ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 08-13184
DATE: 2012/08/30

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Nathalie M. Boivin Appellant

Kevin Phillips, for the Respondent Crown

James Foord, for the Appellant

HEARD: July 18, 2012

REASONS FOR DECISION

ON SUMMARY CONVICTION APPEAL

McNAMARA J.

1This is an appeal by Nathalie Boivin of her conviction of operating a motor vehicle with a blood alcohol content over 80 milligrams, contrary to s. 253(1) (b) of the Criminal Code of Canada , R.S.C., 1985, c. C-46. The conviction was made by the Honourable Justice David Wake of the Ontario Court of Justice on October 28, 2010.

2There were two issues argued on this appeal:

(a) Did the trial judge err in law by dismissing the Appellant’s application pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms ?

(b) Did the trial judge err in law in determining that the breath samples were taken as soon as practicable?

Background Facts

3On August 22, 2008 at approximately 3:20 a.m. the Appellant was operating a vehicle on Vanier Parkway in the city of Ottawa. A police officer followed the vehicle for approximately one to two kilometres and during that timeframe observed it swaying within its lane. The officer pulled the vehicle over.

4The police officer spoke with the Appellant and in due course a demand was made for a roadside screening test. That test registered a fail. The Appellant was arrested and was given a full breathalyser test. Two suitable samples were obtained of 109 milligrams and 97 milligrams respectively.

5There was a total of 26 months from the laying of the information to the completion of the trial. On the morning of the first scheduled trial date, July 30, 2010, the Crown sought an adjournment owing to the illness of an officer. Defence counsel opposed the adjournment due to a lack of information regarding the timing and surrounding particulars of the officer’s illness. The adjournment application was granted with the information endorsed that a new trial date was to be fixed on an expedited basis. The trial was ultimately scheduled for and took place on October 28, 2010.

Section 11(b) Issue

6Counsel agree that the framework for 11(b) motions is that set out by the Supreme Court of Canada in R. v. Morin , 1992 89 (SCC) , [1992] S.C.J. No. 25 (S.C.C.). It requires the trial court to analyse four distinct factors:

a) the overall length of delay from the laying of charges until the trial concludes;

b) waiver of any individual time periods;

c) the reasons for the various periods of delay; and

d) prejudice to the particular interests of the accused protected by s. 11(b).

7Once the Court makes findings about each of these factors, it must then balance the societal interest in adjudication on the merits with the length and causes of delay and its corresponding impact on the accused. Essentially the interests of the accused are to be balanced against society’s interest in law enforcement. As the seriousness of the offence increases, so does the societal interest in ensuring a trial on the merits. Likewise, increased prejudice militates in favour of a stay in proceedings.

8The parties to this Appeal agree that the standard of review is correctness in relation to legal conclusions, such as the proper characterization of a particular period of delay or the unreasonableness of the delay. They also agree that the underlying factual findings can only be reviewed on a standard of palpable and overriding error.

Analysis

9The Appellant raises four issues on this ground of appeal. First, the trial judge erred by incorrectly characterizing two different periods of delay. Second, the trial judge misapprehended material evidence. Third, the trial judge erred in his findings of prejudice caused to the Appellant. Finally, the trial judge erred in the balancing exercise.

Length of Delay

10I start with the alleged miscalculation of two of the periods of delay.

11The first relates to the first judicial pre-trial. The evidence discloses that the first request for a judicial pre-trial was on November 10, 2008 and the first date offered by the court was December 24. The trial judge characterized this delay as neutral and part of the inherent time requirements for the case. It is the position of the Appellant that on the authority of cases such as R. v. C.R.G. , 2005 32192 (ON CA) , [2005] O.J. No. 3764 (Ont. C.A.), that period should have been characterized as institutional delay. In C.R.G. , at para. 30 of the decision, Rosenberg J.A. states in part as follows: “... that said, I do agree that the delay needed to schedule the judicial pre-trial is properly considered to be institutional delay, not an aspect of the inherent time requirements of the case.”

