SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: SC171/11
DATE: 20120810
RE: R. v. Fernando Cabading
BEFORE: Clark J.
COUNSEL:
Richard Nathanson, for the Respondent
Adam Little, for the Appellant
HEARD: August 3, 2012
ENDORSEMENT
INTRODUCTION
[ 1 ] This is a summary conviction appeal. The appellant was convicted by Wong J. of refusing, without reasonable excuse, to provide a breath sample. He appeals on the sole ground that Wong J. erred by refusing to stay the prosecution for delay.
THE ISSUES
[ 2 ] The appellant contends that the trial judge erred in the way in which she characterized three particular periods of time, namely, (i) the period from arrest to first appearance, (ii) the period between the set date and the first trial date, and (iii) the period between the first trial date and, the date to which the matter had to be adjourned for a continuation when it did not finish on the day initially scheduled. Correct attribution of these periods would, the appellant contends, raise the delay to a constitutionally unacceptable level, such that a stay of proceedings is mandated. Counsel also argues that Wong J. erred by virtue of a fatal misstatement of the law concerning the test for granting a stay on the basis of s. 11(b) of the Charter .
ISSUE #1: DELAY FROM ARREST TO FIRST APPEARANCE
Position of the Appellant
[ 3 ] The appellant takes issue with the six week delay from the date he was arrested until his first court appearance. It is agreed that this is a standard period in Toronto. While he acknowledges that some intake period is required in any criminal case, the appellant contends that six weeks is unacceptably long in a prosecution as straightforward as this. Accordingly, the appellant argues, some portion of that period time should be attributable to the state.
[ 4 ] The appellant relies on affidavit evidence put before the trial court demonstrating that the delay between arrest and first appearance is approximately three weeks in the neighbouring jurisdiction of Peel Region. The Crown should be held to that standard, the appellant argues.
Position of the Respondent
[ 5 ] The respondent Crown argues that six weeks is the norm in Toronto and is not unduly long when one considers that not only does the prosecution have to assemble the case for disclosure purposes, which depends on materials being forwarded to the Crown by the police service, but the accused needs a reasonable period of time in which to retain counsel.
[ 6 ] As for the evidence concerning Peel Region, Crown counsel argues that it is of no consequence because, apart from the bare fact that the time from arrest to first appearance is on average approximately half the length of the same period in Toronto, the affidavit evidence does not provide any means of making a meaningful comparison between the two jurisdictions.
Discussion
[ 7 ] To begin, I note that in R. v. Lahiry , 2011 ONSC 6780 , at paragraph 22 , relying on R. v. Morin (1992), 1992 89 (SCC) , 71 C.C.C. (3d) 1 (S.C.C.), at p. 18, and R. v. Meisner (2004), 2004 30221 (ON CA) , O. J. No. 3812 (C.A.), at paras. 30-32 , Code J. recently held that six weeks was a reasonable time between arrest and first appearance. [1]
[ 8 ] As noted above, the Crown argues that some reasonable period of time is required not only to allow for disclosure to be made, but for the accused to be able to retain counsel. For proof of that proposition, one need look no further than this case. Although it is agreed that disclosure was not complete, a glance at the first appearance transcript reveals that some measure of disclosure was available. As noted by Wong J. at paragraph 65 of her reasons for judgment, the matter went over a further four weeks at the request of the appellant (represented on that occasion by duty counsel) because the appellant was “going to be retaining counsel privately.” As Wong J. noted, at paragraph 66 of her reasons for judgment, it was not until the appellant’s fifth court appearance on July 13, 2010, that he was prepared to set a trial date.
[ 9 ] In my opinion, no prejudice arose from this period of delay and the trial judge was correct to characterize it as neutral.
[ 10 ] As for the appellant’s argument that Wong J. erred by ignoring the statistics from the Judicial District of Peel filed in support of the application, I disagree that this is what the trial judge did. She expressly alluded to the statistics at paragraph 64 of her reasons. As opposed to ignoring the evidence, by pointing out that the appellant did not retain counsel until well after the initial appearance, she was indicating, albeit indirectly, that the evidence was of no relevance.
