ONTARIO COURT OF JUSTICE

CITATION: R. v. Venne, 2021 ONCJ 80

DATE: 2021 02 10

COURT FILE No.: Sudbury 19 2621

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Dawn Venne

Before Justice Heather-Ann Mendes

Heard on January 27, 2021

Reasons for Judgment

Charter Motion 11(b) Delay

Mathieu Ansell.................................................................................... counsel for the Crown

Norm Stanford..................................................... counsel for the defendant Dawn Venne

Mendes J.:

Overview

[1] The Accused, Dawn Venne, stands charged with impaired operation of a conveyance by alcohol, drug or both contrary to section 320.14(1)(a) of the Canadian Criminal Code (“Code”), and that she did, within two hours after ceasing to operate a conveyance, have a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 ml of blood, contrary to section 302.14(1)(b) of the Code, as well as two counts of failing to remain at the scene of an accident in relation to two motor vehicle collisions, contrary to section 320.16(1) of the Code, all which allegedly occurred on July 5, 2019.

[2] A Charter Application was brought by Ms. Venne (“the Applicant”), seeking an order pursuant to section 11(b) and 24(1) of The Canadian Charter of Rights and Freedoms (“The Charter”) seeking a stay of the charges before the court.

Background

[3] On the night of July 5, 2019, two motor vehicle collisions were reported involving the same vehicle and that the vehicle in both instances did not remain at the scenes of those collisions. The first collision occurred at approximately 8:20 p.m. and the second collision occurred at approximately 8:45 p.m.

[4] As a result of information received by the Greater Sudbury Police Services (“GSPS”) about the vehicle involved with the collisions, the GSPS attended at the Applicant’s residence. The officer who attended at the Applicant’s residence observed indicia of impairment by alcohol and formed reasonable grounds to make a breath demand. The Applicant was arrested for impaired operation of a conveyance and was brought to the police station to provide breath samples.

[5] After providing breath samples at the police station, based on the results of the samples, the Applicant was charged as set out above and was released on a Promise to Appear with a first appearance date of July 17, 2019.

[6] The Applicant retained defence counsel on July 10, 2019. A designation of counsel was filed prior to the Applicant’s first court appearance on July 17, 2019. A request for disclosure was made by the Applicant’s counsel on July 16, 2019 and initial disclosure was provided by the Crown on July 16, 2019. A further request for disclosure was made by the Applicant’s counsel on August 1, 2019 seeking, among other items, the breath room video.

[7] A Crown pre-trial (“CPT”) was held on August 20, 2019 and a Judicial pre-trial (“JPT”) was held on September 23, 2019. By September 23, 2019, the disclosure of the breath room video remained outstanding and this was noted by the presiding justice. The next step in the matter was not noted on the case management form, however the required time for trial was noted as being 2 to 3 days plus a further 2 days after trial regarding a constitutional challenge. The matter was adjourned between the dates of October 9, 2019 and March 11, 2020 a total of six (6) times for the issue of the outstanding disclosure to be resolved.

[8] As of March 16, 2020, regular court operations were suspended due to the COVID-19 global pandemic and the Applicant’s matter was administratively adjourned from March 25, 2020 through to October 21, 2020. The breath room video was disclosed to the defence in March 2020.

[9] It is the Applicant’s position that this matter has been delayed by the Crown in its failure to provide the breath room video which should have been disclosed by September 23, 2019. Had the disclosure been provided by September 23, 2019, the Applicant submits that the matter would have been set down for trial prior to the suspension of regular court operations due to the COVID-19 global pandemic and the Applicant argues the matter would have either been heard prior to the suspension of regular court operations or, in the alternative, the matter would have received a higher priority in rescheduling after the courts reopened, as it would have been scheduled for a time during the suspension of regular operations.

[10] The Applicant acknowledges that COVID-19 is an exceptional circumstance in the form of a discrete event and that once the time for delay due to the pandemic is deducted, her matter is below the 18-month threshold.

