ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 2201/12
DATE: 20140611
B E T W E E N:
HER MAJESTY THE QUEEN
Megan Ward, for the Respondent/Crown
Respondent
- and -
KINNARI PATEL
Elme G. Schmid, for the Appellant
Appellant
HEARD: April 17, 2014
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice P.R. Currie,
dated August 20, 2012]
DURNO J.
[1] This appeal involves an examination of s. 11(b) of the Charter where the delay was caused by the unavailability of a police officer the defence wanted to call as their witness on a Charter application.
[2] The appellant was charged with impaired operation on September 11, 2010. She was convicted on August 20, 2012, over 23 months after the information was sworn. She submits she thought the officer was going to be a Crown witness. When the Crown did not call him on the blended trial/Charter application, the defence was required to call him on their s. 8 Charter application. However, he was not at the trial and the case was adjourned to a second trial date with the Crown agreeing to advise the officer that he was required to attend on the continuation date. The officer mis-diarized the date and the case was adjourned to a third trial date. The appellant contends the delay between the first and third trial dates is Crown or state delay because the witness is a police officer involved in the case. The Crown contends that as a defence witness, the delay is either neutral or defence delay in the s. 11(b) analysis.
[3] At her trial, she argued that her rights to be free from unreasonable search and seizure and her right to a trial within a reasonable time were violated. The trial judge dismissed both applications and convicted the appellant. She appealed contending the trial judge erred in dismissing both applications. At the hearing of the appeal, the unreasonable search ground was abandoned.
[4] For the following reasons, the appeal is dismissed.
The Evidence
[5] Constable Dyjach saw the appellant driving over 110 k/hr. in a 70 k/hr. zone, northbound on Mavis Road, changing lanes without using her turn signals. He activated his emergency lights and siren to stop the car. The appellant stopped at an angle in the far left traffic lane, three to four feet away from the centre concrete median and about a block after the officer put on his emergency lights.
[6] The officer detected an odour of alcohol on the appellant's breath, her eyes were red and watery and she was fumbling. She admitted having consumed two glasses of wine at a restaurant. At 2:08 a.m. P.C. Dyjach requested an approved screening device (ASD) be brought to his location as he did not have one with him. He did not make an ASD demand at that time. Constable D’Arcy responded that he was just around the corner and would bring a device to Constable Dyjach.
[7] Constable D’Arcy arrived at approximately 2:11 a.m. P.C. Dyjach testified that Constable D’Arcy got out of his vehicle, spoke with the appellant, turned on the ASD, and tested it in front of her. Constable Dyjach testified as to the name and serial number of the ASD, that it was an approved instrument, and was last calibrated on August 29, 2010. He said Constable D'Arcy read the demand at approximately 2:11 a.m. or 2:12 a.m. When Constable D’Arcy gave P.C. Dyjach the ASD, Dyjach read the ASD demand to the appellant at roughly 2:12 a.m.
[8] Constable Dyjach did not personally test the ASD but said he relied on Constable D’Arcy’s tests at the beginning of his shift and in front of him at the roadside. He saw the ASD tested in segments. It was warmed up, the light went to green ready, and P.C. D’Arcy provided a suitable sample that analyzed at 0.00. That informed P.C. Dyjach’s reasonable and probable grounds that the ASD was working properly. He agreed that D’Arcy only “essentially” tested the device but he had told him that it had been tested at the start of his shift. Constable Dyjach had no notes of that conversation or that the ASD was tested at the scene. His practice was not to make notes of things others did.
[9] Constable D’Arcy testified that he had tested the ASD at the start of his shift as was his custom and in accordance with his training. He could not recall telling Constable Dyjach that he had done so but said that had he not tested the ASD, he probably would have told him. While holding the ASD, he explained to the appellant how the ASD worked and what she needed to do to provide a suitable sample. He did not read her the ASD demand. He then gave the ASD to P.C. Dyjach who “explained it again to her” and conducted the test. His notes indicated P.C. Dyjach read a demand but Constable D’Arcy did not recall if it was a formal demand or if it was “you need to blow into this.” He was not asked if he tested the ASD in front of the appellant and Constable Dyjach.
