COURT FILE NO.: 2211/12

DATE: 20140613

SUPERIOR COURT OF JUSTICE

ONTARIO

B E T W E E N:

HER MAJESTY THE QUEEN CYNTHIA NADLER and ALANNA FEDAK-TARNOPOLSKY, for the Respondent/Crown Respondent

• and -

INDERJIT PUREWAL RICHARD POSNER and GABRIEL GROSS-STEIN, for the Appellant Appellant

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable Justice S. Clark,

dated September 25, 2012]

DURNO, J.

[1] On April 3, 2010, the police found the appellant exhibiting indicia of impairment while he was seated in the driver’s seat of a motor vehicle with the engine running. He was arrested and taken to the station where his turban was taken from him and not returned until his release. He provided breath samples that analyzed at 137 and 155 milligrams of alcohol in 100 millilitres of blood and was charged with impaired care or control and having consumed excess alcohol and being in the care or control of his vehicle.

[2] At his trial he relied on evidence of bolus drinking, conceding that his blood alcohol level was over the legal limit and his ability to operate or have the care or control of a motor vehicle was impaired when he was at the station. However, because of the bolus drinking his blood alcohol level was under the legal limit and his ability to be in care or control was not impaired at the time he was in care or control. He also sought to exclude the Intoxilyzer readings obtained contending his right to religious freedom was infringed when the officer removed his turban and would not return it to the appellant.

[3] The appellant’s trial commenced on September 6, 2011, and after four further trial dates, the appellant was found guilty on September 25, 2012. He sought to stay the proceedings for unreasonable delay, relying on s. 11(b) of the Charter. The trial judge heard the appellant’s and Crown’s oral submissions and then produced detailed written reasons for judgment that were prepared on the basis of written submissions and before oral arguments were presented.

[4] The appellant was found guilty of impaired operation and driving having consumed excess alcohol, with the count involving excess alcohol conditionally stayed. The trial judge imposed a $1,000 fine and a 12 month driving prohibition.

[5] Mr. Purewal appeals contending the trial judge erred:

1. in failing to stay the proceedings when his right to a trial within a reasonable time was infringed;

2. in exhibiting a reasonable apprehension of bias by preparing his reasons for dismissing the s. 11(b) application before hearing submissions;

3. in failing to exclude the Intoxilyzer readings based on the breach of the appellant’s right to religious freedom when the officer would not return the appellant’s turban.

4. in rejecting the appellant’s evidence by:

i) relying on R. v. Bulman (2007), 2007 ONCA 169, 44 M.V.R. (5th) 1 (O.C.A.) when the appellant engaged in bolus drinking at a time when he was not intending to drive,

ii) applying the erroneous assumption that the last thing a man in a troubled marriage would do was drink alcohol to excess when his wife did not want him drinking,

iii) finding the appellant was not sitting in his van long enough to have back problems so as to explain what the officers felt was unsteadiness on his feet, and

iv) relying on the Intoxilyzer room video to support the finding that the appellant’s ability to be in care or control of a motor vehicle was impaired at the time he was in care or control when there was no dispute that he was impaired in the station. The issue was whether the Crown had established beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by the consumption of alcohol when he was seated in his van.

[6] For the following reasons, the appeal is allowed, the conviction and finding of guilt quashed and a new trial ordered.

The Evidence

[7] At 8:30 p.m. Constable Mohammed responded to a radio call regarding a possible impaired driver in a Dodge Caravan. At 8:42 p.m. the officer located the vehicle parked on an angle, partially blocking a driveway in an irregular manner. The engine was running, the rear lights were on and the keys in the ignition. As the officer approached the van, the appellant got out of the driver’s door, was unsteady on his feet and stumbled as he walked two steps although the officer agreed that he may have been steadying himself once he got out.

[8] The officer, noting the appellant had red-rimmed and bloodshot eyes and an odour of an alcoholic beverage on his breath, formed the opinion the appellant’s ability to have the care or control of a motor vehicle was impaired by the consumption of alcohol, arrested him for impaired care or control and made a demand for an Intoxilyzer breath sample. The appellant appeared to be in shock and was upset at being arrested.

[9] The Intoxilyzer technician, Constable Garry Rawlinson, also formed the opinion the appellant’s ability to operate a motor vehicle was impaired by the consumption of alcohol when he saw the appellant at the police station. The appellant had red-rimmed, watery and bloodshot eyes, his speech appeared to be slurred at times and he had an odour of alcohol on his breath. The appellant provided breath samples that were analyzed at 137 and 135 milligrams of alcohol in 100 millilitres of blood.

[10] The appellant testified that he went to his brother-in-law’s home around 5:00 or 6:00 p.m. with his wife and children. Before he went there, he had consumed no alcohol. Roughly thirty minutes after his arrival, his brother-in-law poured him a one to a one and one quarter ounce shot of whiskey and a second shot of the same size fifteen or twenty minutes later. His relationship with his wife was not good at that time. She did not like it when he drank. When she noticed that he might have been drinking, she was concerned that he would have more and told the appellant she wanted to go home.

[11] When they were saying goodbye at the front door, his wife went to the washroom. While she was gone, he poured himself five or six ounces of whiskey in a glass and drank it because there was no liquor at his home. No one saw him drink the whiskey. As he knew he was not working the next day, he wanted to have more whiskey and go home to sleep. Since he was a truck driver and often on the road for five or six days, it was not uncommon for him to drink in that manner.

[12] The drive to his home was two or three minutes from his brother-in-law’s home. They left with the appellant’s wife driving and the appellant in the front passenger’s seat. They argued because he had been drinking. When they got within one hundred metres of their home, his wife stopped the van, told the children, “Let’s go home.” They got out and left the appellant. He moved over into the driver’s seat, thinking he would wait for his wife to cool down before he drove home. The police arrived before he could do so.

[13] The appellant said he felt fine in the police cruiser but the longer he sat there the alcohol was starting to have an effect on him. He denied he was unsteady on his feet. When he sits for an extended period of time, he has a sore back because two of his vertebrae are not properly aligned. This caused him to be unable to walk straight for a short period and to wear a back brace. He walks crooked, as if he was walking with a limp.

[14] Dr. Corbett, a forensic toxicologist, testified that if the appellant did not consume a substantial amount of alcohol within fifteen minutes before the offence, his blood alcohol level would have been between 133 and 177 milligrams of alcohol in 100 millilitres of blood. If the appellant had consumed five ounces of alcohol within fifteen minutes of the offence, his blood alcohol level would have been just under eighty milligrams of alcohol 100 millilitres of blood.

The Reasons for Judgment

[15] The trial judge provided counsel with a twenty-five page written judgment that included two sections under the charge of impaired care or control. Under the section titled, “Has the Crown proven impairment beyond a reasonable doubt?” the trial judge concluded that he did not accept the appellant’s evidence. Under the section regarding the excess alcohol charge His Honour addressed whether the Crown had proven the offence based on the expert report, the expert and the police oral evidence. In that section the trial judge concluded the appellant’s evidence defied credulity.

[16] The trial judge accepted the police officers’ evidence and rejected the appellant’s, finding it did not raise a reasonable doubt in his mind. While his back may explain some of his unsteadiness, the appellant said he was in the van for no longer than twelve or thirteen minutes at most. He experienced back problems only after sitting for a reasonably lengthy period of time. This could not have been the case in this scenario. His Honour found the appellant had to steady himself when he got out of the van. After viewing the appellant in the Intoxilyzer room, His Honour found his actions and demeanor were consistent with impairment.

[17] As regards the care or control elements, His Honour found the Crown had met the onus concluding there was no doubt the appellant was in care or control. His stated intention was to remain in the van for up to thirty minutes for his wife or him to calm down before he drove home. The trial judge found the appellant “clearly had no plan not to drive.” In addition, given the way the van was parked, it posed a danger and the appellant had the present ability to put the van in motion.

[18] His Honour turned next to the bolus drinking issue, noting that if he accepted the appellant’s evidence that he drank five or six ounces as he was leaving his brother-in-law’s, that alcohol was not in his bloodstream when he was arrested in care or control. The trial judge found the case law:

… supports the proposition that it is a common sense inference that people do not normally ingest large amounts of alcohol just prior to driving, or getting into a motor vehicle. (emphasis added)

[19] His Honour found the appellant’s evidence that he consumed the amount of alcohol he said just before he left his relative’s defied credulity and common sense. He rejected it as “fanciful at best and an outright fabrication at worst.” He knew his wife did not like him drinking. It was for this reason that she wanted to go home. His Honour continued:

If the marriage was problematic, one would think that the last thing the defendant would want to do would be to aggravate his wife further by recklessly consuming such an amount.

[20] His Honour found the appellant drank much more than two shots at his brother-in-law’s but not in a bolus manner.

The Grounds of Appeal

The Issues regarding the s. 11(b) ruling

Did the trial judge err in failing to stay the proceedings for a breach of s. 11 (b)?

The Chronology

[21] April 2, 2010: the appellant was charged and released on a Promise to Appear at 4:08 a.m.

[22] April 13, 2010: the information was sworn and the s. 11(b) “clock” began ticking. R. v. Kalanj (1989), 48 C.C.C. (3d) 572 (S.C.C.).

[23] April 15, 2010: counsel appeared for the appellant by designation and he was remanded to May 6, 2010.

[24] May 6, 2010: the appellant appeared by agent and was remanded to May 27, 2010.

[25] May 27, 2010: the appellant appeared by counsel and was remanded to January 25, 2011 for trial with a three quarter day time estimate. (7 months, 29 days)

[26] January 24, 2011: Mr. Posner wrote to the assigned Crown indicating the appellant’s relationship with his former counsel had broken down and he was prepared to go on the record for the appellant. However, he was not available for the January 25, 2011 trial and, in any event, he would require a month to prepare for trial. A member of his office would appear on the trial date to seek an adjournment.

[27] January 25, 2011: the appellant’s adjournment request was granted and he waived his rights under s. 11(b) until the new trial date of April 29, 2011. Again, three quarters of a day was the time estimate.

[28] April 29, 2011: the appellant sought an adjournment of the trial date because of a scheduling conflict and waived his rights under s. 11(b) until the new trial date, September 6, 2011. Again, three quarters of a day was the time estimate.

[29] September 6, 2011: the appellant’s trial began at 2:25 p.m. At some point in the morning the case was called and counsel advised the trial judge that the interpreter who was there was unaccredited. Mr. Posner’s “wish” was for an accredited interpreter although he said it was a matter for His Honour’s determination and an inquiry of the conditionally accredited interpreter could be conducted. The information is noted that on April 29th a Punjabi interpreter was ordered and the Verification Form was noted for an interpreter. However, no interpreter was ordered for the trial. Through happenstance, the unaccredited interpreter was available.

[30] His Honour recessed for approximately ten minutes. The transcript next shows the case was dealt with after other matters were addressed. An accredited interpreter was available and counsel were ready to proceed. The Crown indicated that she intended to call five witnesses.

[31] Mr. Posner advised the trial judge that a toxicologist, Mr. Moftah, had been retained by the appellant to advise him during the evidence of the Crown’s toxicologist. He was not going to be testifying. Counsel also told His Honour that he had brought an application under s. 2(a) of the Charter contending the appellant’s right to religious freedom was violated and seeking to exclude the Intoxilyzer readings. He had filed the notice of application on Friday, September 2 and gave the Crown the appellant’s affidavit on the morning of trial, Tuesday, September 6, 2011.

[32] Crown Counsel submitted the application should be dismissed for non-compliance with the rules of court. Mr. Posner stressed that the fault was his, not his clients. He had just recently realized there was a s. 2(a) Charter issue. When it became apparent that the case was not going to be completed on that date, the Crown agreed that the issue could be dealt with at the end of the trial but submitted that if there was a breach, the remedy should not be the exclusion of the readings, rather a stay of proceedings was appropriate.

[33] The appellant was arraigned and evidence began at 2:25 p.m. and continued until 3:50 p.m. when the trial judge advised counsel to go to the trial coordinator’s officer to obtain a continuation date. The case was adjourned to December 23, 2011, to continue with a one day estimate to complete the trial. (three and one half months)

[34] The Trial Verification Form notes the following dates were offered: October 21, November 4 and December 23. The Crown was available for all dates and the appellant’s counsel for only the last date offered.

[35] December 23, 1011: the trial continuation was first addressed at roughly 11:05 a.m. His Honour apologized for the late start that was caused by his responsibilities in family law, the time of year, that it was the last juridical day before Christmas, and that there were time-sensitive family law matters that he was required to deal with on that date. One of those cases was to start at 9:30 a.m. so as not to impact on the appellant’s case but there were “further administrative difficulties” and that case had not started until later.