[ 11 ] The Crown goes further, arguing that the Peel evidence was of little utility in any event because there was no evidence by means of which the trial judge could make the required comparison between Peel and Toronto respecting “the geography, the population and the material resources of the province and district”: R. v. Askov , 1990 45 (SCC) , [1990] 2 S.C.R. 1199, at para. 60 . I agree. The simple fact that Peel Region abuts Toronto geographically does not address the other issues mentioned in Askov . Absent that information no meaningful comparison can be made.
ISSUE #2: DELAY FROM SET DATE TO FIRST TRIAL DATE
Position of the Appellant
[ 12 ] The appellant contends that he was disadvantaged at trial in arguing the issue of how the time from set date to trial ought to be considered because the trial judge indicated that, subject to what she heard from the Crown, she was prepared to find that the time was institutional delay. Thus, according to appellate counsel, counsel did not pursue the argument as he would have done but for the trial judge’s comment and the trial Crown’s concession that this period was to be considered as institutional delay.
Position of the Respondent
[ 13 ] The respondent argues that the appellant was not disadvantaged because, despite the trial judge’s comment, trial counsel spent a good deal of time arguing this issue and has had a full opportunity to argue the matter on this appeal.
Discussion
[ 14 ] In my view, the appellant’s argument that, by virtue of Wong J.’s comment and the Crown’s concession, he was denied a proper opportunity to argue this issue is without merit. Defence counsel endeavoured to persuade the court to accept that the time was to be considered as institutional delay and, with the benefit of the Crown’s erroneous concession in that behalf, he succeeded. I fail to see how it can be said that he was denied a full and ample opportunity to accomplish what he intended to accomplish, when in point of fact he accomplished just that. The question is whether what he managed to accomplish can withstand appellate scrutiny.
[ 15 ] Wong J.’s decision in the case at bar was rendered before Code J.’s decision in Lahiry , where Code J. indicated that, in analysing the intake period in the 11(b) context, the court ought not to simply assume that defense counsel are immediately ready for trial as of the set date, such that time from the set date to trial is automatically attributed against the Crown. In the course of that discussion, Code J. referred, at paragraph 31, to what he characterized as “some uncertainty in the trial courts on this point” and went on to remark that the problem has been compounded by the fact that set date courts do not uniformly require defense counsel to put on the record their first available dates for trial. In light of the Crown’s concession on this point, it is not surprising that the trial judge considered it as institutional delay. With respect, however, all concerned erred in so doing.
[ 16 ] While he acknowledges that the Court of Appeal earlier held that it was not bound by an erroneous concession by Crown counsel at trial, [2] appellant’s counsel nonetheless places great emphasis on the court’s more recent decision in R. v. Steele , 2012 ONCA 383 , wherein Rosenberg J.A. declined to reassess Crown counsel’s concession that the time from set date to the preliminary inquiry amounted to institutional delay. As between Tran and Steele , counsel argues that the facts in this case more closely mirror the latter case, such that this court should follow Steele and decline to reassess the time earlier conceded by Crown counsel to be institutional delay. I disagree.
[ 17 ] The facts in Steele were very different from the case at bar. The record in that case demonstrated that counsel indicated that the dates offered were the first available to the court and, whereas Crown counsel attributed some delay to defence counsel’s retainer issues, there was nothing to indicate that the delay had anything to do with the unavailability of defence counsel. Indeed, defence counsel had expressly indicated that he was prepared to proceed irrespective of whether his retainer was perfected. Moreover, unlike here, defence counsel had expressly put on the record in Steele that “11(b) [was] an obvious concern”.
[ 18 ] In Steele , Rosenberg J.A., speaking for the court, found Code J.’s analysis in Lahiry to be persuasive. At paragraph 19, Rosenberg J.A. reiterated Code J.’s assertion in Lahiry that “systemic or institutional delay only starts to run when the parties are ready for trial but the system cannot accommodate them” and, accordingly, that “the time necessary for counsel to prepare for the preliminary inquiry or trial must be taken into consideration as part of the inherent time requirements of the case.”
