ONTARIO COURT OF JUSTICE

CITATION: R. v. Bolé, 2019 ONCJ 141

DATE: March 20, 2019

Scarborough - Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

STEVEN BOLÉ

For the Crown L. Earle

For the Defendant D. Goldbloom

Heard: February 14, 2019

REASONS for JUDGMENT on 11(b) APPLICATION

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] On November 26, 2017 Mr. Bolé was arrested for impaired operation of a motor vehicle and “over 80”. He was released on a promise to appear. P.C. Allen swore the information against Mr. Bolé eleven days later, on December 7, 2017.

[2] After several appearances, a Crown pretrial and a judicial pretrial, trial dates of November 27 and 28, 2018 were set. As these dates approached, the trial was adjourned at the request of Mr. Goldbloom, with the consent of the Crown. Trial dates were then eventually set for March 20 – 21, 2019; roughly 15.75 months after Mr. Bolé was arrested.

[3] On January 21, 2019 Mr. Bolé brought an application for a stay of proceedings, alleging a breach of his s. 11(b) rights under the Charter of Rights and Freedoms.

[4] On or about February 18, 2019 I granted the application and stayed the proceedings. These are my reasons for doing so.

B. THE HISTORY OF THE PROCEEDINGS

(a) Introduction

[5] What follows are what I believe to be the relevant milestones of this case’s progress.

(b) From arrest to the judicial pretrial of February 20, 2018

[6] Mr. Bolé hired Mr. Goldbloom very soon after his arrest. Mr. Goldbloom signaled his retainer to the Crown on December 10, 2017 and requested that disclosure be provided.

[7] The Crown’s initial disclosure package was provided to Mr. Goldbloom on January 30, 2018 and counsel arranged a Crown pretrial, judicial pretrial and court appearance for February 20, 2018. The initial disclosure contained a notice to Mr. Bolé that the Crown would be relying on a toxicology report. The report itself had already been prepared on January 22, 2018 by Karryn Wall of the Centre for Forensic Sciences but had not yet been delivered to the Crown. It was thus not contained in the disclosure package.

(c) The judicial pretrial and the setting of the first trial dates

[8] At the judicial pretrial on February 20, 2018, Mr. Goldbloom said that he was ready to proceed “with the disclosure that had been provided to date”. Crown counsel advised Mr. Goldbloom that the report from the CFS was coming. Counsel agreed that two days would be required for trial and those dates, November 27 – 28, 2018, were scheduled in court that day. These were the first dates available to the Court. It was understood by all parties that a Charter application would be filed and argued prior to, or at trial.

(d) The period between the judicial pretrial and the adjournment application

[9] On June 19, 2018 Mr. Goldbloom wrote to the Crown’s office seeking further disclosure, in particular, audio recordings of calls made to police by various civilians who had participated in the investigation leading up to the arrest of Mr. Bolé.

[10] On July 23, 2018 the Crown’s office acknowledged receipt of this letter and advised Mr. Goldbloom that this disclosure had been requested of the police and that he would be notified once it was in the possession of the Crown’s office. The January 22, 2018 toxicology report of Karryn Wall was disclosed on that same day, July 23, 2018.

[11] Defence counsel wrote to the Crown again on September 24, 2018 to follow up on the outstanding audio disclosure.

[12] A trial confirmation hearing was held on September 27, 2018. Counsel for Mr. Bolé informed the Court that the audio disclosure was needed to properly frame the Charter argument. Counsel for the Crown told the Court that he expected it would be disclosed within “a couple of weeks”. The case was adjourned directly to the scheduled trial dates.

[13] On September 28, 2018 the Crown’s office responded to Mr. Goldbloom’s September 27 letter, again advising him that the audio material had been requested from the police.

[14] On October 12, 2018 Mr. Goldbloom again wrote to the Crown asking for the outstanding audio disclosure. In the letter, he put the Crown on notice that if the disclosure was not made very soon he would bring an application for an adjournment and would not be waiving his client’s 11(b) Charter rights.

[15] On November 2, 2018 Mr. Goldbloom served a Charter application and advised the Crown that an adjournment application was likely and that the Charter notice might have to be amended in light of the still outstanding disclosure.

[16] On November 6, 2018 the Crown’s office advised Mr. Goldbloom that the 911 audio and police radio communications were available. Mr. Goldbloom picked up and reviewed this disclosure immediately. The next day, November 7, 2018, he advised the Crown that it was apparent that there were other, earlier police communications that were missing from the disclosure.

[17] Mr. Goldbloom wrote to the Crown on November 13, 2018 and advised that he would be seeking an adjournment of the trial dates. He and the Crown agreed to have the application heard on November 19, 2018.

