ONTARIO SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 204/09
DATE: 20120502
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – ERNESTO LAMACCHIA Appellant
David A. Mitchell, for the Crown
Deepak B. Paradkar, for Mr. Lamacchia
HEARD: January 13, 2012
TROTTER J.
REASONS FOR JUDGMENT
INTRODUCTION
[1] The appellant was charged with impaired driving and “over 80” on March 23, 2008. On October 29, 2009, approximately 19 months later, he was found guilty and convicted on the “over 80” charge by the Honourable Madam Justice B. Brown of the Ontario Court of Justice.
[2] The appellant challenges the trial judge’s dismissal of his application under s. 11 ( b ) of the Charter . He also argues that the trial judge erred in concluding that the police had reasonable grounds for his arrest. For the reasons that follow, I conclude that the appeal must be dismissed.
UNREASONABLE DELAY
[3] I do not intend to set out a detailed, appearance by appearance, chronology of how this case progressed through the system. Both counsel accept the history of the case that is set out in the trial judge’s thorough Reasons for Judgment. Moreover, the issues on appeal really come down to an examination of a couple of events that occurred during the proceedings.
[4] The trial judge found that the institutional delay in this case was approximately nine months. This comprised the time period from the set date appearance to the first trial date (June 4, 2008 to January 21, 2009), and then another one-month period (June 8 to July 9, 2009) that was required because of the unavailability of a Crown witness. As discussed below, the trial judge characterized other delays that arose in the proceedings as part of the inherent time requirements of the case. I agree with how she characterized these periods of time.
[5] One of the first delays arose because of what transpired on the first trial date (January 29, 2009), when trial counsel for the appellant (not Mr. Paradkar) brought a motion to quash the Information because the form of release was not properly confirmed pursuant to s. 508 of the Criminal Code . This motion was not brought on notice. After legal argument that day, the trial judge needed time to consider one of the authorities relied upon by the appellant, which could not be tracked down. [1] The trial judge also required time to consider the appellant’s arguments and other authorities. Accordingly, the case was adjourned to February 25, 2009, on the agreement of both sides. When the case resumed on that date, other authorities were filed and further submissions were made by both parties. At the conclusion of submissions, the learned trial judge mentioned that she was “overwhelmed” with other obligations and adjourned the case until April 3, 2009 for judgment on the motion. No target continuation date of the trial was set in the meantime. On April 3, 2009, in thorough, written Reasons for Judgment (see [2009] O.J. No. 1340 ), the trial judge dismissed the motion concerning s. 508 of the Criminal Code .
[6] I can find nothing wrong with the time that the trial judge took to decide the s. 508 issue, nor with how she characterized it in the s. 11( b ) framework. The s. 508 issue has its roots in the 30-year-old decision of the Court of Appeal in R. v. Gougeon (1979), 1980 2842 (ON CA) , 55 C.C.C. (2d) 218 (Ont. C.A.). The courts in this province have since been divided on whether defects in process, such as the one alleged in this case, justify quashing an Information as a nullity. This is illustrated in a sample of recent cases from this Court: see R. v. Smith , supra ; R. v. Duran , 2011 ONSC 7346 () , [2011] O.J. No. 5664 (S.C.J.); R. v. Cook , [2011] O.J. No. 5752 (S.C.J.) ; R. v. Vaitheesvaran , [2012] O.J. No. 900 (S.C.J.) ; and R. v. Millar , 2012 ONSC 1809 () , [2012] O.J. No. 1276 (S.C.J.). The issue is far from straightforward. The trial judge was justified in taking the time that she did to consider the issue.
[7] Generally speaking, the period of time a judge takes to prepare reasons should be considered to be part of the inherent time requirements of the case. Within reasonable limits, it is desirable that judges take the time that they need to prepare carefully reasoned decisions. Considered reasons enhance the quality of justice in the criminal process in many ways and must be encouraged: R. v. M. (R.E.) (2008), 2008 SCC 51 () , 235 C.C.C. (3d) 290 (S.C.C.). As I have said, the issue that Brown J. was called upon to decide was complicated. The time she took to dispose of this issue was not unreasonable: see R. v. Wong , 2012 ONCA 286 , at para. 3 . Moreover, it is not reasonable to expect judges in a busy trial court, such as the Ontario Court of Justice, to drop or re-arrange all other obligations when it becomes necessary to take time to consider a legal issue that surprisingly arises during a trial.
[8] Moreover, and contrary to the appellant’s submissions, it made no sense to set a target trial date when the matter was adjourned from February 25, 2009 to April 3, 2009. As a remedy on the s. 508 issue, the appellant requested that the Information be quashed. If the motion had succeeded, there would have been no need for a further court date. Reserving a date in advance would have taken this time away from another accused person in search of a trial date, perhaps someone in custody. Also, defence counsel did not request that a target date be set.
[9] Lastly, while defence counsel was not required to provide notice of his s. 508 motion, some of the delay involved with pursuing this motion could have been avoided had defence counsel requested more time for the case (more than the single day that was requested) when originally setting a date for trial. The (legitimate) tactical decision not to put the Crown on notice of the potential problem with the Information in this case, and not building more time into the anticipated length of the trial, ended up adding time to the proceedings, time that should not be characterized as institutional delay.
[10] After the trial judge delivered her ruling on the s. 508 issue, a date was set to continue with the trial proper. Defence counsel started the discussion by saying “I am looking at June dates.” And this is precisely what he got – the trial coordinator offered June 8, 2009, which defence counsel accepted. No portion of this time period can be properly characterized as institutional delay: see R. v. Lahiry , 2011 ONSC 6780 () , [2011] O.J. No. 5071 (S.C.J.), at paras. 25-37 and R. v. Tran , 2012 ONCA 18 , at para. 30 .
