2018 ONSC 5669 CR-17-227 ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

• v. – LOUIS CIMICATA

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE J.R. MCCARTHY On August 13th, 2018, at BARRIE, Ontario

APPEARANCES: J. Armenise Counsel for the Crown J. Castaldo Counsel for Mr. Cimicata

August 13, 2018

REASONS FOR DECISION

McCarthy J. Orally:

The Appeal

[1] The Crown appeals from the decision of the Honourable Justice Harpur of the Ontario Court of Justice (the “the trial judge”) dated October 5, 2017, in which the trial judge allowed the Respondent accused’s (the “accused” or the “Respondent”) application under section 11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”). The trial judge concluded that the accused’s right to a trial within a reasonable time had been infringed and granted a stay on the charges of care or control of a motor vehicle with an excess blood alcohol concentration.

The Issue

[2] The central issue on appeal is whether the trial judge erred in finding that the delay in this case was unreasonable. More particularly, what should have been the allocation of time for the total delay in the proceeding? Did the trial judge accurately and properly interpret the s. 11(b) waiver given by the Respondent’s late counsel? Further, what affect did the illness and ultimate demise of the Respondent’ counsel have on the proceedings?

The Law

(a) R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (“Jordan”)

[3] In considering a person’s rights under s. 11(b) of the Charter, the Supreme Court of Canada in Jordan established a presumptive ceiling of 18 months within which cases in the provincial court must be brought to trial, failing which the delay is presumptively unreasonable. To rebut the presumption, the onus is on the Crown to demonstrate that the delay was caused by “exceptional circumstances” outside the Crown’s control: Jordan, at paras. 46-47, 69. Exceptional circumstances in general fall into two categories, namely either discrete events or particular complexity within the evidence or the issues: Jordan, at para. 71. Where the delay falls below that 18-month ceiling, it lies with the accused to establish that the time from the charge to the end of trial was nevertheless unreasonable: Jordan, at para. 48.

[4] For cases already in the system pre-Jordan, the Crown may rely on a transitional exceptional circumstance: it must establish that the time the case has taken is justified based upon the reasonable reliance of the parties on the law as it existed at the time. As explained in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 68-69:

[T]he Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin.*

To be clear, it is presumed that the Crown and the defence relied on the previous law until Jordan was released.

• R. v. Morin, [1992] 1 S.C.R. 771 (“Morin”)

(b) Waiver

[5] As stated by the Supreme Court of Canada in Jordan, the question of whether or not someone has waived their s. 11(b) rights is properly framed as whether or not the accused has waived the right to include a period of time in the calculation of the time delay: Jordan, at para. 188.

[6] The Supreme Court in Jordan went on to set out the legal test for a finding of “waiver” at paras. 61, 189, 191:

Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect the waiver will have on those rights….As noted in Morin, the waiver must be done “with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights”, and such a test is “stringent”… The onus is on the Crown to demonstrate that this period is waived, that is, that the accused’s conduct reveals something more than “mere acquiescence in the inevitable” and that it meets the high bar of being clear, unequivocal, and informed acceptance that the period of time will not count against the state.

(c) The Standard of Review

[7] Ontario appellate authority confirms that a trial judge’s characterization of the periods of delay and the ultimate decision as to whether there has been unreasonable delay are subject to review on a standard of correctness, and that the underlying findings of fact are reviewable on a standard of palpable and overriding error: R. v. Jurkus, 2018 ONCA 489; R. v. Nguyen, 2013 ONCA 169, 393 O.A.C. 29. Those same two cases are appellate authority that whether an accused’s waiver of s. 11(b) rights was “clear and unequivocal” is a question of fact, for which the standard of review is palpable and overriding error.

[8] The standard of review for questions of mixed fact and law lies along a spectrum; nevertheless, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole it should not be overturned absent palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36.

[9] A reviewing court on a summary conviction appeal should neither retry the matter before it, nor engage in a de novo assessment of the case, nor substitute its own views for that of the trial judge. As well, it must not interfere with a trial judge’s findings unless they are unreasonable or unsupported by the evidence. An appellate court is limited to determining whether the evidence before the trial judge could reasonably support her conclusions: R. v. Devitt (1999), 139 C.C.C. (3d) 187 (Ont. C.A.), at para. 8.