[10] Both officers testified that they believed the ASD was in proper working order and that Constable Dyjach administered the test with D’Arcy standing by. After three failed attempts, the appellant provided a suitable sample that was analyzed as a ‘fail.’ The appellant was arrested and charged with driving having consumed excess alcohol. At the station she provided suitable breath samples that produced readings of 130 and 120 milligrams of alcohol in 100 millilitres of blood.
The Chronology
[11] The appellant was arrested on September 11, 2010.
[12] The information was sworn on September 21, 2010.
[13] The appellant first appeared in court on September 24, 2010, obtained disclosure, requested time to retain counsel and was remanded to October 22, 2010.
[14] On October 22, 2010, the appellant’s counsel appeared, filed a designation and requested time to review disclosure. The case was adjourned to November 12, 2010.
[15] On November 12, 2010, the appellant's counsel appeared and asked for an adjournment to conduct a pre-trial conference with a Crown Attorney and to get instructions from the appellant. The case was adjourned to December 3, 2010.
[16] On December 3 2010, an agent appeared and asked for an adjournment to conduct a pre-trial conference and get instructions from the appellant. The case was adjourned to December 10, 2010.
[17] On December 10, 2010, no one appeared for the appellant and the case was adjourned to January 10, 2011.
[18] On January 10, 2011, a paralegal appeared for counsel, obtained further disclosure, conducted a Crown pre-trial conference and asked for the case to be adjourned to February 14, 2011. The pre-trial form completed by the Crown noted the following: Mr. Berry was retained, the Crown and defence agreed that the estimate was three quarters of a day, the Crown was calling two to three witnesses, noted #3476 Dyjach and #2901 Haramis, the Crown anticipated a voluntariness motion/application and as regards defence motions/applications anticipated and disclosure issues, “will advise.”
[19] On February 14, 2011, an agent appeared; said counsel was not prepared to go on the record, and sought an adjournment to March 14, 2011.
[20] On March 14, 2011, an agent for counsel appeared and set a trial date of October 21, 2011, 7 months and 7 days later. The information noted the time estimate was three quarters of a day. There is no Trial Verification Form for March 14, 2011.
[21] On October 21, 2011, the blended trial/Charter application started, the Crown closed their case after calling Constable Dyjach, Constable Haramis, the Intoxilyzer technician, and Dr. Corbett, a toxicologist. The appellant sought an adjournment to call Constable D’Arcy as a defence witness before determining if he was going to call the appellant. The case was adjourned to January 24, 2012 to continue with a four hour time estimate.
[22] Defence counsel, not Ms. Shmidt, noted in relation to Constable D'Arcy:
This officer was on the witness list. I did receive his notes. Unfortunately, he’s not here. So I’m going to ask for an adjournment until such time as he can be made available.
[23] When asked if he was going to call the officer as his witness, counsel said that since the Crown had closed her case he believed that he had to. The trial Crown, not Ms. Ward, said that she would get the officer’s leave dates and contact him with the new date. The Trial Verification Form noted a four hour estimate and that defence counsel was not available until after January 23, 2012. Dates of January 4 and 23were offered but neither counsel was available.
[24] On January 24, 2012, because Constable D’Arcy had mis-diarized the date, he did not attend and the case was adjourned to May 30, 2012 to continue with a four hour time estimate. Defence counsel told His Honour:
Although this is technically my adjournment, clearly it’s because the officer’s not able to be here for reasons I’m not entirely clear of at this point. Ms. Patel advises me that she is very concerned about the fact that the matter’s dragging on for so long. It’s stressing her out, and it has implications for her work, which I’ve discussed with the Crown.
Aside from that, Your Honour, I can advise that my office would be available to attend for a trial as early as next Monday, and we have various dates in February and March.