12The trial judge dealt with this at paras. 22 and 23 of his Reasons for Decision Dismissing s. 11(b) Charter Application, R. v. Boivin (9 November 2010), Ottawa, (Ont. Ct.J.):

The Applicant submits that some systemic delay must be attributed to the fact that counsel pre-trials are mandatory in this jurisdiction. While it is true that Court of Appeal decisions in R. v. C.R.G. , 2005 32192 (ON CA) , [2005] O.J. No. 3764 (Ont. C.A.), R. v. N.N.M. , 2006 14957 (ON CA) , [2006] O.J. No. 1802 (Ont. C.A.), and R. v. Meisner (2004), 2004 30221 (ON CA) , 7 M.V.R. (5th) 1 (Ont. S.C.J.), have held that the time to schedule mandatory judicial pre-trials are, in part, the result of institutional delay, it has been recognized in R. v. DuCarmur , [2007] O.J. No. 3369 (Ont. S.C.J.) , by Hill, J. that where “the parties were not subject to the mandatory pre-trial protocol but sought a pre-trial for judicial assistance towards resolution discussions ... the delay is neutral.”

There was no suggestion on the record from the Applicant’s first counsel that he was requesting a counsel pre-trial because he was obligated to do so. The record speaks to the opposite conclusion since he followed up the counsel pre-trial with a request for further judicial pre-trials, although the trial of this matter was ultimately scheduled for less than one day which would not have required a judicial pre-trial. Counsel was clearly pursuing both counsel pre-trials and judicial pre-trials because he wanted to engage in discussions with the Crown and he desired judicial input into those discussions. I note too, that after the Applicant’ first counsel was removed from the record, that Mr. Foord, who was under no obligation to have a counsel pre-trial by the stage at which he came on record, nevertheless scheduled two counsel pre-trials. This serves to underline the point made in DuCarmur .

13In my view, it was open to the trial judge to distinguish C.R.G. in the manner he did and it was also open to him on the facts of the case to attribute this period of delay as he did for the reasons and upon the authority cited. I see no error.

14The second period of delay is that related to delay in obtaining a second trial date due to officer illness.

15The trial judge in his reasons concluded there were 11 months and 11 days of institutional delay until the first scheduled trial date. He characterized the entire delay from the first trial date to the second as neutral. The Appellant concedes that it is an unfortunate reality that people become ill, and that some period of time to reschedule a trial date for this reason is reasonable. They argue further, however, that a three-month delay is not reasonable and some portion of that timeframe should be attributed to institutional delay. In this regard he relies on the comments of Rosenberg J.A. of the Ontario Court of Appeal in R. v. A.J.W. , 2009 ONCA 661 () , [2009] O.J. 3814 (Ont. C.A.) at para. 41 :

On this record, the Crown's decision to apply for an adjournment was reasonable and should not be characterized as a simple tactical decision. Presumptively then, the resulting delay was neutral. That is not to say that all the ensuing delay should be considered neutral. Given the delay that had already occurred through no fault of the respondent, he was entitled to expect the system to respond with some urgency by offering dates for the trial as soon as reasonably possible. He was entitled to have the system give his case priority. My review of the record indicates that this is exactly what occurred. The respondent was offered trial dates within less than three months. That said, if there was evidence that the respondent's counsel was available within an even shorter time, I might have considered some of that three months to be institutional delay. However, there was no such evidence and no suggestion that defence counsel was able to accommodate an earlier trial date. [Emphasis added]

16The trial judge dealt with this in significant detail at paras. 26 to 34 of his decision, supra . At para. 34 he indicates as follows:

Perhaps all Rosenberg, J.A. was suggesting was that after three adjournments of the scheduled trial, the system can be expected to push other cases to the side but that is not the case before me. In fact, in my view, the system and counsel responded well to the unfortunate circumstances of the adjournment due to the officer’s illness. After granting the adjournment Bélanger, J. then inquired as to whether counsel wanted an endorsement to expedite the matter. Both counsel agreed and the endorsement was made. Mr. Foord responsibly alerted the Court that he would be bringing a s. 11(b) application which would require a second day of court time rather than the original trial estimate of three-quarters of a day. This required the intervention of the Local Administrative Judge who, within two days of the Court being advised of the request for additional time, provided authorization for court time to be set for more than one day. The new dates were provided within three months of the original trial date. On this record I find nothing to displace the presumption that the delay occasioned by the officer’s illness was neutral.