Overview and History of Appearances

[10] The accused was arrested on December 31, 2014 for “Over 80”. The information was sworn on January 14, 2015. I find it useful to reproduce the “Overview and History” chart prepared by the trial judge in his reasons which summarizes the events and appearances throughout the history of the matter.

Date Event Approximate Cumulative Delay

January 22, 2015 First appearance. Some disclosure provided by the Crown. 1 week

February 26, 2015 Second appearance. Remanded to March 12, 2015 for a Crown resolution meeting. 1 month, 2 weeks

March 12, 2015 Third appearance. Adjourned to April 23, 2015, again for a Crown resolution meeting and so that Mr. Cimicata can request further disclosure. 2 months

April 23, 2015 Fourth appearance. Again remanded, this time to May 28, 2015, while the defence seeks further disclosure 3 months, 2 weeks

May 28, 2015 Fifth appearance. Remanded to July 2, 2015 while the defence seeks further disclosure. 4 months, 2 weeks

May 29, 2015 Crown counsel, Indy Kandola, emails Mr. Burke stating that the Crown will not provide the disclosure requested relating to “Cobra Data” and Intoxilyzer maintenance records 4 months, 2 weeks

June 16, 2015 Mr. Burke emails Mr. Kandola insisting that the requested disclosure is relevant, advising of Mr. Cimicata’s intended stay application for non-disclosure and suggesting the setting of one and one-half days for the application and trial. 5 months

June 16, 2015 Mr. Kandola emails Mr. Burke suggesting the setting of a judicial pretrial on the next appearance. 5 months

July 2, 2015 The sixth appearance. A Crown resolution meeting is held. Neither party seeks a judicial pretrial. Crown and defence indicate the need for a one-day trial. November 20 is set as the trial date with a status hearing on September 17, 2015. 5 months, 3 weeks

August 7, 2015 Mr. Kandola advises Mr. Burke that the Crown will provide to Mr. Cimicata the Cobra Data and maintenance records 6 months, 3 weeks

August 13, 2015 Mr. Burke emails Mr. Kandola advising that disclosure of the material will result in the need for him to have an expert at trial and that the expert is not available on November 20, 2015. Mr. Burke indicates that, once the material is received, he will seek a new trial date or a trial date in addition to November 20. 7 months

August 14, 2017 Mr. Kandola writes to Mr. Burke reiterating the Crown position that the Crown is not obliged to provide the referenced disclosure material but intends to do so. Mr. Kandola asks for the first date on which Mr. Burke’s expert is available. 7 months

September 2, 2015 Mr. Burke emails Mr. Kandola advising that he now has the Cobra Data and historical records. He requests further additional disclosure 7 months, 3 weeks

September 16, 2015 Mr. Burke emails Mr. Kandola reiterating his need for further disclosure and requesting a remand to October 22, 2015, the first Thursday (Bradford’s set dates) on which he personally can appear, to speak to the new trial date. 8 months

September 17, 2015 The seventh appearance, scheduled for status hearing. Mr. Burke’s agent advises the court that Mr. Burke does not wish to set a new trial date yet because he continues to seek disclosure. The matter is remanded to October 22, 2015 both to set a new trial date and for a judicial pretrial. 8 months

September 17, 2015 Mr. Kandola emails Mr. Burke advising that no further Intoxilyzer records will be disclosed. 8 months

September 21, 2015 Mr. Burke emails Mr. Kandola encouraging him to provide the additional disclosure which he has requested 8 months, 1 week

October 22, 2015 The eighth appearance. No judicial pretrial is conducted. At Mr. Burke’s request the matter is remanded to October 29, 2015 to set a new trial date. 9 months, 1 week

October 29, 2015 The ninth appearance. Again no judicial pretrial is held. Mr. Burke indicates that he cannot have his expert available on November 20 and, on consent, that trial date is vacated. The case is remanded to November 20 to set the new trial date. Mr. Burke provides an express waiver “with respect to that new trial date”. 9 months, 2 weeks

November 20, 2015 The tenth appearance. Mr. Burke indicates he must speak to his expert in order to set the new trial date. At his request the matter is remanded to December 24, 2015. 10 months, 1 week

