COURT FILE AND PARTIES

COURT FILE NO.: 42/11
DATE: 20120217
SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Konstantin Emanuel

BEFORE: M.A. Code J

COUNSEL: Peter Lindsay , for the Appellant
Elizabeth Stokes , for the Respondent

HEARD: February 15, 2012

ENDORSEMENT

A. INTRODUCTION

[ 1 ] The Appellant Konstantin Emanuel (hereinafter, Emanuel) appealed from his conviction on one count of impaired driving. He was tried before Knazan J. and was convicted after a very short trial held on February 7, 2011. The Appellant admitted the facts alleged by the Crown, which were simply read in without the necessity of calling any witnesses. Those facts amply supported the conviction entered by the trial judge.

[ 2 ] The only issue raised, both prior to trial and now on appeal, was whether there had been a violation of Emanuel’s right to trial within a reasonable time, as protected by s. 11(b) of the Charter of Rights . Knazan J. dismissed the Charter Motion in written reasons on January 14, 2011. He had heard argument a month earlier, on December 13, 2010, and had reserved judgment.

[ 3 ] I dismissed Emanuel’s appeal at the end of oral argument with reasons to follow. These are my reasons.

B. FACTS

[ 4 ] The facts relating to the offence are relevant to the s. 11(b) Motion as they must be taken into consideration when balancing the societal interest in a trial on the merits. The facts admitted at trial by the Appellant disclosed an aggravated case of impaired driving. Knazan J. found that the Appellant’s “very bad driving”, and the two Intoxilyzer readings of 210, were both “very aggravating” circumstances which he then took into account on sentencing.

[ 5 ] The driving in question was described as follows: at 2:09 a.m. the Appellant was westbound in the collector lanes of the 401 highway in the middle of Toronto, between Bayview and Yonge, when the police observed him “driving erratically, straddling lanes, and narrowly avoiding collisions with the right guard rail of the highway”; the Appellant exited the 401 highway, proceeded northbound on Yonge Street, and “then performed an illegal u-turn … and began to drive southbound” on Yonge Street. At this point he was stopped by the police. There was a “strong odour of alcohol … [his] eyes were bloodshot … His speech was slurred.” The police arrested him at 2:13 a.m. At the station, the Intoxilyzer produced readings of 211 and 219.

[ 6 ] The facts relating to the various periods of delay in the case can be set out more conveniently, when discussing the legal issues raised on the appeal. In brief summary, the Appellant was charged on June 16, 2009 and was not tried until February 7, 2011, as noted above. An overall delay of almost twenty months, in this kind of case, required further analysis and explanation. That task was simplified by the agreement of the parties concerning two periods of neutral delay, at the beginning and at the end of the case.

[ 7 ] It was agreed that the initial two months, from June 16, 2009 to August 11, 2009, was a normal “intake” period. The Appellant retained counsel, initial disclosure was provided by the Crown at the first appearance on June 30, 2009, the defence followed up with a letter seeking some further disclosure, the Crown responded to the letter, and on the second appearance on August 11, 2009 the Appellant was ready to attend a pre-trial meeting with the Crown. Knazan J. found, and I agree, that these activities are all part of the inherent time requirements of any case and that they carry neutral weight in the s. 11(b) analysis.

[ 8 ] About a year later, on September 23, 2010, the case was scheduled to proceed with the s. 11(b) Motion and the trial. However, the Appellant was sick and unable to attend court. As a result, new dates had to be obtained for both the s. 11(b) Motion and the trial. Those new dates were reasonably prompt. In these circumstances, the parties agreed that the further delays, from September 23, 2010 until February 7, 2011, were due to the Appellant’s illness and therefore carried neutral weight in the s. 11(b) analysis. Knazan J. described these further delays as being “caused by the defence”. Nothing turns on it but, in my view, it is more accurate to describe delays due to unforeseeable eventualities, such as sickness on a trial date, as part of the inherent time requirements of any case. I agree with the parties that they carry neutral weight in the s. 11(b) analysis. See: R. v. MacDougall (1998), 1998 763 (SCC) , 128 C.C.C. (3d) 483 at 500-501 (S.C.C.).

[ 9 ] As a result of the above agreements between the parties, the sole focus of the s. 11(b) Motion was on events during the thirteen and one-half month period from August 11, 2009 until September 23, 2010. I will describe these events below, when discussing the legal issues.