[ 19 ] At paragraph 19, Rosenberg J.A. also stated that “defence counsel should put on the record their first available dates to conduct the judicial pretrial and the preliminary inquiry or trial, as the case may be.” In this case, however, all appellant’s counsel, Mr. Rabinovitch, said on July 13, 2010, was that May 31, 2011, was the first date offered by the Trial Coordinator’s Office and that, “we would have had earlier dates available.” The record does not reveal, however, how much earlier defence counsel could have been ready to proceed.
[ 20 ] I would therefore distinguish Steele and find that the principles set out in Tran [3] should govern in the case at bar.
[ 21 ] I am persuaded that the trial judge erred in attributing the entire period from July 13, 2010, to May 31, 2011, to institutional delay. Moreover, unlike the situation in Steele , in this case I consider it appropriate to permit the Crown to disavow its earlier erroneous concession and to ask this court to consider the issue anew.
[ 22 ] The question therefore arises as to how much time should be considered as institutional delay. In light of the fact that the appellant’s trial counsel did not indicate with any precision when he could have been available, this court is left to decide the matter in a vacuum. One must allow enough time to reasonably expect to find a clear day on a busy counsel’s calendar and some amount of time to allow counsel the opportunity to prepare for a fairly what, in relative terms at least, is a fairly straightforward case.
[ 23 ] The appellant argues that, in the event this court were to take the view that some of this interval should be attributable to the inherent requirements of the case, it should be no more than one month. He relies for this proposition on two decisions of Kelly J. [4] On the facts of this case, I respectfully disagree with this submission.
[ 24 ] In my view, given the uncertainty on this record of when counsel would have first been available for trial, two months would seem a more reasonable time frame. While I recognize that that time frame is arbitrary, the responsibility for that lies at the feet of trial counsel, who, as noted above, did not bother to put on the record the earliest date at which he could be ready for trial, as the court in Tran recently indicated should be done.
ISSUE #3: DELAY FROM FIRST TO SECOND TRIAL DATE
Position of the Appellant
[ 25 ] The appellant complains that the trial judge erred by attributing the two months from the first trial date to the continuation date as neutral. Counsel argues that this should have been attributed to the Crown because it was the Crown’s fault that the matter was not completed on the first trial date.
Position of the Respondent
[ 26 ] The respondent contends that the trial judge was correct to characterize the delay as neutral because the appellant was responsible, if not totally, in some considerable degree at least, for the matter not concluding on the first trial date.
Discussion
[ 27 ] To begin, the Crown conceded that the time between the two trial dates was institutional delay; the appellant contends that the Crown was right to do so. Again, I disagree.
[ 28 ] On the one hand, it is quite evident that the court dealt with other matters at various points during the appellant’s trial. Although certain times are noted in the two transcripts, it is, nevertheless, unclear just how much time was spent dealing with these other cases. [5] These sorts of interruptions are, of course, a commonplace in a busy Ontario Court of Justice courtroom and any counsel who practices in that court with any regularity understands this reality. Indeed, it is so common that, in my respectful view, although minimal perhaps, some amount of time loss due to these sorts of interruptions ought to be factored into the original estimate of time required when a trial date is set. After all, as Doherty J.A. made clear in R. v. Allen , 1996 4011 (ON CA) , [1996] O.J. No. 3175 (C.A.), at paragraph 27 :
No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases.
[ 29 ] On the other hand, the Crown points out that a certain amount of time was lost on May 31, 2011, due to appellant’s trial counsel being obliged to address a different criminal case that had been adjourned to that date by another lawyer in trial counsel’s firm.
