Court File and Parties

COURT FILE NO.: CR4-96/17AP DATE: 20180625 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent Neville Golwalla for the Respondent

- and -

JOSE MANUEL LOPES-CABRAL Appellant Faisal Mirza for the Appellant

HEARD: May 17, 2018

Reasons for Decision

Summary Conviction Appeal

CORRICK J.

[1] Following a trial before the Honourable Justice J. Grossman, the appellant, Jose Manuel Lopes-Cabral, was convicted on August 15, 2017 of impaired driving, fined $1,400 and prohibited from driving for one year. He appeals his conviction on the basis that the trial judge erred in dismissing his application to stay the charges for a violation of his right to be tried with a reasonable time. Justice Grossman delivered written reasons dismissing the appellant’s application on July 10, 2017.

[2] The appellant contends the following:

1. The trial judge erred in determining that the 18-month presumptive ceiling set by R. v. Jordan, 2016 SCC 27 had not been breached;
2. The trial judge’s attribution of four months, 17 days delay to the defence for refusal to set a date for a Crown pre-trial meeting because the Crown had not disclosed the breath room video was in error.
3. The trial judge erred in failing to find that the delay was unreasonable even if it did not exceed the 18-month presumptive ceiling.

[3] The appellant’s trial was completed 18 months following the laying of the information. The information was sworn on February 16, 2016, and the trial concluded on August 15, 2017. The trial judge found that the total delay was 18 months less one day, and that therefore the onus was on the appellant to show that the delay was unreasonable. The appellant submits that this was an error.

[4] The appellant argues that the 18-month presumptive ceiling should have applied in this case, and thus the onus was on the Crown to establish the presence of exceptional circumstances.

[5] Whether the delay was 18 months or 18 months less one day is of no moment. Even before any defence delay is considered, the delay did not exceed the 18-month ceiling, and the onus was therefore on the defence to show that the delay was unreasonable: Jordan, at paras. 46-48.

[6] To meet the onus, the defence must establish two things: 1) that it took meaningful and sustained steps to expedite the proceedings, and 2) that the case took markedly longer than it should have: Jordan, at para. 47.

[7] The trial judge was not satisfied that the defence had made a sustained effort to expedite the proceedings, and he dismissed the application. For the reasons that follow, I am of the view that the trial judge made no error in this regard.

[8] The appellant was arrested on February 11, 2016. The information charging him with impaired driving and driving with more than 80 mgs. of alcohol in 100 mls. of blood was sworn on February 16, 2016. He appeared in court on March 23, 2016, received initial disclosure from the Crown, and asked for time to retain counsel. Defence counsel, Mr. Kwok, appeared on April 28 on the appellant’s behalf. The matter was adjourned to June 2, to allow counsel to review the disclosure and conduct a pre-trial meeting with the Crown.

[9] The matter was remanded three further times, each time for approximately one month (to June 30, July 28, and August 25), at the request of defence counsel. At each court appearance, a law student appeared on behalf of the appellant and advised the court that Mr. Kwok was waiting for further disclosure. On June 2, July 28 and August 25, Crown counsel requested that a Crown pre-trial meeting be scheduled.

[10] On August 25, the law student on behalf of the appellant informed the court that Mr. Kwok did not feel that a Crown pre-trial meeting would be useful because he was unable to properly advise his client until he had seen the breath room video, and it had yet to be disclosed. Notwithstanding Mr. Kwok’s position, the court scheduled a Crown pre-trial meeting for August 30, and adjourned the matter to September 15.

[11] The Crown pre-trial meeting was held on August 30. The breath room video was disclosed on the next court date, September 15. On that date, a judicial pre-trial meeting was scheduled for October 18, following which trial dates of August 14, and 15, 2017 were scheduled.

[12] Between the appellant’s second court appearance on April 28, 2016 and September 15, 2016, when the breath room video was disclosed, defence counsel sent three written disclosure requests, on May 3, June 21 and August 24, 2016, to the Disclosure Clerk at the Crown Attorney’s office asking for disclosure of certain items, including the breath room video. One response from the Crown Attorney’s office was sent on May 30, 2016, indicating that the officer in charge of the case had been asked to provide the outstanding items, and asking defence counsel to schedule a pre-trial meeting with the Crown.