[25] Crown Counsel told the trial judge:
Crown was not advised that this officer would be required until the October 21st trial date, when this matter began. He’s not a required witness from the Crown’s perspective. I did notify him on the October 21st date and indicated that he was required to attend today. However, I only received word this morning that he was not able to attend because he mis-diarized the date. I notified my friend as soon as I became aware of it.
[26] The Trial Verification Form noted a four hour time estimate and that January 25, 2012 was offered but neither counsel were available. May 30, 2012 was the next date offered.
[27] On May 30, 2012, the trial continued. While the appellant had filed a s. 11(b) application, the trial judge decided to hear P.C. D’Arcy’s evidence before the s. 11(b) application. Before he testified, defence counsel advised His Honour that the defence was calling no other evidence.
[28] Constable D’Arcy testified as a defence witness on the s. 8 application, the appellant testified on the s. 11(b) Charter application and counsel presented their submission on that application. His Honour reserved on the s. 11(b) application and adjourned the trial for further submission if the s. 11(b) application was dismissed. While the Trial Verification Form notes that June 18, 2012 was offered neither counsel were available. The case was adjourned to August 20, 2012, the next date offered, with a two hour time estimate.
[29] On August 20, 2012, the trial judge dismissed the s. 11(b) application. When His Honour found that Constable Dyjach had reasonable and probable grounds to make the demand and dismissed the appellant's s. 8 Charter application, the appellant’s counsel made no further submission on the trial and the appellant was convicted. As the appellant was out of the country, she was remanded by designation to August 28, 2012 to set a date for sentence.
[30] On August 28, 2012, the appellant was remanded by designation to September 5, 2012 for sentencing.
[31] On September 5, 2012, the appellant was sentenced to a $1,000 fine and a twelve month driving prohibition.
The Reasons for Judgment on the s. 11(b) Application
[32] His Honour found the time between the charge and December, 2010 was neutral intake period for a “fairly straightforward allegation of driving with excess blood alcohol.” From December, 2010, to March, 2011, was delay by the appellant in retaining counsel.
[33] The trial date was set seven months and seven days from the “set date” appearance. His Honour noted that institutional delay ran from the time the parties were ready for trial and the institutional resources were such that a courtroom and judge were not available to conduct the trial. There was no indication on the record when defence counsel would have been available and prepared to proceed with the trial although the Verification Form noted one earlier date was offered but neither counsel were available. Citing R. v. Tran (2012), 2012 ONCA 18, 288 C.C.C. (3d) 177 (Ont. C.A.) and R. v. Lahiry (2011), 2011 ONSC 6780, 109 O.R. (3d) 187 (S.C.J.), His Honour found two months and seven days would be preparation time, leaving five months as institutional delay.
[34] When the Crown closed its case on October 21, the appellant “not unreasonably” thought Constable D’Arcy would be present but he was not. Defence counsel had not told the Crown that he wanted to hear from or call that officer. The delay to the next date was neutral time.
[35] As regards the officer’s non-attendance on January 24, His Honour found it was “through a combination of perhaps, misunderstandings or inaction on the part of the parties.” Unfortunately he was not available. It was one of those things that happen in the course of litigation. The time to the next trial date was neutral in the s. 11(b) analysis.
[36] The three months from the end of the trial to the judgment was also neutral time because of the case “expanding.”
[37] His Honour concluded:
In a result I would find only some five months of institutional delay. I need not go on to consider prejudice in this case given the findings I’ve made in terms of the causes of the delay. In my view, the evidence of prejudice in this case was more relevant to prejudice which any defendant or accused person might suffer as a result of having been charged. The prejudice evidence in this case, in my view, is not strong in relation to real prejudice as a result of the delay coming to trial.
However, as I’ve said, given that my findings in terms of the causes of the delay and only five months institutional delay, I would not find, on a balance of probabilities, that Ms. Patel’s right to trial within a reasonable time has been infringed.
Conclusion
[110] The appeal is dismissed.
DURNO J.
Released: June 11, 2014
COURT FILE NO.: 2201/12
DATE: 20140611
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
and –
KINNARI PATEL
Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice P.R. Currie,
dated August 20, 2012]
Durno J.
Released: June 11, 2014