R. v. Dias, 2012 ABQB 680

Court of Queen ’ s Bench of Alberta Citation: R. v. Dias, 2012 ABQB 680 Date: 20121102 Docket: 080867245Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Glen Dias Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Gerald A.

Verville _______________________________________________________ Introduction [ 1 ] The Accused was charged in July 2008 with failing to stop while being pursued by a peace officer (s. 249.1(1)), failing to comply with a breath sample demand (s. 254(5)), impaired operation of a motor vehicle (s. 253(a)), dangerous driving (s. 249(1)(a)), and threatening to use a vehicle as a weapon in committing an assault upon an officer (s. 267(a)). [ 2 ] The Accused alleged infringement of his s. 7 and s. 11(

b) Charter rights to be tried within a reasonable time. This Court dismissed the application, with these more detailed reasons to follow. [ 3 ] The matter was stayed by Provincial Court Judge Myers for Crown ’ s failure to meet disclosure obligations on January 25, 2010: 2010 ABPC 25 (Provincial Court Decision) . On December 14, 2010 the stay was set aside by the Court of Appeal: 2010 ABCA 382 , 502 AR 156 (Court of Appeal Decision) , and that Court clarified on January 10, 2011 that the prosecutions were to proceed before

another judge: 2011 ABCA 6 . A chronology of proceedings in Provincial Court was attached to the Court of Appeal Decision as an appendix.

Timeline [ 4 ] The following timeline is drawn from the appendix to the Court of Appeal ’ s decision, written submissions of the Accused and Crown, and the chronology accepted by the judge in the Provincial Court Decision: July 11, 2008 Offence date July 11, 2008 Charges laid and first appearance in Provincial Court; Bail hearing - adjourned by accused in order to speak to lawyer July 14, 2008 Bail hearing - adjourned by accused in order to speak to Legal Aid July 21, 2008 Bail hearing - adjourned by accused as Legal Aid lawyer did not attend July 23, 2008 Bail hearing - adjourned by accused to confirm Legal Aid had appointed lawyer July 30, 2008 Bail hearing - Crown did not have file - adjourned to get disclosure from Crown - defence counsel Gourlay on record August 7, 2008 Bail hearing - accused's counsel withdrew as he was going on vacation - adjourned to allow accused to retain new counsel August 21, 2008 Bail hearing - adjourned to allow new counsel for accused to discuss offer from Crown with accused - defence counsel Goldie on record September 5, 2008 Bail hearing - adjourned to allow accused to change counsel September 12, 2008 Bail hearing - adjourned to allow accused to consult with new counsel - defence counsel Engel on record September 19, 2008 Bail hearing; release granted on $300 bail - counsel for accused requested disclosure on September 18, 2008 October 3, 2008 Adjourned to allow Crown time to complete disclosure October 17, 2008 Adjourned to allow Crown time to complete disclosure October 31, 2008 Adjourned - Crown claimed disclosure was complete - Defence counsel was unsure whether disclosure was complete November 2, 2008 Crown requests documents required for disclosure from Edmonton Police Service (EPS) and sets a deadline of November 21 November 12, 2008 Adjourned because defence counsel still awaiting disclosure November 26, 2008 Accused elects Provincial Court judge - date set for trial re: disclosure - adjourned because Crown was sick December 3, 2008 Setting of dates - disclosure motion set for June 15, 2009 - trial set for July 13, 14, 15 and 17, 2009 June 15, 2009 Disclosure Motion - because case depended on decision in LeTourneau case (along with other cases with McNeil applications) was set to be heard on Dec. 2, 2009 - defence counsel suggested following dates: Oct. 14 - Applicant's Brief ; Nov. 5 - Respondent's Brief ; Nov. 18 - Applicant's Reply - trial dates of July 13 to 17, 2009 vacated; new trial dates set: April 6 to 9, 2010 (Provincial Court Decision at para 11) December 2, 2009 Defence counsel had dates mixed up, thought it was scheduled for Dec. 3 and 4 - same mistake was made by EPS and counsel for EPS - defence counsel raised the sufficiency of the disclosure and indicated he would be sending the judge documents indicating what had been disclosed by way of McNeil disclosure for the accused - defence counsel still had not received disclosure discussed in disclosure motion on June 15, 2009 December 3, 2009 Crown indicated it would make disclosure by mid January, once professional standards branch investigation was complete - EPS and counsel for EPS indicated that they had not been in court the previous day because of letter sent by defence counsel stating that he was double booked and that December 2 date would be vacated - Crown counsel reviewed order and stated there was no deadline for disclosure - Crown stated that disclosure request to EPS had gone out on November 2, 2009 and deadline of November 21, 2009 was imposed - EPS counsel stated that in discussions with Crown they were under the impression that disclosure

