Court File and Parties

Court: Ontario Court of Justice Court File No.: 12-10002152 Date: September 12, 2018 Location: Toronto Region – Old City Hall

Between: Her Majesty the Queen — and — Francesco Bruno

Before: Justice H. Pringle

Heard: July 31, 2018 Decision Rendered: September 6, 2018 Reasons for Judgment Released: September 12, 2018

Counsel:

• Erin Winocur, counsel for the Respondent
• Lisa Jorgensen, counsel for the Applicant

Judgment

PRINGLE J.:

Overview

[1] The applicant, Mr. Bruno, faces a single count of Refusing to Provide a Breath Sample, contrary to s. 254(5) of the Criminal Code. His trial is scheduled to begin on September 11, 2018.

[2] Mr. Bruno sought a stay of this charge, arguing a breach of his s. 11(b) Charter right to be tried in a reasonable time. On September 6, 2018, I advised counsel the application would be dismissed. Although all net delay, including retrial time, exceeds the Jordan presumptive ceiling, the transitional exceptional circumstance has been proven here. The case must proceed to trial.

[3] Given that over six years has passed since the applicant was first charged, my reasons set out the history of this case in some detail.

Intake Period and Setting a Trial Date

[4] The applicant's case began in an efficient manner. Having been charged on March 5, 2012, he retained counsel to represent him at his first appearance of April 2, 2012. By his second court appearance on April 23, 2012, disclosure was received, a pretrial request was filled out, and the case adjourned to May 14, 2012.

[5] But by May 14, 2012, the Crown had not responded to the pretrial request form. Accordingly, defence counsel's articling student tracked down the assigned Crown outside court, booked a Crown pretrial for May 20, 2012, and adjourned the case to June 4, 2012.

[6] This Crown pretrial began on May 20, 2012. It did not finish that same day, however, because in order to assess a defence, counsel needed time to have medical tests done on the applicant. However, during this May 20 pretrial, the question of outstanding disclosure was raised. The applicant's counsel advised disclosure was complete, subject to his further review.

[7] Nothing substantive happened on June 4 because defence counsel was unavailable to personally attend. The case was adjourned to June 19, when counsel could be there. But on June 19, 2012, a student-at-law appeared on counsel's behalf and said:

We're seeking that this matter be put forward four weeks. There is some further disclosure that we require, pertaining to the device used for measuring the blood alcohol level.

[8] The Crown had not been notified, before this, that the defence changed its pretrial position about disclosure being complete. Nor had a written disclosure request been made of the Crown. The case was adjourned, without resistance, to July 10, 2012. On that date, further disclosure was again requested orally:

STUDENT-AT-LAW: There is some further disclosure that we are seeking. This was perhaps indicated on the last date this matter was in court. We are seeking the manual and the maintenance logs of the Breathalyzer device that was administered to Mr. Francesco Bruno.

CROWN: Sorry, did you send a – was that discussed at the first pretrial with Mr. Goddard?

DEFENCE: That was – I believe – my instructions are that that has been previously requested. I went through the file earlier, and I don't believe that there has been a ledger [1] in this regard, but it may have been discussed in the pretrial that was …

CROWN: Well, it – according to the pretrial notes, it says counsel has advised there are no outstanding disclosure issues, and "Yes" is checked off. So perhaps – counsel wanted to postpone the meeting because he was having some medical – some tests done on the client to explore a defence. And we basically scheduled a pretrial on that basis. So, that's kind of different to your information.

DEFENCE: Yes. If this could be put forward for three weeks, perhaps we can make a formal request for further disclosure. There are certain things that we require further disclosure of. If it could be put forward three weeks?

CROWN: Okay.

THE COURT: Okay, August 7th, and you're going to follow up on whether or not a proper disclosure request has been made, for those items?

DEFENCE: Yes, and if it hasn't been made, we will make a formal request for the disclosure.

[9] On August 7, defence counsel was ill and the case adjourned to August 21. Before permitting this adjournment, however, the court inquired into the status of the case and urged it to move forward:

THE COURT: What's supposed to be happening? What has happened since before today?

DEFENCE AGENT: Your Worship, I was only informed of this matter today.

CROWN: It looks like a pretrial was started with my colleague back in May and counsel needed more time, so the Crown agreed to reschedule the pretrial.

THE COURT: Okay. Which has not yet been done.

CROWN: No.

THE COURT: But he's ill, so – sorry, the date?

DEFENCE AGENT: Two weeks from now, the 21st of August.

CROWN: Agreeable.

THE COURT: So, he's going to book something with the Crown for – for the Crown pretrial?

DEFENCE AGENT: My understanding is that on the 21st he'll – Paul will be in a position to book something for …

CROWN: He should book it now and do it before the 21st. Maybe you could go to the Crown's office and book it on his behalf, so that – there's no point in coming back on the 21st, if nothing's been accomplished in the meantime.

THE COURT: So, book a Crown pretrial before the next appearance, and have it done before the next appearance.

DEFENCE AGENT: Thank you, Your Worship.

