R. v. Gonsalves, 2022 ONSC 6004

COURT FILE NO.: CR-22-00000105-00AP

DATE: 20221024

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

Respondent

– and –

KYLE GONSALVES

Appellant

Jennifer Armenise, for the Crown

Chris Rudnicki, for the Appellant

HEARD: October 3, 2022

REASONS FOR DECISION

J. Di Luca J.:

Introduction

1The appellant was convicted of driving while impaired by drug following a trial before J.J. Douglas J. of the Ontario Court of Justice on November 3, 2021. He appeals his conviction and raises three grounds of appeal:

a. The trial judge erred in finding that a delay of approximately 20-months was not unreasonable despite the COVID pandemic;

b. The trial judge erred in his treatment of the evidence relating to the different labels on the urine sample seized by the Drug Recognition Evaluator (DRE) officer and the urine sample tested by the toxicologist; and,

c. The trial judge erred in permitting the Crown to cross-examine the appellant on the statements made during the compelled DRE evaluation.

2The appellant seeks a stay of proceedings in relation to the first ground of appeal. He argues that the second and third ground of appeal warrant a new trial.

3The Crown argues that the trial judge committed no reversible error in addressing these issues and asks that the appeal be dismissed.

4For the reasons that follow, the appeal is allowed, and the charge is stayed.

Brief Overview of the Evidence

5On December 19, 2019, at 10:50 p.m., the arresting officer, PC West, was dispatched to a call near Fuller Avenue and Midland Point Road in Midland, Ontario. When she arrived at the scene, she observed a white SUV stuck in a snowbank just off the roadway. A person in a pickup truck had hooked up a chain to the SUV and was trying to extract it.

6The appellant was in the driver’s seat of the white SUV. The engine was running and in gear. As the officer spoke with the appellant, she observed indicia consistent with impairment by drug or alcohol. She asked him to produce his driver’s licence, ownership and proof of insurance. He was slow to react and only produced his driver’s licence. The officer noted that his eyelids were drooping and he had some white foam or crust in the corners of his mouth. His speech was slow and he was slurring. The officer asked for ownership and insurance a second time and the appellant reached into the glove box and retrieved a leather case which he handed over to the officer.

7Based on her observations, PC West made a roadside screening test demand. The appellant complied and his breath sample revealed that he had no alcohol in his system. PC West then concluded that the appellant was impaired by drug and she placed him under arrest. A search of the vehicle incident to arrest revealed a bottle labelled as containing liquid codeine. Upon discovery of the bottle, the officer also arrested the appellant for possession of a scheduled substance for the purpose of trafficking.

8Once at the police station, the appellant was examined by PC Hopkins, a newly certified DRE officer. PC Hopkins observed that the appellant was moving slowly, walking stiff and upright. His speech was slow and monotone, and he responded slowly to instruction. After administering the prescribed DRE examination, PC Hopkins concluded that the appellant’s ability to operate a motor vehicle was impaired by a dissociative anesthetic, though not a depressant or cannabis. He then demanded that the appellant provide a urine sample.

9Dr. Mayers gave expert evidence about the toxicological analysis of the urine sample. His analysis disclosed the presence of three substances; etizolam which is a central nervous system depressant that is not legally available in Canada though it is seen in the illicit drug market, carboxy-tetrahydrocannabinol which is a metabolite of the psychoactive component of cannabis and acetaminophen, which is sold as Tylenol. According to Dr. Mayers, the first two drugs, if present in sufficient quantities, could impair a person’s ability to drive. Dr. Mayers’ analysis did not reveal the presence of a dissociative anesthetic. Dr. Mayers did not specifically opine on the appellant’s state of impairment at the time of driving.

10The appellant testified and explained that on the evening of his arrest, he was driving home from The Keg restaurant when he pulled over to look at Christmas lights. As he attempted to re-enter the roadway, he became stuck in the snowbank at an angle.

11The appellant described his interaction with PC West. He felt like she was being rude and disrespectful to him, and she was immediately suspicious of him. He denied that he had issues understanding her directions, but agreed that he had difficulty hearing the directions due to some hearing loss suffered in a workplace accident. He explained that his balance difficulties were related to old injuries. He explained that he was confused by the tests the DRE officer made him do. He had never done them before and did not understand what was expected of him. He was also nervous as he was on bail. Lastly, he explained that he suffers from dry mouth which at times causes a white crust to form in the corners of his mouth.