C. LAW

(i) The alleged error committed by the learned trial judge

[ 10 ] The Appellant Emanuel submits that there was one error committed by the trial judge in his reasons for dismissing the s. 11(b) Motion. When discussing the various periods of delay, Knazan J. included some brief analysis of the final two months leading up to the trial date, from July 23 to September 23, 2010. Unfortunately, when he came to total up the various periods of delay, at the end of his reasons, he omitted these last two months. In effect, he totalled up the delay from August 11, 2009 until July 23, 2010, and found it to be reasonable, but he omitted the further two month period from July 23, 2010 until September 23, 2010.

[ 11 ] The Respondent Crown concedes this error and I agree with the Crown’s concession. However, the Crown submits that this court, on appeal, can now conduct a full s. 11(b) analysis that includes the final two months of delay, and reach the same conclusion as Knazan J. concerning the merits of the s. 11(b) Motion. The Appellant concedes that this Court must now conduct a fresh s. 11(b) analysis of the record, on appeal, but submits that I should conclude that there was a violation of s. 11(b). The parties do not agree on how to characterize the various periods of delay, with one exception. I will now turn to the task of analyzing the disputed periods of delay during the relevant thirteen and one-half month time period.

(ii) The reasons for the various periods of delay

[ 12 ] The parties agree that the first month of relevant delay, from August 11, 2009 to September 15, 2009, was caused by the Crown. Knazan J. so found and I agree. The defence was seeking a pre-trial meeting with the Crown, after the neutral intake period, and the Crown was repeatedly unavailable. This was unreasonable and the resulting delay was, therefore, due to the actions of the Crown.

[ 13 ] As a result of the pre-trial meeting between the Crown and the defence, which was eventually held on September 15, 2009, it was determined that the case could not be resolved and that two full days of court time were required. There was a dispute over disclosure, which I will describe below, that was said to require a one day Motion. In addition, the trial itself was said to require a full day. Given the disclosure dispute and given the amount of court time being sought, a judicial pre-trial was essential. The delay from September 15, 2009 until October 19, 2009 was the time from the pre-trial meeting between counsel until the first available date for a judicial pre-trial.

[ 14 ] Knazan J. characterized this one month period as systemic or institutional delay, relying on R. v. G. (C.R.) (2005), 2006 C.C.C. (3d) 262 (Ont. C.A.). The law on this point has evolved somewhat, since the time when the trial judge heard the Motion. More recent authorities have characterized this kind of delay as part of the inherent time requirements of the case, provided the court is available for a judicial pre-trial within a reasonable time. See: R. v. Tran , 2012 ONCA 18 ; R. v. Khan (2011), 2011 ONCA 173 () , 270 C.C.C. (3d) 1 at paras. 44-5 (Ont. C.A.); Scott Latimer, “Defining JPT time for s. 11(b) purposes”, (2011) 84 C.R. (6 th ) 244 . Most recently, in Tran , supra at para. 34 , Simmons J.A. gave the judgment of the Court and stated:

Dealing first with the judicial pre-trial delay between December 4, 2009 and January 19, 2010, it seems to me that requiring a judicial pre-trial to set the trial date(s) is a reasonable and necessary case management tool in busy judicial centres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in presentation of their cases. Accordingly, some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case.

[ 15 ] Based on the above principles set out in Tran , this one month delay from September 15, 2009 until October 19, 2009, is part of the inherent time requirements of the case and it carries neutral weight in the s. 11(b) analysis.

[ 16 ] The next period of delay, from October 19, 2009 until July 23, 2010, is the most important and the most difficult to characterize accurately. As already noted, there was a disclosure dispute between the parties which Reinhart J. was unable to resolve at the judicial pre-trial. Accordingly, a contested Motion had to be scheduled. The earliest available date the Court could offer for the Motion was some nine months away, on July 23, 2010. Both parties stated on the record that they had earlier available dates, although they did not state when they would be ready and available to conduct the Motion. The reason that the Motion required a full day was because the issue was complex, involving a defence request for historical records concerning inspection, calibration and maintenance of the Intoxilyzer. Expert evidence was to be called on the Motion by both parties. There was no clear or binding authority on the point. Indeed, as Knazan J. noted, the authorities in the Ontario Court of Justice were divided, with some decisions ordering disclosure of these kinds of historical records and some decisions denying disclosure.