[36] The trial judge wanted to start and sit for about twenty-five minutes (nine pages of transcript) before breaking to reflect on a ruling in a family law matter that he was giving at noon. Later in the day, His Honour said that the appellant’s trial was the only case on his criminal list but his “superimposing two family law matters on today … caused some of the problems.”

[37] While it is not noted on the transcript, it appears His Honour adjourned the appellant’s trial from around 11:30 a.m. until roughly 12:10 p.m. When court resumed, the trial judge again apologized for the interruption but the issue he was dealing with involved child access that was occurring in the next two days. Mr. Posner noted that it was “rather exigent circumstances.” His Honour sat until roughly 1:15 p.m. and resumed from 2:15 p.m. until about 3:50 p.m. when counsel were directed to the trial coordinator to obtain a continuation date. When counsel were discussing a continuation date, they thought a further full day would complete the matter. Through the Crown, Mr. Posner had raised a concern “about a day being a day.”

[38] The trial was adjourned to April 30, 2012 to continue with a one day estimate to complete the trial. (four months and eight days) The Trial Verification Form notes the following dates were offered: January 4 and April 30. Neither counsel was available on the first date.

[39] Before adjourning, His Honour asked if there were any s. 11(b) issues from the April 30th date. Defence counsel replied: “I would’ve liked it sooner than April 30th, but, you know, it is what it is.”

[40] April 30, 2012: the trial continued but was not completed. Again, a family law matter was dealt with first. It was to have started at 9:30 a.m. but did not do so. It is not apparent what time the trial started except that it was after 10:00 a.m. and before noon because the trial started with playing the entire Intoxilyzer room video and His Honour took the morning break in the midst of the video being shown and continued after that break.

[41] While a few minutes of the Intoxilyzer room video was played on December 23rd it was agreed to play the entire tape that date which took roughly one hour and ten minutes. While there was a police officer interpreting for the appellant in the video, his interpretation skills were at issue and it was agreed that the court interpreter would interpret the videotape.

[42] The trial continued to roughly 1:00 p.m., broke for lunch until 2:20 p.m., sat until some unspecified point in the afternoon when His Honour directed counsel to obtain a continuation date. When counsel were sent to the trial coordinator, Mr. Posner expressed surprise that the Crown had two further witnesses to call. The case was adjourned to May 1, 2012 to set a date for the continuation.

[43] May 1, 2012: The Trial Verification Form notes the first date offered by the trial coordinator that was available to both counsel was November 1. Mr. Posner noted that delay was a “grave concern” and continued that he:

… may have been ineffective by failing to bring forth an 11(b) application yesterday but I, I, I chose to, you know, focus on, one the issues and, and, and I’m not saying that I’m going to bring an 11(b). I’d need to consider it more fully but I, I know that, from, from Mr. Purewal’s prospective, he’s very, very concerned that it’s been very, very difficult for him. I know that, very difficult for him. So – ‘cause he has to come up with the money to pay for counsel and to pay for Mr. Moftah. He’s paid on three occasions so, you know, it, it’s there’s been real, there’s been real prejudice to Mr. Purewal. So the November 1st day doesn’t bring tears of joy, you know for him.

[44] His Honour felt the delay was too long and directed counsel to return to the trial coordinator to obtain an earlier date. The Trial Verification Form, noted His Honour had directed the trial to start early (9:30 a.m.) on the next date. The following dates were noted: May 2 and 31 (only four hours available on both dates “on top of another continuation”), June 6 when the Crown but not defence was available, June 26 when the defence was available but not the Crown, July 10 when only four hours were available “on top of a half day preliminary inquiry continuation,” July 11 when two hours were available on top of a three quarter day continuation when neither counsel were available, August 3, when two hours were available on top of three quarters of a day continuation, when both counsel were available, August 7, when only three hours were available and both counsel were available, and August 10, 20 and 24 when the defence was available but not the Crown. August 27 when both counsel were available was the next date offered and selected. The Trial Verification Form notes that a four hour “domestic bumped per S.R.C.” (the trial judge)

[45] The appellant was remanded to August 27, 2012, to continue with a one day estimate to complete the trial. (three months, twenty-nine days) Before leaving, Mr. Posner said the Trial Coordinator “seemed to be genuinely struggling up just to find some time … and she seemed to have engaged in a Herculean task to, to find these dates.” Mr. Posner said August 27 was certainly better than the 1st of November. Getting the date had been a “learning experience” as it took the better part of “almost three and one half hours.” It was remarkable in Mr. Posner’s view. There was no further mention of s. 11(b) on that date. Accordingly, the continuation date was set without estimating any time for that application.

[46] August 27, 2012: the appellant’s application to stay the proceedings based on a breach of his s. 11(b) rights was dismissed with the trial judge delivering what the appellant characterized as “comprehensive reasons that had been drafted in advance.” The trial evidence and submissions were completed on that date and the appellant remanded to September 25, 2012, for judgment. (30 days)

[47] September 25, 2012: the appellant was found guilty and sentenced.

The Reasons on the s. 11(b) application

[48] His Honour reviewed the case chronology, noting that the late start on September 6 was caused by the Punjabi interpreter who was assigned to the case not being fully accredited. While the Crown objected to the late filing of the s. 2(a) Charter application, the court heard the application. On December 23, 2011, the case did not start until 11:00 a.m. as His Honour was addressing two unrelated family law matters. Again, on April 30, 2012, the start of the trial was delayed as the trial judge was addressing an unrelated family law matter.

[49] When the case was adjourned to May 1 to obtain a new date, the earliest date offered by the Trial Coordinator was November 1, 2012. His Honour was not prepared to have the case adjourned for that period of time, resulting in counsel spending three and one half hours with the trial coordinator attempting to secure an earlier date.

[50] May 1 was the first date that the appellant’s counsel raised concerns for the delay noting that the defence expert had been in court on each of the previous scheduled trial dates. When the s. 11(b) application was filed it included the appellant’s affidavit that set out the specific prejudice caused to him by the delay. His Honour noted the cluster of problems, fears and harmful consequences thrust upon the appellant as a result of the delays including the financial hardship and anxiety tied with having to prepare for multiple trial dates. His original trial had been estimated to only last three quarters of a day. Each day he attended assuming the case would be completed. When it did not, he was rendered “surprised, disappointed and anxious.” Having to retain defence counsel and the toxicologist for so many trials led to the appellant having to borrow money from family members and taking out a line of credit. The entire experience left him embarrassed and ashamed.

[51] His Honour found the total period from being charged to the application, twenty-eight months and twenty-four days was clearly sufficient to trigger an analysis. The appellant argued there were fifteen months and nine days institutional delay, well beyond the Morin guidelines. The Crown argued there was only two months institutional delay.

[52] The appellant waived the time between January 25, and September 6, 2011, a total of seven months and eleven days. The appellant contended the systemic and Crown delay was one year, nine months and seven days. The appellant submitted the case was not complex, it had no special or unusual time requirements.

[53] The appellant conceded that one month of the time to the first trial date should be deducted as preparation time as there was no indication when counsel was ready for trial. Of the time between the date the trial started and the second date (to the first date offered by the Trial Coordinator - October 21, 2011) was one month and fourteen days. Of that time, the appellant suggested one half should be attributed to the Crown and one half to the defence resulting in delay of twenty-two days.

[54] Since the defence were only offered one date between December 23 and the April 30th third trial date, he contended that the entire period should be institutional delay. The appellant argued the time between the third and fourth trial dates was institutional delay and that the total institutional delay was fifteen months and nine days.

[55] The Crown had noted the appellant’s late Charter application based on a breach of s. 2(a) and that the appellant raised a “novel argument” with respect to the Certificate of Analysis for which the Crown required a brief adjournment. These time periods were not in the original time estimate nor in the time estimated to complete the trial from December 23, 2011. When the date was set for the August 27th continuation no time was built in for the s. 11(b) application. The Crown argued that courts must operate according to a schedule and that Trial Coordinators must rely on time estimates jointly advanced by counsel. When the estimates were inaccurate and additional time required, the delay that resulted was inherent and considered neutral in the delay analysis. That was a reflection of the reality of the world in which the criminal justice system operates. No case is an island. When additional time is required, the court cannot be expected to push other cases to the side and “instantaneously provide those additional resources.”

[56] The trial judge found that roughly two months was intake period and a further one month deducted from the total time for counsel to prepare, noting the trial was scheduled for three quarters of a day, roughly 3.5 to 4 hours. His Honour felt the time had come for each drinking and driving case to be set for two days at a minimum. Had both counsel made more realistic time estimates at the outset, much of what occurred could have been avoided.

[57] His Honour found it was “inaccurate, if not disingenuous to say that this [was] a straightforward drinking/driving case.” To the date of the s. 11(b) application, issues had been raised regarding the appellant’s s. 7 and 8 Charter rights regarding “the police policy about removing a suspect’s turban, which is, if not a novel issue, is not one often raised;” the inner workings of the 8000C breath instrument which required a Crown expert to be called; and there remained two further Crown witnesses to be called if the s. 11(b) application was dismissed. This was clearly a case that required more than three quarters of a day to complete. On April 30, 2012, roughly one hour and ten minutes of court time were taken up playing the DVD of the appellant in the breath room.

[58] His Honour found the appellant contributed significantly to the delay because of the “profound underestimation of trial time.” Citing R. v. Baxter [2012] O.J. No. 796 (C.J.) at paras. 117-122 and R. v. Ferguson 2005 CanLII 28538 (ON SC), [2005] O.J. No. 3442 at para. 152, the trial judge found that counsel providing uninformed and misleading (even if unintentional) time estimates fail in their duty to the court and also place the accused’s chances of success on a delay application in peril.

[59] The trial judge also found the Crown bore some responsibility for contributing to the delay. The Crown is, to a large degree, the “keeper of the keys.” Once the Crown learns of the arguments to be advanced, the prosecutor cannot “merely sit back and acquiesce, or perfunctorily, agree with defence counsel’s position on the required time. The Court could not condone “blind optimism” nor could the Crown “continue to condone, or at least accept inadequate time estimates for any of the continuing trial dates sought.”

[60] His Honour concluded there was seven months institutional delay to the first trial date. After two defence adjournments, the trial started on September 6 and it was readily apparent that despite the late start that the trial would not be completed on that date, “[t]herefore, the time between September 6th and the continuing date of December 23rd, 2011 is neutral time, not systemic.” The trial judge applied the same approach to the time between the second and third trial dates, attributing the time as neutral as the “constellation of legal issues would compel this case into yet another continuation date.”

[61] From April 30 to August 27, the date the s. 11(b) application was set was also neutral time because counsel had yet again not accurately or adequately estimated continuing trial time, including the time for the s. 11(b) argument. His Honour concluded “the majority or the delay was not caused by limits on institutional resources, but by the various adjournments required to find additional time when the original trial estimate was inaccurate.” In the result, the total institutional delay was seven months.

[62] His Honour continued:

The Court could do a more “micro” breakdown of the times after the first trial date, however, even if the Court endeavored to apportion the time between Crown and defence actions, this would not significantly alter the calculus.

[63] Next addressing “other reasons for the delay,” the trial judge found that the court and “administration of justice in this region should not be immune from scrutiny in this case either. The Court controls its own process.” Courts must be vigilant to put counsels’ “feet to the fire” when setting trial dates for these types of cases. Second, that a Punjabi interpreter was required impacted on the pace of the proceeding. Third, without attempting to either patronize or criticize Mr. Posner, he mounted a formidable defence to the charges with the defence being fairly characterized as leaving “no stone unturned.” His thorough and skilled approach exposed the illusory nature of the time estimates.

[64] Finally, addressing prejudice, His Honour found the appellant’s liberty and right to make full answer and defence interests were unaffected by the delay. What remained was the security of the person with His Honour continuing:

The Court finds in all of the circumstances, that the conduct of this trial by the defence, in putting the Crown to the strict proof of its case, and the Charter issues being raised, is inconsistent with a desire for a timely trial. This is a factor that the Court must take into account when evaluating the degree of prejudice, if any, suffered by the defendant.

[65] The appellant’s affidavit set out “a significant degree of subjective, but unverifiable information.” In addition, there was no documentation, medical or otherwise, to add cogency or probative value to the asserted prejudice. His Honour concluded that the emotional stress was due mainly to being charged and accordingly had “only a marginal and un-extraordinary affect in the analysis.” As regards any specific prejudice from paying legal and expert’s fees for several trial dates, it had to be considered in the context that the case was going to take more than three quarters of a day.

[66] The trial judge continued:

The time-consuming strategy of the detailed and exhaustive examination of witnesses by defence counsel, and the retaining of a defence expert, must have surely been known to the defendant throughout this last 2 years and 4 months. Without sounding flippant, this is merely the cost of doing business in relation to the charges.