[ 30 ] On May 26, 2011, a Mr. Mass appeared as counsel before Foster J., seeking an adjournment in the matter of R. v. Santharalingam , then scheduled for trial on June 7, 2011. The adjournment was opposed by the Crown and, because Wong J. had been case managing the matter, Foster J. indicated that he thought it best to put the matter before Her Honour. Learning of Foster J.’s intention, Mr. Mass then asked whether Wong J. was available on either May 30 or
31, because, in his words, “those [were] the only two days available [that] week that … at least a member of [his] firm [would be] present.” [6] Mr. Mass then went on to say, “Tuesday in 402 court is actually preferable because one of my associates…is actually going to be in 402…court that day.” [7]
[ 31 ] As the transcript of the Suntharalingam matter makes abundantly clear, in addition to the appellant’s trial, it was one of the things that Wong J. had to deal with on May 31, 2011. That was so precisely because trial counsel’s colleague, Mr. Mass, had purposely put Suntharalingam to that date, knowing that trial counsel, Mr. Tsang, would be there to deal with it. In other words, it was done to convenience counsel’s firm. More to the point, although Mr. Tsang was not originally responsible for the Suntharalingam matter being adjourned to May 31, 2011, nonetheless he assumed that responsibility when he agreed to deal with it to the prejudice of the appellant’s matter. Obviously, dealing with the Suntharalingam matter would result in him being unavailable, for at least some period of time, to conduct the appellant’s trial.
[ 32 ] In connection with the Suntharalingam matter, the transcript reveals that the court started at 10:12 a.m. [8] The adjournment application was then argued, following which Wong J. sent Mr. Tsang to do a judicial pre-trial. The transcript reflects that the matter was stood down at 10:22 a.m. [9]
[ 33 ] The transcript reveals that the Cabading matter was next spoken to at 10:27 a.m., but Mr. Tsang was absent from the courtroom, presumably involved in arranging or conducting the pre-trial. What the transcript also reveals is that Mr. Tsang had been directed by Crown counsel to go to the Crown’s office in order to ensure that the form for the judicial pre-trial was properly filled out. Wong J. indicated to the appellant that the court was “going to be able to deal with [his] matter really soon”, when his counsel reappeared. [10]
[ 34 ] Court adjourned from 10:37 until 11:21 a.m. in order that Wong J. could conduct a pre-trial in an unrelated matter. [11]
[ 35 ] The Suntharalingam matter was next spoken to at11:23 a.m. [12] At that point in time, Mr. Tsang indicated that he had attended both a Crown pre-trial and a judicial pre-trial that morning and had had what he characterized as “a lengthy discussion this morning.” The matter was spoken to in open court until 11:28 a.m.
[ 36 ] While the transcript of the appellant’s trial does not contain any indication as to the start and stop times, it is obvious from the foregoing discussion that the matter did not start until sometime after 11:30 that morning. The appellant states in his affidavit filed in support of his s. 11(b) motion at trial that his trial did not start until 11:40 a.m. [13]
[ 37 ] The appellant argues that it is not his fault that the court was otherwise occupied and therefore the fact that Mr. Tsang was otherwise engaged should not weigh against the appellant in the delay calculus. I disagree.
[ 38 ] While it is certainly true that there were numerous other matters to be spoken to, it is, with respect, simplistic to suggest that the Cabading matter could not have started any earlier than it did even if Mr. Tsang had been available. That proposition presupposes, erroneously in my view, that the other matters would have been dealt with in precisely the same manner that they were even had Mr. Tsang been available from the outset. However, to take only the most obvious counterexample, had Mr. Tsang been available to start this trial earlier, which had, after all, been set down for a full day, it is not at all clear to me that Wong J. would have agreed, on the sudden and at the extemporaneous suggestion of counsel, to conduct a lengthy judicial pre-trial in an unrelated matter. [14]
[ 39 ] In R. v. Meisner , 2004 30221 (ON CA) , [2004] O.J. No. 3812, (C.A.), the court held:
Just as intake time is allowed when a case initially comes into the criminal justice system, it is inherent in the process that some time must be allowed to reschedule matters that are adjourned for reasonable and unforeseeable reasons for which no one can be faulted.
In my view, it was open to the trial judge to find that the case not finishing on May 31, 2011, was an unforeseeable circumstance and, as such, part of the inherent time requirements of the case and thus neutral in the delay calculus.
[ 40 ] I note, as well, that the appellant’s trial counsel took no exception to either the fact that the trial had to be adjourned or the proposed date for its resumption. Agreement to a future date has consequences, as indicated by Sopinka J. in R. v. Smith (1989), 1989 12 (SCC) , 52 C.C.C. (3d) 97 (S.C.C.), at 109:
Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right to subsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver, agreeing to a future date for trial or a preliminary inquiry would generally be characterized as more than silence.
