R. v. Chamassian, 2015 ONSC 3150

NEWMARKET COURT FILE NO.: 12-07960

DATE: 20150515

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

AVEDIS CHAMASSIAN

Respondent

J. Gleitman, for the Crown

J.R. Barrs, for the Respondent

HEARD: April 7, 2015

REASONS FOR DECISION

On Appeal from the Decision of The Hon. Mr. Justice J.F. Kenkel

dated October 31, 2013 at Newmarket

QUINLAN J.:

Overview

[1] The Crown appeals the stay of proceedings granted by the trial judge for a breach of the respondent’s s. 11(b) Charter rights, arguing that although this case was not a “model of efficiency”, the guidelines set out in R. v. Morin[^1] were not exceeded.

[2] The issue before me is whether the trial judge correctly attributed the delay following the first scheduled trial date.

Chronology

[3] The respondent was charged with impaired driving and excess alcohol on September 16, 2012. He first appeared in respect of the charges on October 9, 2012, and obtained his disclosure. His counsel, by letter, requested the matter be adjourned to November 13, 2012.

[4] On November 13, 2012, the trial date of February 4, 2013 was set. This was the first date available to the defence.

[5] On February 4, 2013, the trial was not reached. March 12, 2013 was offered as an available date.[^2] The matter was adjourned to May 9, 2013 for trial, which was the next date offered.

[6] On May 9, 2013, the matter was again not reached for trial. There was only one date that was available to the Crown, but not to the defence (July 8, 2013), before the chosen third trial date of October 31, 2013.[^3] Defence counsel advised the court at that time that he would bring a s. 11(b) application on the next date. In this appeal, the Crown argued that the defence should have brought the s. 11(b) application in advance of the trial date. However, I note that no issue was taken with its timing when the defence advised on the second trial date that the application would be brought or at the time of the application. I do not find that the failure of the defence to seek an earlier date for the application to be relevant in the circumstances of this case.

[7] On October 31, 2013, the respondent brought a s. 11(b) application. The trial judge asked counsel to determine the next available trial date. Counsel obtained that information. At the conclusion of argument, and considering the next reasonable available trial date of January 23, 2014, the trial judge stayed both charges.[^4]

Analysis

[8] The trial judge noted that the matter was before him on a third trial date, had been before the court and ready to proceed to trial on two prior occasions, and that there had been over twelve months since the date of arrest. Accordingly, he found that this was sufficient time to warrant an inquiry into the causes of delay.[^5]

[9] A trial judge’s assessment of the periods of delay and their allocation to the various categories set out in R. v. Morin, supra is to be reviewed on a standard of correctness.[^6]

[10] I find that the trial judge properly characterized the time from the date of arrest to the “set date” as an intake period. From the “set date” to the first trial date, which was the first date that defence was available, the trial judge properly characterized the delay as neutral.[^7]

[11] After the first trial date, only one specific date was offered by the court that was not available to the defence.

[12] The matter was not given priority on the second trial date. In setting the third trial date, only one available day was declined by the defence.[^8]

[13] The issue for me to determine is the correctness of the trial judge’s characterization of the delay occasioned after the matter was not reached on the first trial date. As noted in R. v. Tran, “[I]nstitutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them.”

[14] Relying on R. v. Godin, the trial judge stated that:

The fact that the defence was not available on one date within both those multi-month periods does not necessarily mean that the delay past those points can be fairly attributed to the defence.

[15] In restoring the trial judge’s decision in Godin, supra, the Supreme Court held in Godin[^11]:

Scheduling 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 respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a

single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case

having to be rescheduled, is not reasonable."

[16] The trial judge found that the delay after the first trial date could not fairly be attributed to the defence, particularly where the central cause of the delay after the second trial date was the failure of the court to give the matter priority.

[17] He accordingly attributed the whole of the eight months and twenty-eight days from the first trial date to the time of the s. 11(b) application to institutional delay.

[18] As stated in R. v. Lahiry, a case that requires re-scheduling because it has not commenced or been completed on the scheduled trial date must be given priority in the system. Delays resulting from re-scheduling the trial date “will generally be treated as institutional, or as part of the inherent time requirements, or as a combination of both, depending on the circumstances.”[^12]

[19] I find that in treating the delays resulting from the rescheduling of the first and second trial dates as institutional delay, the trial judge did not err. After the first trial date, only one earlier date was offered to the defence. The matter was not given priority on the second trial date. After the second trial date, only one earlier available date[^13] was offered to the defence. It was not unreasonable that the defence was not available on only one date within each of those multi-month periods. The Crown argued that the trial judge inappropriately allowed an ambiguity in the “green sheets” to accrue to the benefit of the respondent, given that the respondent bore the onus of proof on the s. 11(b) Charter application. However, I find that the trial judge’s review of the “green sheets” and transcripts was a fair interpretation of the evidence.