[11] As it turned out, June 8, 2009 was not plausible for the Crown due to the unavailability of a police officer. On application by the Crown, the case was adjourned to July 9, 2009. The trial judge was correct to characterize this block of time as institutional delay.
[12] The evidence on the trial proper commenced on July 9, 2009. The appellant wished to argue that proceedings should be stayed under s. 11( b) of the Charter , based largely on what had occurred in relation to the delay occasioned by disposing of the s. 508 issue. However, defence counsel had not obtained all of the relevant transcripts for this motion. It would appear that both counsel were prepared to agree on certain facts for the purposes of this motion. The trial judge insisted that the relevant transcripts be obtained. Consequently, argument on the s. 11( b ) motion was adjourned to a later time (September 27, 2009). In the meantime, the trial judge heard evidence and submissions concerning the ss. 8 and 10( b ) of the Charter . At the conclusion of these submissions, counsel encouraged the trial judge to make an oral ruling in early August, with reasons to follow. The trial judge did not agree with this manner of proceeding and the case was adjourned to September 29, 2009 for a ruling on the ss. 8 and 10(b) Charter issues.
[13] On September 29, 2009, the trial judge advised counsel that she had ordered transcripts of what transpired on July 9, 2009, but had yet to receive them. Consequently, she was not ready to deliver her reasons on the ss. 8 and 10( b ) issues. Nevertheless, the trial judge heard argument on the s. 11( b ) motion that day and then adjourned her ruling on all outstanding issues until November 3, 2009. As it turned out, the case was brought forward to October 29, 2009 and all motions were dismissed. Thorough reasons were provided on all three issues.
[14] The appellant argues that unreasonable delay was occasioned because of several unnecessary adjournments, especially those dealing concerning the Charter applications. I agree that things could have gone smoother than they did, but defence counsel at trial must bear some of that responsibility. The trial judge was perfectly entitled to insist that counsel file all relevant transcripts that related to the s. 11( b ) application. I am not in a position to second guess that decision. The delay caused by not having ordered the transcripts in the first place cannot inure to the benefit of the accused in the s. 11( b ) calculus.
[15] Moreover, the appellant attempts to dictate time limits for judges to deliver rulings on so-called “routine” matters such as those with which the trial judge was faced. He proposes 10-14 days as a limit. I reject this suggestion. First of all, as I have noted above, the s. 508 issue was far from routine. Secondly, s. 11( b ) applications are often quite technical and require time to consider. Thirdly, with respect to the ss. 8 and 10( b ) issues, it is not appropriate for a judge on appeal to decide whether a trial judge should have announced a conclusion with reasons to follow as opposed to reserving until reasons are complete. This difficult decision is within the discretion of all judges.
[16] The appellant argues that the trial judge erred in her assessment of prejudice. I disagree. The appellant swore an affidavit. He was cross-examined. The trial judge fairly characterized the appellant’s stress and anxiety concerning the proceedings as largely due to the fact of having been charged with an offence (as opposed to the delay) and to the other stressful events that were happening in his life ( i.e. , a marital breakdown and loss of employment). The trial judge also rightly recognized that the appellant was aware that any motions that were brought during the proceedings, such as the one concerning s. 508 of the Criminal Code , were his choice and would occasion further delay and expense. Lastly, the trial judge noted that the appellant did not suggest that any fair trial issues arose from the delay in the proceedings. In short, there is nothing in the trial judge’s conclusions on the issue of prejudice that runs of afoul of R. v. Godin (2009), 2009 SCC 26 () , 245 C.C.C. (3d) 271 (S.C.C.).
[17] In conclusion, the learned trial judge did not err in failing to find a breach of s. 11( b ) of the Charter . Given her reasonable conclusions on the issue of claimed prejudice, the approximately nine months of institutional delay did not warrant a stay of proceedings: see R. v. Morin (1992), 1992 89 (SCC) , 71 C.C.C. (3d) 1 (S.C.C.).
UNREASONABLE SEARCH AND SEIZURE
[18] The appellant also argues that the learned trial judge erred in failing to find that the breath demand made of the appellant was unlawful because the officer lacked reasonable grounds, contrary to s. 8 of the Charter . This argument is based on certain omissions from the officer’s notes and from parts of his trial testimony, during which he seemed to become confused in articulating his understanding of how the approved screening device worked (“over 80 milligrams” vs. “over .08”). I did not call on the Crown to respond to this argument. Ultimately, this argument boils down to an assertion that the trial judge erred in her assessment of the officer’s credibility. The trial judge dealt with this credibility issue in a reasonable manner. On this record, I am in no position to reach a different conclusion: see R. v. M. (R.E.) , supra , at p. 306 and R. v. Wadforth (2009), 2009 ONCA 716 () , 247 C.C.C. (3d) 466 (Ont. C.A.), at p. 482. This ground of appeal must fail.
CONCLUSION
[19] The appeal is dismissed.
TROTTER J.
Released: May 2, 2012
COURT FILE NO.: 204/09
DATE: 20120502
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN Respondent – and – ERNESTO LAMACCHIA Appellant
REASONS FOR JUDGMENT TROTTER J.
Released: May 2, 2012
[^1]: Trial counsel relied upon R. v. Smith , [2008] O.J. No. 381 (S.C.J.) . In this decision, Belobaba J. upheld the decision of Mr. Justice M. Green of the Ontario Court of Justice. The trial judge was interested in examining the reasons of Green J., which were not immediately available.