[ 17 ] The trial judge held that this entire nine month period was systemic delay. I do not agree. Some of the delay was undoubtedly systemic as the parties could have been ready to argue the Motion on an earlier date and nine months is simply too long a delay for a one day Motion, even a complex one. However, there can be no suggestion that the parties were immediately ready to argue the Motion on October 19, 2009. They both needed time to retain and instruct experts, to prepare the facts and law for what was a difficult Motion, and to clear time in their calendars. There is no direct evidence on this issue, as the parties did not state on the record how much time they needed for these purposes. I would infer that at least two months would be needed for the above tasks. This is part of the inherent time requirements of the case. As Simmons J.A. stated in Tran , supra at para. 32 :

Second, parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them. See Morin , at pp. 791-2, 794-5, 805-806. See also Lahiry , at paras. 25-37, citing Morin, R. v. Sharma , 1992 90 (SCC) , [1992] 1 S.C.R. 814, R. v. M. (N.N.) (2006), 2006 14957 (ON CA) , 209 C.C.C. (3d) 436 (C.A.), Schertzer , R. v. Meisner (2003), 57 W.C.B. (2d) 477 (Ont. S.C.) , and R. v. Khan , 2011 ONCA 173 ,277 O.A.C. 165.

[ 18 ] The remaining seven months of this nine month period was properly characterized as institutional delay since the court was not available for a one day Motion within a reasonable time, commencing from the time when the parties were ready.

[ 19 ] The final two months of delay, from July 23, 2010 to September 23, was the period between the Motion date and the trial date. The parties had scheduled the one day trial date back on October 19, 2009, at the same time that they had scheduled the one day Motion date. Once again, counsel stated on the record that they had earlier dates available for trial. However, some period of delay was inevitable between the Motion date and the trial date as the whole point of bringing a disclosure motion on for hearing, in advance of the trial, is so that the judge has time to rule, the Crown has time to produce any disclosure it is ordered to produce, and the parties have time to prepare for trial with the results of the disclosure Motion in hand. It was stated on the record that Reinhart J.’s practice in this particular court house was to require a period of at least thirty days between the Motion and the trial. This strikes me as a sensible case management practice.

[ 20 ] Although the trial judge did not include this last two months of delay in his final calculations, it was simply an oversight because he had earlier referred to the two month period in his reasons and had characterized it all as systemic delay. Again, I disagree for two reasons. First, as already noted, some delay between the Motion and the trial was inevitable. The defence disclosure request had added to the complexity of the case because it caused a reasonable dispute between the parties that would inevitably take some period of time to litigate, in advance of the trial. Knazan J. accepted that the Motion itself was part of the inherent time requirements of the case and that it increased the complexity of the case. Although the Motion was eventually settled when the Crown agreed, for purely pragmatic reasons, to disclose some of the historical records, Knazan J. rejected the Appellant’s argument that the Crown had therefore caused the delay occasioned by the disclosure Motion. He reasoned as follows on this point:

… it is not reasonable for Mr. Emanuel to submit that the Crown is responsible for causing delay by refusing to provide the disclosure and then thus unnecessarily requiring time to be set aside for the application to provide the disclosure that it ultimately provided. The necessity of the disclosure cannot be determined until the relevance of the disclosure is determined, and I agree with Crown counsel that providing the disclosure while taking the position that it is not relevant, does not make it relevant.

Mr. Emanuel was definitely entitled to request the disclosure, but his disclosure request, to use the words that he uses in arguing delay occasioned by the Crown, required time to be set aside to argue the disclosure motion. I would not add the word unnecessarily as he does in attributing the delay to the Crown, because it is the very nature of the case that necessitated the two days being set aside with the first reserved for a disclosure application. By the very nature of the case, I mean what it is about, breath readings, the legislation in force at the time the charge was laid, the recency of that legislation, the continuing unresolved issue of relevance and defence entitlement to the historical evidence regarding the approved instrument, and the requirement of a judicial pre-trial and two days of trial in view of all of that. The request for the disclosure, whose relevance is yet to be determined either in this case or by a court whose conclusion is binding on this court is as much a voluntary action on the part of the accused intended to further his case: R. v. Morin , paragraphs 44 and 45, as it is a result of the Crown’s original position.

… I have found that the need for two trial days and the period from the set date to July 2010 has been explained; this was a reasonable response to a reasonable disclosure request that turned this case into a more complex case than it would have been had the disclosure request not been made.

[ 21 ] I agree with the above analysis. If the pre-trial disclosure Motion was a step reasonably taken by the parties, that added to its complexity, then some reasonable time was needed for the Motion itself as well as some reasonable time between the Motion and the trial. Two months was not an unreasonable amount of time to allow, between the Motion and the trial, so that the judge could make a ruling, the Crown could produce whatever was to be disclosed, and the defence could review it and prepare for trial. In its recent decision in R. v. Schertzer et al (2009), 2009 ONCA 742 () , 248 C.C.C. (3d) 270 at paras. 113-117 and 131 (Ont. C.A.) the Court addressed a similar issue and stated:

This time period was taken up with pre-trial motions and concluded with the issuance of the stay ruling. As noted above, the trial judge did not account for this five-month period in his Morin analysis. Before this court, counsel for the Schertzer respondents submit that most of the time consumed in pre-trial motions was a direct consequence of Crown disclosure practices, and that this time should therefore be attributed to the Crown. The Crown initially took the opposite view, arguing that the time taken for pre-trial motions should mostly be attributed to the defence. However, in oral argument, we took the Crown to have retreated from that position and instead argued that the pre-trial motions should be considered part of the inherent time requirements. We agree with that submission.