17Again, it was open to the trial judge to characterize this period of delay as he did, particularly in circumstances where there was no specific evidence that the Appellant’s counsel was available any earlier than the expedited trial date offered. Again I see no error.

Prejudice

18Counsel for the Appellant submits that whether additional time is added or not, the institutional and Crown delay in this case exceeds the Morin guidelines. Those guidelines provide that what might constitute reasonable, systemic or institutional delay is 8-10 months in the Ontario Court of Justice, and in this case the Crown acknowledged institutional and Crown delay of just over 11 months. The trial judge’s calculation, as indicated earlier, was 11 months and 11 days for, in his words, “a total of almost 1.5 months over the guidelines set in Morin for a case of this nature.”

19The trial judge in his reasons conceded that while the evidence established some prejudice to the Appellant, it was minimal. The Appellant argues that the trial judge’s legal analysis and his conclusions as to the legal significance of prejudice in this case are flawed when seen in the context of the evidentiary record.

20The trial judge began his analysis of the prejudice issue at para. 44 of the decision, supra , where he stated:

There are three types of prejudice tied to the purpose of s. 11(b): (1) the right to security of the person; (2) the right to liberty, and (3) the right to a fair trial.

21That, in abbreviated form, is what was stated by the Supreme Court of Canada in R. v. Godin­ , 2009 SCC 26 () , [2009] S.C.J. No. 26 (S.C.C.), where in discussing prejudice in this context the Court stated at para. 30:

Prejudice in this context is concerned with the three interests of the accused that s. 11( b ) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin , at pp. 801-3.

22It was conceded at trial and at this hearing that there was no prejudice to the liberty interests of the Appellant.

23The trial judge provided his analysis of the evidence as relates to the issue of security of the person at paras. 45 to 50 of the decision. He summarized the evidence of the applicant that she became very anxious before court attendances, there was anxiety surrounding the consequences of a conviction including on her employment, her claim that she had difficulty sleeping and was grinding her teeth, and that there was evidence of increased legal fees. That analysis was in keeping with guidance provided by the Supreme Court of Canada in R. v. Mills , 1986 17 (SCC) , [1986] S.C.J. No. 39, where at para. 146 the court commented as follows:

Additionally, under s. 11(b), the security of the person is to be safeguarded as jealously as the liberty of the individual. In this context, the concept of security of the person is not restricted to physical integrity; rather, it encompasses protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation" (A. Amsterdam, [“Speedy Criminal Trial: Rights and Remedies,” 27 Stan. L. Rev. 525 (1975)], at p. 533). These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction. These forms of prejudice cannot be disregarded nor minimized when assessing the reasonableness of delay.

24The Appellant argues that the trial judge, on the evidence, erred in concluding that the prejudice was minimal, and misapprehended certain critical evidence, in particular when he indicated in his reasons that at no time did the Appellant give any indication to the Court that she was not content with the pace of proceedings.

25Our Court of Appeal has very recently made comment as to the jurisdiction of a summary conviction appeal court to review findings of trial judges as to the sufficiency of evidence. In R. v. Smits , 2012 ONCA 524 , at para. 67 , the Court states:

Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code , the jurisdiction of the summary conviction appeal judge to review the finding as to sufficiency of the evidence is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with a trial judge's findings unless they are unreasonable or unsupported by the evidence: see R. v. Grosse (1996), 1996 6643 (ON CA) , 29 O.R. (3d) 785 (C.A.), at pp. 791-92.