[20] The trial judge then went on to consider that the matter would not finish on the date of the s. 11(b) application and would need to be rescheduled to a fourth trial date for completion of the trial. I find this to be an appropriate consideration. The court found that the defence was reasonably unavailable for the two “fast dates” that were available in November. The court looked to the next available date of January 23, 2014 and found that the time from the application date to that date was reasonably attributable to institutional delay.[^14]

[21] The reasons disclose that the basis for attributing this time to institutional delay was because the failure to give the matter priority on the second trial date “reasonably gave rise to” the s. 11(b) application, and the time taken to hear that application (which on a review of the record was fairly brief) resulted in a second day (the fourth trial date) being required to complete the trial.

[22] The trial judge’s finding that the fourth trial date was required because of the inability of the court to give the matter priority on the second trial date was a finding open to him on the evidence. Citing R. v. Lahiry, supra, the Court of Appeal in R. v. Tran, supra at para. 55 held that “…the delays from rescheduling a trial date will generally be treated as institutional, or as part of the inherent time requirements, or as a combination of both, depending on the circumstances.” In considering the above finding, based on the circumstances of this case, I find that the trial judge did not err in his characterization of the delay from the application date to the first date that the defence should reasonably have been available for the fourth trial date as institutional delay.

[23] Accordingly, the total institutional delay was eleven months, twenty-two days.[^15]

[24] A number of issues raised in the Crown’s Factum were not dealt with in oral submissions. I deal with them briefly as follows:

(a) insofar as the late disclosure request and service of the defence expert report, it was not argued that the defence was not ready for trial on February 4, 2013;

(b) there was no objection raised by the Crown on the application date to the trial judge taking into account the next available trial date; in fact, the Crown, on the application date, noted that it was a “very good consideration”;

(c) the relevance of the availability of a date for which neither party was available was not argued before the trial judge; and

(d) a review of the reasons makes it clear that the trial judge was referring to the “one available day” as being the day that the Crown was available and as such, he did not “misapprehend” the available dates after the second trial date.

[25] Insofar as the prejudice caused to the fair trial rights of the respondent, I find that there was a basis in the evidence to support that “over the period of delay” the respondent “lost the ability to pay for the expert he needs”.[^16] The trial judge considered both the period of delay and the effect of that on the fair trial rights of the respondent. The evidence supported that the respondent was unable by the third trial date to afford to have his retained toxicologist attend and assist at trial.

[26] The trial judge balanced all of the relevant factors. He considered the public interest in trying drinking and driving cases on their merits, “the three trial dates with a certain fourth date, a total institutional delay of eleven month, twenty-two days and the prospect of an unfair trial”.

[27] I find that the trial judge did not err in determining that the respondent’s rights under s. 11(b) of the Charter were breached.

[28] Accordingly, this appeal is dismissed.

QUINLAN J.

Released: May 15, 2015

[^1]: 1992 89 (SCC), [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1.

[^2]: The “green sheet” was the document setting out available trial dates. It stated “Court has March and April availability”. However, the only two dates listed on the green sheet were March 12, 2013 and May 9, 2013.

[^3]: There were four dates listed on the “green sheet”: June 21 and August 8, on which neither Crown nor defence were available, July 8 as noted above, on which the Crown was available but defence was not, and October 31. The “green sheet” stated, “August dates available”, however, only August 8 was set out on the “green sheet”.

[^4]: The “green sheet” obtained by counsel showed two dates in November 2013, and then dates commencing January 23, 2014, and continuing to the first date that the defence was available, April 7, 2014.

[^5]: The Crown agrees with this finding.

[^6]: R. v. Qureshi (2004), 2004 40657 (ON CA), 190 C.C.C. (3d) 453 at para. 27 (Ont. C.A.).

[^7]: The Crown, in oral submissions, did not take issue with the characterization of the delay up to the first trial date.

[^8]: Two other dates were set out in the “green sheet” but neither was available to the Crown.

[^11]: Ibid at para. 23.

[^12]: R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.), referring to R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 at para. 67.

[^13]: The Crown was not available on other dates.

[^14]: The “green sheet” showed that two dates in November 2013 were offered that were not available to Crown or defence. The next dates offered began January 23, 2014. The Crown was available January 24. There were a number of later dates offered. The first available to the defence was April 7, 2014.

[^15]: In its Factum, the Crown argued that the trial judge’s reasons were insufficient to enable meaningful appellate review because it was unclear why the trial judge used the date of January 23, 2014 for the purpose of his analysis, when the next trial date would have been April 7, 2014. I find that the reasons show that date was chosen because it was the next available date (after the two “fast dates”) for the fourth trial date.

[^16]: The finding of prejudice was not strenuously argued by the Crown. Rather, the Crown took the position that the evidence of prejudice was mitigated by the fact that the delay was not unreasonable.