(e) The adjournment application and the setting of new dates

[18] At the hearing on November 19, 2008 the Crown conceded that disclosure was still not complete and consented to the adjournment. New trial dates of May 27-28, 2019 were set with a trial confirmation date of December 5, 2018 at which time a date was to be scheduled for the 11(b) application. January 7-8, 2019 were offered for trial but Mr. Goldbloom was not available. March 13-14, 2019 were available to the defence and the Court but the Crown was not available then.

(f) The period leading up to the 11(b) application

[19] On December 5, 2018 the parties attended at the trial coordinator’s office to see if earlier trial dates were available but none were. The 11(b) motion was scheduled for February 14, 2019.

[20] On December 8, 2018 Mr. Goldbloom provided a list of his available dates to the Crown in the event earlier trial dates became available. As a result, earlier dates were eventually found and set: March 20-21, 2019.

[21] On February 1, 2019 the Crown disclosed a further audio communication to Mr. Goldbloom, who has reviewed it and is of the view that it is not the communication he has asked for. The Crown’s position is that it is indeed the communication requested.

C. ANALYSIS

(a) What is not in dispute

[22] The written submissions filed by both parties devote considerable attention to the question of when the 11(b) clock started to tick in this case. Was it on the day of Mr. Bolé’s arrest, November 26, 2017, as argued by Mr. Goldbloom, or the date of the swearing of the information – December 7, 2017, as argued by Ms. Earle?

[23] At the outset of oral argument, Ms. Earle conceded that if, in the circumstances of this case, the 11(b) rights of Mr. Bolé had been infringed by virtue of the delay between November 26, 2017 and the scheduled trial dates, they would also have been infringed by virtue of the delay between December 7, 2017 and the scheduled trial dates.

[24] I have thus considered the merits of this application on the basis of the longer of these two delays – 15.75 months.

[25] Ms. Earle further concedes that no segment of the delay has been expressly waived by the applicant.

[26] Ms. Earle further concedes that the complete police communications that Mr. Goldbloom sought were relevant to the question of whether the applicant’s Charter rights had been breached, and that Mr. Goldbloom’s Charter application was anything but frivolous. She also concedes that the trial of the matter could not proceed without this disclosure having been provided a reasonable period prior to trial.

(b) Is the 15.75 month delay unreasonable?

[27] Because the delay in this case is under 18 months, it is not presumed to be unreasonable. Rather, the applicant bears the onus of demonstrating that the delay is unreasonable. R. v. Jordan, 2016 SCC 23; R. v. Coulter, 2016 ONCA 704.

[28] Mr. Bolé will only succeed in demonstrating that the delay is unreasonable if he establishes that:

(1) he took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and

(2) the case took markedly longer than it reasonably should have.

Jordan, supra, at para 82.

(1) What is the net delay?

[29] The first step in the inquiry is to calculate the net delay after subtracting from the 15.75 months any delay that is attributable to the applicant.

[30] Such “defence delay” is defined in Jordan in two paragraphs. At paragraph 63 it is defined as “delay caused solely by the conduct of defence” (emphasis added). Such conduct is further defined in that paragraph as “situations where the accused’s acts either directly caused the delay”…or “are shown to be a deliberate and calculated tactic employed to delay the trial” (emphasis added). At paragraph 66 it is defined anew as “delays waived by the defence, and delays caused solely or directly by the defence’s conduct” (emphasis added).

[31] The sole period of time that Ms. Earle argues is defence delay is the period of time between January 7 and March 20, 2018 (just short of 2 ½ months). According to Ms. Earle, this delay is attributable to the defence because January 7, 2018 was an available trial date to both the court and the Crown on November 19, 2018 when the new trial dates were first set.

[32] If Ms. Earle is correct, the net delay in this case is 13.25 months, as opposed to 15.75 months. She argues that if that is the case, the net delay is not unreasonable.

[33] Mr. Goldbloom argues that this period of delay is not solely or directly attributable to the defence, and that even if the January trial date had been chosen, the trial could not have proceeded because the absent disclosure that caused the first adjournment had still not been provided by January 7, 2018.

[34] Jordan speaks to the issue of how to characterize delay caused by defence’s unavailability when trial dates are set. At paragraph 64 the Court says: “…the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The delay resulting from this period of unavailability will be attributable to the defence.”

[35] Ms. Earle argues that this characterization should apply in the applicant’s case, even though it was a second trial date that was being set, after an adjournment of the first trial date as a result of missing disclosure. Mr. Goldbloom argues that the Supreme Court in Jordan, in the passage cited above, was only referring to the setting of the initial trial dates.