12He denied taking drugs that evening and denied being impaired by any drug while driving.

Issues on Appeal

(a) Unreasonable Delay

13The appellant was arrested on December 19, 2019. The information was sworn at the time of his first appearance in court on January 9, 2020. The trial was completed on September 17, 2021, approximately 21 months later.¹

14The central issue on the s. 11(b) motion was whether the COVID pandemic was a discrete event warranting a deduction of some period of time from the overall delay. The defence position was that while this case overlapped with the pandemic and the related courthouse closures, the delay was not causally connected to those occurrences. Rather, it was connected to the Crown’s delay in providing significant disclosure.

15The Crown’s position was that the COVID pandemic was a massive and overwhelming event that resulted in a virtual “shutdown” of the court system resulting in delay. The Crown argued that the period between March 26, 2020 and July 20, 2020, at a minimum should be properly excluded from the s. 11(b) analysis.

16The trial judge accepted the Crown’s argument and held as follows:

On the view I take of this matter, I find it unnecessary to acutely analyze the delay urged or not by the accused, respecting the first three points.

In my view, the very minor overage of 3.3 or 2.56 months, in the convening period, is all easily explained by COVID.

First, commencing on March the 16th, the problems in Ontario and state of emergency and the courts affectively shut down much of their operations at that time.

Cases were subject to rolling automatic adjournments or remands. So too did the Attorney General, as most of its staff were prevented from even attending the courthouse.

Priority was given in a very rational manner to outstanding in-custody matters or already scheduled out of custody matters.

But the reality was that most of these were significant legal aid [sic].

Indeed, in August of 2020, the Chief Justice announced that it would not be until September 20, 2020, that the courts could begin considering the scheduling of trial matters, such as that of the accused.

That period of time, as 188 days or 6.26 months, that my view, any issues of defence and Crown delay within that framework is effectively moot because it was not even possible to schedule a matter within that period time.

17The trial judge went on to conclude that deducting 6.26 months from the overall delay – calculated either from the date of arrest or the date of the swearing of the information, brought the delay below the Jordan limits. As a result, he dismissed the application.

18On appeal, the appellant argues that the trial judge failed to approach this case in a manner consistent with the Jordan framework. He submits that the trial judge erred by using the COVID pandemic as a “panacea” for any accrued delay instead of engaging in a detailed assessment of the specific facts of the case and the actual causes of the delay. He further argues that when a detailed assessment of the specific facts of this case is undertaken, it is apparent that the actual delay was related to the Crown’s failure to provide disclosure and not the COVID pandemic.

19In essence, the appellant’s argument boils down to the submission that since important disclosure that was outstanding in March 2020 when the pandemic hit was not provided until January 31, 2021, no period of time should have been categorized as delay relating to an exceptional circumstance within the Jordan framework.²

20The case law amply supports a finding that the COVID pandemic is a compelling example of a discrete event amounting to exceptional circumstances with the Jordan analysis, see inter alia R. v. Agpoon, 2022 ONSC 2762; R. v. Chac-Wai, 2022 ONSC 1269, at para. 33; R. v. Dumpfrey, 2021 ONSC 7758, at para. 38; R. v. Metatawabin, 2021 ONSC 7168, at para. 37; R. v. Schardt, 2021 ONSC 3143, at para. 69; R. v. Greenidge, 2021 ONCJ 468, at para. 23; R. v. Khan, 2021 ONCJ 195, at para. 6; R. v. Simmons, 2020 ONSC 7209, at para. 60; R. v. Truong, 2020 ONCJ 613, at para. 71.

21However, many cases also make the very valid point that delay caused by exceptional circumstances must nonetheless be analyzed with a view to the unique facts and the context of each case. There is no “standard deduction” for the COVID pandemic related courthouse shutdown.