[67] Balancing the factors, the institutional delay was within the eight to ten month guidelines and was not excessive. Any inherent or actual prejudice was marginal at best and in any event did not amount to the “exquisite agony” contemplated by Cory J. in R. v. Askov 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 at para. 43. The delay was constitutionally tolerable.

The Arguments on Appeal

[68] On appeal, the appellant concedes that between the September 6 and December 23 trial dates is properly characterized as defence delay or neutral time in the s. 11(b) analysis because of the inaccurate estimate and late filed Charter application.

[69] While conceding an initial underestimation of time, the appellant contends that played only a small role in the substantial delay that unfolded. Half of the first date was lost because there was no accredited Punjabi interpreter. On the first and second continuation dates family law matters took court time. Given the other matters His Honour dealt with when full days were set aside for this case, the trial judge “unreasonably minimized the role that the Court’s beleaguered docket had on the delay.” When a case is not completed in the expected time, special accommodations should be made to ensure an early continuation date. That did not happen here and His Honour failed to take that into account.

[70] The trial judge’s conclusion that defence counsel’s submission this was not complex was disingenuous, was unfair and incorrect. The religious freedom issues were factually and legally straightforward, as was whether the police used an approved instrument. The toxicology evidence was not contested. Further, the suggestion that the defence strategy of leaving no stone unturned contributed to the delay similarly was unfair and incorrect when the examinations-in-chief were longer than the cross-examinations, the defence called only the appellant and his evidence was not lengthy.

[71] The appellant contends His Honour erred in finding that a micro breakdown of the proceedings apportioning time between Crown and defence would have made no difference. A detailed analysis would have made a significant difference and should have been undertaken. There was seven months institutional delay to the first trial date and a more detailed analysis would inevitably have resulted in some additional period of institutional delay being attributed. In Peel the tolerable period of delay in the Ontario Court is at the low end of the eight to ten month Askov guidelines. R. v. Rego, 2005 CanLII 40718 (ON CA), [2005] O.J. No. 4768 (C.A.) Even in Baxter, relied upon by the trial judge, Schwarzl J. apportioned significant periods of time to the Crown delay.

[72] The Crown submits the trial judge considered and appropriately rejected the arguments now advanced on appeal. Contrary to the appellant’s assertion, the trial judge and trial coordinator did make special accommodations to insure that there were early continuation dates. His Honour was alive the s. 11(b) issues. He directed the trial coordinator to secure a continuation date before the end of the year on September 6. On December 23, he asked defence counsel if there were s. 11(b) issues and on May 1 His Honour refused to accept the first “available” date of November 1 and sent counsel to get an earlier date.

[73] The trial judge’s characterization of the case as complex was accurate. There was an unusual Charter application requiring the Crown to call additional witnesses and additional cross-examination of the initially scheduled Crown witnesses. Even defence counsel admitted he had never brought a similar application. The appellant’s argument about the inner workings of the Intoxilyzer was not straightforward, adding time as a recess was required to permit Crown counsel to consider her position regarding exhibits defence counsel wanted to introduce. In addition, the Crown’s case required a forensic toxicologist.

[74] Contrary to the appellant’s assertion that the examinations-in-chief were longer than the cross-examination, the opposite is true. As Code J. noted in R. v. Lahiry, (2011), 2011 ONSC 6780, 109 O.R. (3d) 187, the modern day drinking and driving trial bears little resemblance to the straight forward four hour trials in the Morin era. R. v. Morin, [1992] 1 S.C.R. 71.

[75] As regards prejudice, His Honour made clear and cogent findings and gave detailed reasons for doing so. There was no palpable and overriding error.

Section 11(b) of the Charter of Rights and Freedoms

[76] Section 11(b) protects an individual from impairment of his or her right to liberty, to security of the person, and to make full answer and defence. In seeking to stay charges for trial delay, the applicant/accused has the burden of demonstrating that those interests have been prejudiced as a result of the Crown's failure to bring him or her to trial within a reasonable time, not as a matter of having been charged: R. v. A.K. and A.V. 2005 CanLII 11389 (ON CA), [2005] O.J. No. 1405 (Ont. C.A.).

[77] The purpose of s. 11(b) is to expedite trials and minimize prejudice, not avoid trials on the merits: Morin. In R. v. Qureshi, Khan and Giavorpoulos (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont. C.A.), Laskin J.A. summarized the legal framework for s. 11(b) applications, finding the section aims to protect the individual rights of the accused, as well as the rights of society. It protects three individual rights: the accused's right to security of the person, by minimizing the anxiety and stigma of criminal proceedings; it protects the accused's right to liberty, by minimizing the effects of pre-trial custody or restrictive bail terms; and it protects the accused's right to a fair trial, by ensuring that the proceedings occur while evidence is fresh and available, citing Morin.

[78] Section 11(b) also seeks to protect two societal rights. First, it protects the public's interest in having laws enforced, by having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(b) seeks to protect the public's interest in having those accused of crimes dealt with fairly: R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, 128 C.C.C. (3d) 483 (S.C.C.) at p. 496. As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial: Morin, p. 13.

[79] Determining whether s. 11(b) has been infringed requires the court to balance the individual’s and societal goals with the length and causes of the delay. While the trial judge may not be required to specifically mention she or he has taken into consideration society's interest in the prosecution, it must be clear from the Reasons that that vital consideration has been taken into account: R. v. Kovacs-Tatar 2004 CanLII 42923 (ON CA), [2004] O.J. No. 4756 (Ont. C.A.), para. 5; Qureshi, para. 41.

[80] The section is framed in terms of reasonableness, not whether the delay was of a desirable length: R. v. Seegmiller, 2004 CanLII 46219 (ON CA), [2004] O.J. No. 5004 (Ont. C.A.) para. 30. Courts have refrained from creating limitation periods for certain types of offences, leaving judges to exercise judgment having regard to the factors noted below.

[81] The general approach to a determination as to whether the right has been denied is not by the application of a mathematical formula but rather by a judicial determination balancing the interests which the section is designed to protect against the factors which either inevitably led to delay or are otherwise the cause of delay. As noted in R. v. Smith, 1989 CanLII 12 (SCC), [1989] 2 S.C.R. 1120, "[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable.”

Analysis

[82] The trial judge was faced with a challenging task of attempting to ensure the appellant’s s. 11(b) rights were not breached while factoring in an inadequate time estimate and the demands of lengthy lists and time-sensitive matters in his family law assignments. His Honour and the trial coordinator took significant steps to obtain early continuation dates. To suggest otherwise, is to ignore the record.

[83] Notwithstanding these efforts, I am persuaded the trial judge erred in his s. 11(b) analysis with regards to the reasons for the delay, by failing to factor in all the reasons for the delay and in failing to apportion the time between the continuation dates and in finding the manner in which the case was conducted was inconsistent with the assertion of the right to a trial within a reasonable time.

[84] Several reasons contributed to the trial taking many months to complete including an inadequate trial time estimate, the over-crowded court docket including time-sensitive cases being added to a full day continuation, and the interpreter issue on the first trial date appears to have prevented the trial from starting at 10:00 a.m.

The Trial Time Estimates

[85] Dealing first with trial time estimates, a court sitting day is generally between four and one half and four and three quarter hours (10:00 a.m. to 11:30 a.m.; 11:45 a.m. to 1:00 p.m.; 2:15 p.m. to 3:30 p.m.; 3:45 p.m. to 4:30 p.m.) Accordingly, based on those figures, this trial was estimated to take roughly three and one half hours. However, the transcripts show the trial judge directing counsel to the trial coordinator’s officer before or at 4:00 p.m. to get the trial continuation dates to avoid the line-ups. In these circumstances, it is a more realistic estimate to regard a court day as ending around 4:00 p.m. so three quarters of a day is roughly three hours of court time.

[86] As the transcripts do not have times, it is not possible to determine with precision the total hours the case took to complete. However, it appears it was roughly twelve and one half hours including the short time for arguments and evidence on the s. 11(b) application on August 27, 2012 based on the following times: September 6, 2011 – roughly one hour and twenty-five minutes; December 23, 2011 – roughly three hours; April 30, 2012 – roughly four hours and August 27, 2012 – roughly four hours. Accordingly, the actual trial time was at least well into the third day excluding the s. 11(b) evidence, arguments and ruling.

[87] The appellant’s first counsel agreed to a three quarters of a day estimate. Since there was a Crown-defence pre-trial conference, it is a reasonable inference that Crown counsel agreed with the estimate. When Mr. Posner became counsel, the three quarters of day time estimate was continued. As a general rule, new counsel is bound by the estimates of previous counsel unless the court is notified. As was the case in R. v. Allan (1996), 110 C.C.C. (3d) 131 (Ont.C.A.), it was reasonable for the court to proceed on the basis that new counsel adopted the positions of former counsel unless the new counsel advised the court that he or she feels more or less time will be required.

[88] The original time estimate was problematic before Mr. Posner was retained and the s. 2(a) application filed. First, the appellant required an interpreter. Even with simultaneous translation, using an interpreter increases the inherent time requirements of a trial. If the interpretation is consecutive, the trial takes even longer.

[89] Second, the Intoxilyzer room video was one hour and ten minutes long. It would have been apparent to anyone looking at the file that the videotape was going to have to be played. With the videotape played, there were two to two and one half hours for testimony and submissions. The Crown indicated at the start of the trial that she was calling five witnesses.

[90] Third, it would be readily apparent to defence counsel that the appellant was going to have to testify to advance his bolus drinking defence. With these “givens,” it is difficult to see how three quarters of day was ever going to be adequate for this case, Charter applications or no Charter applications.

[91] A few days before the September 6 trial date, the appellant’s counsel recognized that there was a s. 2(a) Charter violation and filed his material. On September 6, the trial did not commence until the afternoon and the case was adjourned. With the Charter application added, the trial was going to take longer than the original estimate. Additional Crown witnesses were required. The time estimate for the continuation to complete the trial was one day after about one hour and twenty minutes of evidence.

[92] At the end of the first trial date, counsel agreed that another full day was required. The trial judge did not question that estimate. Once the trial starts, obtaining continuation dates became more challenging than setting a first trial date because it now required coordinating both counsels’ dates, the witnesses’ availability dates, courtroom availability, and the trial judge’s schedule.

[93] Trial estimates are never the sole responsibility of defence counsel. If there is no judicial pre-trial, the time estimate is the joint responsibility of both/all counsel. Once the trial starts, time estimates for continuations are the collective responsibility of all counsel and the trial judge. There must an informed discussion on the record regarding time estimates, not simply “one day estimate” without any indication how or why that timeframe was determined. Crown and defence counsel have a vital role to play. To be sure, both counsel have more information than the trial judge regarding the nature of the witnesses’ evidence and issues to be argued. However, the trial judge also plays a vital role based on his or her experience in general as well as the trial judge’s observations of the manner in which the case is being prosecuted and defended.

[94] Trial judges must bring their “know the counsel book” to the time estimation. It is far from a state secret that lawyer A will defend a case and the trial will take one day while lawyer B defending the same case will take two or more days. Similarly, some prosecutors will complete a case in one day while another prosecutor will take two or more days. Here, the trial judge concluded the conduct of the defence was akin to lawyer B. It is a reasonable assumption that conclusion was formed after one or two days of trial. Whether it was an accurate perception in this case need not be determined. However, that conclusion had to be factored into the time estimates for the continuation. It is difficult to see how that was done here. Had all involved discussed on the record what was left more than one day would have been set aside for the continuations rather than doing the trial in one day segments.

[95] The first continuation date was set for December 23 following which His Honour added two family law cases to this full day continuation. It was a time of year that generates a large number of family law proceedings. While adding the case was understandable, it could not be ignored in the apportionment of the reasons for the delay.

[96] No doubt, the defence initially bore much of the blame for the inaccurate time estimate because of the late-filed s. 2(a) application that was not apparent to counsel until well after the case had been set for three quarters of a day. However, it was not only the defence underestimation of time that resulted in a “three quarters of a day trial” taking over three full days in court to complete. This was not a case that required additional court time solely because both counsel underestimated the time required at the outset or for the continuations.

The Nature of the Case

[97] The complexity of the case will impact on the inherent time requirements of the case. R. v. Cranston 2008 ONCA 751. The intake time, counsel preparation time and court time to try a straightforward case are not the same as would be required for a trial that will take a considerable amount of preparation, court time and “writing” time for the judge. In this area, I agree with Code J.’s comments that a drinking and driving case in 2014 bares very little resemblance to trials on similar offences referenced in Morin. The ninety minute pre-Charter era trial and the one half day or four hour time estimates are a thing of the past. Indeed, here the trial judge noted that he thought all drinking and driving trials should be scheduled for two days. Frequently sitting on summary conviction appeals in drinking and driving cases now routinely involve volumes of transcripts and at times bankers’ boxes of material.

