ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-12-2010-00
DATE: 20131104

B E T W E E N:

HER MAJESTY THE QUEEN

Sean C. Doyle, for the Respondent/Crown

Respondent

• and -

ANBUALAKAN RATNESWARAN

Jeffrey Milligan, for the Appellant

Appellant

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable M.F. Khoorshed,
dated June 5, 2012]

Durno J.

1At roughly 5:11 a.m. on March 11, 2011, the appellant was in a motor vehicle accident. His vehicle turned left in front of one that was proceeding on a green light through the intersection. The police arrived at 5:23 a.m. The officer formed a reasonable suspicion the appellant had alcohol in his system and gave him a roadside screening demand. On his eighth attempt, the appellant’s provided a suitable sample that analyzed as a “fail.”

2The appellant was arrested for driving having consumed excess alcohol. Because his Intoxilyzer readings were taken more than two hours after he drove, on the date of his arrest it was readily apparent that the Crown would require the evidence of a toxicologist to establish the blood alcohol readings at the time of driving. Criminal Code, s. 258(1)(c).

3His trial was scheduled for January 3, 2012. On December 30, 2011, ten and one half months after the arrest, an assistant Crown Attorney reviewed the file and realized that a toxicologist was required. She contacted a toxicologist, left a voicemail advising defence counsel that a report would be forwarded to him and at 4:00 p.m. faxed the report to counsel. Defence counsel was out of the country and first saw the report on the morning of January 3, 2012.

4Defence counsel sought and was granted an adjournment because of the late notice. The trial judge determined he was required to grant the adjournment pursuant to s. 657.3(4) of the Criminal Code. When the trial was not completed on the second trial date, the appellant unsuccessfully applied to stay the proceedings pursuant to sections 11(b) and 24(1) of the Charter of Rights and Freedoms.

5He was convicted and appeals contending: first, the reasons for dismissal of the s. 11(b) application are conclusory and do not permit appellate review and, second, that the trial judge erred in not staying the charges. The Crown agrees with the first ground and disputes the second.

6For the following reasons, the appeal is dismissed.

The Chronology

7March 13, 2011: the appellant was arrested.

8March 16, 2011: the information was sworn.

9March 24, 2011: the appellant made his first appearance and the case was remanded to May 5, 2011.

10May 5, 2011: a resolution meeting was conducted and a trial date set for January 3, 2012, with a one day estimate. On consent on the appeal, trial counsel provided an affidavit that his first available date was June 6, 2012.

11December 30, 2011: at roughly 4:00 p.m. the Crown faxed defence counsel a copy of a toxicologists report that the Crown intended to rely upon. Defence counsel was not in his office when the fax arrived.

12January 3, 2012: The first trial date: Defence counsel (not Mr. Milligan) obtained the fax from his office the morning of trial. The trial was scheduled on a "TBA list," a docket that at the start of day routinely does not have a judge assigned for that list. As courts become available, they are sent to a trial court.

13That morning Clark J. was speaking to the TBA list although he was not to be the trial judge. Defence counsel told His Honour that he would require time to review the report with his client and that the case would have to be adjourned, keeping in mind that s. 11(b) was "not being waived in any way, shape or form.” However, defence counsel offered to proceed with the trial if the Crown did not use the report.

14The Crown, while conceding there was an error in the Crown's office in not arranging for a toxicologist well in advance, objected to the adjournment because the report was “fairly routine,” noting His Honour had recently ruled that a report relating breath readings back to the time of driving was `fairly routine.” However, the Crown then said she recognized that she could not oppose the adjournment because it was “statutorily required under [s.] 657(4)(a).”

15Clark J. offered to start the trial and whenever defence counsel felt there was prejudice, he would consider a continuance. Defence counsel replied, “Absolutely …….. Great.” If the case had to be continued His Honour said he would order that the case “jump the queue”. It would be heard “post haste” in any event because once there are potential s. 11(b) issues with a case there were individual and collective responsibilities to address those issues. The case was held down until a court became available.

