Ruling on Charter s.11(b) Application

Ontario Court of Justice

Date: 2018-01-05

Court File No.: Newmarket 15-02866

Between:

Her Majesty the Queen

— and —

Nadia Colarusso

Application heard: January 4th, 2018

Released: January 5th, 2018

Counsel:

• Ms. Shambavi Kumaresan – counsel for the Crown
• Mr. Daniel Lerner – counsel for the defendant

KENKEL J.:

Introduction

[1] An IT engineer was driving home from work late at night when he saw a car moving across lanes apparently unable to maintain a steady course. That car stopped for a red light but half the car was over the stop line into the intersection. When the light turned green the driver did not react and the witness had to drive around the stopped car. The same car later caught up and sped past the witness. It was swerving. It drove into the median on Mulock Drive and bounced off several times. The witness called police who investigated the driver Ms. Colarusso. She was disoriented and unable to stand. Further investigation led to the charges before the court – Operating a Motor Vehicle While Impaired by Drug, Resisting Arrest and Possession of Cocaine.

[2] The trial commenced November 2nd, 2017 which was the third scheduled trial date. The defence submits that the overall delay in this case of almost three years breaches the accused's s.11(b) Charter right to a trial within a reasonable time and requests that the proceedings be stayed. The Crown notes that the previous two trial dates were adjourned by the defence. Deducting that delay, prior defence delay and accounting for two discrete events results in a remaining delay below the presumptive ceiling set out in R v Jordan 2016 SCC 27.

The Case History

[3] The court appearances may be summarized as follows:

• April 24, 2015 – 1st app – counsel NYR, disc given, Adj Def req
• May 15, 2015 – 2nd App – further disc, counsel NYR Adj Def req
• June 12, 2015 – 3rd App – "just retained me this morning" Adj Def req
• July 13, 2015 – 4th App – Adj for Crown PT
• Aug 10, 2015 – 5th app – CPT held Jul 29, Def still did not have instructions, Adj Def req to get instructions
• Aug 31, 2015 – 6th App – Adj Req of def for addictions counselling
• Sept 28, 2015 – 7th App – Adj Def req, counsel having "difficulty getting in touch with Ms. Colarusso"
• Marked PEREMPTORY on defence Oct 19th
• Oct 19, 2015 – 8th App – JPT set at Def request
• Nov 4, 2015 – 9th App – JPT held, Trial dates set March 17,18/17
• Jan 11, 2016 – 10th App – BF Crown Adj Granted Oct 12,13/16 Trial (no discussion about how those dates were chosen)
• Oct 12, 2016 – TRIAL #1 – Adj Def req
• Oct 19, 2016 – 12th App Trial #2 set for July 17,18 /17
• July 17, 2017 – TRIAL #2 – Adj Def req, counsel removed given "material breakdown in communication" morning of trial. Trial #3 set for November 2,3, 2017
• Jul 31, 2017 – 14th App – TBST about retainer
• Aug 21, 2017 – 15th App – TBST about retainer
• Sep 6, 2017 – 16th App – TBST new counsel confirms retainer
• Nov 2, 2017 – TRIAL #3 – Trial starts
• Nov 3, 2017 – Trial Continued Further trial dates added
• Jan 4, 2018 – ADDED – s.11(b) Application
• Feb 23, 2018 – ADDED – Scheduled Trial Completion

Assessing Delay

[4] The overall delay from the swearing of the Information March 14, 2015 to the current projected end of the trial February 23, 2018 is 1078 days or 2 years, 11 months and 10 days.

[5] Under the Jordan framework defence delay is subtracted from the overall delay resulting in a "net delay". Defence delay is explained in Jordan and in R v Coulter 2016 ONCA 704 at paras 42-44. The net delay is then compared to the presumptive ceiling. If the net delay exceeds the ceiling it is presumptively unreasonable. To rebut that presumption the Crown must show that there were exceptional circumstances, either discrete exceptional events or particular case complexity which reasonably excuse the further delay. Delay due to discrete events is subtracted from the net delay leaving a "remaining delay" which is measured against the presumptive ceiling. If the remaining delay falls below the ceiling the burden is on the defence to prove that the delay was unreasonable on the balance of probabilities. If the remaining delay falls above the ceiling, the court must consider whether the Crown has shown to the same standard that the case was sufficiently complex such that the time taken was justified.

The Net Delay

[6] From May 15th 2015 to September 28th, 2015 when the matter was marked peremptory to the defence there are a series of adjournments requested by the defence. The parties agree that the period from May 15, 2015 to June 12th 2015 is defence delay. They further agree that the adjournment from July 13 to August 10 for a Crown pre-trial meeting is not defence delay.