[98] Whether the case was “complex” was a matter of dispute between His Honour and Mr. Posner. Indeed, the trial judge unfortunately referred to the defence counsel’s characterization of the case as straight forward as “disingenuous.” The difficulty in this area is that while the Morin judgment referred to complex cases, it is apparent that Sopinka J. was not restricting his comments to complicated, problematical or convoluted cases because he provided the following examples; a fraud case that may involve the analysis of many documents, some conspiracies may involve a large number of witnesses, and other cases may involve numerous intercepted communications which all must be transcribed and analyzed. While all are time-consuming in preparation and presentation in court, none of those examples necessarily involve complicated factual or legal issues.

[99] The most complex issues to determine can occur in cases that take a relatively small amount of court time. A case may lack complexity, but take a significant period of time to prepare for and try. In this context, the consideration of complexity is not restricted to the facts alone as the appellant appears to have submitted. Rather, it includes the length of time a case will take to prepare, try and determine. It may be the number of factual or legal issues to be determined or the time-consuming nature of the evidence that contribute to making the case one that will take longer to complete and for which the inherent time requirements and intake periods will have to be longer. Since s. 11(b) applications are considered on the total time, where the case is one just referred to, the total time requirements will be longer. When the longer inherent time requirements and intake periods are deducted, the systemic and Crown delay may not breach s. 11(b) rights.

The Conduct of the Defence

[100] As regards the manner in which the appellant defended the case, both counsel submitted that the other side questioned witnesses for longer than the other, thereby contributing to the length of the trial. A review of the transcripts shows that roughly seventy-three pages were covered by the examination in chief of the Crown witnesses and again roughly ninety-one pages in cross-examination. On this record, I am not persuaded that anything can be drawn from those figures other than that the cross-examinations did not appear to be excessively lengthy.

The Interpreter Issue

[101] While the September 6, transcript is not entirely clear, counsel appear to agree that the case was not called to start until just before 1:00 p.m. because no accredited Punjabi interpreter was ordered, or if ordered, no one was available. When a conditionally accredited interpreter appeared, defence counsel “wished” for an interpreter who was fully accredited but acknowledged that the trial judge could conduct an inquiry to determine if the conditionally accredited interpreter was suitable. Rather than embark on the inquiry, the case was held down and recalled just before the lunch break when a fully accredited interpreter was available. It is not clear whether His Honour held the case down and waited for an accredited interpreter or dealt with other cases.

[102] There is no law requiring that only accredited interpreters be used in criminal trials in Ontario. Where the interpreter is not fully accredited, an inquiry is required to determine if the interpreter is qualified to interpret in the proceeding, including whether the interpretation should be by consecutive or simultaneous translation. It is not clear from the transcript why the inquiry was not conducted although it appears other matters were dealt with in the court.

[103] That half a day was lost because of the interpreter issue and on two days the trial judge added cases to one day continuations was mentioned in the reasons. However, there is no indication that it was factored into the analysis or apparently considered in the time periods between the continuation dates. When it came to determining how the time between the continuation dates was characterized only one issue was relied upon – the appellant’s counsel’s underestimation for trial time. In this regard I am persuaded the trial judge erred.

[104] I am also persuaded the trial judge erred in the manner in which he approached the continuation dates, indicating it mattered not whether he micro analyzed the time periods, the result would have been the same. This approach reveals two flaws. First, it ignores most of the reasons for the delays, putting it all on defence counsel. The underestimation of time was not the only reason for the delay. Second, until the analysis that has been done with s. 11(b) applications is completed it is impossible to know whether there would be any difference.

[105] The following cases illustrate the approach taken where there was an initial underestimation of time. The time required to find additional court time to complete the case may be included in the inherent time requirements for the case. As Doherty J.A. held in R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A):

27 I turn next to the length of the delay which resulted when the case was adjourned. Justice Ferguson held that the entire six months could be attributed to a chronic scarcity of judicial resources. I disagree. When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete that case: R. v. Morin, supra, at p. 16. Those time requirements can include adjournments necessitated by the need to find additional court time when initial time estimates prove inaccurate: R. v. Hawkins (1991), 1991 CanLII 7148 (ON CA), 6 O.R. (3d) 724 at 728 (C.A.), aff'd, (1992), 1992 CanLII 42 (SCC), 11 O.R. (3d) 64 (S.C.C.); R. v. Philip (1993), 1993 CanLII 14721 (ON CA), 80 C.C.C. (3d) 167 at 172-73 (Ont. C.A.). The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b) calculus. The recognition and treatment of such inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. 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. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

[106] Examining the two cases referenced in Allen, in Hawkins, the total time between the first date and the continuation were attributed to neutral time while in Phillips, the time was apportioned between neutral and Crown delay. Similarly, in Allen, the Court of Appeal apportioned the time between the first and subsequent trial dates between defence and Crown delay and systemic delay. The Court apportioned a critical six month period when further time was required because of an underestimation of time, as roughly one month defence delay, roughly one month shared Crown and defence delay, and three and one half months were attributed to “the inherent time requirements needed for the system to respond to the request for an additional five weeks of court time.”

[107] The Court of Appeal took the same approach in R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453, where the case was originally scheduled for three quarters of day and continued on eight dates. Of the five and one quarter months to complete the preliminary inquiry, two months were found to be institutional delay and three and one quarter months part of the inherent time requirements in the case.

[108] In both R. v. Baxter and R. v. Ferguson (2005), 2005 CanLII 28538 (ON SC), 24 M.V.R. (5th) 47 (S.C.J.), leave to appeal dismissed, 2008 ONCA 764, [2008] O.J. No. 4594, cases relied upon by the trial judge here the times were apportioned. In R. v. Baxter, [2012] O.J. No. 796 (C.J.), the trial judge apportioned the time between the second and third trial dates as two months to Crown delay and one month neutral and between the third and fourth trial dates as one month defence delay and one and three quarters months neutral time. A similar approach was taken in Ferguson.

[109] Even if I am wrong in that assessment, here, there were reasons that caused the delay beyond the underestimation of time. The interpreter issues on the first date and matters being added to full day continuations twice. Those cannot be considered neutral issues.

Prejudice

[110] Turning next to the trial judge’s assessment of prejudice, I am persuaded His Honour erred in concluding a vigorous defence was inconsistent with seeking a trial within a reasonable time and in applying an “exquisite agony” standard for the relevant prejudice.

[111] For convenience, I will set out the impugned comments regarding a vigorous defence:

The Court finds in all of the circumstances, that the conduct of this trial by the issues being raised, is inconsistent with a desire for a timely trial. This is a factor that the Court must take into account when evaluating the degree of prejudice, if any, suffered by the defendant.

[112] His Honour provided no authority for the proposition that putting the prosecution to the strict proof of its case or that raising Charter issues or alone or in combination with putting the Crown to the strict proof of its case was inconsistent with a desire for a timely trial. I am unaware of any such authority on either issue. Indeed, in Ferguson, at para. 173, I held that while counsel’s conduct of the trial lengthened the proceeding, it was not inconsistent with seeking to have a trial within a reasonable time.

[113] The Supreme Court of Canada addressed the effect the number of defence applications have on the s. 11(b) analysis in R. v. Morin 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 as follows:

44 This aspect of the reasons for the delay should not be read as putting the "blame" on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable.

45 An example of such actions is provided by Conway, supra. In Conway, the accused made a number of requests which led to the proceedings being delayed. Those requests included a change of venue motion, changes of solicitor and a request that the accused be allowed to re-elect trial by judge alone. A further example is provided in Bennett, supra, where the accused made an election at his scheduled Provincial Court trial to be tried in the then District Court. This converted a scheduled trial into a preliminary inquiry. While the type of action of the accused in both these cases was unquestionably bona fide, each action contributed to the delay and must therefore be taken into consideration in determining whether the overall delay suffered by the accused was reasonable.

[114] Here, the appellant filed one Charter application late. There were no other Charter applications at the outset of the trial, although the s. 11(b) application was filed before the August 27th trial date. As regards the Intoxilyzer being approved, the appellant relied on a judgment of a judge of the Ontario Court in Brampton. His Honour followed a contrary judgment of another judge of the Ontario Court in Brampton. While the appellant’s counsel provided a vigorous defence that contributed to the underestimation of the trial time, the relevance of the underestimation of time on the s. 11(b) analysis lies in the inherent time required for the trial, not as negating prejudice.

[115] It is not inconsistent with a desire for a timely trial to mount a vigorous defence. Were that so, accused persons would have to choose between presenting a vigorous defence or reliance on their s. 11(b) rights. Accused persons are not required to make that stark choice.

[116] I am also persuaded the trial judge erred in rejecting the appellant’s claimed specific prejudice because it was not the “exquisite agony” Cory J. referred to in R. v. Askov [1990] 2 S.C.R. 1191 at para. 43. Cory J. used the term as follows:

I agree with the position taken by Lamer J. that s. 11(b) explicitly focusses upon the individual interest of liberty and security of the person. Like other specific guarantees provided by s. 11, this paragraph is primarily concerned with an aspect of fundamental justice guaranteed by s. 7 of the Charter. There could be no greater frustration imaginable for innocent persons charged with an offence than to be denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial. The time awaiting trial must be exquisite agony for accused persons and their immediate family. It is a fundamental precept of our criminal law that every individual is presumed to be innocent until proven guilty. It follows that on the same fundamental level of importance, all accused persons, each one of whom is presumed to be innocent, should be given the opportunity to defend themselves against the charges they face and to have their name cleared and reputation re-established at the earliest possible time.

[117] Justice Cory was referring to the general inherent prejudice to accused persons and their families that can be inferred from delay. He does not say that exquisite agony is the standard that prejudice must reach before it is meaningful in the s. 11(b) analysis nor am I aware of any authority that would support that requirement.

[118] In these circumstances, it falls to this court to conduct the s. 11(b) analysis applying the criteria set out by the Supreme Court of Canada: the length of the delay, waiver of time periods, reasons for the delay including the inherent time requirements of the case, actions of the accused and Crown as well as other reasons for the delay, and prejudice to the accused.

[119] The total delay from April 13, 2010 to August 27, 2012, 2 years, 4 months and 15 days is sufficient to require an examination of the reasons for the delay.

[120] As regards the waiver of time periods, the appellant waived from January 24, 2011 to September 6, 2011, 7 months and 14 days, with his two adjournment requests. That time is deducted from the total time period.

[121] Turning next to the reasons for the delay, the time from the swearing of the information on April 13, 2010 to the setting of the first trial date on May 27, 2010, 1 month and 15 days, is intake time and neutral in the s. 11(b) analysis, part of the inherent time requirements of the case. The appellant appropriately concedes that while there was no preparation time built into the time between the first date being set and the January 24, 2011 trial date and counsel did not provide his first available dates, it is appropriate to reduce that time by one month, leaving 6 months and 29 days as institutional delay to the first trial date.

[122] For the reasons noted above, I find that the dates to obtain continuation time should be apportioned considering the multiple causes that contributed to the delay. To do otherwise, is to ignore some of the factors that contributed to the delay other than the underestimation of time and defence counsel’s approach.

[123] The appellant submitted that a fair method of apportioning would be to assess institutional delay as fifty percent, and twenty-five percent each to the Crown and defence. In the alternative, he contends that a “conservative” method would be to apportion one third to each of institutional, Crown and defence delay.

[124] I am persuaded that the apportionment of time to continue the trial must include some time as inherent requirements for the trial which is neutral in the s. 11(b) analysis. The first period is from December 23, 2011 to April 30, 2012, four months and eight days. In these circumstances, that time is attributed three quarters of a month to the defence, three quarters of a month to Crown delay, one month for institutional delay (limitations on institutional resources and overbooked court lists) and one and one half months and eight days to the inherent time requirements to obtain additional dates to complete the trial.

[125] For the three months and twenty-nine days between April 30, 2012 and August 27, 2012, the time is apportioned three quarters of a month attributable to the defence, three quarters of a month attributable to the Crown, twenty-nine days to institutional delay and one and one half months attributable to the inherent time requirements to obtain an additional date to complete the trial.

[126] In summary, given the 6 months and 29 days to the first trial date, the institutional and Crown delay total is roughly ten and one half months. Given the method I have used to apportion the time, it may be appropriate to use the same approach regarding the time between the first and second trial dates. For that period the appellant bears the greatest weight because of the late filing of the s. 2(a) Charter application. It is difficult to see how the Crown bears much responsibility outside of the erroneous initial trial estimate. In these circumstances, one month is attributable to the defence, and one half month each to the Crown and institutional delay. One and one half months are attributable to inherent time requirements to obtain a further date. If that apportionment is done from the first trial date, the total institutional and Crown delay is eleven and one half months.