THE COURT: Okay. C-P-T to be done prior to August 31 [sic], 111 9:00 a.m. for Mr. Bruno.

DEFENCE AGENT: twenty – August 21st.

[10] The Crown pretrial was neither booked nor held by the next court appearance. Instead, further disclosure was again requested orally in set-date court:

DEFENCE AGENT: I'm requesting that we adjourn this matter until either September 11th or 18th as we continue to seek disclosure of maintenance logs, manuals, and details of the roadside device.

CROWN: Has there been a formal request sent for that material?

DEFENCE AGENT: I've got – on file, there's not been a letter, so I was going to check that and if there's not been a request, a formal request, it would be sent.

CROWN: So, it's not that you're still looking for it then, you're about to seek them. You haven't requested them yet? Is that your….

DEFENCE AGENT: However my friend would like to describe it.

CROWN: Well, I just want to describe it accurately, that's really for the record. So you have not yet requested it but you're about to request it? Is that not right?

DEFENCE AGENT: In the file that I possess, there is no letter.

CROWN: Okay. Well…

DEFENCE AGENT: That's the extent of the information I have.

CROWN: If you could present that letter to the Crown then because that's the way it's done. These things aren't automatically disclosed, but they can be discussed.

THE COURT: You can send in a written request for the items that you're…

CROWN: Oh, I'm sorry. I'm reading the back of the file here. It already says here back on July 10th you were going to make a formal request for disclosure. So that's still hasn't been made. Okay, what day would you like to come back?

[11] Defence student-at-law requested to return on September 11, 2012. On September 10, 2012, the defence requested the further disclosure in writing, and on September 11, 2012, the case adjourned again with little analysis into the case:

CROWN: Okay, so disclosure was provided April 23rd and you sent us a note yesterday for further disclosure?

STUDENT AT LAW: That's right.

CROWN: Okay.

STUDENT AT LAW: And there has been previous discussion as well, which is mentioned in the letter, regarding our [2] standing disclosure.

CROWN: Well, I have it listed here to make a formal request for disclosure. That was back in July. So, you finally sent one. That's a good sign. What day would you like to go over to?

STUDENT AT LAW: I'm assuming that two weeks would be sufficient for disclosure to be provided? So if it could come back…

CROWN: Depending on what it is. I have no idea what it is that you're asking for.

STUDENT AT LAW: So…

CROWN: So, I don't know how to tell you how much time there is. What is it – what exactly are you requiring?

STUDENT AT LAW: We're seeking officer notes. We're seeking certain officer's notes. And we're seeking – we mentioned certain particular pages of officer's notes, that were not provided or were not legible, with…

CROWN: Oh. Have you had a pretrial yet?

STUDENT AT LAW: There has been a pretrial, yes.

CROWN: Okay, you should have a pretrial with the Crown, because often the Crown can read those things that you can't read because we are so used to it. So, if it's…

STUDENT AT LAW: So, if this could return in two weeks?

CROWN: Okay, and have a pretrial in the interim with Ms. Mackett.

[12] At court on September 24, 2012, the defence advised that the assigned Crown had contacted them the day before and suggested the case adjourn three or four weeks for further disclosure. An adjournment was granted. On October 18, 2012, defence counsel wrote the assigned Crown, explaining that while his pretrial position had been that disclosure was complete, his subsequent review revealed it was not. Defence counsel also confirmed that a note would be placed in the Crown brief, directing that the further disclosure should be faxed to him. He closed this letter by helpfully providing his fax number to the Crown.

[13] On October 23, 2012, no further disclosure was available and the case adjourned. On November 13, 2012, the outstanding disclosure was not ready and, yet again, the case adjourned. This pattern repeated itself on December 3, 2012.

[14] On December 20, 2012, the assigned Crown emailed the officer-in-charge to follow up on the outstanding disclosure. But on January 7, 2013, the next court date, still no progress had been made and the case adjourned to February 4. On February 4, defence counsel received officers' notes, but not any of the logs requested from the breath device. Another adjournment was granted.

[15] This pattern of non-resistant adjournments was broken on February 14. The disclosure was not available, and the defence asked for another adjournment to await it. The Crown in court, who was not assigned to the case, threw on the brakes:

What – I don't understand why this has gone on. It – this is maybe the 15th appearance I have. Back on July 10th, he's to have a Crown pretrial. Back on September 25th, 2012 he can have – arrange a pretrial with any Crown or in Court. And here we are today. There's been no Crown pretrial. Mr. Cooper is not here and he's asking it to go over. What's the delay with having a Crown pretrial?

After holding the case down for instructions, defence counsel advised the Court:

I can ensure to set a Crown pretrial. I know that has been an issue. There is on our side as well, disclosure issue. And we have sent in requests and we haven't received that disclosure that we have requested. …

Crown counsel replied:

There may be some disclosure, but that – the nature of the disclosure that's being requested certainly shouldn't be something that in the Crown's position would hold up a Crown pretrial, and certainly not since March of 2012.