December 24, 2015 The eleventh appearance. Mr. Burke indicates that two days will be needed for trial. A JPT is held. At Mr. Burke’s request, the matter is remanded to January 28, 2016 to set a new date for trial. Mr. Burke expressly waives s. 11(b). 11 months, 1 week

January 28, 2016 The twelfth appearance. On consent the new first day for trial is set for June 27, 2016 with a status hearing on April 21, 2016 and the second day of trial to be set at the status hearing. 12 months, 2 weeks

March 24, 2016 The thirteenth appearance. The matter has been brought forward. Mr. Burke seeks to set a second trial date in advance of April 21, 2016. The parties agree to July 29, 2016 as the second date. 14 months, 1 week

April 21, 2016 The fourteenth appearance. The trial dates are confirmed 15 months, 1 week

June 27, 2016 The first day of trial. The Crown’s case is put in. Mr. Burke asks to begin his client’s case on the July 29 date. In the course of presenting the Crown’s case, Crown counsel adverts to the possibility of the Crown calling a toxicologist in reply, that the toxicologist in question has begun a report and that the Crown intends to provide this report to the defence if the expert is to be called. 17 months, 2 weeks

July 11, 2016 A representative of Mr. Burke’s office writes to the Crown to advise that Mr. Burke has had a heart attack and to request that Mr. Cimicata’s matter be brought forward to set a new second trial date. 18 months

July 28, 2016 The trial date is confirmed. Mr. Burke attends in person. 18 months, 1 week

December 2, 2016 An agent appears for Mr. Cimicata and advises that Mr. Burke has died. The agent asks for a date in mid-January for Mr. Cimicata to retain new counsel. On consent, the December 30, 2016 second trial date is vacated. The case is remanded to January 12, 2017 to set a new second trial date. 18 months, 2 weeks

January 12, 2017 Mr. Cimicata attends court in person. He does not yet have a new lawyer. He requests a date in mid-February for the setting of the second trial date. The matter is remanded to February 16, 2017. 22 months, 3 weeks

February 16, 2017 New counsel for Mr. Cimicata, Joe Castaldo, appears for him. Mr. Castalado indicates a need to review Mr. Cimicata’s file further and to carry out legal research to prepare the appropriate defence. He advises that he is “cognizant of 11(b) concerns”. The case is remanded to March 2, 2017 to set the new trial date. 24 months

February 21, 2017 Mr. Castaldo writes to the Crown inquiring about the potential Crown expert report referred to on June 27, 2016. He requests that any such report be forwarded to him to assist in the setting of the trial date on March 2, 2017. 25 months

March 2, 2017 Mr. Kandola and Mr. Castaldo appear. Mr. Kandola requests two additional trial dates. The dates of October 30 and 31 are set. Mr. Castaldo advises the court that he has earlier dates available to him. Crown counsel writes to the Crown expert requesting the forwarding of his report. 25 months, 1 week

March 17, 2017 Crown counsel forwards the Crown’s expert report to Mr. Castaldo. 25 months, 3 weeks

27 months

[11] While all of the dates referenced in that chart are important, it is particularly significant that the trial date was originally set for November 20, 2015. This was to be for one day. On October 29, 2015, however, the Respondent applied to adjourn the trial date due to the unavailability of the defence expert. The transcript of the proceedings in the Ontario Court of Justice that day contains the following exchange between the Court, Ms. McCartan for the Crown and the late Mr. Burke for the accused:

Mr. Burke: Cimicata, I wrote some terrible letters threatening to bring a stay application, they wouldn’t give me disclosure, and to my shock they did. As a result I’m not in a position of having my expert here on November 20th, so we’ve agreed to adjourn Cimicata to the 20th and change that trial date to be – set a trial date. The Court: Currently there’s a trial date set for November 20th on Cimicata. Mr. Burke: Right, yes. The Court: Do you have another date for it? Mr. Burke: No, we don’t yet. The Court: Okay. And when did you intend to set a new date? Mr. Burke: On the 20th. The Court: I see. Ms. McCartan: And it was my understanding that there would be an 11(b) waiver with respect to that new trial date. Mr. Burke: That’s correct. The Court: All right. So I’m to vacate, am I, the trial set for the November 20th…. Mr. Burke: Yes.