22Once the net delay in a case exceeds the Jordan limits, the onus is on the Crown to either demonstrate that the delay was justified by some unusual complexity in the case or caused by discrete events outside its control. Where the Crown seeks to establish an exceptional circumstance, it must also show that it made reasonable efforts to respond and conclude the trial under the ceiling, see R. v. Jordan, 2016 SCC 27, at paras. 74-75.

23The trial judge in this case held that during the time period between March and September 2020, the courts were not operating normally, cases were subjected to rolling automatic adjournments and priority was being given to in-custody or previously scheduled out of custody matters. He also noted that the Crown’s office was also impacted as staff were not permitted to attend courthouses. He then simply concluded that the circumstances of the pandemic shutdown rendered concepts of crown and defence delay “moot” as it was simply not possible to schedule matters during this period.

24In my view, the trial judge erred in his conclusion that the pandemic rendered Crown and defence delay “moot” during the period of the shut down. This approach treats the period of the courthouse shut down as a standard or automatic deduction for the purposes of the Jordan analysis, regardless of whether the case was actually impacted by the shut down. This is not the correct legal analysis. As my colleague Leiper J. states in R. v. Agpoon at paras. 47-51:

[47] Delay caused by exceptional circumstances must be analyzed with a view to the unique facts and the context of each case of delay. For example, despite the obvious disruption to the work of the administration of justice, in some cases, the courts have declined to attribute all the [delay] following the start of the pandemic to exceptional circumstances, where there have been accompanying disclosure issues on the part of the Crown that added to the initial periods of delay: See R. v. Delaney, 2021 ONCJ 467, at para. 56; R. v. Bui, 2021 ONCJ 379, at para. 39.

[48] This aligns with the discussion of exceptional circumstances in Jordan and the obligation of the Crown to be proactive. The Crown must “show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling”: Jordan, at para. 70.

[49] This must be the case even where the “past difficulty” is of the scope and scale of the global pandemic. Justice was delayed, yet the administration of justice modified and modernized its systems, adopted triage systems, and continued to operate after the initial period of shutdown in the second quarter of 2020. Each case must be examined to determine whether the Crown took the steps available to it to mitigate the delay.

[50] In other cases, the entire period of delay is attributable to the exceptional circumstance of the pandemic. This can be seen in cases where the pandemic triggered trial date adjournments without other factors intervening. There the courts considered the practical need for managing the backlog created exclusively by the pandemic. In those cases, the entire period from the adjournment to resumption of sittings has been deducted from the calculation of the period of delay: See for example, Simmons; Metatawabin; Dumpfrey.

[51] The rationale for doing so was well articulated by Justice Nakatsuru in Simmons, a case decided in November of 2020, at para. 70:

…Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.

25Having concluded that the trial judge erred in his approach, I turn next to assessing whether the delay in this case warranted a stay of proceeding in accordance with Jordan. There is no issue that the COVID pandemic caused unprecedented upheaval in the court system. That said, the court system did not shut down entirely. Many cases were adjourned, some cases were tried and others were resolved. The police continued to lay charges, bail courts were running and defendants continued to receive disclosure.

26In responding to the s. 11(b) motion at trial, the Crown opted to tender no evidence explaining the delay in providing two key items of disclosure.³ The late disclosure included the DRE Report which would have been prepared by the DRE officer on the night of the investigation in December 2019, and the Toxicology Report from the Centre of Forensic Science (CFS) which was prepared on March 16, 2020. Given the nature of the charge, there can be no suggestion that these two items were anything but core disclosure.

27These two items of disclosure were only provided to defence counsel on January 31, 2021, though they were mistakenly provided to prior defence counsel in December of 2020. Importantly, it appears that both items were available to the Crown prior to the pandemic shutdown.

28After the provision of this disclosure, the case continued through the usual court process, with further judicial pre-trials and trial scheduling attendances. Ultimately, on July 23, 2021, the trial date of September 15 and 17, 2021 was fixed. I pause to note that once the requisite steps had been taken, including the provision of necessary disclosure, the trial dates were secured on a remarkably prompt basis.

29The Crown’s failure to offer any explanation for the delayed disclosure places this court in a difficult situation in terms of determining whether the COVID pandemic and related shut down actually impacted this case.