I recognize that silence in the face of the inevitable does not amount to waiver: R. v. Morin , 1992 89 (SCC) , [1992] 1 S.C.R. 771. That said, where, as here, counsel acquiesces to a date for continuation in the relatively near future without remark, much less any hint of protest, I find it hard to accept that his client was concerned about the delay.
ISSUE #4: “CLEAREST OF CASES” ERROR
[ 41 ] The appellant argues that the trial judge erred when she indicated that she was not prepared to allow the s. 11(b) application because it was not “the clearest of cases.” It is, of course, well settled that that is not the proper test: R. v. Thomson , 2009 ONCA 771 , at para. 5 ; R. v. Steele , 2012 ONCA 383 , at para. 30 . That said, the remark was made in August; the trial judge’s reasons were not delivered until October 17, 2011, and there is nothing in the judge’s written reasons to indicate that she decided the case based, in any degree, on her earlier misstatement. That notwithstanding, the appellant argues that the earlier misstatement cannot be cured because, by virtue of the delay in providing her reasons, it now appears that she was simply justifying her earlier, ill conceived decision by ex post facto rationalization. I disagree.
[ 42 ] This is not a case like R. v. Cunningham , 2011 ONCA 543 , where, speaking for the court at paragraph 45, Doherty J.A. held that the trial judge’s delay in releasing a reserved judgment was so lengthy [15] as to give rise to a perception on the part of the reasonable observer that the reasons were “more in the nature of an after-the-fact defence of that decision than a description of the path taken to it…” Rather, this is a case to which the general proposition, as stated in Coniagas Reduction Co. Ltd. v. Hydro-Electric Power Commission of Ontario , 1932 115 (ON CA) , [1932] O.R. 463, should apply, namely, that “[i]t is always to be remembered that it is the judgment as entered which is the subject of appeal, and is the only thing the Court of Appeal can regularly look at.” See also R. v. Ball , [1971] O.J. No. 273, at paragraph 10 , where, speaking for the court, Schroeder J.A. held that a judge’s statement made in the course of a colloquy with counsel “should not be subjected to microscopic scrutiny” because it was “not language used in formal reasons for judgment, but was merely an informal expression by the trial judge of his view …”
[ 43 ] In R. v. Morrissey , 1995 3498 (ON CA) , [1995] O.J. No. 639 (C.A.), at paragraph 28 , Doherty J.A. stated:
[I]t is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe, a legal principle applied by the trial judge. Reasons for judgment must be read as a whole.
[ 44 ] Similarly, in R. v. Davis, 1999 638 (SCC) , [1999] 3 S.C.R. 759, Lamer C.J. spoke of the inappropriateness of “simply plucking colloquial elements [from a] trial judge's thorough reasons” and agreed with the comment of Green J.A., in the judgment of the Newfoundland Court of Appeal who held [16] :
It is not sufficient to "cherry pick" certain infelicitous phrases or sentences without enquiring as to whether the literal meaning was effectively neutralized by other passages. This is especially true in the case of a judge sitting alone where other comments made by him or her may make it perfectly clear that he or she did not misapprehend the import of the legal principles involved. As McLachlin J. said in [ R. v. B. (C.R.), 1990 142 (SCC) , [1990] 1 S.C.R. 717 , at p. 737 ]: "[t]he fact that a trial judge misstates himself at one point should not vitiate his ruling if the preponderance of what was said shows that the proper test was applied and if the decision can be justified on the evidence.
[ 45 ] In my opinion, the impugned comment was nothing more than an “infelicitous” aside and, as such, does not affect the integrity of Wong J.’s subsequent judgment.
RESULT
[ 46 ] For the foregoing reasons, the appellant has failed to satisfy me that Wong J. erred in refusing to stay on the basis of delay.
[ 47 ] Further, to the extent that I have found that Wong J. erred in considering the time from set date to the first trial date as being entirely institutional delay, it follows, a fortiori , that there was no delay sufficient to amount to a breach of the appellant’s s. 11(b) right to a trial within a reasonable time.
[ 48 ] In the result, the appeal is hereby dismissed.
Clark J.
Date: August 10, 2012