[16] This was the first time that any Crown, including the assigned Crown, took the position that a trial date could be set in the absence of the outstanding disclosure.

[17] The Crown's comments led to discussion of having an immediate pretrial. However, the articling student present was unable to conduct one, and the case had to be adjourned to February 26.

[18] The Crown pretrial was held on February 25 and the next day, February 26, the applicant set a trial date in the absence of the outstanding disclosure. However, this was based on the assigned Crown's undertaking that it would be disclosed or the relevant charge would be withdrawn:

CROWN: I have disclosure here. It's certified copies of documents of probation order, et cetera, it's a copy of that, plus a C.A. notice given to counsel. I had – didn't realise that there was something outstanding for a while. I've asked defence if there's anything in the picture that's of difficulty, call me directly, and just to put on the record, that if the Crown does not receive breath tech notes within at least two months of the trial date, then the Crown will not be proceeding on the refuse. We'll just be proceeding on the impaired plus the breach probation.

[19] The Court then began looking for trial dates, offering July 30 for a one-day trial. The articling student replied:

Your Worship, the earliest dates I have available, I don't know if that date is available for my friend, but the earliest dates I have available are for the 9th of September. …. From the 9th to the 12th of September.

The Court had no dates that week, and thus the next offered date of October 1, 2013 was accepted by all.

Adjournment of the First Trial Date

[20] The outstanding disclosure was indeed provided prior to trial. It was provided, however, to a different lawyer named "Paul Cooper". This happened despite multiple contacts that defence counsel had with the Crown, despite having written the Crown presumably using letterhead, and despite defence counsel providing his fax number to assist the Crown in sending this disclosure to him. This error was not discovered until shortly before the October 1 trial date. On September 5, 2013, the Crown's office sent the disclosure to the right lawyer.

[21] The new disclosure did not, on this record, prejudice the defence from proceeding to trial on October 1, 2013. However, on October 1, 2013, the day began with defence counsel explaining that the new disclosure raised a Charter issue, that he could not complete the required notice because of the lateness of disclosure, and that the Crown was entitled to notice pursuant to the Rules. Defence counsel asked for time to discuss this with the Crown and, he added, the Crown witnesses had not yet arrived in any event. That fact led to the following exchange:

THE COURT: I would've thought, again the onus isn't on you, you had to be – you'd be pushing for an arraignment right now.

DEFENCE: I am pushing. But I'm trying to be fair. I'm trying to be fair. I'm going to obviously oppose an adjournment. I'm going to drop my Charter application, if necessary …

The case was held down to discuss Charter notice and to ascertain the witnesses' whereabouts. When it returned, counsel advised that the Crown witnesses were coming and suggested the trial adjourn because of the Charter notice issue. The judge, however, was resistant:

DEFENCE: At the end of the day, it looks like we're jointly going to be requesting a – well, the Crown is – I – the Crown is going to be requesting that they have notice in respect to my Charter application, which they're entitled to. The reason why notice was not provided, again, was I only received disclosure …. And sort of find myself in a very difficult position where the Crown can fairly ask for notice, which under the rules, require two months to provide to them. However, I only had disclosure December [sic] 10th at my office, it was sent by the Crown by courier on December 5th [sic]……

THE COURT: …My real question is this. I'm not a stickler about notice. The reality is this. Normally speaking those Charter applications are basically boilerplate notices.

DEFENCE: I can tell you what my – my issue is, is that they – the officer didn't have reasonable and probable grounds to make the arrest.

THE COURT: Okay.

DEFENCE: And everything should fall….

THE COURT: So, that's said, I'm not necessarily concerned that there's been no notice, particularly given, it appears that this is a situation where there's nothing unusual about the Charter application. If both of you are asking for an adjournment, I'll consider it. On the other hand, if you're telling me you're going to get the officers here earlier…

CROWN: So Your Honour, what I can advise, the breath technician has arrived.

THE COURT: Right.

CROWN: He's here. The arresting officer could be here by 12:00 or 12:30 so it would require calling him a little bit out of their usual order.

THE COURT: Right.

CROWN: I mean, in terms of the Charter notice, I would've like the opportunity to have that and to file a response and it wouldn't necessarily have to be the full length of – I mean, just enough time to have an articulation of that, to file a response, and even if it's just a very short adjournment for that purpose. So, I can appreciate that these things can sometimes be boilerplate, but at the same time, the rules are there, and I'm not faulting my friend. I understand that there's nuances to why we ended up in this situation. But – and it may well – it may well have implications in terms of how the evidence is called, and …

[emphasis added]

THE COURT: All right, here's the reality. The reality is this. It's already now 11:15. If Mr. Cooper had wanted to be difficult about this, he could have insisted that we – at the very least, arraign his client at 11:00 a.m. because in my view, by 11:00 a.m. if you don't have your witnesses here, there's no excuse. It's now 11:15. Realistically, if you're telling me the officer in charge, the officer – the arresting officer, would be at 12:30, realistically Mr. Cooper could have insisted on arraignment now. We'd probably be done with this officer's evidence within the next half an hour. And then you're stuck between a rock and a hard place. If the two of you are telling me you want an adjournment, I'll give it to you. Those are the realities.