[36] R. v. Pyrek, 2017 ONCA 476, deals decisively with this issue. In Pyrek, the accused, like Mr. Bolé, sought an adjournment of his first trial date after receiving late disclosure of a pertinent expert report that the Crown sought to rely on. The adjournment was granted and new dates were set. The Crown and the court were available on relatively early dates that were not available to defence counsel. The trial judge, albeit applying the law as it was pre-Jordan, attributed 1 ½ months of the ensuing delay to the defence and ultimately dismissed the accused’s 11(b) application. The accused appealed and the Court of Appeal reviewed the trial judge’s ruling in light of Jordan which had been released in the interim. Even though the Court of Appeal upheld the trial judge’s decision to dismiss the 11(b) application, the Court of Appeal held that the trial judge’s attribution of 1 ½ months of delay to the defence as a result of his counsel’s unavailability when the second trial dates were set did not accord with the new law as set out in Jordan. In the Court’s view, it could not be said that this delay was “defence delay” as defined in Jordan because it had not been caused “solely by the conduct of the defence”. Pyrek, supra, at para 21.

[37] Even though Pyrek was a “transition case” i.e., one decided by the Court of Appeal after Jordan, where the charges predated Jordan, the Court considered the very issue before me, viz, is defence counsel’s unavailability for an earlier date for a second trial “defence delay” as defined in Jordan, where the first trial dates were adjourned because of late disclosure. The Court ruled that it was not.

[38] The Supreme Court of Canada in R. v. Godin, 2009 SCC 26, dealt with this very issue, albeit well before Jordan. It held that when it came to rescheduling dates for an aborted preliminary hearing, “scheduling requires reasonable availability and reasonable cooperation. It does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.” Godin, supra, at paras. 21-23.

[39] Ms. Earle argues that post Jordan, Godin is no longer good law. I disagree, for the reasons articulated by my brother Burstein J. in R. v. Zikhali, 2019 ONCJ 24, where he writes at paras. 19-20:

There are a number of pre-Jordan cases which had addressed the issue of allocating delay where a trial had to be rescheduled because it was not completed when expected, such as R. v. Godin, 2009 SCC 26, R. v. Brace (2010), 2010 ONCA 689, 261 C.C.C. (3d) 455 at paras. 14-16 (Ont. C.A.); R. v. Satkunanathan (2001), 2001 CanLII 24061 (ON CA), 152 C.C.C. (3d) 321 at paras 43-5 and 54-5 (Ont. C.A.); R. v. M.(R.) (2003), 2003 CanLII 50092 (ON CA), 180 C.C.C (3d) 49 at paras. 6-9 (Ont. C.A.); R. v. W.(A.J.) (2009), 2009 ONCA 661, 257 O.A.C. 11 at paras. 29-43; and R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.). Two principles seemed to emerge from this line of cases, beginning with the passage at paragraph 23 of the Supreme Court of Canada's decision in Godin. First, it would be unfair to fault a defendant for not having retained counsel with a wide open trial calendar in the event that the trial could not be completed on the dates originally scheduled. To avoid being saddled with responsibility for delay when rescheduling a trial, the defence must have "reasonable availability", not complete availability. Second, there is no set formula for apportioning responsibility for delays occasioned by an unexpected need to schedule further time to complete a trial. Rather, the apportionment of responsibility for "rescheduling delay" involves an exercise of discretion premised on the specific features of a case.

In the aftermath of Jordan, some have questioned whether the Godin approach to apportioning responsibility for scheduling delay remains good law. That issue was very recently considered by the Ontario Court of Appeal in R. v. Albinowski, 2018 ONCA 1084 (at paras. 28-35). Writ-ing for the Court in Albinowski, Roberts J.A. refused to accept that the oft-cited passage in Godin had been implicitly overtaken by the Supreme Court's decision in Jordan. Rather, Roberts J.A. recognized that the approach advanced in Godin was premised on two specific features of that case; namely, "the Crown's responsibility for the need to reschedule and the attempts by the defence to expedite the proceedings". In another very recent appellate decisions, the Newfoundland Court of Appeal in R. v. King, [2018] N.J. No. 366 (C.A.) (at para. 108), has held that the "common sense" approach to assessing responsibility for scheduling delays advanced by the Supreme Court in Godin "still applies after Jordan". In view of these two recent appellate decisions, I am satisfied that the Supreme Court's approach in Godin continues to govern an assessment of responsibility for delays occasioned by "the need to reschedule" a case.

[40] The fact that the very disclosure whose absence caused the adjournment in the first place was still absent as of January 7, 2018 further undermines the Crown’s argument as concerns the unavailability of defence counsel on that day.

[41] I thus rule that the net operable delay in this case is 15.75 months.

(2) Did the applicant take meaningful and sustained steps to expedite the proceedings?