30I am prepared to find that it is quite possible, perhaps even probable, that the pandemic shut down also impacted other aspects of the court process, including the provision of disclosure by the Crown. This stands to reason as virtually every workplace across the country was impacted to some degree and many to a significant degree. Many places of employment barred or restricted physical attendance for lengthy periods of time. The pandemic forced many workplaces and institutions to attempt to “instantly” modernize their systems by shifting from in person/paper to remote/electronic formats.

31However, in the absence of evidence demonstrating how the shutdown impacted the preparation and delivery of disclosure, the court is at a loss in determining whether the delay in this case was related to COVID or simply delays in disclosure. If, for example, the Crown had tendered evidence suggesting that the pandemic shutdown had created delays in providing disclosure, and perhaps quantified those delays, the court would be in a position to make causal findings connecting the pandemic shutdown to the delay occasioned in the case.

32In the absence of such evidence, the connection is merely coincidental. In other words, it appears that this case was delayed due to disclosure problems which occurred at the same time as the pandemic shutdown. On this record, a causal connection can only be filled by speculation.

33To put it bluntly, if the pandemic had not occurred, there is no issue that this case would have been stayed for unreasonable delay. The defence did not cause any delay.⁴ No time periods were waived. It took a very lengthy period of time for core disclosure to be provided, despite repeated efforts by the defence. Even with the efforts of the defence and the trial date set in short order, the Jordan ceiling was surpassed.

34As a result of the trial judge’s analytical error, he did not attempt to determine the cause of the delay or to apportion, if possible, the delay caused by the COVID pandemic and the delay specifically caused by delayed disclosure. In the absence of those findings, it is hard to see how, on a principled basis, he would have been able to deduct approximately six months in relation to COVID as a discrete exceptional event.

35To be clear, this is not a case where a causal connection between delay and the COVID pandemic can simply be inferred as happens when a trial or preliminary inquiry date was automatically adjourned due to COVID. In those case, the courts have been attributed most, if not all, of the resultant delay to exceptional circumstances.

36It is also not a case where the court can essentially take judicial notice that the disclosure process was also delayed when the courts shut down. It is likely that some delay resulted, but on this record, it is guesswork as to how much delay was occasioned.

37As a result, I am satisfied that the net delay for the Jordan analysis is just over 20 months from the date the charge was sworn. This surpasses the Jordan timeline.

38The appeal is allowed and a stay of proceedings is entered. While this is sufficient to dispose of this appeal, in the event that this matter is further pursued, I will nonetheless proceed to address the remaining two grounds.

(b) The Continuity of the Urine Sample

39PC Hopkins, the DRE officer, testified that he labelled the urine sample seized from the appellant with label 3A01115. Dr. Mayers, the CFS toxicologist, testified that the urine sample he tested was labelled 3A01116. The mis-matched label numbers were only noted by defence counsel in submissions. The witnesses were asked no questions about the discrepancy.

40A Toxicology Report was tendered into evidence during Dr. Mayers’ testimony. The defence neither objected to receipt of the Report as an exhibit nor stated any stipulations regarding what use could be made of the Report.

41The Toxicology Report lists the urine sample number as “3A01116.” The Report also has a heading “Continuity” which states “The ‘Evidence List Report’ attached to this report relates to the laboratory item number to the submitter item number and description.” The Evidence List Report describe CFS Item #1 as “3A01116 urine 60 ml from Gonsalves, Kyle collected on dec 20, 2019 01:59”.

42At the conclusion of his evidence in chief, Dr. Mayers was asked whether there were any other “salient” matters he wished to cover. He responded, “There is other things in the report like continuity, but I am not, I haven’t been present for the entire trial process here. I don’t know if that’s an issue. I will just wait until I am asked a question…”

43In submissions, the defence counsel argued that the discrepancy in the sample number resulted in a reasonable doubt about the continuity of the sample tested by the CFS.

44The trial judge addressed this argument in his Reasons for Judgment as follows:

Either Dr. Mayers or the DRE gave an erroneous number but I find no reason to believe that this error is such as to raise any real likelihood that Dr. Mayers tested someone else’s urine. I note that the tox report notes that the reference is to Gonsalves, Kyle and that the report is prepared for PC M. Hopkins at Huronia West OPP Central and thus content that the test was that of the accused.