[emphasis added]

[22] As a result of the judge's comments, defence counsel left to obtain client instructions. When he returned, the adjournment was granted, albeit with no waiver of s. 11(b) and no clear allocation of responsibility for resulting delay:

DEFENCE: I've explained to my client the different options open to him but I also explained to him as an advocate, that I had some discussions with my friend regarding the anomaly that caused me to be in a position where the Charter notice, although Your Honour indicates – it seems boiler plate, but there's a lot more involved in it…..I cannot stand here and say arraign my client and roll the dice, as opposed to – my client would prefer his section 7 rights, of full answer in defence be facilitated instead. And – and he was – preferred to go today, he preferred that everything be in order today, but I'm having a choice between full disclosure and …

THE COURT: I understand that. Fair enough. So my real question to the two of you becomes, who will we charge for this in case there's an 11(b) down the road?

There was no straightforward answer to this question:

CROWN: What I would suggest Your Honour, there's a lot of nuance involved. We've both put some information to Your Honour. Ultimately, if an application is brought, there will be a judge who has the full record.

THE COURT: Oh, no question, I just thought I'd – I just thought I might assist the judge, you know, what your position is.

DEFENCE: May I suggest that if there's somehow that we can seize Your Honour.

THE COURT: No, we can't seize me.

DEFENCE: If I could seize Your Honour, I could come back tomorrow with a Charter application. If I could seize Your Honour, we could get on very quickly, is my client's desire.

THE COURT: Right.

DEFENCE: And if there is an issue with delay, then I think Your Honour would be in the best position to deal with it….

DEFENCE: I just do want to indicate that it's not the fault of my client. I – I've been trying to be as complete as possible as to understanding why the Crown provided me with late disclosure. I set the trial date, so I can get an earliest date as possible, without having disclosure, which is not proper practice in my respectful submission, however, I did it 'cause I want to protect my client's rights, and we're here now and looks like we're going to have to go over.

DEFENCE: But for my client, just – again, had I received this disclosure as when the Crown originally sent it I would've been able to take the position with respect to the stuff that's missing and be able to get that and then have the right to put the Charter application in within a reasonable time. It should not fall at my client's feet, although that's something for a later day. Potentially. Or maybe not. …

THE COURT: All right. Do you (Crown) have any other comments you want to put on the record to protect it?

CROWN: Well, Your Honour, I mean, what I would like to do, is reserve those arguments, if there is an application brought, there will be all kinds of material filed. There's correspondence. I'm not sure that – my friend has been very fair in his comments, in terms of what the context is. There may well be other information that if an 11(b) application is brought, that will get adduced, and so I don't want to preclude any future Crown from making those arguments, but we might be here a long time if we get into all the nuances of it. So I don't think either party is conceding anything with respect to 11(b).

DEFENCE: Fair enough.

[23] The applicant's case adjourned to October 2, in 112 court, to set a new trial date. But on October 2, it had to be adjourned because the joint request for 112 court placed the case in the wrong courtroom for setting dates. On October 15, defence counsel did not attend due to a misdiarization and the case adjourned to October 22.

[24] On October 22, a second trial date was scheduled. The time estimate for trial remained one day. The set-date court offered July 23, 2014 for a full day trial, causing the defence articling student to state that defence counsel was "starting a – has a six month jury trial over the summer and he does not have – his first date after that is September 8, 2014. [3]" Accordingly, the trial was scheduled to begin on September 9, 2014.

Adjournment of the Second Trial Date

[25] Defence counsel's lengthy jury trial, which was supposed to finish before the applicant's second scheduled trial date of September 9, ran beyond its original estimate. Accordingly, on July 18, 2014, an application was brought to adjourn the applicant's trial. The application record established that "Mr. Bruno has requested to continue to retain myself as his counsel of choice".

[26] This adjournment application was granted. (Although we lack a transcript of the application itself, the applicant has correctly acknowledged responsibility for the resulting delay.) The trial was re-scheduled for March 31, 2015 through the trial co-ordinator's office, who noted a waiver of s. 11(b) on the trial verification form.

Adjournment of the Third Trial Date

[27] On March 31, 2015 the applicants' trial was adjourned due to the death of a close family member of defence counsel. Crown counsel, properly, took no issue with the proposed adjournment. The defence articling student added that "it did take some time to receive client instructions on what – on whether this was going to proceed today with a different counsel or not".

[28] The matter went over to April 7, 2015, at which time the Crown had no brief and adjourned it again to April 13, 2015. On April 13, 2015, the parties returned from the trial co-ordinator's office with a new trial date of October 7, 2015. The trial verification form [4] noted "Defence requested October 1/2015 – first available date". The time estimate remained consistent at one day.