[11] The Applicant submits that the Crown ought to have mitigated the delay and prioritized the matter given how close the case was to the 18-month Jordan threshold. The Applicant’s position is that counsel did everything possible to consistently and persistently move the matter forward and therefore, the delay in this case is unreasonable and the charges against her should be stayed.

Law & Analysis

Could the matter have been set down for trial prior to the breath room video being disclosed?

[12] I have considered counsel’s submissions with respect to whether the matter could have been set down for trial prior to the breath room video being disclosed and I find that it was reasonable not to set the matter down for trial notwithstanding the Ontario Court of Appeal decisions of R v. Kovacs-Tatar and R v. M. (N.N.) which respectively state:

…because the obligation of the Crown to make disclosure is a continuing one, the Crown is not obliged to disclose every last bit of evidence before a trial date is set. The defence was not forfeiting its “Stinchcombe rights” by agreeing to set a trial date.[^1]

even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial.[^2]

[13] The breath room video is critically important for both the Crown and the defence to assess their respective cases, “in order to determine “whether the case will proceed to trial on the merits, or whether it might be resolved by way of a plea or withdrawal”[^3], as stated by Justice Trottier in the decision of R. v. Farry.

[14] The fact that the breath room video was outstanding and was to be disclosed was contemplated by counsel at the JPT on September 23, 2019 and it was understood that that the disclosure would be provided before the matter was set to the next step.

[15] Further from a review of the transcripts obtained from the court appearances, specifically on December 18, 2019, the Crown acknowledged how disclosure of the breath room video impacted the Applicant’s assessment of the case with the following statement: “I appreciated that that piece of disclosure might impact on whether or not the Defence brings a Charter application”.

[16] I find that the disclosure of the breath room video was required by the Applicant in order for counsel to make fundamental decisions about the theory of their case and to make decisions about how to proceed with the case either setting the matter down for trial or resolving the matter by way of a guilty plea. The breath room video is a crucial piece of evidence to both the Crown and Defence’s case in order to assess allegations of the alleged impairment and to canvass the viability of various Charter issues.

[17] Thus, it was reasonable for the Applicant to wait until the breath room video was disclosed and subsequently reviewed before setting the matter to the next step in the proceeding.

Calculation of delay

[18] In the decision, R v. Jordan[^4], the Supreme Court of Canada set a presumptive ceiling of eighteen (18) months for cases going to trial in the Ontario Court of Justice. Jordan establishes the framework to be applied where a breach of s. 11(b) of the Charter is alleged.

[19] The Ontario Court of Appeal in R v. Coulter, summarized the Jordan framework in calculating delay as follows:

Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial.

Subtract defence delay from the total delay, which results in the “Net Delay”.

Compare the net delay to the presumptive ceiling.

If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached.

If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is unreasonable.

If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.[^5]

[20] The Jordan analysis is also helpfully applied and explained in R. v. Kande:

“the period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events. Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).”[^6]

[21] The Applicant and the Crown agreed that the total delay from the date the information was sworn on July 9, 2019 to the anticipation completion of the blended trial on February 23, 2021 is 19 months and 13 days or simply 19.5 months. However, there is no agreement on the net delay or how that delay should be calculated

[22] The Applicant concedes that the global pandemic is a discrete event and that once the result of the suspension of the regular operation of the courts is factored in, the 18-month threshold has not been reached. It is the Applicant’s position that there is no defence delay to be deducted from the total delay, as such the net delay and total delay are the same, 19.5 months.

[23] The Applicant submits that the matter was ready to be scheduled for trial as of July 6, 2020 when the courts reopened, and so only two months should be subtracted for the delay caused by the discrete event from the net delay. This two month period being calculated from the day a CPT was held on May 7, 2020 at which defence counsel indicated there was no possibility of resolution of the matter, to when the courts re-opened on July 6, 2020 and the Applicant requested via email to the trial coordinator that the matter be set down for trial, such that the remaining delay is 17.5 months.