[42] As set out by Mr. Goldbloom in his factum, it is apparent that Mr. Bolé did indeed take meaningful and sustained steps to expedite the proceedings. He, or Mr. Goldbloom on his behalf:

• swiftly retained counsel and wrote to the Crown’s office seeking disclosure two weeks after his arrest, and nearly a month before his first court appearance;
• conducted a Crown pre-trial, judicial pre-trial, and set a trial date by the third court appearance, six weeks and a day after his first appearance in court;
• accepted the first trial dates offered by the Court, and advised that he had availability as soon as the following month to conduct a trial;
• sent the Crown attorney’s office six letters and emails seeking and following up on disclosure between June 19, 2018 and November 8, 2018 in an effort to save the November 26-27, 2018 trial dates;
• advised the Crown in a timely manner that he would not be waiving his s. 11(b) rights if non-disclosure forced an adjournment of the trial;
• brought an adjournment application in advance of the trial date when it became clear that the trial could not proceed as scheduled; and
• worked collaboratively with the Crown after the first trial date was adjourned to find earlier trial dates than those scheduled in May 2019, and accepted the earlier trial dates of March 20-21, 2019.

[43] Ms. Earle argues that Mr. Goldbloom ought to have convened a second judicial pretrial when the Crown had repeatedly failed to provide the missing disclosure. This, she says, would have allowed her to tell the police that a judge had ordered the disclosure which might have resulted in the police acting sooner.

[44] I reject that argument. The police understand that when a Crown Attorney asks them to provide disclosure, they are obliged to do so. What’s more, if the Crown’s office was having such difficulty in getting the police to comply with their legal obligations, and the Crown believed that a judge’s order would have expedited the process, the Crown’s office should have arranged the further judicial pre-trial Ms. Earle now says would have resulted in that order.

(3) Did the case take markedly longer than it reasonably should have?

[45] This inquiry demands that I address two questions: (1) how long should this case have reasonably taken to go to trial? (2) is the delay occasioned by the currently scheduled trial dates “markedly” longer than the answer to question (1)?

[46] As concerns the first question, this is an uncomplicated, relatively routine drinking and driving case. While it involves a Charter application, and was scheduled for two days, rare is the drinking and driving case that does not. The police investigation was complete by the time Mr. Bolé was released from the station, but for the preparation of disclosure.

[47] Jordan tells us that “local considerations” are to be taken into account in determining how long it might reasonably be expected to come to trial. Both counsel, relying on Jordan at para. 89, invite me to take judicial notice of how long on average it takes to schedule a routine drinking and driving case in Scarborough. I have been sitting in Scarborough for nearly two years and in both my personal and observational experience I am of the view that, on average, a two-day drinking and driving trial is scheduled within 12 months of an accused being charged. Indeed, in the case at bar, the original trial date was to be exactly 12 months after the applicant’s arrest.

[48] As for whether 15.75 months is “markedly” longer than 12 months, it should be noted that 15.75 months is 31.25% longer than 12 months. Notwithstanding all other considerations, that percentage strikes me as “marked”. Furthermore, the jurisprudence since Jordan suggests that this increased delay is “markedly longer”. R. v. Gleiser, 2017 ONSC 2858 (between 15 and 16 months); R. v. Reynolds, 2016 ONCJ 606 (15.5 months); R. v. Chor, [2017] O.J. No. 1121 (O.C.J., 16 months); R. v. Hill, 2016 ONCJ 623 (13-14 months).

[49] The fact that most of these cases are transition cases only strengthens the applicant’s position. Jordan makes clear that transition cases must take into account the reasonable expectations of the parties while preparing for trial under the old, sometimes more tolerant, Morin regime. This tolerance would tend to lengthen, not shorten, the reasonable period of delay after passage of 12 months. Jordan, supra, at para. 101

[50] There is no question but that the Crown tried to respond to Mr. Goldbloom’s repeated disclosure requests by asking the police, over and over again to retrieve and deliver the communications in question. Disclosure is nonetheless the Crown’s responsibility, and if their repeated requests were being ignored it was incumbent on the Crown to take further steps. That the delay in the applicant’s case was the result of the police persistently failing to respond to the Crown’s request that they do their duty further re-enforces the unreasonableness of the delay in this case. R. v. Gleiser, supra, at para. 14; R. v. M.G.T., 2017 ONCA 736, at paras. 150-151.

[51] The Supreme Court expects stays beneath the 18-month presumptive ceiling to be granted only in “clear cases”. Jordan at para. 83. In my view, the case at bar easily meets this test.

D. CONCLUSION

[52] The charges against Mr. Bolé are hereby stayed.

Released on March 20, 2019

Justice Russell Silverstein