16At defence counsel’s request, the case was re-addressed. Counsel apologized, told Clarke J. that his brain was still of vacation time and he was not as sharp or crisp as he might otherwise have been. He told His Honour the case was a straightforward over 80 with low readings and a minor accident. It was apparent from the outset that the Crown required a toxicologist for the case to be proven.

17Defence counsel continued:

Now, where I fell down on the job, as it were, was that it was apparent to me as well, when I looked at this material, that I had a s. 8 Charter application that I was capable of bringing. I did not bring that application because without a toxicologist’s report the Crown was not in a position to build a case. And if the Crown’s not in a position to prove the case it was not necessary for me to bring the Charter application.

18Defence counsel asked for the adjournment to prepare the Charter application. When Clark J. asked about the nature of the s. 8 application, counsel advised that the disclosure showed the roadside screening device was to have been calibrated every fourteen days. This machine was calibrated on February 27 and the offence date was March 13. The Crown acknowledged defence counsel told her of the Charter motion at the pre-trial conference and said she was prepared to proceed without a written Charter application. The defence agreed and the case was then traversed to Currie J.’s court for trial.

19The Crown advised His Honour that they were prepared to proceed with the s. 8 application without written notice. Defence counsel had provided citations for three cases they would rely upon. Defence counsel said he was prepared to start the trial but added, “My friend is relying on the report, I take it, of the toxicologist. Is that the way it’s working?” The trial judge noted Dr. Corbett, the author of the report, was in court. Defence counsel continued, “That’s why I’m asking, especially … ‘cause if the toxicologist intends to be called, then I have to have 30 days notice in which case I wouldn’t consent to any of this.” The Crown said the issues were raised before Clark J. and “… obviously, my friend is entitled to an adjournment under the circumstances.” Defence counsel confirmed to Currie J. that if the Crown was relying on the report and not calling the toxicologist he would start the trial. However, the Crown said she was intending to call the toxicologist but there were other witnesses available and they could start the trial.

20Currie J. asked if there was any agreement that the trial would start. Defence counsel said that if the Crown was calling the toxicologist he sought an adjournment without hearing any of the witnesses. The rules entitled him to an adjournment. His Honour agreed. The trial date was set for February 3, 2012, the first date offered by the Trial Coordinator. Defence counsel said he was not waiving s. 11(b).

21February 3, 2012: The second trial date: The trial started before Khoorshed J. sometime between noon and 2:00 p.m. The trial continued until roughly 4:15 p.m. and was adjourned to June 5 with two further hours noted. Defence counsel had offered to “press on” and finish the evidence or to adjourn the trial. When His Honour directed the matter be adjourned, defence counsel said he was “content to go either way …” He did not mention any s. 11(b) concerns.

22The court could have continued the trial on March 6 or May 23. On both dates the defence was available but not the Crown.

23June 5, 2012: The third trial date: The appellant applied to stay the proceedings pursuant to s. 11(b) of the Charter. In doing so, he relied on his affidavit that provided the following information.

24The appellant, an accounting student, was charged on March 13 and retained his trial counsel on April 4, 2011. The 90 day administrative suspension upon being charged was “very stressful`` for him. The day before he was arrested, he secured employment in Toronto. It was very difficult to get from his Woodbridge home to downtown Toronto. Being charged was very embarrassing. He was very concerned as to how this and the potential loss of his licence would affect his employment if he was convicted. Thirty percent of his work required him to travel to clients’ places of business to look at their books.

25The appellant had many sleepless nights since being charged. His employer did a criminal record check before hiring him and he did not know whether having a record was grounds for dismissal. As regards legal fees, the appellant said, “My parents take the position, and I agree, that I am responsible for my legal fees for this trial. Three trial dates is a great financial prejudice to me.”

26He was not cross-examined on his affidavit.

(Decision continues exactly as in the source text.)

72The appeal is dismissed.

Durno J.