[127] Turning next to the actions of the accused, they can also cause delay. The late-filed Charter application and the s. 11(b) application as well as the other issues raised in the course of the defence have already been considered in assessing the underestimation of time.

[128] While there will be cases where defence counsel are found to have deliberately set out on a course of conduct to create delay including being less than candid in their time estimates, (R. v. Ferguson (2005), 2005 CanLII 28538 (ON SC), 24 M.V.R. (5th) 47 (S.C.J.), leave to appeal dismissed, 2008 ONCA 764, [2008] O.J. No. 4594), this is not one of them. There was no such finding by the trial judge and there is nothing on the record that could support such a conclusion.

[129] There is an obligation on counsel to advise the court where s. 11(b) issues have arisen or the potential for those concerns. R. v. Gorges, 2004 CanLII 36118 (ON CA), [2004] O.J. No. 790 (C.A.), R. v. M.(R.), (2003), 2003 CanLII 50092 (ON CA), 180 C.C.C. (3d) 49; Ferguson, at para. 167. Here, defence counsel raised the concerns May 1, 2012, and His Honour obtained an earlier date than November 1. While it is regrettable that defence counsel was not able to advise the trial judge that he was definitely going to bring a s. 11(b) application when the August 27th date was set, the application and trial were completed that date within the one day estimated. Accordingly, the failure to alert the Court to the additional motion did not impact on the delay.

[130] While Mr. Gross-Stein initially argued that the one month between the end of the trial and the reasons for judgment was systemic delay, Mr. Posner later indicated that the appeal was restricted to the time period between the swearing of the information and the s. 11(b) ruling. While it seems to me that with the trial ruling reflecting errors, the s. 11(b) analysis might include the entire trial time, it matters not in the analysis because the time to prepare judgments is part of the inherent time requirements for the case. R. v. Bosley (1992), 1992 CanLII 2838 (ON CA), 18 C.R. (4th) 347 (Ont. C.A.)

[131] The balance of the time would appear to be attributable to limits on institutional resources. There was no court time available for the trial judge after the first trial date other than those for which one or both counsel were unavailable. Given the Supreme Court of Canada’s comments in R. v. Godin 2009 SCC 26, [2009] 2 S.C.R. 3 at para. 21 that “[s]cheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability,” I am not prepared to attribute defence or Crown delay to the fact some earlier dates were offered and counsel were not available.

[132] As regards prejudice, the appellant was cross-examined briefly on his affidavit. The trial judge made no adverse credibility findings in regards to that evidence but noted the appellant’s affidavit set out a significant degree of subjective, but unverifiable information and that there was no documentation, medical or otherwise to add cogency or probative value to his information. Given the passage of time, there was inferred prejudice although it has to be kept in mind that without faulting the appellant, one quarter of the total delay was as a result of his changing counsel and his second counsel having to adjourn the second trial date. Presumably the appellant’s anxiety over the outstanding charges continued throughout the entire time, including the months for which the defence was responsible for the delay.

[133] There was also some evidence in the affidavit regarding the appellant “slipping into lengthy periods of depression,” being fearful and anxious much of the time and being extremely worried about what would happen to him as a result of the charges, the impact on his family and friends and that he was always nervous and uncomfortable when having to appear in court. While aspects of that evidence are attributable to being charged as opposed to the delay, there were aspects that were attributable to the delay although His Honour fairly commented that there was no medical evidence to corroborate his depression etc.

[134] Given the appellant’s affidavit evidence that was not rejected by the trial judge, there was specific prejudice caused by the delay in having to retain his counsel for four court dates as well as the consultant toxicologist. However, as Mr. Moftah was retained in a consultant capacity his involvement would have ended on April 30, 2012 after Mr. Corbett testified for the Crown. He would not have been required for August 27, 2012.

[135] I also have to consider that the trial took three trial days. Even if the time for the s. 11(b) application were deducted from August 27, 2012 (seventy-one of one hundred and eighty-six pages) the case still would have required more than two days. While there was specific prejudice from the delay, it has to be considered in the context that the trial was not going to be completed in one day.

[136] Finally, the reasons the case took as long as it did were not restricted to defence counsel. In these circumstances, it is inappropriate to conclude that his added expenses were simply the “cost of doing business” on this record.

[137] In the result, I find that there was some additional specific prejudice caused by the delay – the only type of prejudice that is relevant in the s. 11(b) analysis. R. v. Rahey 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588. The degree of prejudice is an important factor in the s. 11(b) analysis. Where there is no specific prejudice, the basis for the enforcement of the s. 11(b) rights is seriously undermined. Morin, at p. 23. In addition, the absence or presence of prejudice can impact on the length of tolerable delay. As the Supreme Court held in Morin,

64 … the degree of prejudice or absence thereof is also an important factor in determining the length of institutional delay that will be tolerated. The application of any guideline will be influenced by this factor.

[138] Balancing the factors, I am not persuaded the proceedings should have been stayed. While the guidelines provided by the Supreme Court of Canada are not meant to be viewed as limitation periods, they are of assistance in assessing delay to trial applications. Morin, at para. 50-52. For cases in provincial courts the systemic and Crown delay guideline is 8 to 10 months. The lower end of that range, 8 to 9 months, is appropriate in Peel for a “straightforward” case. R. v. Rego 2005 CanLII 40718 (ON CA), [2005] O.J. No. 4768 (C.A.)

[139] While counsel and the trial judge differed on the meaning of ‘complex,’ I find this was not a straightforward trial because of the length of the trial and the issues raised. A care or control trial that takes over 12 hours cannot be viewed as straightforward. What put the curves in the road were the change of counsel and no one realistically assessing whether a new time estimate was required, the trial required interpreters that lengthen the inherent time requirements of the trial, the s. 2(a) issue was novel as the appellant’s very experienced trial counsel had never raised it before, the additional time required for the s. 11(b) application, the delays caused by the interpreter not being ordered on the first date, and the Intoxilyzer issues all combined to create a case that cannot be described as straightforward so as to attract the 8 to 9 month guideline.

[140] While there was some prejudice, the appellant was released from the station on a Promise to Appear without conditions. That he was required to serve the 90 day administrative license suspension is prejudice from being charged. Thereafter he was permitted to continue driving. That there were additional legal and expert’s fees was in part contributed to by his counsel’s underestimation of time and late filed s. 2(a) application. I am not persuaded that the prejudice is such as to reduce the guidelines.

[141] Each case has to be determined on its own merits. The eight to ten month guidelines are not a limitation period. The Court of Appeal has examined cases where the institutional delay exceeded the guidelines and did not order stays. See: R. v. S.M. [2013] O.J. 2366 where ten and one half months was “hardly at the tipping point of unconstitutional delay;” R. v. Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 73 O.R. (3d) 161 where the Court held that twelve months did not greatly exceed the eight to ten month guidelines.

[142] While it is a close call, given the factors that have to be balanced as noted above, that this trial involved ten and one half or eleven and one half months systemic and Crown delay was within a constitutionally tolerable time.

Did the trial judge’s preparation of the Reasons for Judgment before hearing oral submissions create a reasonable apprehension of bias?

[143] Both counsel had filed facta outlining their s. 11(b) positions before the August 27th continuation date. In addition, the appellant filed a response to the Crown’s written submissions. On August 27, the appellant was cross-examined on his affidavit filed in support of his stay application. His Honour then heard Mr. Posner’s submissions that covered 12 pages of transcript, the Crown’s that covered 17 pages after which both counsel were given a further opportunity to make additional submissions that covered two or three pages each.

[144] During the course of his submissions, Mr. Posner noted, “… without going into all the authorities and the … calculations again, it’s all done in my factum, I don’t really want to spend time on it. We’ve tried to put our best foot forward, Your Honour, in this factum,” and that he relied on his factum.

[145] His Honour then said:

I think it is important to state from the outset that I wanted to, I’ll use the expression, hit the ramp running today for Mr. Purewal’s benefit. I didn’t want to merely receive the submissions today and then tell you that I was going to reserve and consider them. They were filed in a timely fashion and the … last thing the court wanted to do today, quite frankly, was to add to any delay in the proceedings. So I am prepared to make my ruling at this time, to spare you all. Mr. Benjamin? (the Punjabi interpreter)

INTERPRETER BENJAMIN: Your Honour, it’s been more than an hour, I was wondering if we could have short break, Your Honour?

THE COURT: By all means, sir, thank you for bringing that to the court’s attention … of course you can, That said, I think we’ll take our morning recess.

MR. POSNER: Can we just finish that one sentence?

THE COURT: We’ll stop right there. Let’s take our morning recess and actually let me do say a few things. I prepared a written ruling in advance of the submissions that I’ve heard today. I’m grateful to counsel for summarizing your respective positions which are essentially set out in the carefully crafted materials.

I’m going to reflect over the morning recess but anything that I’ve heard this morning by way of submissions does not substantially alter the ruling that I have made, just in case the optics are such that I ruled on this matter without hearing or considering the submissions of counsel. The court has been benefited, as we as officers of the court know, by having effectively received your written submissions in advance.

What I am proposing to do when we return and if you can just bear with me, Mr. Interpreter, just for another moment, please, I am going to distribute my written ruling at the conclusion of rendering it. I am proposing that I will read only excerpts of it, mainly my analysis of the Morin factors. And the rest is left to counsel at some time to consider the pathway to the court’s decision.

[146] After the break, His Honour asked both counsel if they wished to make any further submissions. Neither did. His Honour then outlined portions of his reasons over 13 pages of transcript. The trial continued to completion that date.

The Law regarding Bias

[147] The law regarding allegation of bias or reasonable apprehensions of bias is found in the Supreme Court of Canada judgment in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394 and reiterated in R.D.S. v. The Queen 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 111:

111. The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. . . .”

112. This test has been adopted and applied for the past two decades. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold": R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. To that I would add that the reasonable person should also be taken to be aware of the social reality that forms the background to a particular case, such as societal awareness and acknowledgement of the prevalence of racism or gender bias in a particular community.

[148] The Court of Appeal recently set out the legal framework for the assessment of bias in Martin v. Sansome, 2014 ONCA 14 at para. 31 - 33:

[31] Bias is a predisposition to decide an issue or cause in a certain way that does not leave the judicial mind open and impartial:Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 58. The burden of establishing bias is on the party arguing that it exists. The test, found in Wewaykum, at para. 60, is long-established:

[W]hat would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude[?] Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly[?]

[32] There is a strong presumption of judicial impartiality. The threshold is high for finding an apprehension of bias: Wewaykum, at para. 76.

[33] In Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, 265 O.A.C. 247, leave to appeal to S.C.C. refused, 33613, [2010] S.C.C.A. No. 91 (July 18, 2010), at para. 230, this court provided additional guidance:

A determination of whether a trial judge's interventions give rise to a reasonable apprehension of unfairness is a fact-specific inquiry and must be assessed in relation to the facts and circumstances of a particular trial. The test is an objective one. Thus, the trial record must be assessed in its totality and the interventions complained of must be evaluated cumulatively rather than as isolated occurrences, from the perspective of a reasonable observer throughout the trial.

[149] The appellant relies on the judgment of Nordheimer J. in R. v. Chue [2011] O.J. No. 4149 (S.C.J.) where His Honour found that there was nothing wrong with a trial judge “sketching out” draft reasons either in advance of hearing counsels’ submissions or as the submissions were being made. Given the time pressure on judges that are more acute in the Ontario Court of Justice, that form of preparation will often be a necessary course driven by the need for expedition in the result.

[150] His Honour continued:

As long as the trial judge remains receptive to persuasion by counsel’s submissions, no harm is created by the practice and some practical benefit may be gained for the process as a whole. Nonetheless, if that practice is to be adopted, a judge must do so with considerable care for, and appreciation of, the impression it may create if it is not undertaken in an appropriate manner. Of preeminent importance is that a judge must always keep an open mind, both in reality and in appearance.

[151] Nordheimer J. held that while he was not finding the trial judge did not have an open mind, that he had an open mind was not evident in appearance for several reasons noted in the reasons. His Honour found that some measure of time should always be taken to reflect on the submissions and to ensure that any draft or sketched out reasons have taken them into account. Taking that time would not be time wasted. Rather it would assist in terms of optics.

Analysis

[152] The trial judge had been attempting to complete the trial for months. When it was adjourned on May 1, 2012, Mr. Posner said that he was not saying he was going to pursue a s. 11(b) application; he had to consider it further. No time for the s. 11(b) application was built into the time estimate for the next date. When the November 1 proposed date was identified by the trial judge and Mr. Posner as simply too long in the future, implicitly attracting s. 11(b) scrutiny, steps were taken to get an earlier date and August 27 was selected. His Honour could have inferred that the efforts to get an earlier trial date could avoid a s. 11(b) application.

