Court File and Parties

COURT FILE NO.: CR 689/21 DATE: 2022 03 02 ONTARIO SUPERIOR COURT OF JUSTICE (SUMMARY CONVICTION APPEAL COURT)

B E T W E E N:

HER MAJESTY THE QUEEN Respondent Ryan Mullins for the Crown Respondent

- and –

BALDEEP PADDA Appellant Alan Pearse for the Appellant

HEARD: January 14, 2022 by Zoom conference

JUDGMENT ON SUMMARY CONVICTION APPEAL

[On appeal from the judgment of Justice A.R. MacKay dated February 5, 2021 finding the Appellant guilty of impaired driving]

D.E. HARRIS J.

[1] This is an appeal from a conviction for impaired driving. The sole issue on appeal is whether the trial judge erred in concluding that the Appellant’s right to a trial within a reasonable time protected by Section 11(b) of the Charter was not infringed.

[2] The total delay to trial was 18 months and 16 days. In dismissing the application, the trial judge, after deducting defence delay, found that the net delay was 17 months, within the 18 month Jordan ceiling. I agree with the trial judge that Section 11(b) was not violated by the delay and would dismiss the appeal.

[3] The major issue to be decided at trial and now on appeal is the effect of defence counsel’s desire to set a trial date without a pre-trial. Prior to the second appearance and before a pre-trial had been held, counsel wrote a letter addressed to the Crown’s Office rather than any particular person asking for a trial date. Apparently there was no reply. On the third appearance, an agent for defence counsel referred to another similar letter that had been sent the day before again asking that a trial date be set. The Crown in court suggested that the agent do a pretrial that day but the agent had to run and could not stay in the courthouse. On the next appearance, an agent appeared again and a judicial pretrial was set for a little less than three months away: October 21, 2019. An earlier date was available but the defence was not available. One day after the pretrial, a three day trial was set for November 30 – December 2, 2021.

[4] The trial judge made several deductions based on the defence failure to attend for a pretrial and to accept an earlier date for one. She computed a total defence delay of 54 days. This resulted in a net delay of 17 months.

[5] In the course of her reasons, the trial judge said,

Counsel was of the view that the charge before the court was a typical impaired case and could see no utility for him to schedule a Crown pretrial on an earlier date. While I empathize with Mr. Pearse, who does not appear regularly in our jurisdiction, the requirement for pretrials in a busy jurisdiction, like Brampton, is a necessity. Mr. Pearse referred to the Alberta Justice and Solicitor General, Criminal Justice Division Report entitled Injecting a Sense of Urgency: A New Approach to Delivering Justice in Serious and Violent Criminal Cases. This report was referred to with approval by the Supreme Court [in Jordan ]. While that report referred to how a culture of complacency towards delay has emerged in the criminal justice system with unnecessary procedures and adjournments and inefficient practices, our procedures for pretrials for the most part assist in bringing matters to trial, and early resolution in many other cases. The system works when both the Crown and the defence come fully prepared to participate in the process. These pretrials have been instituted to reduce trial delays and collapse rates.

Counsel takes the position that he should not have had to conduct a pretrial for a drink-drive charge. However, it is to be noted that judicial pretrials are required to determine accurate trial estimates and procedural and evidentiary issues that promote the proper use of trial time.

If an accurate estimation for the trial was not attempted, the matter possibly would need to be adjourned and then necessitate a further date for continuation. Attempting to find agreeable dates between the court, counsel and Crown to complete a trial often results in excessive long delays.