[24] It is the Crown’s position that the Applicant had the overwhelming majority of disclosure and could have set the matter down for trial prior to receiving the breath room video. I do not accept this submission as per my aforementioned reasons.

[25] The Crown’s position regarding the calculation of delay arising from the discrete event due to the global pandemic and the subsequent cascading delay, which flows from the time the court reopened to the date the trial was rescheduled, is still part of the discrete event and is to be deducted from the net delay.

[26] According to the Crown, the period of time to be deducted is 3 months and 21 days from the suspension of the regular operation in March 2020 to the courts re-opening on July 6, 2020 and the subsequent cascading delay flowing from the discrete event, calculated as the period of July 6, 2020 to October 20, 2020 when the matter was pre-set for trial, for a further delay of 3 months and 13 days. The remaining delay would then be 9 months and 21 days, or 10 months.

[27] I note that the caselaw provided by the Crown in support of its position regarding the calculation of the period of delay to be attributed to the discrete event arising from the pandemic finds that the entire time from the start of the pandemic to the date of the scheduled trial is appropriate to be deducted. This argument results in a further reduction of the remaining delay downward from the presumptive Jordan ceiling.

[28] Given my findings above regarding the necessity and importance of the breath room video, I find that that this matter was only ready to be set down for trial after the breath room video was disclosed to the Applicant.

[29] The Applicant notes that the breath room video was received in April 2020 but in the materials does not provide a specific date the video was actually received. I note that every other entry in the delay chart provided in the Applicant’s materials has a specific date except the entry regarding when the video was received. I have also reviewed the email correspondence exchanged between the Applicant’s counsel and the Crown and again I note that there is no indication in the Applicant’s materials as to the specific date the video was received.

[30] In the Crown’s materials, the affidavit of Diane Berthiaume, sworn January 18, 2021, states that the breath room video was sent to the Applicant’s counsel via Purolator with a Purolator slip dated March 23, 2020. I find that it is reasonable that the package couriered from Sudbury to Toronto would take no more than 2 days to arrive at the Applicant’s counsel’s office that being by March 25, 2020.

[31] I accept that the unprecedented closure of the court in March 2020 resulted in significant disruption to the administration of justice and that this resulted in a four (4) month backlog of cases before the court and a prioritization of cases was established by the administration and the Chief Justice’s Office in order to move matters forward in a timely, just and fair manner. While I accept that the Applicant’s counsel attempted to move the matter forward and set the matter down for trial in May 2020, and then again after the courts re-opened on July 6, 2020, there were numerous cases that had to be rescheduled with limited resources and in a significantly modified manner given the adaptations required to the court rooms and the number of people allowed in the court rooms.

[32] Although the courts reopened on July 6, 2020, each and every case that had been adjourned due to the closure could not be addressed on July 6 or even that week, hence why a schedule was prepared and released as a Notice to the Profession and Public regarding the priority of the cases to be rescheduled. This response and notice to the profession and public was an efficient, reasonable and rational manner in which to deal with the backlog created by the pandemic in the justice system.

[33] In the case of R. v Simmons, Justice Nakatsuru held that the proper approach to deducting COVID-19 delay was to attribute the entire time period from the closure of the court to the new trial date:

First, while the jurisprudence about COVID-19 as a discrete exceptional event within the meaning of s. 11(b) is relatively new, most trial courts have deducted the entire time from the start of the impact of COVID-19 on the courts to the date of the scheduled trial as opposed to only the time period where trials have been actually suspended: R. v. Gutierrez, 2020 ONSC 6810 at paras. 11 - 20; R. v. Cathcart, 2020 SKQB 270, [2020] S.J. No. 415, at para. 20; R. v. Folster, [2020] M.J. No. 187 (P.C.) at paras. 29 - 30; R. v. Ismail, 2020 BCPC 144, [2020] B.C.J. No. 1228, at para. 155; R. v. Harker, 2020 ABQB 603, [2020] A.J. No. 1091, at para. 23.

Second, the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.