[7] The defence includes the adjournment from June 12 to July 13 as part of the pre-trial process, but the record shows that prior counsel did not conduct a Crown pre-trial meeting during that period even though that was the reason given for that requested delay. There is nothing in the record to support the defence position that prior counsel may have made an effort to schedule a meeting with the Crown during that time. There was a Crown attorney available for pre-trial meetings in person at the courthouse so the defence could have held the matter down and met with the Crown on either June 12th or July 13th. In that context I find the period between June 12 and July 13, 2015 to be defence delay.

[8] The defence concedes that the adjournments from August 10, 2015 to the peremptory date October 19th represent defence delay.

[9] The first trial date was brought forward and rescheduled to October 12, 2016. There is no information on how that date was obtained. On October 12, 2016 the defence was granted an adjournment of the trial due to a death in the family of the prior defence counsel. The matter was adjourned to October 19, 2016 and a new trial date was set at that time. The delay arising from this discrete event is considered at a later part in the Jordan analysis.

[10] On the second trial date, counsel for the defence advised the court that the matter was ready but when Ms. Colarusso was about to be arraigned counsel asked for further time. Later that morning counsel advised that there had been a "material breakdown in communication between myself and Ms. Colarusso." Counsel was removed and the trial was again adjourned to November 2 and 3, 2017.

[11] The Crown submits that Ms. Colarusso did not wish to proceed with her trial after she discharged her lawyer so the resulting delay is solely attributable to the defence. Mr. Lerner submits that the adjournment is not attributable to the defendant where it was unlikely she would have been reached in any event. Mr. Lerner has submitted extensive materials comprised of transcripts and affidavits to support his argument that the trial would not have been reached.

[12] It's well known why this court often overbooks trial lists. Despite extensive efforts to encourage early resolution it happens that cases change prior to the trial date and the Crown is no longer in a position to prove the allegations. Last-minute resolutions may also result from a change of position by the defence. The application record provided by Mr. Lerner for the triage court on July 16, 2016 shows both of these factors in play. If the court did not consider these circumstances when scheduling trials the courts would often sit empty and the time to trial for all cases would significantly increase. On the day set for trial, priority is managed by the Crown in a triage court. The triage court is a busy, dynamic environment where court availability can change rapidly throughout the day. The Crown takes numerous factors into account in deciding which cases take priority.

[13] The defence notes that Ms. Colarusso's case was said to be on the "hold down" list when first addressed, but that circumstance speaks to the anticipated resolution, not necessarily to trial priority. Matters that resolve by plea stay in 202 court which is also the plea court and are "held down" from the trial traversal list. Once Ms. Colarusso discharged her counsel, the court and Crown attorney discussed whether the matter should otherwise proceed to trial. The court learned that the prior trial adjournments were not caused by Ms. Colarusso and Justice Misener granted the accused's request for an adjournment to retain new counsel.

[14] Despite the record assembled by Mr. Lerner, it remains speculation as to whether this matter would have been traversed to a trial court that day. There's no question the trial courts were busy and two of the matters sent out may have had priority over this dated case given the nature of the charges. The same can't be said of the Assault and Mischief case later traversed to a trial court. The Crown's witnesses in this case had attended court a second time. If not reached on the first day set for trial this case would have been adjourned to the second day to start on July 18th as was done in other cases on that list. It's not possible now to go through every possibility and try to guess where and how the Crown would have assigned priority under different circumstances on either day.

[15] The defendant in this case discharged counsel and was not prepared to represent herself. She asked for and was granted an adjournment of the trial to obtain new counsel. The delay that resulted from her request from July 17, 2017 to November 2, 2017 is reasonably attributed only to the defence.

[16] To summarize, there are 240 days of defence delay to be subtracted from the overall delay:

• May 15, 2015 to July 13, 2015 – 60 days
• August 10, 2015 to October 19, 2015 – 71 days
• July 17, 2017 to November 2, 2017 – 109 days

[17] Subtracting the defence delay from the overall delay (1078 – 240) leaves a net delay of 838 days or 27.5 months which exceeds the presumptive ceiling. The resulting delay is presumptively unreasonable unless the Crown proves that exceptional circumstances justified the delay.

Discrete Event – Defence Adjournment of the First Trial

[18] Both parties agree that the defence request for an adjournment on October 12, 2016 was due to an exceptional circumstance that falls under the Jordan category of "discrete event". The defence submits that the delay to the next trial date was excessive and should be apportioned equally between the Crown and defence as was done in R v Hoffner, [2005] OJ No 3862. The Crown submits that the delay to the next date was not excessive and in the alternative, that prior cases that divided excessive delay between the parties apply an analysis that is no longer appropriate under Jordan and have been held not to apply under the current framework. See: R v Elhakim 2017 ONSC 2529 at paras 52-55.