Ordinarily, the time taken to complete the trial, including resolution of pre-trial motions, the hearing of evidence and, in a judge-alone case, time while the decision is under reserve, is part of the inherent time requirements of the case . It is neither Crown delay because the Crown seeks to adduce certain evidence nor defence delay because the defence objects.

Exceptionally, the time taken at trial will lead to a finding of unreasonable delay. R. v. Rahey , [1987] 1 S.C.R. 558 , was such a case. There the trial judge reserved for 11 months to resolve a motion for a directed verdict, a matter that should have been resolved in a few days. We can also envisage circumstances where time spent during pre-trial motions could be attributed to either the Crown or the defence. If the trial judge concluded that defence motions were frivolous and served no legitimate purpose, the time to deal with those motions might be attributed to the defence. Similarly, if the trial judge was of the view that, for example, the Crown acted arbitrarily or in bad faith in refusing to make disclosure or unnecessarily delayed the proceedings by failing to accept reasonable admissions from the defence, the resulting delay could be attributed to the Crown.

… we have not been persuaded that the time taken to resolve the disclosure issues during the pre-trial motions was due to arbitrary or bad faith conduct by the Crown .

We would consider the five months spent on pre-trial motions part of the inherent time requirements .

Given the complexity of the case, it is our view that the inherent time requirements are necessarily longer than might otherwise be considered appropriate. In reaching this conclusion, we should not be taken as either validating or criticizing the pace of or the Crown’s approach to disclosure. However, it must be borne in mind that the defence approach to disclosure will impact on the pace of the proceedings. Some counsel may choose to pursue every possible relevant piece of information in the Crown’s possession, while other counsel may choose a more focused attack on specific crucial Crown witnesses. Neither approach is necessarily unreasonable, but the former approach can result in significantly longer inherent time requirements . [Emphasis added].

Applying the above principles from Schertzer to this case, the two month period that Reinhart J. set between the disclosure Motion and the trial was part of proper case management, given the difficult disclosure issue that had been raised by the defence. For this reason I would characterize it as part of the inherent time requirements of the case.

[ 22 ] The second reason why I would treat this final two month period of delay as part of the inherent time requirements of the case is that the parties themselves were not ready to proceed with the trial on July 23, 2010, immediately after the disclosure Motion was heard. Counsel made no mention at his appearance before Knazan J. on July 23, 2010, of his intention to bring a s. 11(b) Motion on the trial date. It is apparent that the materials needed for the Motion had not yet been assembled and that the defence would need time to prepare and file the s. 11(b) Motion and the Crown would need time to respond to it. In fact, the Appellant’s Motion Record and Factum were not filed until August 23, 2010. Even then, the Motion Record was incomplete as one transcript was still missing and the Appellant’s own affidavit concerning the prejudice he alleged was also missing. The affidavit was not provided until late on September 15, 2010, after the Crown had already filed its responding Factum. Then, on September 19, 2010, a lengthy Supplementary Motion Record was filed by the Appellant, attaching a large amount of statistical data. The Crown objected to this late filing of a Supplementary Record and a great deal of correspondence and oral argument ensued as to whether it should be received. On the trial date, September 23, 2010, the last transcript was filed. Given that the hearing date had to be adjourned, due to the Appellant’s illness, Knazan J. requested a Supplementary Factum from the Appellant in order to elucidate the legal effect of the statistical data that had just been filed at the eleventh hour.

[ 23 ] In all these circumstances, it is apparent that the Appellant and the Crown needed these two months to prepare and file the necessary materials for the s. 11(b) Motion. Indeed, the Motion was still not fully prepared as of September 23, 2010 and the adjournment of the trial date was fortuitous, when the Appellant became ill, as it allowed the parties more time to prepare and file the necessary materials for the Motion. Mr. Lindsay submits that it requires virtually no time to prepare the two Charter Motions that he filed in this case and that almost all the delays, after October 19, 2009, were either caused by the Crown or by systemic congestion in the courts. This is not a serious or responsible submission, in my view, given the importance and complexity of Charter Motions and given the record in this case which shows that substantial time was required to schedule, prepare and file the Motions.

