ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 53/10
DATE: 20121031

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – CHRISTOPHER BELCHEVSKI Appellant

Jason A. Gorda, for the Crown/ Respondent

John J. Navarrete, for the Appellant

HEARD: May 18, 2012

REASONS FOR JUDGMENT

TROTTER J.

INTRODUCTION

[ 1 ] After a trial presided over by the Honourable Madam Justice B. Brown of the Ontario Court of Justice, the appellant was found guilty of impaired driving and “over 80.” The impaired driving charge was conditionally stayed and the appellant received a $900 fine and a 12-month driving prohibition.

[ 2 ] The appellant was driving a car in the City of Toronto. Police officers saw him driving in an erratic manner. The appellant was pulled over and then arrested. He was taken to the police station where he provided two breath samples that generated the very high results of 200 and 198 mgs of alcohol in 100 millilitres of blood.

[ 3 ] This appeal is based on two alleged errors on the part of the learned trial judge. First, the appellant argues that the trial judge erred in dismissing his motion under s. 11( b ) of the Charter. He further contends that the trial judge erred in finding the breathalyzer samples were taken “as soon as practicable” within the meaning of s. 258(1) ( c )(ii) of the Criminal Code .

[ 4 ] For the following reasons, the appeal is dismissed.

DISCUSSION

[ 5 ] Before addressing both grounds of appeal, I note that the trial judge prepared very thorough reasons on the numerous issues that arose in this case. On the unreasonable delay application, the trial judge’s reasons span 30 pages, with detailed references to all of the relevant authorities. With respect to the other arguments that were advanced during the course of the trial, the trial judge’s reasons are over 50 pages in length, detailing the facts and the governing cases. Of course, the quality of a judgment cannot be measured by its length. However, in this case, it is clear that the trial judge approached all aspects of this case with considerable care.

(a) Trial Within a Reasonable Time

[ 6 ] As a prelude to evaluating the merits of this ground of appeal, it is worth noting some of the trial judge’s observations at the outset of her s. 11( b ) Ruling. The trial judge noted that, “this was anything but a typical over 80 and impaired case.” As she said, the case took many “twists and turns” to deal with the evidence and submissions on “multiple Charter issues.” Importantly, the trial characterized the original time estimates for trial as “woefully inadequate.” I agree – this was a complicated drinking and driving case that required far more time than was originally estimated. This inaccurate estimate caused the proceedings to become fragmented once the trial actually commenced.

[ 7 ] The total delay, from arrest to the end of trial, was almost 23 months, a period of time that required further examination by the trial judge: see R. v. Morin (1992), 1992 89 (SCC) , 71 C.C.C. (3d) 1 (S.C.C.). The trial judge concluded that just under 8 months of this time should be characterized as institutional delay. On appeal, counsel for the appellant, Mr. Navarrete, argues that 15 months should be attributed to institutional delay.

[ 8 ] The appellant focuses on the period of delay involved in dealing with the disclosure of materials related to one of the police witness’ credentials as a Drug Recognition Expert (DRE). Mr. Gorda for the Crown argues that this period of delay must considered in the context of the total delay in the case. Adverting to the standard of correctness that is operative in appeals such as this (see R. v. Schertzer (2009), 2009 ONCA 742 , 248 C.C.C. (3d) 270 (Ont. C.A.)), he also argues that I ought to make my own assessment of other periods of delay if I disagree with the trial judge. I agree with both submissions.

[ 9 ] The trial judge correctly calculated the period from arrest (April 29, 2008) until the setting of the first set date (July 28, 2008) as neutral, intake time. However, she characterized the entire period of time from the set date of July 28, 2008 until the first trial date on January 19, 2009 as institutional delay. Based on the principles recently articulated in R. v. Lahiry (2011), 2011 ONSC 6780 , 283 C.C.C. (3d) 525 (Ont. S.C.J.), the Crown argues that only part of this period of time should be characterized as institutional delay. With a nod of approval to Lahiry , the Court of Appeal in R. v. Tran (2012), 2012 ONCA 18 , 251 C.R.R. (2d) 201 (Ont. C.A.) held, at para. 32, that:

…parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them. [emphasis added]

[ 10 ] As the Crown submits, this principle was not taken into account in the trial judge’s analysis, such that the appellant benefited from this entire period of time being mischaracterized as institutional delay. The Crown suggests that this period of time, just under six months, should be divided so that only 3 months and 23 days be counted as institutional delay. Given that nothing was placed on the record on the issue of whether counsel for the appellant was available any earlier, I agree with this submission. It is in keeping with the approach in R. v. Lahiry , supra . In fairness to the trial judge, she decided this case well before the judgments in Lahiry and Tran were released.