[153] However, the appellant served and filed his material on July 31, 2012. His Honour was faced with the prospect of not completing the trial yet again because of the new Charter application. As His Honour said after the submissions were completed, he wanted to “hit the ramp” running and prepared the reasons. He did not say the application was dismissed with reasons to follow and release the already-prepared reasons a few days later. Instead, His Honour acknowledged that he had prepared the reasons in advance.

[154] However, there are problematic portions of the events of August 27 which had the potential to create an inappropriate impression. First, after the reasons were prepared the trial judge heard the appellant’s evidence on the s. 11(b) application yet only referred to the submissions he heard on that date. He never mentioned the appellant’s testimony because he had prepared the reasons before he heard it.

[155] Second, His Honour was about to give the judgment before the interpreter’s request for an adjournment. It was only at that time that he said he would reflect over the recess but that nothing he had heard that morning substantially changed what he had already written.

[156] Third, with the reasons for dismissing the application already prepared, it is puzzling why His Honour heard any submissions from the Crown, let alone further submissions from both sides. If the appellant had not persuaded him that his written reasons were wrong and there should be a stay, the balance of the submissions were of no assistance. To continue to hear the Crown’s submissions, had the potential to fuel the perception that the trial judge was engaging in what amounted to an academic exercise charade by hearing submissions after the case was decided.

[157] However, while the procedure adopted is problematic because of its appearance and one that should not be encouraged, I am not persuaded His Honour exhibited a reasonable apprehension of bias. First, in assessing whether the reasonable, right-minded person would perceive an apprehension of bias, His Honour had received fulsome written submissions from both counsel, including written responding submissions from the appellant. Trial counsel told His Honour, “It’s all there.” The trial judge had the arguments for and against the stay in writing. It is rarely good advocacy to hold back important submissions from written arguments so that they can be presented orally.

[158] Second, His Honour said that he had not been persuaded that his written reasons were wrong after hearing all the submissions. While it would have been prudent for the trial judge to take the time Nordheimer J. found should be taken for reflection after submissions, I am not persuaded the trial judge ran afoul of the reasoning in Chue. He had heard submissions and concluded that nothing he was told that morning changed in a substantial way what he had already concluded.

[159] In these circumstances, while the optics left a great deal to be desired, I am not persuaded the trial judge’s preparation of the reasons in advance displayed a reasonable apprehension of bias.

Did the trial judge err in failing to stay the proceedings when the appellant’s right to religious freedom was infringed when the officer did not return his turban at the station?

The Evidence

[160] The Peel Police Directive regarding searches of persons was filed as an exhibit. While heavily redacted, the relevant excerpts from the policy were as follows:

The purpose of this directive is to establish procedures for conducting the search of persons.

It is the policy of this service that the search of persons be conducted under the law, with full respect for human dignity and according to the highest standards of professional skill, and that acceptable practices and methods be employed in the interest of officer and public safety.

Traditional Sikhs hold certain religious articles with the greatest of importance.

These items are commonly known as the five (5) k’s:

a) Kacha – short legged undergarment

b) Kada – steel bracelet

c) Kanga – comb for grooming the uncut hair

d) Kes – turban used to control the hair, and

e) Kirpan – sword or dagger

The kirpan and the kes (turban) are of significance to police when dealing with Sikhs who are “in custody.”

A Sikh who is in custody shall be searched consistent with the procedures outlined in the directive. A complete search shall include the removal of the kirpan, as well as the removal of the kes (turban) for search purposes. With this in mind, and in appreciation of their beliefs, officers or P.E.O.s shall:

a) if practicable, and with the primary factor being members of this service safety, have the prisoner remove the kes themselves. If they refuse, officers or P.E.O.s shall search as outlined in procedure, advising them of the process and steps to be followed; and,

b) upon searching the kes, return the kes to the prisoner without pins, etc. used to secure it to the head. These items do not have any religious significance. Should the prisoner be suicidal, or the continuous monitoring of the prisoner is impossible, the kes shall not be returned for security reasons. Under no circumstances shall the prisoner be allowed to possess the kirpan while in custody.

[161] At the time of the appellant’s arrest and when he went into the station he was wearing his turban. By the time the appellant got to the Intoxilyzer room, he was not wearing it. While Constable Mohammed testified that it was standard practice to conduct a “pat-down” search once a person was taken into custody, he did not believe the appellant was searched.

[162] On the night of the appellant’s arrest, Constable Mohammed was unaware of any policy regarding searching Sikh men. He learned of the above noted policy as a result of this arrest. At trial, he understood the policy to say that headwear must be taken off because it poses a danger as the detainee could harm himself or someone could take it from him and harm others. As long as a Sikh person was under arrest at the station and wearing a turban, they had to remove it and it was not returned until they were released with their property.

[163] Constable Mohammed agreed that it was unlikely there were any weapons in the appellant’s turban and accepted that it was being worn for religious purposes. While there was a hand-held metal detector in the station, it was not used to search the appellant’s turban.

[164] Constable Berezowski, the cells officer, placed great emphasis on safety issues when a detainee was under the influence of alcohol such as putting them in a single cell. The appellant complied when asked to remove his turban for safety purposes and it was placed on the booking room counter. The officer did not search the turban. He believed the police procedure was that if someone came into the cells area and “if they’re a suicide risk, then the turban is to be removed and held for safe keeping.” Accordingly, officers had to make a determination whether the detainee may or may not be a suicide risk.

[165] As regards the appellant, the officer said “due to the fact that he was arrested for impaired operation and was under the influence of alcohol, I wasn’t able to make that sound decision at that time. So for safety I removed it for safe keeping.” Were the detainee not under the influence of alcohol, once the turban was checked for pins and other items that might be a safety risk, it would be returned. He said that in some cases he would return a turban, although he could never recall doing so.

[166] The appellant filed an affidavit and testified on the Charter application. In his affidavit, he said that he had been a member of the Sikh faith all of his life and started covering his head in accordance with the principles of his faith when he was 8 years old. He was 47 at the time of trial. He acknowledged working in a potato chip factory from 1993 to 2003, where he was required to have short hair, shave his beard and wear a hair net. He maintained his strong adherence to the Sikh faith but “gave up [his] religious practices of wearing a turban so that [his] family could survive.” When not at work, he continued to cover his head, including while sleeping. Since 2003, he kept his head covered at all times except when bathing.

[167] When he was detained by the police and forced to remove his turban, held in the cells and videotaped without his head being covered, he was ashamed and embarrassed.

[168] The appellant testified that after he was searched, he asked for his turban back and one of the officers told him that by law they could not return it. His reaction to being unable to wear his turban was very much an insult to a point he could not imagine. He was embarrassed and felt quite bad given the public nature of his trial to have to watch the Intoxilyzer video during which he was not allowed to wear his turban.

The Trial Arguments

[169] The appellant argued that while it may not have been a breach of his s. 2(a) rights when his turban was removed, his rights were breached when it was not returned. It was more than a technical breach because it went against an important police policy.

[170] The Crown opposed the application contending the court must weigh the validity of one’s religious claim against the competing safety interests when investigating individuals in custody.

The Trial Ruling

[171] His Honour reviewed the Peel Police directive regarding searches noted above. He noted the Court of Appeal’s judgment in R. v. N.S. (2010), 2010 ONCA 670, 102 O.R. (3d) 161, which mandated judges to inquire as to whether one’s position was religiously motivated and based on a sincerely held belief. He was satisfied on a balance of probabilities that the appellant’s claim was genuine, sincere and consistent with his current religious practices. It was subjectively beyond trivial or insubstantial. However, objectively it did not meet that threshold. Accordingly, there was no breach of the appellant’s s. 2(a), 7 or 8 rights.

[172] His Honour next addressed s. 24(2) of the Charter should he be in error in finding there was no breach. First, in regards to the seriousness of the breach branch from R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353, His Honour found there was no systemic failure of the police to deliberately ignore their directive. He was unable to find a heightened temporal or causal connection to the point that there should be an exclusion of evidence as occurred in R. v. Flintoff (1998), 1998 CanLII 632 (ON CA), 126 C.C.C. (3d) 321 (Ont.C.A.)

[173] The trial judge found that the issue of safety and security to the appellant and others was not settled in the mind of any of the police officers. While it could be said that the police should have paid more attention to their own directive, none displayed, to any meaningful level, an indifference to the sensitivity and significance of the appellant’s religious integrity and dignity. The police as well as the appellant were polite and cooperative throughout the investigation.

[174] His Honour accepted P.C. Berezowski’s evidence that he could not rule out the possibility of self-harm as being part of the reason and rationale for not returning the turban, notwithstanding that he had no notes and had little specific recall of the exchange. The trial judge found it was “fair to accept that the officer could not be satisfied as to the [appellant’s] state of mind or temperament, given that he was in an altered state because of his consumption of alcohol.” There was an air of reality to the officer’s decision, or non-decision. The first branch did not favour exclusion.

[175] As regards the impact on the appellant’s rights branch, His Honour accepted the appellant felt some degree of shame and insult but also found that part of his shame might well have been bound up in the fact that he had been arrested for allegedly committing criminal offences.

[176] The impact on the appellant, while subjectively it may have been important, objectively it was not so profound as to tip the balance in favour of exclusion. Being seen at the police station and at court in the videotape were two fairly secluded private areas, not generally frequented by random members of the public. For anyone seeing the appellant without his turban, it revealed little about the intimate details of his life-style and personal choices.

[177] Finally, regarding the societal interest branch, society continued to have an interest in the adjudication of these type of cases on their merits. The evidence obtained was reliable and existed independently of the breach. Trial fairness would not be impacted by its admission.

[178] His Honour concluded that all three branches of Grant favoured the admission of the Intoxilyzer readings. The seriousness of any breach was at the lower end of the spectrum of misconduct, if at all. The impact was not substantial enough. The evidence was admissible.

Section 2(a) of the Charter of Rights and Freedoms

[179] The Supreme Court of Canada outlined the approach to assessing alleged breaches of s. 2(a) in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551 at para. 64. Iacobucci J. held that the first stage of the analysis was for the individual advancing the claim based on religious freedom to show: 1) that he or she has a sincere belief in a practice that has a nexus with his or her religious beliefs[^1] and 2) that the impugned measure interferes with the claimant’s ability to act in accordance with those religious beliefs in a way that goes beyond the trivial or insubstantial.

[180] Once an individual showed his or her religious freedom was triggered, the court must determine whether there has been enough of an interference with the exercise of the implicated right so as to constitute an infringement of freedom of religion under the Charter. Actions whose effect on religious practices is trivial, insubstantial or based upon a miniscule state-imposed cost are not breaches of freedom of religion. The Charter shelters individuals or groups only to the extent that religious beliefs or conduct might reasonably or actually be threatened. Amselem at para. 58 The context must be examined in each case. Amselem at para. 59-60.

[181] The Court continued:

62 Freedom of religion, as outlined above, quite appropriately reflects a broad and expansive approach to religious freedom under both the Quebec Charter and the Canadian Charter and should not be prematurely narrowly construed. However, our jurisprudence does not allow individuals to do absolutely anything in the name of that freedom. Even if individuals demonstrate that they sincerely believe in the religious essence of an action, for example, that a particular practice will subjectively engender a genuine connection with the divine or with the subject or object of their faith, and even if they successfully demonstrate non-trivial or non-insubstantial interference with that practice, they will still have to consider how the exercise of their right impacts upon the rights of others in the context of the competing rights of private individuals. Conduct which would potentially cause harm to or interference with the rights of others would not automatically be protected. The ultimate protection of any particular Charter right must be measured in relation to other rights and with a view to the underlying context in which the apparent conflict arises.

63 Indeed, freedom of religion, like all other rights, applicable either as against the State or, under the Quebec Charter, in its private dimension as against another individual, may be made subject to overriding societal concerns. As with other rights, not every interference with religious freedom would be actionable, in accordance with the limitations on the exercise of fundamental rights recognized by the Quebec Charter.

[182] In Multani v. Commission Scolaire Marguerite-Bourgeoys 2006 SCC 6, [2006] 1 S.C.R. 256, the Supreme Court examined a case where a Sikh youth was prohibited from wearing his kirpan to school. It was conceded that the prohibition infringed the student’s freedom of religion but the Attorney General of Quebec argued the prohibition was a fair limit on freedom of religion. The Court held that freedom of religion can be limited where a person’s freedom to act in accordance with his or her beliefs may cause harm to or interfere with others. In addition to the sincerely held belief, the claimant must show the religious belief is asserted in good faith and must not be fictitious, capricious or an artifice. In assessing the sincerity of the belief, a court must take into account, the credibility of the evidence of the person asserting the belief and the consistency of the belief with his or her other current religious practices. see para. 35

[183] With respect to whether the interference was trivial or insignificant, the Court held:

Finally, the interference with Gurbaj Singh’s freedom of religion is neither trivial nor insignificant. Forced to choose between leaving his kirpan at home and leaving the public school system, Gurbaj Singh decided to follow his religious convictions and is now attending a private school. The prohibition against wearing his kirpan to school has therefore deprived him of his right to attend a public school.

