ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 142/10
DATE: 20120118
B E T W E E N:
HER MAJESTY THE QUEEN Respondent – and – ROBERT TURNER Appellant
Debra Moskovitz , for the Crown/Respondent Amit Thakkore , for the Appellant
HEARD: January 12, 2012
KELLY J.
REASONS FOR DECISION
[ 1 ] On April 25, 2008 the Appellant, Mr. Robert Turner, was charged with impaired operation of a motor vehicle and refusing to provide a sample of his breath into an approved screening device. On April 23, 2010, Lipson J. dismissed the Appellant’s application for a stay of proceedings. On October 13, 2011, the trial judge convicted the Appellant of both counts. He imposed a sentence of the minimum fines and a fifteen-month driving prohibition.
[ 2 ] The Appellant raises four issues on his appeal:
a. Did the trial judge err in his analysis of the intake period and as such err in dismissing the Charter Application?
b. Did the trial judge err in finding that the Appellant suffered no prejudice resulting from the delay?
c. Did the trial judge err in convicting the Appellant of refusing to provide a breath sample?
d. Did the trial judge err in sentencing the Appellant to a driving prohibition in excess of the minimum 12-month period?
[ 3 ] For the reasons set out below, the appeal is dismissed.
a. Did the trial judge err in his analysis of the intake period and as such err in dismissing the Charter Application?
[ 4 ] On May 6, 2008, the information was sworn against the Appellant. The Appellant was convicted and sentenced on October 13, 2011.
[ 5 ] The period of time commencing from the swearing of the information to the first trial date of September 25, 2009 was approximately 16 months and 19 days. This length of time warranted inquiry.
[ 6 ] In analyzing the delay, the trial judge held that a period of 12 ¼ months of the total time was institutional or systemic delay. The Appellant submits that an additional two months should be added to that period of time, resulting in a stay. In particular, the Appellant submits that the period from July 24, 2008 to September 19, 2008 should be characterized as Crown delay rather than intake.
[ 7 ] Simply put, the Appellant submits that full disclosure had not been made as Counsel had requested and they were waiting for the production of an ICAD report. The Appellant submits that he was not in a position to conduct a proper pre-trial while awaiting disclosure of the ICAD report.
[ 8 ] It is my view that the trial judge did not err in attributing the two month period of July 24, 2008 to September 19, 2008 to the intake process and in fact, he was quite generous to the Appellant in doing so. Disclosure had been provided to the Appellant as early as the first court appearance on June 10, 2008. Further disclosure, in the form of a DVD was provided to the Appellant on the second appearance date of July 3, 2008. At that time Counsel for the Appellant indicated to the Court that the Appellant required an adjournment to allow for a Crown pre-trial to occur.
[ 9 ] Despite the representation that the adjournment was sought to allow for the Crown pre-trial, one did not occur. Instead, Counsel for the Appellant wrote to the Crown asking for further disclosure, including the ICAD report. The Crown responded to such a letter on August 1, 2008 advising the Appellant that it had been ordered.
[ 10 ] Between August 14, 2008 and September 19, 2008 (the date the first trial date was set), a Crown pre-trial and judicial pre-trial occurred, without the production of the ICAD report. Both of these pre-trials are quite properly described as functions that occur during the intake period.
[ 11 ] The Court of Appeal [1] and more recently, this Court [2] , has made it clear that disclosure need not be complete before dates are set for trial. In particular, the Court of Appeal has held that setting “a target date for a preliminary hearing even though more disclosure was anticipated is consistent with this court’s direction”. [3] Such a principle is equally applicable when setting a trial date.
[ 12 ] It is clear that outstanding disclosure should not be a bar to the participation of the accused in the pre-trial process or the setting of dates. I agree with the observation of the trial judge that the Crown had fulfilled its disclosure obligations by July 3, 2008. It was not necessary to delay the pre-trials or setting the trial date for further disclosure of the ICAD report. As I stated above, I conclude that the trial judge was correct in concluding that this two-month period of delay was intake. Accordingly, this ground of appeal is dismissed [4] .
b. Did the trial judge err in finding that the Appellant suffered no prejudice resulting from the delay?
[ 13 ] In deciding whether prejudice has been suffered by the Appellant, the Court is required to consider three interests: liberty ( i.e. the severity of the bail conditions); security of person (being free of stress and the cloud of suspicion that accompanies a criminal charge) and the right to make full answer and defence ( i.e. the delay that may impair the ability of an accused to examine witnesses or raise a defence). In certain cases, prejudice may be inferred from the length of the delay. [5]
[ 14 ] It is my view that the trial judge correctly considered the facts presented to him and the legal principles that applied. He concluded that there was no prejudice arising from the delay. He found that any prejudice suffered by the Appellant was due to the charges themselves. I do not find that he erred in doing so.
[ 15 ] There was no evidence that the delay affected the Appellant’s liberty as he was released on a promise to appear. There was also no evidence that the delay affected the right of the Appellant to defend himself against these charges. The real issue was whether the delay impacted the Appellant’s security of person.
[ 16 ] The trial judge referred to the affidavit filed by the Appellant and his testimony before him. He made the observation that in both his affidavit and in his viva voce testimony, the Appellant expressed concern about the implications of a conviction on his employment and his union leadership aspirations.
[ 17 ] The Appellant also submitted that the stress of the delay postponed his recovery from a workplace injury that occurred before he was charged (November, 2006) and then re-injured after he was charged (February, 2009). On this issue the trial judge found that it was difficult to assess this claim in light of the evidence before him. The trial judge referred to the fact that the Appellant was being treated by medical professionals and involved in a Pain Management Program. Notwithstanding that, there was no evidence to support the Appellant’s position that the stress of the delay has hindered his recovery from the leg injury
[ 18 ] The trial judge further found that no concerns about the Appellant’s health were ever communicated by Counsel to the Crown or to the Court. [6] The trial judge found that the specific prejudice was linked to the charge as opposed to the delay and without further evidence, he was not persuaded that a case for specific prejudice was made.