The time to the second trial July trial date was not excessive. In an ideal system this matter may have been given some further priority even where a discrete event had caused the first trial to be adjourned. However, the high volume of cases in the Ontario Court of Justice make it difficult to advance an out-of-custody multi-day trial to be heard within the 4 or 5 month period it might take to schedule a one day matter. On occasion it can be done, (as happened after the second trial date) particularly where other scheduled matters collapse or are brought forward and resolved early but it's not always possible. It's not simply a question of courtroom availability but also judicial availability where judges all have numerous ongoing cases and trials booked many months in advance. Custody matters are given earlier dates but those cases are often booked on top of existing full trial lists to accommodate that special circumstance. An out-of-custody trial adjourned by the defendant cannot reasonably have the same claim to priority as an in-custody matter.

Discrete Event – Scheduled Time Inadequate

[19] It's plain that this case has turned out to be much more complex than initially thought and requires significantly more trial time than was originally scheduled. That's not the fault of the Crown or defence but results from an unusual circumstance – a novel legal issue that significantly changed the time required for trial. This circumstance could perhaps be discussed under the Jordan heading of "case complexity" with the same result, but as the scheduling issue arose not necessarily from inherent complexity but from a last-minute change in complexity it's considered here as a discrete event.

[20] The trial was scheduled for a two days based on the typical time required for a drug impaired case where the testimony of a toxicologist is required. Two days had twice been confirmed as sufficient by prior counsel. Mr. Lerner did not have input into that time estimate as he was not retained until early September, just two months before the November 2nd 2017 trial date. He subsequently filed a Charter application seeking remedies under s.24(1) of the Charter and exclusion of evidence under s.24(2) of the Charter for numerous alleged breaches of the accused's rights under sections 7, 8 and 9 of the Charter. On this basis alone the trial time may have proved inadequate.

[21] Around the same time that Mr. Lerner was retained, the Superior Court of Justice released R v Stipo 2017 ONSC 4648 which involved a novel application for disclosure of DRE officer "rolling logs." That decision has led to a contested application in this case which has added two days of evidence on that issue alone. We have now scheduled a day in February to complete the application. If the application is granted, further trial time will be required for the defence to cross-examine the DRE officer in relation to the disclosed logs. If it's not granted further trial time may still be required to complete the case. It's fortunate that the court was able to add another day for this s.11(b) application well before the trial return date.

[22] The delay from November 2, 2017 to February 23, 2018 was caused by a trial time estimate which appeared accurate at the time but proved inadequate given significant changes in case complexity. The Crown could not reasonably have anticipated those changes. The DRE regime has been in place since 2008, but the Stipo decision appears to be the first reported case where disclosure of "rolling logs" has been considered. When it became apparent that the new issue would significantly expand the time required for trial, further time was added. The Crown has offered to work with the defence to produce an agreed statement of fact with respect to the toxicologist's evidence in an effort to further reduce trial time.

[23] I find the delay past the scheduled trial dates flows from an exceptional circumstance that reasonably required further trial time to be added to consider a novel legal issue and added Charter issues.

Remaining Delay

[24] From the first trial adjourned by the defence on October 12, 2016 to the second trial date of July 17, 2017 is 279 days or 9 months and 6 days. I find that time is attributable to the discrete event alone. Even if the defence is correct that one can still apportion delay as between Crown and defence as was done pre-Jordan I would not find it reasonable to do so here.

[25] The delay from November 3, 2017 to February 23, 2018 (113 days) is attributable to a discrete event which could not reasonably have been anticipated by either party. The timing of the legal change just prior to the date set for this trial left no time for either party to change the scheduled trial time beyond adding days to the original time as has been done.

[26] The net delay is 838 days. The two discrete events resulted in 392 days of delay (279 + 113). Subtracting that time from the net delay (838 – 392) leaves 446 days of remaining delay or 14 months 2 weeks 5 days. That falls below the presumptive ceiling.

Was the Delay Unreasonable?

[27] Where the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable – Jordan at para 48. The defence must show that it took meaningful steps to expedite the proceedings and that the case overall took markedly longer than it should have. The defence concedes they are unable to show that the delay was unreasonable on that test.

Conclusion

[28] Stepping back and adopting the overview recommended in Jordan at para 91, this case has been delayed for five reasons: defence delay in setting a trial date to the point where it was marked peremptory, the Crown application to change a trial date for an unavailable witness, the defence application to adjourn the first trial, the defence application to adjourn the second trial and a novel legal issue arising just before trial that significantly changed the time required for trial. The overall time to trial is unfortunate but most of the delay is attributable to the defence. The Crown has proved that the delay is not unreasonable in the circumstances of this case and a stay of proceedings would not be appropriate. The application is dismissed.

[29] Given further discussion during this application about the expansion of the case to review the novel legal issue, it's apparent that the extra day scheduled will not be adequate. I have asked counsel to schedule two further days for trial beyond February 23rd. That extends this two day trial to six days including this application.

Released: January 5, 2018

Justice Joseph F. Kenkel