The Trial Begins and is Adjourned

[29] The applicant's trial began on October 7, 2015. For reasons not entirely clear on the evidentiary record, some evidence was called and then the case adjourned with a clear waiver of s. 11(b):

CROWN: We had taken the liberty of attending at the trial co-ordinator's office as it was clear we weren't going to conclude the matter today. Oh, we have selected another date which is March 31, 2016 in 112, to be traversed to Your Honour. And the defence waives 11(b) for that date.

DEFENCE: That is correct, Your Honour. And you will note that, from the history of this matter, unfortunately some of the days that we're here I either had to be returning because I was on a homicide or, sadly, because it coincided with the death of a parent of mine, so…

THE COURT: Yes, I – I'm sorry, I – I don't know the history of the matter. All – all I know in the face of things …

DEFENCE: Yeah.

THE COURT: … absent any other context is that it's going beyond the fourth anniversary …

DEFENCE: Yes.

THE COURT: … date of the alleged offence.

DEFENCE: Yes. And so – just so that Your Honour knows, that's why there is no issue with any delay and my client's clearly chosen to have counsel of choice as opposed to, oh – oh, his rights under 11(b).

[30] In order to avoid another continuation beyond March 31, and given defence counsel's six-month unavailability later that year, the parties returned to the trial co-ordinator to reserve March 24, 2016 as well.

[31] On March 24 and 31, the evidence continued and a lost evidence application was argued. That application was dismissed on May 5, 2016 and a final continuation date was scheduled. The trial co-ordinator, who scheduled this final continuation date for September 28, 2016, noted the defence was unavailable on June 23, July 8, August 15, and August 31, 2016.

[32] In court, the presiding justice inquired whether delaying the case to September would negatively impact the applicant's s. 11(b) right:

DEFENCE: So we attended at the Trial Co-ordinator's office, and we obtained September 28, in 112, to be traversed to Your Honour for one day.

THE COURT: Yes, Mr. Cooper.

DEFENCE: Thank you.

THE COURT: That date is agreeable, Mr. Bruno?

THE ACCUSED: Yes.

THE COURT: Thank you. I think given the history of the matter, I do not think it creates any other potential Charter –

DEFENCE: No.

THE COURT: -- motions?

DEFENCE: Not at all, Your Honour.

[33] The evidence and submissions completed on September 28, 2016. On October 26, 2016, the applicant was acquitted.

Proceedings Leading to Retrial

[34] On November 15, 2017, a new trial was ordered following a successful Crown appeal. On the first court date of November 29, 2017 back at Old City Hall, the information was missing, the brief was missing, and the case had to be adjourned to December 12, 2017.

[35] On December 12, 2017, a Judicial Pretrial was set for January 29, 2018. That JPT was held as scheduled and a four-day trial scheduled to begin on September 11, 2018. These were the earliest dates offered by the court. [5]

Applying the Jordan Analysis to the Case at Bar

[36] The timeframe in this case exceeds the 18 month Jordan ceiling, even if that ceiling were doubled to account for retrial time, and obviously warrants judicial scrutiny. The streamlined procedure under Jordan begins with a calculation of total delay.

[37] Here, the applicant was charged on March 5, 2012. He was acquitted on October 26, 2016. The total delay to complete the first trial is 1697 days, or 4 years, 7 months, 22 days. The retrial was ordered on November 15, 2017 and is scheduled beginning September 11, 2018. The total delay for retrial is 301 days, or 9 months, 28 days. The total delay to conduct both the first trial and the retrial is 1998 days.

[38] Next, defence delay must then be subtracted from the total delay. The concept of defence delay is much more restrictive under Jordan than it was under Morin. Jordan defines, at para. 61, defence delay as:

(i) delay waived by the defence clearly and unequivocally, meaning the accused has full knowledge of his/her rights and the effect of waiver on those rights, or;

(ii) delay caused solely by the conduct of the defence.

[39] "Defence conduct" delay includes where the defence's actions 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".

[40] In the applicant's case, defence delay fitting this restrictive definition occurred between:

• June 4, 2012 to June 19 2012, when the applicant's case was adjourned 15 days to accommodate defence counsel's availability;

• June 19, 2012 to September 25, 2012, a period of 99 days or 3 months and 7 days, due to a combination of (i) the defence request to postpone completion of the Crown pretrial until after medical testing, (ii) the failure to re-schedule this Crown pretrial and complete it, once the defence was in a position to do so, (iii) failing to notify the Crown that the defence position on disclosure had changed since the pretrial, and (iv) the failure to formally request this further disclosure, instead relying on nebulous and sometimes inconsistent in-court assertions of what items were outstanding;

• February 14, 2013 to February 26 2013, a period of 13 days, where the Crown was prepared to have a Crown pretrial immediately so a trial date could be set, but the articling student was not in a position to conduct a pretrial;

• July 30, 2013 to September 9, 2013, a total of 42 days, encapsulating the period between the first offered trial date of July 30, 2013 and September 9, 2013, the first date available to defence counsel. Although defence did not have any availability at all, due to scheduling conflicts, until September 9th, I cannot describe any time prior to July 30th as being solely caused by the defence since the court also did not have availability until July 30th;