45The appellant argues that the trial judge committed two legal errors in addressing this issue: (1) he misapprehended the evidence and (2) he erred in relying on the Evidence List Report appended to Dr. Mayers’ report.

46In my view, the trial judge committed no error in relying on the Evidence List Report appended to the report of Dr. Mayers. The defence raised no objection to the admissibility or use of the report when it was tendered into evidence. Dr. Mayers’ report specifically addresses continuity and refers to the appended Evidence List Report which describes the sample received at the CFS as having come from the appellant at a time and date that correspond with the DRE officer’s evidence. In short, the Report along with the appendix provided a factual basis for the trial judge’s assessment of the continuity issue raised by defence counsel.

47Ultimately, there was no misapprehension of evidence. The trial judge made a factual finding based on the evidence. He was satisfied that the urine tested belonged to the appellant and was tested at the behest of PC Hopkins, the qualified DRE who took the sample. This finding was available to the trial judge on the record before him.

48I would not have allowed the appeal on this ground.

(c) Error in Using the Appellant’s Utterances

49The appellant argues that the trial judge erred in permitting the Crown to cross-examine him on statements he made during the DRE evaluation. The appellant argues that the Crown did not seek to prove the voluntariness of these compelled statements, and therefore should have been prevented from engaging in cross-examination.

50The appellant further argues that the trial judge erred by relying on aspects of the impugned cross-examination in assessing the appellant’s credibility. The appellant argues that the utterances were statutorily compelled and therefore could not be used for any purpose.

51In terms of additional background facts, I note that the Crown tendered as Exhibit 1, a Drug Influence Evaluation form prepared by the DRE officer. On this form, the officer recorded various observations and the results of the physical tests he performed. He also recorded various responses given by the appellant in response to questions asked during the examination.

52In his evidence in chief, the DRE officer was asked about the various tests he conducted and he explained that portions of the tests included questions asked of the test subject.

53In cross-examination, the DRE was challenged briefly on the content of some of the utterances allegedly made by the appellant.

54The appellant then testified and denied committing the offence. He offered some explanations for differences between his statements to the DRE and his evidence in court.

55In cross-examination, the appellant was specifically challenged by the Crown on his utterances to the DRE officer. In short, a theme of the Crown’s cross-examination was that the appellant either lied in his testimony and/or in his utterances to the DRE officer. This theme was the subject of submissions by the Crown, who invited the trial judge to make an adverse credibility finding against the appellant.

56In his brief oral reasons, the trial judge held, inter alia, as follows:

The DRE did report though that the accused was positive on the MRB, that is he filed to keep his balance. The DRE also reported that on the walk-and-turn test, he similarly missed on several indicators.

The report may be the accused appears to have lied to this court about several matters noted by the DRE, who’s evidence on this, I accept.

In my view, based on the totality of the observations of the investigating officer and the DRE, the impairment of the officer [sic] was obvious.

57I start my analysis of this ground of appeal by noting that the defence did not bring a Charter motion seeking to exclude the statements at trial. The record is silent on the extent to which, if any, that the appellant felt compelled to make the subject utterances. This is fatal to the s. 7 right to silence and right against self-incrimination Charter arguments, see R. v. Roberts, 2018 ONCA 411, at para. 40.

58The issue of the necessity of a voluntariness voir dire is more problematic. It is well settled law that before the Crown can either make substantive use of a defendant’s utterances to a person in authority or use those utterances for the purpose of impeachment, it must first prove the voluntariness of the utterance beyond a reasonable doubt.

59The obligation to seek a determination of voluntariness rests with the Crown and not the defence. Defence counsel’s silence on the issue does not amount to a waiver, see R. v. Park, 1981 CanLII 56 (SCC), [1981] 2 S.C.R. 64, at p. 74.

60A trial judge has a duty to hold a voir dire whenever the Crown seeks to adduce a statement of the accused made to a person in authority, see R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at para. 41, Erven v. The Queen, 1978 CanLII 19 (SCC), [1979] 1 S.C.R. 926, R. v. Sweezey, (1974), 1974 CanLII 1427 (ON CA), 20 C.C.C. (2d) 400 (Ont. C.A.) and R. v. Sabir, 2018 ONCA 912, at para. 24. Absent a clear waiver by the defence, the duty arises even in the face of silence.

