ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 72/11
DATE: 20120313

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – RICHARD GRANT Appellant

David A. Mitchell, for the Crown

Norm Stanford, for Richard Grant

HEARD: January 13, 2012

TROTTER J.

REASONS FOR JUDGMENT

INTRODUCTION

[ 1 ] This appeal challenges a trial judge’s refusal to grant an adjournment requested by the defence when counsel had neglected to subpoena a police officer whose evidence might have had some bearing on a tenuous Charter application. The appellant brought a motion to stay proceedings in a drinking and driving case based on an alleged “over holding” ( i.e. , the police kept him in custody too long while waiting for him to sober up). For the reasons that follow, I find that the trial judge did not err in refusing the adjournment request. Moreover, I reject the claim that the failure to subpoena the officer rose to the level of ineffective assistance of counsel.

FACTS

(a) The Offences and Events at the Station

[ 2 ]For the purposes of disposing of the issues on this appeal, the factual foundation is straightforward. On November 29, 2008, at about 9:00 p.m., the arresting officer observed a vehicle (driven by the appellant) that appeared to have an expired validation sticker. A computer check confirmed that this was the case. The vehicle was pulled over. The officer noticed that the appellant had excessively watery eyes and was responding slowly. During the conversation with the police officer, the appellant demonstrated increasingly profound signs of impairment, all the while denying that he had anything to drink. The appellant had difficulty focusing on the questions he was asked. He kept repeating the sentence “I just moved back to Canada.” When asked to walk to a police cruiser that was 10 metres away, the appellant had to hold on to his truck in order to maintain his balance, and stumbled twice.

[ 3 ]When the officer and the appellant arrived back at the station, the officer said that the appellant was unsteady on his feet. As the officer said: “I feel that if I had released the accused, he would have fallen.” However, video footage from the station did not confirm this. The appellant was placed in a private booth for the purposes of exercising his right to counsel. When the arresting officer opened the door at the end of the consultation, he noticed urine on the floor. The appellant was taken to the breathalyzer room. After numerous feigned attempts, the appellant provided two samples of his breath (one at 10:35 p.m., and the other at 10:56 p.m.) that generated readings of 180 and 190 mgs of alcohol in 100 ml of blood, respectively. During his time in the breath room, the appellant was uncooperative. He also said nonsensical, out of context things like, “I love my country.”

[ 4 ]After the samples were taken, the appellant was charged with impaired driving, “over 80” and mischief (for urinating on the floor of the police station). The arresting officer took the appellant to another police detachment where he was detained for his own safety. As the officer stated, due to his high blood-alcohol readings, he believed that the appellant “was still impaired by alcohol” and the officer “was not confident that he would be safe if released” at that time. The officer lodged the appellant in a cell at 12:14 a.m. He subsequently returned to the appellant’s cell at 12:55 a.m. to serve him with documentation. That was the last time that the arresting officer dealt with the appellant.

[ 5 ]There was no direct evidence adduced at trial (or as fresh evidence on appeal) concerning the time of the appellant’s eventual release from the police station. However, in the appellant’s Notice of Application document filed at trial, it was stated that the appellant signed a Promise to Appear at 8:50 a.m. on November 29, 2009.

(b) The Adjournment Request

[ 6 ]The appellant’s trial commenced on April 13, 2011 before the Honourable Mr. Justice A. Lacavera of the Ontario Court of Justice. At the outset of the trial, defence requested an adjournment because his office had failed to subpoena the Staff Sergeant in charge of the station where the accused was detained overnight. Moreover, counsel failed to contact the Crown ahead of time to seek assistance in procuring the attendance of this officer. The trial judge did not rule on the adjournment application at that point. He said: “Well, I will reserve on your application and see where this goes.”

[ 7 ]After the evidence of the arresting officer, defence counsel renewed his application for an adjournment. The trial judge denied the application, noting that no effort was made by defence to secure the attendance of the officer at trial.