• October 2 2013 to October 15 2013 the defence conceded 6.5 days because of the joint request to have the case return to 112 court, when it needed to be in 111 court. I have characterized this as 6 days;

• October 15 2013 to October 22 2013, which was the 8 days caused when defence did not attend court due to mis-diarization;

• July 23 2014 to September 9 2014, a period of 48 days where the defence was the only party not available to conduct the second scheduled trial date. Again, although the defence was also not available to conduct the trial between February and September 2014 because of the conflict with counsel's lengthy murder trial, the court was also not available until July 23 and the defence was the sole cause of delay after July 23;

• September 9 2014 to March 31 2015, a period of 204 days where the defence adjourned the second scheduled trial date, accompanied by a s. 11b waiver;

• The 8 days between March 31 2015 to April 7, 2015, and the 178 days from April 13, 2015 to October 7 2015, resulting from the defence adjourning the third scheduled trial date;

• October 7 2015 to March 31, 2016, a period of 177 days where after the trial had begun, it was adjourned to March 31, 2016 with a clear s. 11(b) waiver;

• June 23 2016 to September 28 2016, a period of 97 days where the defence was unavailable to continue the trial on various earlier dates offered by the Court.

[41] The total defence delay occasioned during the first trial was, therefore, 895 days. Subtracted from the overall delay of 1697 days in trial #1, the net delay in that first trial was 802 days or 26 months, 1 week, and 3 days. There was no defence delay at retrial. Therefore the net retrial delay is the same as the total delay, 301 days or 9 months, 3 weeks, and 6 days.

[42] In sum, as between the two trials, the net delay is 1103 days or 3 years and 1 week.

[43] This leads to the question of what presumptive Jordan ceiling should be set for retrials. Courts have considered, but not decided, the question of a presumptive ceiling for retrials: see R. v. Crant, 2018 ONSC 1479 at paras. 18-20 and 53; R. v MacIsaac, 2018 ONCA 650 at para. 59; and R. v. Creglia, 2018 ONCJ 262 at paras. 45-46 and 82. In Mr. Bruno's case, however, quantifying the presumptive ceiling for retrials is academic. Even if the presumptive ceiling for a retrial was incorrectly reached by adding another 18 months to the first 18 month Jordan ceiling, the applicant's net delay for both trials still exceeds 36 months.

[44] In the recent Court of Appeal decision of R. v. MacIsaac, the Court affirmed that the state is obligated to expedite retrials. This is due to the fact that, 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.

[45] At para. 59, Huscroft J.A. reiterated that "re-trials must receive priority in the system, and that this should normally result in a delay well under the 18-month presumptive ceiling established in Jordan." Looking at net delay globally in this case, I have found it exceeds 36 months. This must exceed the applicable Jordan ceiling for trials and retrials. The net delay in this case is presumptively unreasonable.

Application of the Transitional Exceptional Circumstance Analysis

[46] This presumption of unreasonableness can be rebutted, when the individual facts of a case attract application of the "exceptional circumstance" doctrine. Ms. Winocur correctly did not argue that an exceptional circumstance arose in the form of a discrete event or a particularly complex case. Instead, she submitted the transitional exceptional circumstance justified any delay above the presumptive ceiling. She argued the transcripts establish that during the first trial, the parties relied on the prior state of the law governing s. 11(b) and that under Morin, the time to trial and retrial was reasonable.

[47] I agree the parties were, prior to the release of Jordan, relying on the prior state of the law. This conclusion is obvious, given the leisurely pace of the proceedings and the passive acquiescence to incurring delay. This is not meant as a criticism. The first trial was professionally and expertly conducted from start to finish. But it is easy to see, on this record, that avoiding or minimizing delay was not a significant priority for either side.

[48] The transitional exceptional circumstance, as per the Supreme Court, in R. v. Cody, 2017 SCC 31 at paras. 68-69, means:

…the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin.

To be clear, it is presumed that the Crown and the defence relied on the previous law until Jordan was released.

[49] I also find the absence of any prior section 11(b) application shows reliance on Morin: see, for example, Crant, supra at para. 44. Despite the fact that the bulk of delay occurred during the first trial, s. 11(b) was not raised until after the order for retrial. The first trial pre-dated the release of Jordan: the order for retrial post-dated it. Reliance on the prior state of the law is clear.

[50] This reliance on the prior jurisprudential framework, however, must still have been reasonable. Analysis of whether this past reliance was reasonable relies on consideration of:

1. Complexity;
2. The period of delay in excess of Morin guidelines;
3. The Crown's response, if any, to institutional delay;
4. The defence efforts to move the case along, and;
5. Prejudice to the accused.

[51] Beginning with complexity, the evidence does not satisfy me that the case is complex. To be fair, the Crown placed no serious emphasis on this factor. Although the four-day trial estimate is a bit unusual, given the nature of the charge, this case is otherwise a standard Refuse Breath Sample trial.

[52] Turning next to the period of delay in excess of Morin guidelines, in determining this I must 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.

These factors must also be balanced against the seriousness of the case.