61On appeal, an error based on the failure to hold a voir dire is established where clear evidence objectively suggests that the trial judge should have been alerted to the need for a voir dire, notwithstanding defence counsel’s silence. In this regard, the appellate court conducts an objective review of the evidence to determine whether something should have triggered the trial judge’s obligation to conduct an inquiry, see Hodgson at para. 41.

62The Crown tendered the appellant’s utterances to the DRE as part of its case and also cross-examined the appellant on them. It was incumbent on the Crown to seek a determination of voluntariness prior to doing so.

63Moreover, I am satisfied that the trial judge’s duty to inquire about the necessity of a voir dire was objectively triggered. The Crown was making both substantive and impeachment use out of the statements to the DRE officer. There is nothing on the record, apart from defence counsel’s silence, that would amount to a concession of voluntariness or a waiver of the need for a voir dire.

64I turn next to the Crown’s submission that even if the trial judge erred in failing to prohibit the use of the statements, no harm was occasioned as the trial judge did not place “great significance” on the appellant’s utterances in concluding that the Crown had proven beyond a reasonable doubt that the appellant was driving while drug impaired.

65In my view, this is not an appropriate case for application of the curative proviso. I reach this conclusion for two reasons. First, this is not an instance where a finding of voluntariness was a forgone conclusion. In this regard, I adopt the apt observations made by Latimer J. in R. v. Davis, 2018 ONCJ 147, at para. 37, wherein he states:

[37] As I have excluded the DRE statements, the voluntariness issue does not directly arise. For the sake of completeness, however, I can advise I would have excluded those statements from evidence pursuant to R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, 147 C.C.C. (3d) 321, for reasons expressed to counsel during submissions. Asking a detainee incriminating questions, in the shadow of the DRE demand, is problematic. I note that the questions are presented as part and parcel of the testing procedure. They are asked by the DRE officer, following the s. 254(3.1) Code demand, in the same room and on the same worksheet as the drug recognition evaluation itself. This is suboptimal from a voluntariness perspective, given the placement of the onus and the language of the DRE demand, which can be construed as legal direction to answer the subsequent questions asked. Questioning an arrested person in this manner has the potential to erode the cautions originally provided and undermine the right to silence.

66Second, despite the strength of the Crown’s case, the appellant’s credibility was an issue that the trial judge needed to fairly address within the context of a WD analysis. The appellant testified and denied committing the offence. The trial judge found that he lied to the DRE officer. The impugned utterances were directly, though not exclusively, relied upon by the trial judge in determining the case.

67Had this been the only successful ground of appeal, I would not have applied the proviso to uphold the conviction and a new trial would have been ordered.

Conclusion

68The appeal is allowed, and a stay of proceedings is entered.

J. Di Luca J.

Footnotes

1. 1The defence invited the trial judge to calculate the total delay from the date of arrest which would have been 639 days or 21.3 months. The Crown argued that the date of the swearing of the information was the correct start date and as such, the delay was 617 days or 20.56 months. On appeal, the appellant does not argue that the trial judge erred in using the date of the swearing of the information as the start date for the Jordan analysis.
2. 2The disclosure was actually provided to the appellant’s former counsel on December 23, 2020. The mistake was noticed by Crown counsel who took prompt steps to correct the error.
3. 3The Crown also delayed the provision of the DRE rolling logs, which resulted in the defence planning to bring a disclosure motion. The motion was ultimately unnecessary as the Crown provided the sought-after disclosure. The fact that this disclosure request almost required a motion is hard to understand in view of the fact that the Court of Appeal in R. v. Stipo, 2019 ONCA 3, directed that DRE rolling logs were relevant and disclosable.
4. 4On this issue, I am not prepared to find that the change of counsel and intervening bail hearing is properly categorized as defence delay in accordance with Jordan. When these matters happened, the Crown had yet to produce the core items of disclosure in the case. This is not an instance where the Crown was ready to proceed with the matter.