Third, taking such a realistic perspective regarding the impact of a discrete event is not novel. Take, for an example, when a judge falls ill. As a result, the trial must be adjourned to a new date. This is a recognized discrete event. The period of delay caused by this discrete exceptional event does not end the moment the judge recovers from their illness and is again capable of hearing cases. Rescheduling takes place in the reality of the courthouse. The new trial date takes into account the availability of the judge, the Crown, the defence counsel, and witnesses: Coulter, at paras. 81 - 84.

Similarly, the discrete exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes place in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and in assessing what the Crown and the court can reasonably do in mitigating the delay.

Fourth, the COVID-19 pandemic and its effects on the judicial system are not over. Now, the pandemic is getting worse. We are in the second wave. The number of infections is far greater than in the first wave. Despite promising news about potential vaccines that are being developed, there remains much uncertainty. The Superior Court of Justice in Toronto Region--which has now suspended jury trials again since October 9, 2020--has recently extended the suspension of jury trials to January 4, 2021. In short, when it comes to assessing COVID-19's impact on the criminal justice system, this discrete event continues.

Finally, in order to qualify as a discrete event, the Crown must show it could not have reasonably mitigated the delay. The Crown cannot sit idly on their hands when rescheduling the backlog created by COVID-19--at minimum, thoughtful triage of trials is expected. [^7]

[34] Recognizing that some of the factors set out by Justice Nakatsuru in Simmons reflect Toronto specific regional differences, as well as considerations specific to the Superior Court of Justice, I nonetheless find it persuasive that a period greater than the suspension of court operations in March to the resumption in July should be attributed to the COVID-19 discrete event. I find that there was a delay from March 26, 2020 when the breath room video was received by the Applicant’s counsel to the date the trial was set on October 20, 2020, for a total of 209 days or 6 months and 26 days. That period of time is what is properly attributable to the discreet event that is COVID-19 in the circumstances of this specific case.

[35] As such, I find that the total delay in this matter from the date the information was sworn on July 9, 2019 to the anticipated last day of trial of February 23, 2021 is 594 days or 19 months and 14 days. I accept the Applicant’s position that there was no defence delay given that counsel for the Applicant consistently and persistently, and to his credit, attempted to move the matter forward and have it set down for trial at the earliest opportunity. As such the net delay is equivalent to the total delay. In the unique circumstances of this specific case, I attribute 209 days or 6 months and 26 days to the discrete event of the global pandemic from the date the breath room video was received on March 25, 2020 after the court suspended regular operations to when the trial dates were pre-set on October 20, 2020, and so I find that the remaining delay in this case is 385 days or 12 months and 17 days.

Is the delay in the disclosure of the breath room video unreasonable such that it should warrant a stay of the proceedings?

[36] As I have found that the delay falls below the Jordan 18-month ceiling, the Applicant must demonstrate that the delay in this matter is unreasonable on a balance of probabilities.

[37] In the case of R. v. Dummett, Justice Harris set out the case law surrounding delay caused by tardiness in providing the DVD disclosure:

“this perennial problem of delayed DVD disclosure in drinking and driving cases has now become a systemic feature of Ontario Court litigation and in the instance case is crucial evidence that in principle should be provided before a trial date is set and accordingly represents delay that should be attributed to the crown. The issue seems to have become unaccountably impervious to remediation.”[^8]

[38] Although there is some delay attributable to the untimely disclosure by the Crown of the breath room video, I do not find that there was simply a failure to disclose the breath room video for a period of 8 months (August 2019 to March 25, 2020). I accept that there were ongoing efforts made by the Crown to obtain the breath room video from the GSPS. Specifically, I note that the booking area video was disclosed on December 13, 2019 but it did not contain an audio track. A breath room video was provided to the Applicant’s counsel on February 26, 2020 but the video disclosed was for the wrong accused and the Crown was advised of this error on March 3, 2020.

[39] The Applicant argues that had the breath room video been disclosed after the JPT in September 2019, the trial in this matter could have concluded prior to the suspension of regular operations of the court in March 2020, or in the alternative, the matter would have been set down for trial during the shut down period and would have received a higher priority when rescheduling the trial dates upon the re-opening of the courts in July 2020.