[184] In R. v. Welsh (2013), 2013 ONCA 190, 115 O.R. (3d) 81, the Court of Appeal examined whether a police Obeahman undercover operation that resulted in the accused in a murder trial making admissions to the Obeahman violated their s. 2(a) rights. The Court found the guarantee of freedom of conscience and religion was central to the Charter’s overall scheme of protection of individual autonomy, freedom and dignity, at para. 52. Courts were not permitted to look into the sincerity or legitimacy of a person’s belief. The Court held that “[i]n the context of freedom or religion, s. 2(a) protects beliefs in an almost limitless manner.” at para. 72. As former Chief Justice Dickson found in Edwards Books & Art Ltd. V. R., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, “the purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being.”

[185] Returning to Welsh, the Court held that in relation to the sincere practice or belief requirement, the Supreme Court in Amselem emphasized a subjective approach to freedom of religion that focuses on the sincerity of the claimant’s subjective belief. at para. 55. With regards to the “second hurdle a claimant faces” he or she must demonstrate that the impugned law or state action interferes with his or her freedom in a manner that is more than trivial or insubstantial. Most, if not all, decided cases dealt with situations where the law or practice either compelled an individual to act in a manner contrary to his or her religious beliefs or burden the person’s ability to act in accordance with those beliefs, at para. 59

[186] The Court provided examples of cases dealing with the second branch including where laws compelled non-Christians to recite the Lord’s Prayer and precluded non-Christians from shopping on Sunday, at para. 60 Most frequently the cases fell into the second category where the laws and practices burden or interfere with the individual’s ability to act in accordance with religious beliefs such as Multani. In Jones v. The Queen, 1986 CanLII 32 (SCC), [1986] 2 S.C.R. 284, a state imposed requirement that a parent who home taught their children for religious reasons must obtain an exemption from a school board certifying the education met the minimum standards did not have sufficient impact on the parent’s religious beliefs to constitute a violation of s. 2(a).

[187] When answering whether the undercover operation in Welsh amounted to a non-trivial and substantial burden or interference with the accused persons’ freedom of religion, the Court held the appellants were duped into engaging in practices that to some extent they believed had a spiritual or religious connotation. The police practice amounted to a “surreptitious invasion of a relationship the appellants believed to be rooted in religion or spiritualism.” The Court agreed with the trial judge that any interference was trivial or insubstantial because the evidence of one appellant’s sincere belief was tenuous and the other appellant lacked such a belief. Neither had any significant prior knowledge of Obeah. Both were reluctant participants and neither testified regarding their religious beliefs. Since the sincerity of the belief is subjective, a claimant would normally have to testify.

[188] The Court continued:

In general, the more strongly held a religious belief, the more significant any state interference will be. In this case, the belief, to the extent that it existed, was both recent and weak.

[189] The Court found the purpose of the appellant’s attending to participate in the Obeah session was to seek protection from the justice system and concluded that any religious element in the Obeah sessions was properly characterized as trivial, insubstantial and dwarfed by the corrupt motives that induced the appellants to participate in and fall for an elaborate scheme of deception practiced on them. see para. 71

[190] Finally in Welsh, the trial judge had found that if there were s. 2(a) violations, they could be justified as a reasonable limit pursuant to s. 1 of the Charter. The Court disagreed, finding at para. 80:

We respectfully disagree with that conclusion as s. 1 has no application on the facts of this case. Section 1 requires that the limit be "prescribed by law". At issue here is a police investigative technique that rests on nothing more precise than the general legal duty of the police to investigate crime. The Crown does not contend that there is a law that authorizes or permits the police to use the investigative technique under scrutiny. Where the actions of a government agent are not specifically authorized or prescribed by law, s. 1 does not apply. A general duty of that nature does not amount to a limit "prescribed by law" within the meaning of s. 1. See Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, at para. 141: “Violative conduct by government officials that is not authorized by statute is not 'prescribed by law' and cannot therefore be justified under section 1" and the analysis must "therefore proceed directly to the remedy phase of the analysis."

[191] In summary, freedom of religion protects beliefs in an almost limitless manner and reflects a broad and expansive approach that should not be narrowly construed. In determining whether the claimant has established a breach on a balance of probabilities, the trial judge will examine:

1. whether the claimant sincerely believes in a belief or practice that has a nexus with religion,

2. whether the impugned conduct or measure interferes with her or his ability to act in accordance with their religious beliefs in a manner that is more than trivial or insubstantial, whether there was enough of an interference with the right so as to constitute an infringement of s. 2(a). Trivial or insubstantial interferences with s. 2(a) are not Charter breaches. While the seriousness of the breach is usually dealt with when assessing the remedy under s. 24(2) for other Charter sections, under s. 2(a), whether the breach was trivial and/or insubstantial is examined in determining whether there has been a breach.

3. where the claimant establishes the first two elements, the court must still consider how the exercise of the rights impacts upon the rights of others in the context or the competing rights of private individuals. If protecting the appellant’s s. 2(a) rights would potentially cause harm to others or interfere with their rights, it would not automatically result in protection of the appellant’s rights. What is required is an approach that balances the vital rights of the s. 2(a) protection claimant and the rights of others. R. v. N.S. 2012 SCC 72, [2012] 3 S.C.R. 726.

4. Where the conduct or measure is based on a law or policy, the breach may be a reasonable limit prescribed by law pursuant to s. 1 of the Charter. In those situations, there should be an examination of s. 1 of the Charter.

5. Where it is found that the law or policy is a reasonable limit under s. 1 or it is conceded that the “law” is a reasonable limit, how that “law” was applied in the case-specific circumstances is examined under s. 24(1) or (2) where it is alleged that the “law” was not applied. In that analysis, the impact on other rights would be examined.

The Arguments on Appeal

[192] The appellant raises three issues regarding the s. 2(a) analysis. First, in his factum he argued that the reasons for finding there was no breach were inadequate to permit appellate review. All His Honour said was that while the appellant probably held a sincere religious belief so that subjectively it was beyond trivial or insubstantial, that objectively it did not meet that test. In oral submissions, he “refined” his “inadequate reasons” argument to submit the trial judge misstated the tests when considering a s. 2(a) breach by including an objective test that does not appear in the binding appellate decisions.

[193] Second, in effect, he submits that the finding the interference with his religious rights was trivial is unreasonable and contrary to all of the evidence.

[194] Finally, in relation to the s. 24(2) analysis, the appellant submits His Honour unreasonably minimized the impact of the police conduct on the Charter protected interests of the appellant. It was highly relevant and not considered by the trial judge that if the Intoxilyzer readings were excluded, the impaired operation charge would have remained. Accordingly, exclusion of the readings would not have ended the prosecution.

[195] The Crown submits the trial judge applied the correct test. It is the appellant who misstates the test when considering s. 2(a). It is not simply that the applicant must show his or her sincerely held religious beliefs. Rather, the applicant must also show that the interference was more than trivial. The Crown describes the appellant’s evidence regarding how the removal of his turban affected him as “somewhat scant.” Ms. Nadler submits the trial judge was alive to the issues he was required to resolve and specifically answered them.

[196] Second, as regards the s. 24(2) analysis, the Crown submits that considerable deference is owed to a trial judge’s analysis.

Analysis

[197] For the following reasons, I am persuaded His Honour erred in his analysis of the s. 2(a) issue. First, the trial judge erred in applying an objective test in the manner he did. From a review of the cases noted earlier, including the Supreme Court’s judgment in N.S. and Welsh that have examined s. 2(a), both released after the judgment in this case, none reference the second element to be established as an objective test. The cases say that the first test is subjective but do not specify the manner in which the not trivial or insubstantial test is to be applied. While it appears that there may be a reasonableness assessment when determining whether the claimant has met the second branch, it is a very low threshold given that s. 2(a) protects beliefs in an almost limitless manner.

[198] Second, in one sentence reasons, His Honour found the appellant had met the subjective test, that he felt the interference was beyond the trivial or insubstantial to him, but objectively the interference was trivial or insubstantial. There is no analysis explaining the basis upon which His Honour reached that conclusion. Indeed, I have difficulty seeing how that conclusion could reasonably be reached on this record.

[199] The police policy noted that traditional Sikhs hold certain religious articles with the greatest importance, including the turban. When examining s. 24(2), the trial judge accepted that the appellant felt some degree of shame and insult, that the “shame and insult factor would not have been as profound as if he was displayed in a public setting” (emphasis added), and that the impact may have been important to the appellant, but objectively it was not “so profound as to tip the balance in favour of exclusion.” (emphasis added) Given those findings, it is difficult to see how the interference could be characterized as “important” and “less profound” yet trivial or insubstantial at the same time. In the absence of any reasons why the trial judge found the impact was trivial or unsubstantial, I am persuaded that finding is unreasonable and not supported by the evidence.

[200] During submissions, Mr. Posner submitted that if it was determined the trial judge erred in his assessment of whether there was a breach, that I could either conduct the s. 24(2) analysis or order a new trial if I were to determine that I could not conduct the analysis on the transcript record. For the following reasons, I am unable to conduct the s. 24(2) analysis. First, with the benefit of Welsh that was not argued on the appeal, it may be that an examination of s. 1 of the Charter is required. While the appellant applauded the police directive during submissions and argued that the breach was in keeping the turban after it was removed to be searched, although it appears it was never searched, the policy does permit the police to keep the turban in some circumstances. It appears the appellant concedes that removing the turban to be searched is a reasonable limit within s. 1.

[201] Second, and of greater importance, the trial judge made findings of fact based on the appellant’s and the officers’ evidence. For example, that the officers’ actions were “inadvertent and not made in bad faith,” that “the issue of safety and security to the defendant and others was not yet settled in the minds of any of the police officers … although it could be said that the police ought to have paid more attention to their own directive or policy.” The trial judge minimized the impact of the breach on the appellant because “part of his shame might well have been bound up in the fact that he was now caught for allegedly having committed criminal offences for which a solemn and labour-intensive investigation and series of procedures was about to begin.” It had never been suggested to the appellant nor was it argued that his shame was in some way linked to being charged. His Honour also found that seeing the appellant not wearing his turban reveals little about the intimate details of his lifestyle and personal choices, conclusions more suited to a s. 8 violation.

[202] While I appreciate that I would not be bound by the trial judge’s analysis, without seeing and hearing the witnesses, it would be impossible to reach the required conclusions regarding the breach. Given the trial judge’s analysis, including those noted in the previous paragraph, this is not a case in which I can proceed on the trial judge’s findings of fact and conduct the Grant analysis.

[203] In these circumstances, I am persuaded that a new trial must be ordered in relation to the driving having consumed excess alcohol charge.

Did the trial judge err in rejecting the appellant’s evidence?

[204] The appellant submits the trial judge erred in rejecting his evidence in the following four areas.

Did the trial judge err in his application of R. v. Bulman?

[205] The appellant submits that the trial judge erred in misstating and expanding the Court of Appeal’s judgment in Bulman beyond what the Court held. The respondent, while agreeing that His Honour expanded the comments at one point of the Reasons, argues it is not clear the trial judge applied the inference. I disagree.

[206] The appellant testified that he engaged in bolus drinking at a time when his wife was going to be driving him home. As is apparent from His Honour’s Reasons on the care or control issue, he did not reject that evidence.

[207] For ease of reference, I will repeat the trial judge’s comments from his analysis of the appellant’s evidence under the “over 80 – Bolus drinking section:”

The case law, however, supports the proposition that it is a common sense inference that people do not normally ingest large amounts of alcohol just prior to driving, or getting into a motor vehicle,” citing R. v. Bulman, 2007 ONCA 169; the Crown called Dr. Corbett, to quantify the amount of alcohol which the appellant would have to have consumed in a bolus fashion to produce the readings obtained, useful evidence in assessing the level of improbability of a bolus pattern of drinking and can be a basis for rejecting any possibility of it having occurred; and, the rational for this approach placing a practical evidentiary burden on the appellant, to point to something in the evidence that at least puts the possibility that he engaged in bolus drinking in play.

[208] The Court of Appeal addressed bolus drinking in Bulman as follows:

13 The jury was aware that Mr. Wigmore's expert testimony was dependent on an underlying assumption that had to be proven by the Crown - namely, that the appellant had not consumed a large quantity of alcohol shortly before driving ("bolus drinking"). Whether Mr. Wigmore's underlying assumption was proven was a question of fact for the jury to decide. In making this finding, the jurors were entitled to rely upon their common sense, and to draw inferences about how normal people behave. A reasonable inference is that normal people do not consume large quantities of alcohol shortly before, or while, driving. (emphasis added)

[209] The Crown appropriately conceded that His Honour expanded or mis-stated Bulman but submits His Honour did not apply his interpretation of Bulman because when he stated his conclusion based on common sense and inferences, he did not reference Bulman. I disagree.