26The trial judge, a very experienced trial judge, came to the conclusion that the prejudice was minimal. It is very clear from the transcript and the reasons that the trial judge was keenly aware of the evidence he was hearing on this issue, and paying close attention to it. He was there and heard that evidence first hand. In terms of his indication that at no time in the case did the Appellant give any indication she was not content with the pace of proceedings, that could very well have been because although at the original trial date of July 30, 2010, when officer illness became an issue, the Appellant opposed the adjournment, looking at the record as a whole in the 23 months prior to that date there had been no such indication of dissatisfaction. That view is buttressed by the trial judge’s comment later in his reasons when at para. 54 he states in part, “ ... the Court and counsel took appropriate steps to deal with the delay issue when it first arose as a result of the officer’s illness ... .” The function of this Court is not to substitute my view for that of the trial judge and I am unable to say the trial judge’s findings in this area are unreasonable or unsupported by the evidence. That same rationale applies to the trial judge’s conclusion that there was no significant prejudice to the Appellant’s fair trial interests.

Balancing

27Having analysed the four factors, the trial judge correctly set out the requirement that he consider the societal interest in the trial on the merits. He states at para. 54:

I must weigh society’s interest in seeing that there be a trial on the merits for drinking and driving offences against other factors which might favour a stay. Given that I have found only minimal prejudice and that the Applicant’s fair trial rights and pre-trial liberty rights were not affected by the delay and that Bélanger, J., the Court and counsel took appropriate steps to deal with the delay issue when it first arose as a result of the officer’s illness, I am not persuaded that the delay of 1.5 months over the Morin guidelines was unreasonable in this case.

28Again, I am unable to say the trial judge’s findings in this regard are unreasonable or unsupported by the evidence.

29Where one draws the line between reasonable and unreasonable delay is very much a matter of judicial weighing and balancing and the trial judge would, in my view, have to be clearly wrong on something to warrant overriding his or her judgment. As indicated earlier, I see no error in the decision reached by Wake J. and in the result, the appeal against his ruling on the 11(b) application is dismissed.

Second Issue: Were the Breath Samples Taken as Soon as Practicable?

30The evidence discloses that the total delay from the time of the Appellant’s vehicle being engaged by the police until the completion of her breath samples was one hour and 36 minutes. It is the position of the Appellant that the evidence discloses that within that timeframe there is in excess of 20 minutes of unexplained delay.

31With relation to this issue, the trial judge indicated in part as follows at pages 2-3 of his Decision on Trial Proper and Sentencing, R. v. Boivin (28 October, 2010), Ottawa, 08-13184 (Ont. Ct. J.):

On the merits of whether or not these tests were taken as soon as practicable, I can indicate that I’m satisfied that they were. The evidence of the investigating officer was clear, coherent and all steps in the process of handling a driver initially suspected of operating a motor vehicle while impaired or having an excess blood alcohol concentration seem to have been done properly. Ms. Boivin was first noted at 3:20 in the morning. The approved screening device registered a fail at 3:39. She was transported to the station without incident, arrived at 3:51, very quickly thereafter, was put in touch with counsel of her choice and had a conversation with counsel. While Constable Desaulniers provided her grounds to the breathalyser technician, those two events were overlapping, which would save time, so that when she finished providing her grounds and retrieved Ms. Boivin in order to turn her over to Constable Bernard, it all followed in a reasonable time frame. And even though the tests were taken some 23 minutes apart, only required to be taken 17 minutes apart, I don’t see that that additional timing is of great moment so as to render the taking of the samples as taken in an unreasonable time, I find that that ground must fail, as well, in the circumstances.

32It is common ground that ‘as soon as practicable’ does not mean ‘as soon as possible’, but rather that the tests were taken within a reasonably prompt time under the circumstances. The trial judge is required to look at the whole chain of events, bearing in mind that the Criminal Code presents an outside limit of two hours from the time of the offence to the taking of the first test. It is also common ground that to satisfy its burden the Crown is not required to provide a detailed explanation of what occurred during every minute the accused is in custody but must demonstrate that, in all of the circumstances, the samples were taken within a reasonably prompt timeframe.

33It is clear to me that the trial judge was alive to the proper principles to be applied in deciding this issue, and made reasonable findings of fact and drew reasonable inferences from the totality of the evidence. It was open to the trial judge to conclude as he did on this issue.

34The appeal on this ground is also dismissed.

The Honourable Justice J. McNamara