[12] Three court appearances followed before a new trial date was actually set. On the December 24, 2015 appearance, Mr. Burke reiterated the s. 11(b) waiver during this exchange:

The Court: Mr. Burke, I understand you want a date in late January …. Mr. Burke: Yes. The Court: …. to return. Mr. Burke: 28th to be spoken to. I’m waiving delay, 11(b). The Court: Okay. And that’s to set a date for trial. Mr. Burke: Yes.

[13] Finally, on January 28, 2016, the new first day for trial was set for June 27, 2016. Following a status hearing in April, the trial commenced on June 27, 2016. Mr. Burke asked to commence his client’s case on the second day reserved for trial, July 29, 2016. On July 11, 2016 the matter was spoken to; a representative of Mr. Burke’s office attended to advise the court that Mr. Burke had suffered a heart attack. On both July 21 and July 28, a new second trial date was confirmed for December 30, 2016. On December 2, 2016 an agent for the accused advised the court that Mr. Burke had passed away. The second trial date was vacated and the matter was brought back on January 12, 2017. The matter was again adjourned to allow the accused to retain new counsel. That new counsel, Mr. Castaldo appeared on February 16, 2017 and requested time to review the file. Finally, on March 2, 2017, Crown and defence counsel requested two additional trial dates. The dates of October 30 and 31, 2017 were assigned.

The Trial Decision

[14] In conducting his Jordan analysis, the trial judge calculated that the total delay between the laying of the information and the expected trial completion date of October 31, 2017, was 33 months, 16 days. This was rounded to 33.5 months for simplicity. The trial judge went on to deduct a period of delay of three months for the adjournment request of October 29, 2015. In limiting the adjournment request delayed only three months, the trial judge interpreted Mr. Burke’s “remark” on October 29, 2015 to be an “express waiver” of the delay between that date and the date on which a trial date other than November 20, 2015 was set. That occurred on January 28, 2016. The trial judge then awarded a credit to the Crown of a further seven months for exceptional circumstances relating to the illness and subsequent death of Mr. Burke. This latter period ran from July 29, 2016 to March 2, 2017, when the October 30 and 31, 2017 trial dates were set. The final credit allowed to the Crown on the total delay was a notional two months (out of the eight that followed the March 2, 2017 appearance) for counsel preparation time. Based upon that reasoning and those calculations, the trial judge placed the net delay to trial completion at more than 20 months.

[15] The trial judge went on to consider the transitional exceptional circumstances and take into account the pre-Jordan regime where Morin factors prevailed. He reviewed the time delays and characterized the various periods of the delay according to the type of delay. He concluded that total delay could be divided up as follows: neutral delay of 11.5 months, institutional delay of 12.5 months, and defence delay of 9.5 months. He concluded that the institutional delay was excessive under the Morin guideline.

[16] The trial judge then turned to the additional Morin factors and found that prejudice could be inferred from the length of time that it would have taken to complete the accused’s trial on October 31, 2017. He then weighed the seriousness of the offence but concluded that this factor was not determinative. He concluded by citing the Supreme Court of Canada in R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, which was authority for the conclusion that a charge which has undergone unreasonable delay will not be saved by reason of its seriousness.

Analysis

[17] I have concluded that the trial judge committed no palpable and overriding error in accepting that the 11(b) waiver given on October 29, 2015 was meant to run for only three months. The trial judge characterized the period of November 20, 2015 to January 28, 2016 as delay waived by the defence. That characterization was correct. Underlying that characterization was the trial judge’s finding that Mr. Burke’s remarks on October 29, 2015 constituted an “express waiver” of the delay, and for a period of three months only. This was a finding of fact; it was open to the trial judge to make that finding on the evidence before him, and he made no palpable and overriding error in doing so. Although one could interpret Mr. Burke’s acceptance of Ms. McCartan’s statement that there would be an “11(b) waiver with respect to that new trial date” as meaning to the date of trial, it could also reasonably bear another interpretation: that the waiver was given until the set date for the trial, namely January 28, 2016. The trial judge made a finding that it meant the latter, namely that the defence had waived a period of three months of delay from inclusion in the assessment of the reasonableness of the overall delay. It is not for this court to substitute its finding for that of the trial judge.