[210] There are three answers to that submission. First, His Honour specifically referenced Bulman under the “principles” in relation to bolus drinking and the over 80 charge. It was the only cases referenced. In the section titled, “Application of the principles to the evidence in this case” His Honour outlined the evidence of Dr. Corbett as well as the positions of the Crown, including that the extant case law allows the Court to conclude that, on a common sense basis, people do not “chug” this amount of alcohol before getting into a car,

[211] Second, if the trial judge did not rely on the case, why did he include it and mention the same principle when outlining the Crown’s arguments?

[212] Third, His Honour referred to the evidence defying common sense when Bulman relies on jurors being entitled to rely upon their common sense and draw inferences.

[213] I am persuaded the trial judge erred in misstating the Reasons in Bulman and in relying on his expanded interpretation in rejecting the appellant’s evidence.

Did the trial judge err in finding that if a marriage was problematic, the last thing the appellant would want to do would be to aggravate his wife by recklessly consuming such an amount of alcohol?

[214] The appellant submits the finding was unreasonable and not supported by the evidence. In effect, he argues that it was not based on the evidence, human experience or common sense. The Crown submits it was an inference open to His Honour. I agree with the appellant.

[215] Mr. Posner appropriately characterized the marriage as “somewhat of a train wreck.” There was no basis upon which it could be concluded the appellant cared about his wife’s views of his drinking. He had already consumed alcohol. In addition, there was no dispute that the appellant drank an amount of alcohol that resulted in blood alcohol readings of 135 and 137 milligrams of alcohol in 100 millilitres of blood. Whether he consumed more alcohol at his brother-in-law’s before leaving as the trial judge found or he engaged in bolus drinking, the amount consumed despite his wife’s views remains.

[216] While the opposite inference to the one drawn by the trial judge would have been available, at its highest, this was neutral evidence from which no inference could be drawn.

Did the trial judge misapprehend or misuse the evidence regarding the appellant’s back ailments?

[217] The appellant testified regarding his back problems as providing an innocent explanation for the officers’ observations of his balance when he got out of the vehicle. The trial judge found that his unsteadiness on his feet when he got out of the van when the police arrived could have been caused by his back problems. However, he had not been sitting long enough for the back problems to have explained all of his unsteadiness.

[218] The appellant submits the trial judge erred in rejecting his evidence, in part, because he could not have been experiencing back problems since he had not been sitting in the van long enough when the appellant’s evidence about his back problems was never challenged. The Crown argues it was open to the trial judge to make the findings he did.

[219] The appellant testified that he was absolutely fine when the officers got him out of his van. When he was being driven to the station, he felt that the alcohol was “now having an effect” on him. In examination-in-chief, he was asked to comment on the two officers’ evidence that for a couple of steps he appeared to be unsteady on his feet. The appellant testified that it was not as a result of the effects of alcohol. His disc had moved, “so when I keep sitting in a seat and then when I get up, like then I can’t walk straight for a short time. Then I have to walk crooked like this.” Someone looking at him would see someone limping. Sometimes it happens, sometimes it doesn’t.

[220] He had to wear a brace when he sat for long periods of time. His doctor asked him to wear it because when he drove the truck he could only sit for short periods of time. The appellant was never asked if he was wearing the brace the night of his arrest. He could not sit for long periods of time. He felt back discomfort when he sat “like this” for long periods. When he wore his brace, it did not happen “for a while.” When he got out of the van, he was having a bit of pain. His medical diagnostic materials were shown to the Crown but not introduced into evidence.

[221] In cross-examination, he was asked if he had a very sore back in the van and said, “If I’m on a higher seat, then, I’m okay, but if I go down or lower and I have to bend to sit, then my lower back is painful.”

[222] The trial judge found:

Although the unsteadiness was only a couple of steps, and although some of it may be explained by having a bad back, it should be noted that, according to the defendant’s evidence, he could only have been in the van for no more that 12 or 13 minutes at most. It was only a 2 to 3 minute drive home from his brother-in-law’s place. He then claims that he was in the van by himself for approximately 10 minutes when the police arrived. By his own admission, he experienced back problems only after sitting for a reasonably lengthy period of time. This cannot be the case in this scenario. Furthermore, the Court accepts the evidence of the officer that the defendant had to steady himself against the van once he got out.

[223] While the Crown did not challenge the appellant’s evidence about his back in cross-examination or argue that his back was not the explanation for his unsteadiness, I am not persuaded that His Honour was precluded from considering it. While the evidence could have been more fulsomely developed, particularly in terms of how long he would have to sit before experiencing back pain, whether he had to bend lower to sit in the van and whether he was wearing the brace the night of his arrest, there was some basis for the trial judge to make the findings he did.

The use of the Intoxilyzer room video as confirmation of impairment

[224] The appellant submits the trial judge erred in relying on the appellant’s impairment at the station in support of his rejection of the appellant’s evidence regarding his condition at the time he was in care or control and finding that his ability to be in care or control was impaired by the consumption of alcohol. The Crown disagrees.

[225] His Honour, in finding the Crown had met its burden on the issue of impairment finding “the deportment of the defendant in the breath room. The DVD/video was played in court. The actions and demeanor of the defendant are consistent with impairment.” The trial judge did not link the observations on the video to the time of the offence.

[226] The issue for determination was whether the prosecution had established beyond a reasonable doubt that the appellant’s ability to operate or have the care or control of a motor vehicle was impaired by the consumption of alcohol at 8:42 p.m. the time the officers dealt with him at the roadside. The appellant first entered the Intoxilyzer room at 9:58 p.m. It was conceded that his ability to operate a motor vehicle was impaired by the consumption of alcohol at that time.

[227] In these circumstances, I am persuaded the trial judge erred in relying on the video as evidence the appellant’s ability to be in care or control was impaired by the consumption of alcohol when the police found him in the vehicle. The video supported what both parties agreed upon, that the appellant’s ability to be in care or control was impaired at the station. However, the appellant’s impairment at 9:58 p.m. was not the contested issue.

The effect of the errors in relation to the appellant’s credibility assessment

[228] Based upon the Bulman error, the error in relation to the appellant not wanting to upset his wife by drinking that amount or the s. 2(a) Charter issues a new trial is required on the excess alcohol count. The parties differ as to the impact of the Bulman error on the impaired count.

[229] While charged with two offences, the appellant’s defence to both was based primarily on his evidence that he engaged in bolus drinking before leaving his brother-in-law’s home. Had he done so, the alcohol he consumed just before leaving his brothers-in-law’s home would not have been absorbed into his blood when he was in the care or control of the vehicle. His blood alcohol level would not have been over the legal limit at that time and his ability to have the care or control would not have been impaired by the consumption of the alcohol. The appellant testified he felt fine when the officers arrived but the longer he sat in the cruiser the more the alcohol affected him.

[230] The appellant submits the trial judge erred in rejecting his evidence in four areas. As noted earlier, the trial judge dealt with the appellant’s evidence twice, once under the section titled, “Impaired” and once under the “over 80 – bolus drinking” section. He provided different reasons for rejecting the appellant’s evidence under each section.

[231] During the appeal submissions, Mr. Posner argued that His Honour’s rejection of the appellant’s evidence was based on the totality of the reasons. In effect, that the reasons cannot be compartmentalized by count. While not asked to address the issue directly, the Crown argued that she would not go so far as to say that His Honour made adverse findings of credibility based strictly on Bulman.

[232] When preparing these Reasons, it became apparent that clarification of the Crown’s position on whether an error in rejecting the appellant’s evidence necessitating a new trial on the excess alcohol count would also impact on the credibility findings on the impaired count. After receiving further oral and written input from counsel, the positions were clarified as follows.[^2]

[233] The Crown submitted that while it was open to the trial judge to assess the appellant’s credibility generally, applying the findings to both counts, His Honour addressed the two credibility issues separately, rejecting the appellant’s evidence for distinct reasons. The rejection in relation to impairment was not based on his general credibility. Rather, it was based on internal inconsistencies in the appellant’s explanation for the indicia noted by the officers when he was arrested. When dealing with the excess alcohol count, the trial judge gave distinct reasons for rejecting the appellant’s evidence, there never was a general assessment of his credibility. While His Honour could have considered credibility globally, he did not.

[234] The appellant takes a different view. The appellant’s evidence about the timing and manner of his alcohol consumption was “at the very core of his defence to both charges.” He conceded that if he did not consume alcohol in a bolus manner, he would be found guilty on both counts. The significance of the bolus drinking was recognized by the trial judge who noted the issue was important because if he accepted the appellant’s evidence about his consumption just before leaving his brother-in-law’s home, all of the alcohol would not have been absorbed when he was apprehended.

[235] The appellant contends the issues of his blood alcohol concentration and impairment at the time of care or control were “inextricably woven together.” Under the “Impaired” heading, the trial judge provided a lengthy summary of the evidence, including the appellant’s testimony but gave only a one paragraph “cursory reasons” for rejecting the appellant’s evidence. All that was mentioned was his mobility at the roadside and his appearance on the video when he was with the technician. There was no mention of bolus drinking because, the appellant contends, His Honour simply chose to deal with that evidence under the other heading.

[236] When the trial judge dealt again with the appellant’s credibility, he provided the balance of his reasons for rejecting the appellant’s evidence. It was more detailed and provided far more insight why he found the appellant “unworthy of belief.” While the analysis is provided under the excess alcohol heading, “it is inconceivable that it did not play a role in his earlier rejection of the appellant’s evidence.” The appellant submits that the timing and manner of the appellant’s consumption were highly relevant and indeed, dispositive of both counts. Finally, he contends the Crown’s analysis of this issue ignores the importance that bolus drinking played in relation to both counts.

[237] I am persuaded the error in applying Bulman impacted on the impaired count for the following reasons. First, reasons for judgment are to be read in their entirety, not piecemeal. R. v. Morrissey (2007), 2007 ONCA 770, 227 C.C.C. (3d) 1. Second, I agree with the appellant that the essence of his defence to both counts was bolus drinking. The issue was inextricably linked to both charges. Neither counsel at trial suggested there should be a separate finding of credibility. Third, the trial judge was entitled as a matter of law to consider his rejection of the appellant’s evidence on one count in assessing his credibility on another count. In R. v. W.(D.D.) 2008 ONCA 755 the Court of Appeal held that a jury was entitled to rely on adverse credibility findings in relation to a complainant on one count when considering another count. I am unaware of any authority that would suggest different considerations apply to an accused person’s evidence. Accordingly, as the Crown concedes, His Honour was entitled to rely on his credibility findings count to count, assuming he approached the issue in that way. There is no indication the trial judge did not do what he was entitled to do. He did not say that his credibility findings were to be segregated by count. I agree with the appellant that the trial judge simply chose to provide his assessment in two areas of his reasons. Fourth, I question whether it would be possible to compartmentalize credibility assessments by count.

[238] Accordingly, I am persuaded the Bulman error impacted on all of the trial judge’s credibility findings. By the same analysis, the error in relation to the appellant’s matrimonial situation would also have impacted on his general assessment in impacted.

[239] If I am wrong in that analysis, the error in relation to the use of the station video on impairment remains.

Conclusion

[240] I am persuaded a new trial must be ordered in relation to the excess alcohol count on the basis of the s. 2(a) Charter issue and His Honour’s credibility findings. A new trial is required on the impaired care or control count based on the errors in relation to the station video and the credibility findings.

[241] The appeal is allowed, the conviction for care or control while impaired is quashed as is the finding of guilt for care or control having consumed excess alcohol, and a new trial ordered on both counts.

[242] Mr. Purewal is ordered to appear in court 104 on June 26, 2014 at 9:30 a.m. to set a new trial date.

DURNO, J.

Released: June 13, 2014

COURT FILE NO.: 2211/12

DATE: 20140613

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN RESPONDENT

• and –

INDERJIT PUREWAL APPELLANT

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable Justice S. Clark,

dated September 25, 2012]

DURNO, J.

Released: June 13, 2014

[^1]: See also R. v. N.S. 2012 SCC 72, [2012] 3 S.C.R. 726 at para. 11

[^2]: When further submissions were requested, Ms. Nadler, who argued the appeal, was on maternity leave. Ms. Fedak-Tarnopolsky, who had been the trial Crown, was assigned to review the file and oral submissions that had been presented. Ms. Fedak-Tarnopolsky made further oral submission during a conference call and provided written arguments on this issue as well.