[40] In support of her position, the Applicant notes that it is unusual for this type of case to take so long to be set down for trial and that information received from other local counsel is that these types of cases, which are not overly complex are typically set down for trial and are ready to proceed to trial within a matter of a few months.

[41] This position supports a finding that the delay in disclosing the breath room video is not a systemic issue or common occurrence or that the Crown and the system are not taking their duty to make full disclosure in a timely manner seriously. It would in fact appear to be an exception rather than the rule. While the disclosure was delayed, this is not an ongoing issue in this jurisdiction as contemplated and commented on in the case of R v. Dummett. Neither does it appear that the late disclosure of the breath room video in this case is indicative of a culture of complacency, which was the concern raised in Jordan that led the court to conclude that hard timelines for the completion of trials needed to be put in place.

[42] The court does not have a crystal ball and cannot determine what might have happened had the breath room video been disclosed by September 28, 2019. Each case is unique and has their own challenges. In this case the Applicant did everything correctly to request disclosure in a timely manner, follow up with the requested disclosure, and not simply sit back and rely on one letter or follow up. Disclosure when received was reviewed in a timely manner. CPTs were held in an attempt to resolve the matter. Emails were sent to the trial coordinator requesting trial dates and the first available trial dates were accepted by counsel.

[43] Despite all of these efforts, I am not satisfied that the delay caused by the untimely disclosure of the breath room video is sufficiently unreasonable to meet the Applicant’s burden on a balance of probabilities. This is not one of the clearest of cases where a stay should be imposed and ought to be granted notwithstanding that the delay falls below the presumptive ceiling.

[44] The Court of Appeal recently reminded us in the decision R. v Daponte that “it is important to recall that Jordan expected stays for delay in cases that fell below the presumptive ceiling ‘to be rare, and limited to clear cases” [^9]. Further, Daponte also notes from Jordan that “in determining whether a trial took markedly longer than it should have, it is necessary to ‘step back from the minutiae and adopt a bird’s eye view of the case’”.[^10]

[45] The Crown acknowledged that the breath room video was important during case management court dates, as evidenced by the transcripts filed. The record appropriately reflected the importance of disclosure of the breath room video for the Applicant to advance her case.

[46] I find that the Crown did make efforts to inquire as to the availability of the breath room video from the GSPS. There was a problem with the first two videos that were provided to the Applicant. As the video was not disclosed on the eve of trial, nor at the outer limits of the Jordan timeframe, but for the discrete event of COVID-19, the case could have been scheduled in April 2020. I have found the delay to be calculated at 12 months and 17 days in this specific case and I do not find that this delay is unreasonable in the circumstances. Therefore, I find that there was no breach of the Applicant’s rights under s. 11(b) of the Charter.

Decision

[47] As such, for all the aforementioned reasons, the Application is dismissed.

Released: February 10, 2021

Justice Heather-Ann Mendes

[^1]: R v. Kovacs-Tatar 2004 42923 (ON CA), 2004 CarswellOnt 4805, [2004] O.J. No. 4756, paragraph 47. [^2]: R v. M. (N.N.) 2006 CarswellOnt 2721, paragraph 37. [^3]: R. v. Farry [2010] O.J. No. 1977 (S.C.J.), paragraph 12. [^4]: R. v. Jordan, 2016 SCC 27 [^5]: R v. Coulter 2016 ONCA 704, [2016] O.J. No. 5005, paragraphs 34 to 40. [^6]: R v Kande [2020] O.J. No. 4315, paragraph 22. [^7]: R. v Simmons 2020 ONSC 7209, 2020 ONCS 7209, paragraphs 68 to 74. [^8]: R. v. Dummett [2013] O.J. No 2641, paragraphs 21 to 28. [^9]: R v. Daponte, 2021 ONCA 14, paragraph 27. [^10]: R v. Daponte, paragraph 36.