[18] Further, I am not persuaded that the waiver was the kind of clear and unequivocal waiver called for in Jordan that extended beyond the three-month period and would forever relieve the Crown of its obligation to prosecute the matter diligently. Nowhere is there any indication that the accused was made to understand his full rights or the effect that the waiver would have on those rights. Jordan reminds us that the “clear and unequivocal” test for a waiver is “stringent” and a “high bar”: a clear, unequivocal, and informed acceptance that the period of time will not count against the state is what is required. It is implicit in the decision of the trial judge that the Crown failed to meet that onus. I find therefore that the trial judge committed no overriding or palpable error in making the finding that he did; and upon making that finding, he was entirely correct in law to grant only a three-month credit to the Crown off of the total delay.

[19] The trial judge also correctly found that the seven-month period of delay between July 29, 2016 until March 2, 2017 were part of the exceptional circumstances flowing from Mr. Burke’s illness, that those circumstances met the discrete events exception, and that the period ought to therefore be subtracted from the net delay for the purpose of determining whether the presumptive ceiling had been reached.

[20] As well, I am not persuaded that the trial judge erred in finding that only two of the eight months between March 2, 2017 and October 31, 2017 were attributable to the discrete event of Mr. Burke’s illness, subsequent untimely death, and the necessary new counsel preparation time. Based upon the reasoning in R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187, the trial judge attributed approximately two months of the eight months from March 2, 2017 to October 31, 2017 as necessary for new counsel to prepare for the last two days of trial and, thus, as part of the exceptional circumstance flowing from Mr. Burke’s death. The trial judge found that (1) it was not open to the Crown to have assumed that none of the prospective delay would count on the s. 11(b) clock; and (2) it was not open to the Crown to regard the date-setting exercise as business as usual; on the contrary, there was a need for the Crown to attempt to minimize the looming further delay. The Supreme Court of Canada stated its concern about similar situations in which the Crown appears to have been content to accept institutional delay, demonstrating no effort to mitigate it: see Williamson, at para. 28.

[21] Given his earlier finding that the original waiver was limited to only three months and that the combination of credits for discrete events plus the Lahiry time was nine months, the trial judge was entirely correct in concluding that the net delay to trial completion was more than 20 months.

[22] First, the trial judge properly acknowledged that the discrete events exception was applicable to the case; second, he properly embarked on calculating the net delay in the case. In doing so, he gave to the Crown both the (a) aforementioned credit of three months for the delay waived by the defence plus (b) a credit of seven months for the discrete events related to Mr. Burke for the period running from July 29, 2016 to March 2, 2017, at which point new counsel was in place and ready to set dates for the continuing trial; third, the trial judge attributed approximately two months of the eight months from March 2, 2017 to October 31, 2017 as Lahiry time; fourth, he arrived at the conclusion that the balance remaining from the overall delay was 20 months. The trial judge found that the net delay exceeded the presumptive ceiling set out by Jordan for provincial courts and that the Crown had failed its burden to rebut the presumption that the delay was unreasonable. In so doing, the trial judge correctly applied the law to the facts that he found.

[23] I find that the trial judge correctly considered and applied the law which governs transitional cases under the Jordan framework. As required by Jordan, the trial judge engaged in a Morin analysis which calls for a judicial determination balancing the interests which s. 11(b) is designed to protect against factors which either inevitably lead to delay or otherwise are the cause of the delay. Using the findings he had previously made, he established that there had been an institutional delay of 12.5 months, which was beyond the suggested guideline in Morin of 8 to 10 months of institutional delay in provincial courts. He then turned his mind to the other Morin factors including prejudice and the seriousness of the offence. The trial judge had already found that the Crown had not acted with sufficient urgency in prosecuting the matter. The trial judge was presented with no evidence that the delay was due to limitations on institutional resources.

[24] I can find no extricable legal error in trial judge’s approach to or application of the transitional exceptional circumstances test set out in Jordan.

Disposition

[25] For the foregoing reasons, I would dismiss the appeal.

FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2)

I, Cathy Knelsen, certify that this document is a true and accurate transcript of the recording of R. v. Cimicata, et al in the Ontario Superior Court of Justice, held at 75 Mulcaster Street, Barrie, Ontario, taken from Recording No. 3811-15-20180813-090621 which has been certified in Form 1.

October 12th, 2018

Cathy Knelsen, CCR/ACT cathytheartist@sympatico.ca