[6] It was argued in the same vein by defence counsel that the Crown should have accepted his suggestion offering to immediately set a trial date without a pre-trial. The trial judge disagreed,

Counsel sending a letter addressed to the Crown Attorney’s office, without bringing it to the attention of a specific Crown, just prior to a set date, is, in my view, a token effort to move the case along in a timely fashion. In this particular case, Mr. Pearse attempted to skip the pretrial requirement prior to setting a trial date and this, unfortunately, caused some delay. Sending letters, a day before a set date and not instructing an agent about the letter or the file did not amount to taking meaningful steps. Had the agent been in a position to conduct a pretrial on one of the court dates, the trial would have been set much earlier. Our jurisdiction has a duty Crown and a resolution Crown available to conduct a Crown pretrial every single court day. Mr. Pearse also missed a Crown pretrial. However, he made his best efforts to conduct the pretrial later in the day.

[7] I agree with the trial judge. Pre-trials are a vital necessity in our jurisdiction. Clearly, a three-day trial cannot be squeezed into a three hour time slot. The attempt to do so can only result in disruption and aggravate the delay issues which already plague our courts.

[8] Accurate time estimates are crucial for the purposes of reducing trial delays. Justice Doherty wrote in R. v. Allen, (1996), 110 C.C.C. (3d) 331 (Ont. C.A.) at para. 24,

Obviously, courts must operate according to a schedule and those who fix court schedules must rely on time estimates made jointly by counsel…

(Also see para. 27)

[9] To arrive at an accurate time estimate, it is important to distill the issues likely to arise at trial. That can only be ascertained by counsel discussing the matter between themselves, assisted by a judge. A unilateral estimate from defence or the Crown is not a tenable method by which to conduct the scheduling process. Both parties need to be involved. For example, the nature of Charter arguments to be made will have an enormous impact on trial time. The Crown may well concede Charter applications or make admissions of fact narrowing and expediting the issues. Discussion of trial issues and the witnesses and ultimate time required is indispensable to any rational scheduling regime.

[10] It may be that the pretrial scheduling process can be streamlined from its present state. It was held in R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27 (S.C.C.) at para. 40,

Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional re-sources are accepted as the norm and give rise to ever-increasing delay. This culture of delay "causes great harm to public confidence in the justice system" (LeSage and Code, at p. 16). It "re-wards the wrong behaviour, frustrates the well-intentioned, makes frequent users of the system cynical and disillusioned, and frustrates the rehabilitative goals of the system" (Cowper, at p. 48).

[11] In light of the historic delay problems in our jurisdiction going on four decades now, there ought to be periodic reconsideration of established procedures including for pre‑trials. The culture of complacency identified in Jordan is real. The longer a practice or process is in place, the more entrenched it may become and the more difficult it is to envision alternatives or means to alter and improve it. There is a real risk, as in the realm of other human activity, that inertia may set in. This is particularly true in the justice system where, in the absence of a profit incentive driving the process and the lack of an easy way to measure outcomes, a high degree of efficiency can be illusive.

[12] Challenging the current system can have a salutary effect on the court process. However, the onus is on the party impugning the status quo. Very specific identification of the problem is first necessary in order to mount an effective attack. It is helpful if alternatives can be put forward.

[13] Ultimately, there was nothing unreasonable about what occurred here. No realistic alternative to the pretrial procedure was suggested. There may well be better ways to discuss trial issues and formulate time estimates but there was no evidence or argument put forward to demonstrate this.

[14] For these reasons, I agree with the trial judge’s subtraction of the 54 days based on defence conduct. The criminal pre-trial process is not optional for either the Crown or the defence.

[15] In addition, an issue was raised concerning the delay from the completion of the trial on December 2, 2020 to the time of the trial judge’s decision convicting and sentencing the Appellant on February 5, 2021. In my view, in the circumstances, this delay was entirely reasonable within the framework set out in R. v. K.G.K., 2020 SCC 7 (S.C.C.) for examining delays brought about by judges reserving their decisions.

[16] The appeal is dismissed.

D.E HARRIS J. Released: March 2, 2022

COURT FILE NO.: CR 689/21 DATE: 2022 03 02 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Her Majesty the Queen Appellant - and – Respondent JUDGMENT ON SUMMARY CONVICTION APPEAL D.E HARRIS J. Released: March 2, 2022