[ 8 ]Following this ruling, no defence was called on behalf of the appellant. Counsel moved directly to submissions, addressing a number of other Charter issues, as well as whether the Crown had proved the appellant’s guilt to the requisite standard. The Charter applications were dismissed and the learned trial judge found the appellant guilty on the impaired driving and “over 80” charges. The impaired driving count was conditionally stayed. As no submissions were made regarding the appellant’s urination on the floor of the police station, the appellant was found not guilty on that count.

(c) The Fresh Evidence

[ 9 ]An affidavit sworn by the appellant’s trial counsel (not Mr. Stanford) was appended to the Appellant’s Factum. There was no formal application to adduce fresh evidence on this appeal, as there should have been. Nevertheless, the Crown was content to address the issue on its merits.

[ 10 ] The affidavit of trial counsel indicates that he picked up the appellant’s file from an associate in his firm shortly before the trial date. The affidavit does not indicate how close to the trial date this occurred. Moreover, while the affiant acknowledges that he realized a witness had not been subpoenaed, no explanation is given for not contacting the Crown ahead of time to attempt to rectify this problem, rather than waiting until the trial date. The affidavit does not address the merits of the appellant’s claim under s. 9 of the Charter . There is no indication of what evidence the Staff Sergeant might have been able to provide. Significantly, there is no affidavit sworn by the appellant setting out his version of events.

ANALYSIS

(a) Introduction

[ 11 ] It is important to place the issues on this appeal in their proper context. At the heart of this appeal is an assertion that persons arrested in drinking and driving cases are entitled to Charter relief, including a stay of proceedings, if they are held for too long afterwards while they sober up. Proving a s. 9 Charter breach in this context is one thing; establishing that such a breach ought to result in a stay of proceedings is quite another. Applying R. v. O’Connor (1995), 1995 51 (SCC) , 103 C.C.C. (3d) 1 (S.C.C.) to this context, the Court of Appeal has held that, when the breach has nothing to do with the investigation or evidence-gathering process, or when the breach does not impact on the fairness of the trial, the “clearest of cases” requirement necessary to obtain a stay of proceedings will not be met: R. v. Iseler (2004), 2004 34583 (ON CA) , 190 C.C.C. (3d) 11 (Ont. C.A.), at pp. 17-18. I am aware of no binding authority that undermines or modifies this holding in Iseler . The appellant’s grounds of appeal must be evaluated against this backdrop.

(b) The Adjournment Request

[ 12 ] Trial judges enjoy considerable discretion concerning routine matters of trial management such as adjournment requests. These types of decisions are afforded deference on appeal: see Darville v. The Queen (1956), 1956 463 (SCC) , 116 C.C.C. 113 (S.C.C.). However, in appropriate cases, where a fair trial or the appearance of fairness is undermined by the failure to grant an adjournment, an appellate court may intervene: see R. v. Nichols (2001) 2001 5680 (ON CA) , 148 O.A.C. 344; R. v. McCallen (1999), 1999 3685 (ON CA) , 43 O.R. (3d) 56 (C.A.); and R. v. Hazout (2005), 2005 30050 (ON CA) , 199 C.C.C. (3d) 474 (Ont. C.A.). This is not such a case.

[ 13 ] Trial counsel for the appellant was given a full opportunity to make submissions on why his client was entitled to an adjournment. The trial judge did not err in expressing concern about trial counsel’s failure to secure the attendance of the Staff Sergeant. Counsel provided little by way of explanation as to why the officer had not been subpoenaed. More importantly, defence counsel did not provide the trial judge with any sense of what the officer might be expected to say if he were to testify. In a very real sense, the trial judge was required to decide the adjournment question in a factual vacuum. Even now, at this stage of the proceedings, there is still no indication of what evidence (if any) the officer might be able to provide on the issue of over holding.