[53] In assessing institutional delay, if it was reasonably acceptable under Morin, that institutional delay will be a component of the reasonable time requirements for cases currently in the system: Jordan, at para. 100 and R. v. Manasseri, 2016 ONCA 703 at para. 319. In R. v. Crant, at para. 53, Nakatsuru J. characterized the Morin operative delay [6] period for summary conviction trial and retrial at between 14 and 18 months.

[54] Through the Morin lens, I have allocated the time periods as follows:

• March 5, 2012 to May 14, 2012 – neutral intake / inherent;

• May 14, 2012 to June 4, 2012 - Crown delay, see paragraph 5 above- adding 22 days to operative delay for delaying the pretrial process;

• June 4, 2012 to September 25, 2012 – defence delay, see analysis at paragraph 40;

• September 25, 2012 to February 14, 2013 – Crown delay, due to (i) the Crown's failure to discharge their disclosure obligation [7] in a responsible, timely fashion, and; (ii) the failure to meaningfully move the case forward, despite the disclosure problem (for example, by setting a J.P.T. and requiring the officer to attend), see above at paragraphs 12 through 16 and paragraph 59 below – adding 143 days to operative delay

• February 14 – February 26, 2013 – defence delay, see analysis at paragraph 40;

• February 26 2013 – October 1 2013 – a mix of inherent time, defence unavailability, and institutional delay. Using the Jordan analysis, only 42 days was "defence delay" because the defence was not the sole cause of any other portion. However, using Morin, this conclusion changes. More particularly, counsel was not available to conduct this trial between February 26, 2013 and September 9, 2013. It is a fair inference that this block of unavailability reflected both inherent preparation time and scheduling conflicts: see R. v. Picard, 2017 ONCA 692 at para. 82. But institutional delay "begins to run only when counsel are ready to proceed but the court is unable to accommodate them": R. v. Tran, 2012 ONCA 18 at para. 32. The defence was not ready to conduct the applicant's trial until on or after September 9, 2013. Therefore I cannot characterize anything before that date as institutional delay. Accordingly, the time period between September 9, 2013 and October 1, 2013 adds 22 days to operative delay.

• The adjournment of the first trial date adds 147 days of operative delay in the form of Crown delay. Again, changing the analysis from Jordan to Morin caused me to look at this period differently. The adjournment itself, on the record, was a joint request for an adjournment. The presiding justice made it abundantly clear that unless the adjournment was jointly requested by both Crown and defence, he would start the trial. In his opinion, the Charter notice issue was not a barrier to starting the trial. The Crown must bear a significant portion of the delay, given the entirely avoidable error of giving disclosure to the wrong lawyer. But on the trial date, and even though no party wished to commit themselves to responsibility under s. 11(b), it was a joint adjournment request and the applicant must share the burden of resulting delay as well. Given the 344 days that passed as a result of this adjournment, 147.5 days falls to the Crown and 147.5 days falls to the defence (who was also unavailable for the 49 days between July 23, 2014 and September 9, 2014). I have derived authority for "splitting" this time from R. v. N.N.M. (2006) 14957 (Ont. C.A.) at para. 53.

• September 9, 2014 to March 31, 2015 – defence delay – 204 days resulted from a defence adjournment of the second scheduled trial, with a waiver of s. 11(b) for that period of time – see paragraph 40 above;

• March 31, 2015 to April 7, 2015 – a mix of defence and operative delay, adding 7 days to operative delay - the third scheduled trial date was adjourned by the defence, but April 8 throughout April 13, 2015 was Crown delay – see above at paragraphs 28 and 40;

• October 7, 2014 – March 31, 2015 – defence delay – the trial began and then was adjourned with a clear s. 11(b) waiver – see above at paragraph 40;

• March 31, 2015 to September 28, 2016 – a mix of inherent delay and defence delay – see R. v. Crant, at para. 49 and R. v. Schertzer, 2009 ONCA 742 at para. 114, which establish that delay in completing the case falls into this category but see also defence counsel's May 5, 2016 comments, above at paragraph 31 – defence was unavailable for 97 days of this period – see above at paragraph 40 and;

• September 28, 2016 to the judgment date of October 26, 2016 – inherent delay while the judgment was under reserve: R. v. Schertzer at para. 114.

[55] In total, there was 341.5 days of operative delay occasioned in the first trial. Rounding this up to 342 days of operative delay, this period translates into 11 months and 7 days. Comparing this against the Morin guideline of between 8 and 10 months to reach summary conviction trial, the operative delay in the first trial exceeded it by 1 month and 1 week.

[56] Retrial institutional delay must be assessed next, since appellate delay does not count against the Morin clock. I have allocated the retrial time periods as follows:

• November 15, 2017 to December 12, 2017 – neutral intake time. Given that this was a retrial, one month should have sufficed to re-organize the case for trial;

• December 12, 2017 to January 29, 2018 – institutional delay – as per R. v. C.R.G., (2005), 202 O.A.C. 261 at para. 30, scheduling and conduct a Judicial Pretrial constitutes institutional delay and thus counts towards operative delay. Unlike Creglia, in this case I do see a pressing need to conduct a JPT before setting a retrial date, given that the original time estimate of 1 day was wildly inaccurate and the case took a year to try;

• January 29, 2018 to September 11, 2018 – institutional delay and thus operative delay.