[ 19 ] It is my view that the trial judge did not make an overriding and palpable error in concluding that any prejudice suffered by the Appellant was suffered as a result of the charges and not the delay. Accordingly, this ground for appeal fails.
c. Did the trial judge err in convicting the Appellant of refusing to provide a breath sample?
[ 20 ] The Appellant submits that the trial judge committed an error in convicting him for refusing to provide a breath sample. The information alleges that the Appellant refused to comply with a demand made by P.C. Spencer. The Appellant submits that the Crown failed to prove that P.C. Spencer made a demand pursuant to s. 254(3) of the Criminal Code . I do not agree.
[ 21 ] The facts giving rise to this ground of appeal may be summarized as follows:
a. On April 25, 2008, P.C. Hembruff stopped the Appellant’s vehicle at approximately 2:53 a.m.
b. At 3:05 a.m., P.C. Hembruff formed the opinion that the Appellant’s ability to operate a motor vehicle had been impaired by alcohol.
c. At 3:15 a.m., P.C. Hembruff read the Appellant his rights to counsel and made a demand to provide samples of his breath into an approved instrument.
d. At 4:03 a.m., P.C. Hembruff advised P.C. Spencer, the qualified breath technician, about the circumstances of the arrest and told him that he had made a demand for the Appellant to provide a sample of his breath into an approved screening device.
e. P.C. Spencer explained and demonstrated the use of the approved instrument to the Appellant.
f. P.C. Spencer advised the Appellant that a refusal to provide a sample of his breath was a criminal offence. He explained that this offence was available should the Appellant refuse to blow verbally or by his actions.
g. P.C. Spencer explained to the Appellant that if he tried to blow into the instrument and the officer saw that he was not actually blowing into the instrument, he could be charged with refusing to provide a breath sample. A charge would result in the same consequences as that of blowing over the legal limit.
[ 22 ] In my view, the trial judge correctly found that P.C. Spencer had made a demand of the Appellant to provide a sample into an approved screening device. It has been held that no particular words are necessary to make a breath demand. This was made clear in the case of R. v. Ghebretatiyos [7] where Hill J. wrote:
This flexible yet functional approach, focusing on whether the vehicle driver understood he or she was required to give a sample of breath is consistent with that jurisprudence recommending a review of the entirety of the circumstances in deciding whether a breathalyzer technician has acted pursuant to a lawful demand[.] …[citations omitted]
[ 23 ] The trial judge correctly found that P.C. Spencer had reasonable grounds to make a demand of the Appellant. The arresting officer had informed P.C. Spencer that the Appellant had been arrested for impaired operation of a motor vehicle, he provided P.C. Spencer with the time of driving, the time of arrest and the time of the original demand.
[ 24 ] Further, it is clear from the evidence of P.C. Spencer that the Appellant understood that he was required to give a sample of breath and that the Appellant was clear about the consequences of failing to do so. For the above-mentioned reasons, this ground for appeal is dismissed.
d. Did the trial judge err in sentencing the Appellant to a driving prohibition in excess of the minimum 12-month period?
[ 25 ] Although the sentence appeal was not raised in the written materials, Crown Counsel agreed to make submissions and I agreed to entertain them. The Appellant submits that the driving prohibition ought to be reduced from 15 months to 12 months. He also suggested that the fine should be reduced.
[ 26 ] I agree with Crown Counsel: the trial judge took into consideration the appropriate sentencing principles in arriving at his conclusion. I do not see any error in the Appellant’s sentence and such a sentence is not outside the range for similar circumstances and convictions. It is fit and appropriate. Accordingly, this ground for appeal fails.
Conclusion
[ 27 ] For the abovementioned reasons, this appeal is dismissed.
Kelly J.
Released: January 18, 2012
COURT FILE NO.: 142/10
DATE: 20120118
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:
HER MAJESTY THE QUEEN Respondent – and – ROBERT TURNER Appellant
REASONS FOR DECISION Kelly J.
Released: January 18, 2012
[1] See: R. v. Schertzer , 2009 ONCA 742 , [2009] O.J. No. 4425 (C.A.) and R. v. Kovacs-Tatar , 2004 42923 (ON CA) , [2004] O.J. No. 4756 (C.A.) .
[2] R. v. Lahiry , 2011 ONSC 6780 , [2011] O.J. 5071 (S.C.J.) at paras. 108-111 .
[3] See: R. v. Schertzer , supra, at paras. 93 and 94 .
[4] The trial judge considered the period of time between the setting of the first trial date on September 19, 2008 to the first trial date of September 25, 2009 to be systemic delay. However, it has now been made clear pursuant to R. v. Lahiry , supra and R. v. Tran , 2012 ONCA 18 that a period of one to two months in a case of this nature should be considered preparation time and not systemic delay. If such a consideration had been made in this case, the systemic delay could have been 10 ¼ or 11 ¼ months.
[5] See: R. v. Godin , 2009 SCC 26 , [2009] S.C.J. No. 26 at paras. 30-31 .
[6] Counsel for the Appellant brought an adjournment application of the first trial date scheduled for September 25, 2009. On September 28, 2009 the second trial date was set for March 12, 2010. Counsel for the Appellant waived the period of approximately 16.5 months between these two dates.
[7] [2000] O.J. No. 4982 (S.C.J.) at para. 20