[ 14 ] For reasons that are unclear, once the adjournment request had been refused, the application for a stay of proceedings was all but abandoned. The appellant did not testify, even though he bore the burden of proof on his Charter application. No affidavit from the appellant has been tendered on this appeal. Perhaps he has no memory of what transpired in the hours following his breath tests. However, had the appellant testified and made out a prima facie case for a breach of s. 9 of the Charter , the application for an adjournment might have been renewed, and perhaps received in a different light by the trial judge. Alternatively, in these circumstances, Crown counsel might have decided to seek an adjournment in order to respond to the appellant’s evidence on this issue by calling the officer who had not been subpoenaed: see R. v. Price , 2010 ONSC 1898 () , [2010] O.J. No. 1587 (S.C.J.), at para. 83 .

[ 15 ] This ground of appeal is dismissed.

(c) Ineffective Assistance of Counsel

[ 16 ] The claim of ineffective assistance of counsel fails for similar reasons. In order to succeed on a claim of ineffective assistance of counsel, it must be demonstrated that counsel’s acts or omissions constituted incompetence and that a miscarriage of justice resulted: see R. v. Joanisse (1995), 1995 3507 (ON CA) , 102 C.C.C. (3d) 35 (Ont. C.A.), at p. 59. As Major J. wrote for the Court in R. v. B. (G.D.) (2000), 2000 SCC 22 () , 143 C.C.C. (3d) 289 (S.C.C.), at p. 298:

Miscarriages of justice may take many forms in this context. In some instances, counsel's performance may have resulted in procedural unfairness. In others, the reliability of the trial's result may have been compromised.

In those cases where it is apparent that no prejudice has occurred, it will usually be undesirable for appellate courts to consider the performance component of the analysis. The object of an ineffectiveness claim is not to grade counsel's performance or professional conduct. The latter is left to the profession's self-governing body. If it is appropriate to dispose of an ineffectiveness claim on the ground of no prejudice having occurred, that is the course to follow… [emphasis added]

With reference to these underscored passages, I propose to follow the same approach and restrict my comments to the issue of prejudice.

[ 17 ] For many of the same reasons given above, it has not been demonstrated that the failure of defence counsel to subpoena the officer resulted in any miscarriage of justice. Once again, there is no indication that the officer would have provided any evidence that was helpful to the appellant. Indeed, there is no basis to conclude that the appellant was in a position to provide any evidence helpful in his own cause on this issue. There is no indication that the appellant was dealt with unfairly by the police. The available evidence suggests that he was detained because he was extremely intoxicated and posed a danger to his own safety.

[ 18 ] Moreover, and as noted above, the standard to be met in order to obtain a stay of proceedings as a just and appropriate remedy under s. 24(1) of the Charter is exceedingly high in this context. There is not even a hint that any evidence exists, from the appellant or the officer who was not subpoenaed, that this standard would have been met. There is no suggestion that, if there was any over holding, it was connected to any evidence that was gathered against the appellant or that it impacted on the fairness of his trial. Indeed, the available evidence suggests that the decision to hold the appellant was amply justified, especially with regard to: the appellant’s very high readings (180 and 190 mgs); his presentation at roadside; his nonsensical responses to the arresting officer and the breathalyzer technician; and the fact that he urinated on the floor of the police station while consulting with counsel. From all accounts, and especially the breathalyzer readings, it would have taken a considerable period of time before it would have been safe to release the appellant. I have not been persuaded that evidence from the Staff Sergeant would have contributed to a more favourable portrayal of the situation from the appellant’s perspective.

[ 19 ] This ground of appeal must also be dismissed.

CONCLUSION

[ 20 ] For the reasons given above, the appeal is dismissed.

TROTTER J.

Released: March 13, 2012

COURT FILE NO.: 72/11
DATE: 20120313
ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent – and – RICHARD GRANT Appellant

REASONS FOR JUDGMENT TROTTER J.

Released: March 13, 2012