[57] In sum, the retrial phase added 273 days of operative delay, which is re-calculable as 9 months.

[58] Remembering that Crant characterized the Morin guideline for retrial operative delay as between 14 and 18 months, the case at bar exceeds that outer limit. More particularly, the total operative delay for both trials was 615 days. Put otherwise, there was 20 months and 6 days of total operative delay.

[59] Jordan then mandates I look at the conduct of the Crown and of the defence. Beginning with the Crown, I must conclude that from September 2012 until February 2013, the Crown was not mindful of the Applicant's s. 11(b) rights. Once the further disclosure was formally requested, the Crown's response was to keep adjourning the case with very little attempt to bear down on the issue. This behaviour caused the applicant's case to fall through the cracks. It was not until February 2014 when the Crown in set-date court, who was not the assigned Crown, pressed down on the question of increasing delay and got productive results.

[60] But after February 2013, Crown conduct contributed almost nothing to delay. Their lack of opposition to defence adjournments was understandable, given the 11(b) waivers and various comments about delay made by defence counsel. The October 1 request for an adjournment of trial was essentially a joint submission, when you examine the record closely and despite the Crown faxing disclosure to the wrong lawyer. The other adjournments of trial were unopposed by the Crown, but in each case there was either a waiver of 11(b), unavoidable reasons for the adjournment, or both. Finally, I do not agree there was inordinate Crown delay in perfecting the appeal, and certainly not to the extent that it poisoned the actions of the Crown during the trial phases before and after the appeal.

[61] Looking at the conduct of the defence, I must respectfully conclude that the defence did little to actively move the case forward, until pressed to do so in February 2013. For example, the defence was entirely within its rights to change position on whether disclosure was complete. But having done so, the Crown should have been notified, either in writing or by having a follow-up pretrial. In addition, the further disclosure was not requested in writing until months had passed, contributing to wasted time over the summer of 2013.

[62] There were no complaints of prejudice on the record. Twice, the applicant explicitly chose counsel of choice and an adjournment over proceeding to trial with other counsel. Twice, section 11(b) rights were waived for lengthy periods of time. When I look at this evidentiary record as a whole, I do not see any real effort to move the case forward and I see no resistance to incurring delay. This is not meant as a criticism, but as an observation that the defence appeared content with the pace of its case, from start to finish.

[63] I must now turn to the issue of prejudice. None was specifically advanced. No affidavit was placed before the court. Prejudice was not raised at any court appearance. There were no attempts to mitigate delay, from which I could have inferred prejudice.

[64] I do, of course, infer from the sheer length of time that some prejudice must have occasioned: see R. v. Godin, 2009 SCC 26 at para. 34. But I must balance that with the fact that significant portions of this same delay were caused by the applicant's adjournments and with waivers of s. 11(b). In the absence of evidence specific to the applicant himself, I cannot describe this inferred prejudice as a significant factor in his case.

[65] Finally, I must balance the Morin factors with the seriousness of the case. While all impaired-related charges are of general societal importance, I cannot describe this case, specifically, as being serious beyond that general concept. The seriousness of this particular Refuse Breath Sample charge, when I took it into account, did not have a strong effect on the Morin analysis.

[66] The operative delay exceeded Morin guidelines, but not by much. Despite the Crown's failure [8] to responsibly accord to its obligations between late September 2012 and February 2013, when I factor in the minimal prejudice and the fact that the defence appeared content with a slower pace, I have concluded the applicant's section 11(b) right was not breached. Accordingly, despite the excellent submissions of Ms. Jorgensen, I must dismiss this application.

Released: September 12, 2018

Signed: Justice Heather Pringle

Footnotes

[1] The word "ledger" is possibly a transcription error, given the context of the discussion.

[2] The word "our" is likely a transcription error for "out", given the context of the discussion.

[3] A subsequent defence adjournment application showed the start date of counsel's lengthy trial started on February 10, 2014 and was originally scheduled to end as indicated.

[4] Only one trial verification form was filed as part of the application record. However, all trial verification forms were filed with the Information. Given an issue that arose during oral argument, the trial verification forms were reviewed by both counsel during submissions.

[5] September 7 was technically offered as a start date, but this was jointly declined in favour of completing the entire case between September 11 and 14 instead.

[6] Operative delay refers to the combination of Crown and institutional delay.

[7] While I appreciate the set-date Crown in February 2013 took the position that a trial could be set without it, the assigned Crown did not take this position and the disclosure was material enough that the Crown undertook to withdraw the Refuse charge if it had not been provided 60 days in advance of trial.

[8] In referring to the assigned Crown, I am referring to the prior assigned Crown and not to Ms. Winocur. Ms. Winocur only assumed carriage of this case following the order for a new trial.