[ 11 ] As it turned out, the first trial date was adjourned due to a conflict that arose in the schedule of defence counsel at trial (not Mr. Navarette). I will return to this issue below.

[ 12 ] The trial commenced on the second trial date, being June 11, 2009. However, the original estimate of trial time, 6 hours, was inaccurate. Indeed, as noted above, the trial judge characterized the initial time estimate as “woefully inadequate.” Fortunately, a further date was obtained on July 24, 2009, approximately 6 weeks away. Earlier dates, including the very next day, were offered by the Court. However, both parties were not available until July 24, 2009. The trial judge correctly attributed this time as part of the inherent time requirements of the case: see R. v. Tran , supra , at para. 56 , Regina v. Allen (1996), 1996 4011 (ON CA) , 110 C.C.C. (3d) 331 (Ont. C.A.), at para. 27 , aff'd (1997), 1997 331 (SCC) , 119 C.C.C. (3d) 1 (S.C.C.) and R. v. Wong , 2012 ONCA 286 , at para. 2 .

[ 13 ] The crux of the appellant’s position relates to what happened when the case resumed on July 24, 2009. In the course of the examination-in-chief of the breathalyzer technician, he mentioned his qualifications as a Drug Recognition Expert (DRE). Crown counsel wished to have him formally qualified as an expert witness on impairment. This prompted defence counsel to seek disclosure of materials relating to the witness’ DRE training. The trial judge mentioned this issue in her Reasons on the s. 11( b ) application:

The Crown responded that it needed to consider the matter further. The case had to be adjourned for counsel to consider this new unanticipated issue. Neither party realized that this witness had this special training that would be relevant to his opinion regarding impaired ability. It is clear to everyone that this is a new area and the DRE training of officers and the relevant provisions in the Criminal Code arise from relatively recent amendments…. [emphasis added]

[ 14 ] The case was put over until October 26, 2009 for continuation. However, it was spoken to on September 9 th and then again on September 29 th , 2009. At one point, it would appear that the Crown agreed to produce the materials. It then changed its mind and refused. On both September dates the Crown submitted that it was not still seeking to qualify the breathalyzer technician as an expert on impairment issues. On September 29 th , the Crown advised the Court that it would only be relying on the witness’ evidence on impairment as a lay opinion. The Crown further conceded that, if the evidence concerning the witness’ DRE training could not be separated from his lay opinion, then the trial judge should disregard his evidence on the issue of impairment altogether. In spite of these concessions, defence counsel at trial persisted in his disclosure request, arguing that the DRE training materials might be useful in relation to other witnesses. He submitted that they were not “clearly irrelevant.”

[ 15 ] The matter was fully argued on October 26, 2009 and the trial judge ordered disclosure. She provided reasons for her decision on this issue, which she characterized as novel. These materials became available in December of 2009, roughly two months before the trial. The case was adjourned to February 24, 2010, the date on which the evidence and submissions on all issues, including the s. 11( b ) application, were concluded.

[ 16 ] The issue concerning the DRE training materials ended up delaying the case from July 24, 2009 until February 24, 2010, being 7 months. The trial judge characterized 5 months of this delay as part of the inherent time requirements of the case. She allocated two months (from when the materials became available until the continuation of the trial on February 24, 2010) as institutional delay. The appellant argues that all of this time should be allocated as institutional or Crown delay. The Crown argues that this block of time should be apportioned as between the parties, and partly as institutional delay and the inherent time requirements of the case.

[ 17 ] I return to the decision of the Court of Appeal in R. v. Tran , supra , in which the Court addressed the consequences of unforeseen developments in the course of a trial. Writing for the Court, Simmons J.A. said the following at para. 48:

I also pause to add the following observation. Judges should be cautious about engaging in a minute analysis of the normal vicissitudes of a trial for the purpose of allocating delay to the Crown or to the defence on s. 11(b) Charter applications - for example, the need to pause to consider unforeseen developments during the trial, the customary requirement to juggle the line-up and availability of witnesses, insignificant administrative glitches or early adjournments. Except in rare cases where unreasonable delay arising from such issues can readily be attributed to one side or the other or to the court system, I would think that delays arising from these sorts of factors during the normal evolution of a trial would be part of the inherent time requirements of the case. [emphasis added]

[ 18 ] These observations are apt in this case. As the trial judge noted, at the time the case was heard, Drug Recognition Experts had just arrived on the scene. Indeed, neither party anticipated that the witness in question had received any training in this area. The question of whether materials relating to the training of DRE’s was still an open question. It was reasonable for the Crown to take time to consider its position on the issues of production and disclosure. In the end, the Crown proposed a reasonable solution (not having the witness qualified as an expert) as a means of moving the case forward. But this offer was rejected and defence persisted in its motion for disclosure. While the defence was ultimately successful, the result added little, if anything, to the defence.