[ 24 ] For the above two reasons, none of the two month delay between July 23, 2010 and September 23, 2010 can fairly or accurately be called systemic delay. Rather it was delay that was beneficial to the parties, allowing them time to absorb the results of the disclosure Motion and to prepare and file the necessary materials for the s. 11(b) Motion. The entire two months was part of the inherent time requirements of the case. It carried neutral weight in the s. 11(b) analysis.

[ 25 ] It can be seen that the thirteen month period, from August 11, 2009 until September 23, 2010, should be characterized as follows:

• one month of delay caused by the Crown being unavailable for a pre-trial meeting with defence counsel;

• one month of “neutral” delay to schedule and prepare for the judicial pre-trial;

• two months of “neutral” delay for counsel to schedule and prepare for the disclosure Motion;

• seven months of institutional delay;

• two months of “neutral” delay, after the disclosure Motion and before the trial, and for counsel to prepare and file the s. 11(b) Motion

(iii) Prejudice

[ 26 ] The total period of delay caused by the Crown and by lack of institutional capacity, as analyzed above, was eight months. This was the period of unreasonable or unjustified delay. Knazan J. calculated the total period of unjustified delay as eleven months, given his differing characterization of the various periods of delay and his omission of the final two months of delay, as already set out above. He went on to hold that:

Mr. Emanuel is presumed to suffer prejudice from this delay … In addition to any assumed prejudice, he submitted an affidavit describing how hard the delay has been on him. [Emphasis added].

[ 27 ] I disagree with the trial judge, that s. 11(b) prejudice can be “presumed” or “assumed” from eleven months of unjustified delay, and certainly not from eight months of unjustified delay. The law is that prejudice can be inferred from “a very long and unreasonable delay”, that is, from delay that is “substantially longer than can be justified on any acceptable basis”. See: R. v. Askov et al (1990), 1990 45 (SCC) , 59 C.C.C. (3d) 449 at 474 and 482-4 (S.C.C.); R. v. Morin (1992), 1992 89 (SCC) , 71 C.C.C. (3d) 1 at 23-4 (S.C.C.); R. v. Smith (1989), 1989 12 (SCC) , 52 C.C.C. (3d) 97 at 111 (S.C.C.). For example, prejudice can be inferred from unjustified delays that are “more than double the Morin guideline for institutional delay in the provincial courts”. See: R. v. Godin (2009), 2009 SCC 26 () , 245 C.C.C. (3d) 271 at 277 (S.C.C.).

[ 28 ] The systemic delay in this case was either under or within the Morin guidelines, whether calculated as seven months (as I calculate it) or ten months (as the trial judge calculated it). An additional one month of Crown delay cannot possibly convert delay that is within the guidelines into “very long” or “substantially longer” unjustified delay, from which prejudice can be inferred.

[ 29 ] As to actual prejudice, based on the Appellant’s affidavit, the trial judge accurately summarized the evidence on this point. He discounted some of it, holding that “concern about the insurance rates and the criminal record is as a result of the charge and not the delay”. He also noted that the worst prejudice suffered by the Appellant, by his own admission, was the three month administrative license suspension period, immediately after his arrest, which was not prejudice caused by delay. Nevertheless, Knazan J. concluded that there was some prejudice to security of the person interests “that is aggravated by the delay”. No findings were made concerning any prejudice to liberty interests or to fair trial interests. I will proceed on this same basis, given the trial judge’s obvious advantage in having heard the Appellant testify.

(iv) Balancing societal interests

[ 30 ] The trial judge made no mention of the societal interest in a trial on the merits and how to balance it in this case. Presumably he found it unnecessary to consider this factor, given that he was not persuaded that a violation of s. 11(b) had been made out, based on the four principal factors. I simply note that the societal interest in a trial on the merits was particularly strong in this case. See: R. v. Lahiry , 2011 ONSC 6780 at para. 89 .

(v) Conclusion

[ 31 ] Balancing all five relevant factors, this case could not possibly lead to a finding that s. 11(b) of the Charter had been violated. There was no more than eight months of unjustified or unreasonable delay and the evidence of prejudice was not strong. The facts of the case were aggravated and strongly inferred the need for a trial on the merits.

[ 32 ] In all these circumstances, the one error established by the Appellant caused no substantial wrong or miscarriage of justice. Knazan J. clearly arrived at the correct result when he dismissed the s. 11(b) Motion. I dismissed the appeal at the end of the hearing for these reasons.

M.A. Code J.

Date: February 17, 2012