the case – in particular the retrial – took markedly longer than it reasonably should have. No matter which analysis I conduct, the result is the same.

[85] I appreciate that stays beneath the presumptive ceiling will be rare and "limited to clear cases". This is, in my opinion, such a case. The charges of Impaired Driving and Drive While Over 80 mg of Alcohol in 100 ml of Blood will be stayed.

Released: April 20, 2018

Signed: Justice Heather Pringle

Footnotes

[1] Although the transcript was unclear on this point, I presumed that "Cross" was another case spoken to on that day, where a January 16th trial date was set.

[2] The start date of my "total delay" calculations was not a contested issue, as both Crown and defence materials used November 17th, 2014 as the operative start date. However, in light of the information being sworn on December 30, 2014, I have considered whether R. v. Kalanj, [1989] 1 S.C.R. 1594 applies. For the reasons expressed by Schreck J. in R. v. Luoma, 2016 ONCJ 670, [2016] O.J. No. 5891 at para. 29, I have concluded it does not.