[ 19 ] Despite the Crown’s position on the allocation of this time, given the manner in which the trial judge characterized the legal issue that arose, and given the way in which the issue was handled by both sides, I am not inclined to second-guess the trial judge’s conclusions on this 7 month block of time. While trial judges are held to a standard of correctness on the legal issues that arise on a s. 11( b ) application, this specific issue involves the exercise of discretion. I cannot say that the trial judge erred in how she classified this entire block of time. Her approach is defensible in light of the recent decision in R. v. Tran , supra .

[ 20 ] The period of time between the completion of the case (February 24, 2010) until the release of reasons (March 24, 2010) ought to be considered inherent in the process. The trial judge made very good use of this time, for as I have already noted, she prepared detailed and lengthy reasons on all aspects in dispute in this case: R. v. Wong , supra , para. 3 .

[ 21 ] In conclusion, the trial judge did not err in dismissing the appellant’s s. 11( b ) application. Indeed, undertaking my own analysis, especially dealing with the time between the first set date and the first trial date, the trial judge may have been overly generous in the time she attributed to institutional delay. Either way, the period of institutional delay falls within the guidelines set out in R. v. Morin , supra .

[ 22 ] In terms of prejudice, counsel on appeal does not quibble with the manner in which the learned trial judge assessed this s. 11( b ) factor. The impact on the appellant was mild. And, as the trial judge observed, any problems that the appellant might have experienced as a result of the pace at which his case was moving were never brought to the attention of the Crown or the trial judge. I agree with the trial judge’s analysis of this issue.

[ 23 ] For these reasons, I would reject this ground of appeal.

[ 24 ] Before moving on to the next issue, I wish to touch on an aspect of the case that was not specifically addressed by counsel, one that concerns the period of time between the set date and the first trial date. As noted above, the trial judge apportioned this entire period as institutional delay. I have adjusted this allocation to conform to R. v. Lahiry , supra and R. v. Tran , supra , as discussed in paragraph 10, above.

[ 25 ] However, there may be more involved in properly characterizing this block of time. A number of months after the first trial set date, defence counsel at trial brought an application to adjourn the original trial date, due to a conflict with another commitment (relating to the on-going Cornwall Inquiry ). This adjournment was granted on consent. Quite rightly, for s. 11( b ) purposes, defence counsel waived the period of time between the first trial date (January 19, 2009) and the newly chosen trial date of June 11, 2009.

[ 26 ] In light of this defence request to postpone the trial, I fail to see how any part of the period of time between the first set date (July 28, 2008) and the first trial date (January 19, 2009) should be characterized as institutional delay. To repeat the words of Simmons J.A. from R. v. Tran , supra , at para. 32 : “Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them.” In this case, it turned out that defence counsel was not ready or able to proceed on a date when the court was able accommodate both parties. Any delay that might have otherwise been characterized as institutional lost that quality when defence counsel was unable to proceed on the date chosen.

[ 27 ] In other words, the trial could not be conducted until June 11, 2009, not as a result of the system being unable to generate earlier trial dates. The system did generate an earlier date, but it had to be cancelled because of counsel’s unavailability. The appellant had other options available to him, such as retaining different counsel to conduct his trial on the first trial date. While his choice to stay with his original trial counsel was no doubt a good one, the appellant was not entitled to somehow “bank” this period of institutional delay. Before trial counsel’s circumstances changed in terms of his availability, a good portion of this time would have been properly characterized as institutional delay. But circumstances matter, and when counsel adjourned the first trial date, the cause of the delay between the first set date and the first trial date ceased to be institutional in nature: see R. v. Taylor , 2010 ONSC 1632 , [2010] O.J. No. 1086 (S.C.J.) and R. v. Lahiry , supra , para. 60 . Moreover, the decision of the appellant to remain with the same counsel and forego an earlier trial date is relevant to the assessment of prejudice.

[ 28 ] I do not mean to suggest that this will always be the case. And this is no criticism of the appellant’s conscientious trial counsel. However, on this record, especially having regard to the absence of an expression of earlier availability prior to the initial trial date, no time leading up to the first trial date can be properly characterized as institutional.