[13] Counsel for the appellant argues that he took the initiative to move the case along expeditiously by making three written requests for disclosure of the breath room video to no avail, and by advising the court at each appearance that disclosure was still outstanding. He argues that the breath room video is core disclosure that must be reviewed before conducting a Crown pre-trial meeting. The delay in disclosing the video ought to fall at the foot of the Crown in this case.

[14] Counsel for the respondent argues that the appellant’s failure to schedule a Crown pre-trial meeting for four months is not consistent with the meaningful steps requirement set out in Jordan.

[15] The trial judge was alive to the fact that this was a transitional case, and that the principles set out in Jordan had to be applied contextually and flexibly. He stated that the defence was not required to show that it had taken any steps to expedite the matter prior to July 8, 2016.

[16] The trial judge held that defence counsel’s refusal to set a Crown pre-trial meeting was counterproductive to expediting the matter. This refusal led to a delay in setting a judicial pre-trial, which in turn led to a delay in setting a trial date.

[17] The trial judge correctly applied the principles set out in Jordan in coming to his decision. Justice Moldaver wrote at para. 48, “We expect stays beneath the ceiling to be rare, and limited to clear cases.” When considering whether the defence has discharged its onus to show that it took meaningful and sustained steps to expedite the proceedings, trial judges must consider not only what defence actually did, but what it could have done, to have the case heard as quickly as possible. “Substance matters, not form:” Jordan, at para. 84.

[18] Writing letters to an unnamed disclosure clerk seeking disclosure, while at the same time adjourning the case monthly and refusing to schedule a meeting with a Crown Attorney for four months were not meaningful steps to expedite the proceedings.

[19] There is no doubt that the Crown was obliged to disclose the breath room video. I also accept the appellant’s submission that the breath room video is core disclosure that ought to be reviewed by defence counsel before making tactical decisions. However, when counsel’s May 3rd letter failed to produce the video by the June 21st court appearance, counsel could have done more had the appellant wanted a timely trial. A clear alternative was being proposed by the Crown Attorney and the court, but was being resisted by the appellant – a meeting with the Crown.

[20] The appellant also argues that the delay was unreasonable even if it did not exceed the presumptive ceiling.

[21] The trial judge held that the net delay after deducting defence delay was about 13.5 months. He did as instructed by Jordan, and took a “bird’s-eye view of the case” and determined that the delay was not unreasonable. For the reasons I have already outlined, he did not err in holding the defence responsible for the delay in setting a pre-trial meeting with the Crown. Defence counsel cannot refuse to set a Crown pre-trial meeting on the basis that the Crown has not provided full disclosure, particularly when a meeting with the Crown could have expedited disclosure: R. v. N.N.M., [2006] O.J. No. 1802, at para. 37 (C.A.).

[22] There was also defence delay at the outset of the proceedings. The appellant was charged on February 16, 2016. He appeared in court on March 23, 2016 and was given initial disclosure. He requested an adjournment to April 28, 2016 to retain counsel. Counsel was retained, appeared on April 28, 2016 and requested an adjournment to June 2, 2016 because he was unaware that the appellant had been provided initial disclosure. Almost four months had elapsed by June 2, 2016, and on any analysis – Morin or Jordan – some of that delay falls at the feet of the defence.

[23] I also note that the appellant’s agent never indicated that delay was an issue when she was asking that the matter be adjourned a month at a time between April 28 and September 15. Nor did counsel complain about delay when he agreed to the August 14, 2017 trial date on October 18, 2016.

[24] The trial judge properly considered the Justice Moldaver’s remark in Jordan, at para. 101, “that given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system.” The trial judge is much better placed than an appellate court to know the level of delay tolerated in his jurisdiction prior to the Jordan decision. The trial judge properly took a bird’s-eye view of the entire case and determined that the appellant had not met the onus of establishing that the delay was unreasonable. In doing so, he did not err.

[25] For these reasons, the appeal is dismissed.

[26] My determination of this appeal is not meant to condone the seven-month delay in disclosing the breath room video, or the numerous lengthy adjournments granted to wait for disclosure. I do not know why it took so long to disclose nor do I know what efforts the Crown made to have it disclosed prior to the Crown pre-trial meeting. As I have already indicated, the breath room video is core disclosure that responsible counsel must review before advising their client. If the objective of a more efficient criminal justice system is to be realized as articulated in Jordan, better systems that hold the various actors to account must be implemented.

Corrick J. Released: June 25, 2018