[ 29 ] In any event, for the reasons set out in paragraphs 6 to 22 above, this ground of appeal is dismissed.

(b) “As Soon as Practicable”

[ 30 ] The appellant argues that the breath samples were not taken as soon as practicable within the meaning of s. 258(1) ( c )(ii) of the Criminal Code . The total period of time, from the appellant’s arrest, until the time that the first breath test was administered, was roughly 1 hour and 37 minutes. At trial, and on appeal, the appellant focuses on a 27-minute period of time (4:01 a.m. to 4:28 a.m.), when the appellant entered the sally port at the police station until he was paraded before the staff sergeant.

[ 31 ] One of the arresting officers was asked about the delay and said: “I don’t know. They may have had another prisoner there. I couldn’t tell you.” I note that the DVD recording from the sally port, which was entered as an exhibit at trial, shows that there was another car in the sally port, ahead of the car that the appellant was transported in.

[ 32 ] The breathalyzer technician testified that he was apprised of the appellant’s presence at the station at about 4:17 a.m., when he was dealing with another person, a pregnant woman. It turned out that she could not be tested and an ambulance was called to take her to the hospital. This officer said “…I was never actually able to complete any tests with regard to her so it did not cause any real delay or any issues in terms of dealing with Mr. Belchevski.” [emphasis added]

[ 33 ] Based on this evidentiary foundation, the trial judge concluded that there was not a “total absence of evidence” as to what transpired during this 27-minute period. As she found:

Rather, there is evidence that the qualified technician was dealing with a pregnant woman who did not provide breath samples but had to be dealt with prior to being taken to the hospital. It appears and this Court finds that this happened prior to [the breathalyzer technician] dealing with Mr. Belchevski. The court finds that [the breathalyzer technician] was dealing with this woman at approximately 4:17 a.m. when he learned that Mr. Belchevski would also require breath tests and that he arrived at the station for his breath tests.

Accordingly, the Court finds that there is evidence to explain the delay in bringing Mr. Belchevski into the police station and that the samples were taken, when one considers all of the evidence, as soon as practicable given the pressing situation of dealing with an earlier detained person who was a pregnant woman that ultimately had to be taken to the hospital by ambulance. Accordingly, as indicated, the Court finds that these samples were taken as soon as practicable and that the requirements of s. 258 have been met.

[ 34 ] The appellant argues that the learned trial judge engaged in speculation and made inferences that were not available on the evidence. With respect, I disagree. The evidence of the breathalyzer technician revealed that he was dealing with a pregnant prisoner at 4:17 a.m. He said it caused no “real delay” or “any issues” in terms of dealing with Mr. Belchevski. It is unclear what these vague characterizations mean. However, this evidence does permit the reasonable inference that he would not have been in a position to deal with the appellant at 4:17, thereby accounting for a good portion of the 27-minute block of time that the appellant complains about.

[ 35 ] In cases such as this, it is important not to become fixated on discrete blocks of time. It is the overall delay that must be assessed in determining whether the tests were administered “as soon as practicable.” The Court of Appeal has addressed this standard on a number of occasions. In R. v. Vanderbruggen (2006), 2006 9039 (ON CA) , 206 C.C.C. (3d) 489 (Ont. C.A.), Rosenberg J.A. held at paras. 15 to 19:

That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances ... There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably ...

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 2000 17024 (ON CA) , 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20 .

To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence. [emphasis added]

[ 36 ] In determining whether the police acted reasonably in the circumstances, trial judges may draw reasonable inferences based on the totality of the evidence. Trial judges may also draw upon on their experience, gained through adjudicating over countless drinking and driving cases, about routine procedures at police stations: see R. v. Price (2010), 94 M.V.R. (4 th ) 23 (Ont. S.C.J.), at paras. 15 and 19 :

[ 37 ] Returning to R. v. Vanderbruggen , supra , the touchstone is whether the police acted reasonably. The trial judge focused on the 27-minute interval isolated by defence counsel and made certain inferences that could reasonably be drawn from the evidence. She also adverted to the entire period of time, up until when the appellant was presented to the breathalyzer technician. There is no doubt that the trial judge was correct in concluding that, in all of the circumstances, the police acted reasonably. Accordingly, this ground of appeal must fail.

CONCLUSION

[ 38 ] For these reasons, and despite Mr. Navarette’s able submissions, the appeal is dismissed.

TROTTER J.

Released: October 31, 2012