could be made in January as trial was not until April December 17, 2009 Crown indicates that all disclosure has gone out to defence counsel January 25, 2010 Provincial Court Decisionstays proceedings November 5, 2010 Crown appeal of stay in Court of Appeal December 14, 2010 Appeal allowed, new trial ordered by Court of Appeal January 11, 2011 Docket court, plea reserve - defence counsel Millman on record January 25, 2011 Docket court, plea reserved February 18, 2011 Defence elects judge and jury; pre-trial conference set for May 4, 2011; preliminary inquiry booked forDecember 11 to 14, 2011 November 10, 2011 Docket court, file brought forward - defence counsel Engel granted leave to withdraw; defence counselMillman on record December 12, 2011 Preliminary Inquiry begins in Provincial Court December 14, 2011 Accused ordered to stand trial February 3, 2012 First appearance in QB - adjourned for resolution discussion - bail granted $500 no deposit February 28, 2012 Police obtain production order for medical records March 2, 2012 Defence re-elects to judge alone; pre-trial conference set for September 10, 2012; trial booked for October 29 toNovember 2, 2012 March 13, 2012 Supplemental disclosure by Crown, including medical records October 29, 2012 Trial set to begin Position of Accused [5] Defence counsel argues, based on R v Morin, (SCC), [1992] 1 SCR 771, [1992] SCJ No 25, that theappropriate delay in a case such as this one would be in the range of 14 to 18 months (8 to 10 months in Provincial Court and anadditional 6 to 8 months in Queen’s Bench). [6] Counsel notes that total delay in this case exceeds 50 months.

Nearly a year of that was appellate delay due to the chargeshaving been stayed by the Provincial Court. However, he submits that the Crown was still in the process of gathering evidence inFebruary 2012, more than 40 months after the charges had been laid. [7] Although s. 11(

b) does not include an accused person who is party to an appeal, counsel cites R v Potvin, (SCC), [1993] 2 SCR 880 at 915 for the proposition that s. 7 may afford a remedy if the particular circumstances of the case indicate thatthe fairness of the trial has been affected by the delay. [8] Defence counsel also refers to the following passage in R v Wilson, [2007] OJ No 4504 (Sup Ct Just): 24 Only one case has been drawn to my attention in which a court has specifically considered the time requirements after a new trialhas been ordered: R. v. Robertson, supra.

At paragraph 23 of his judgment, Williamson J. noted that "an accused should not sufferunacceptable delay because he succeeded on appeal from the first trial," and he went on to state in the same paragraph that "incircumstances where a new trial is ordered, it is incumbent upon the justice system, including the Crown, to do everything reasonable toexpedite the second trial." 25 An analogous issue is delay following a mistrial, which has been considered in two cases: R. v. L.M., supra, and R. v.Satkunananthan, supra.

26 In Satkunananthan , the Court of Appeal, at paragraph 55 of its judgment, specifically discussed the issue of delay that followed a mistrial. The Court noted that "it then became of paramount importance that any further delay occasioned by the mistrial be minimized", and stated that "when that trial ended in a mistrial, it was incumbent on the Crown to take all necessary steps to ensure that the third trial commenced without further delay." 27 In R. v.

L.M. , supra , Ferguson J. noted at paragraph 85 of his judgment that "in Satkunananthan the Court of Appeal emphasized the necessity of expediting cases which have been mistried", and, at paragraph 86, stated that "when the first trial was terminated by a mistrial a second trial should have been scheduled immediately and at an earlier date." 28 In my view, the principles articulated in R. v. Satkunananthan and R. v. L.M. are equally applicable in a case where a new trial has been ordered. This is particularly so, in my view, where the delay in commencing the first trial is problematic.

I agree with Williamson J. in R. v. Robertson , supra , that, in circumstances where a new trial is ordered, it is incumbent upon the justice system, including the Crown, to do everything reasonable to expedite the second trial. [ 9 ] Counsel submits that removing the 12 month appeal period leaves 38 months of delay, and argues that the Crown did not take any unusual or extraordinary steps to expedite this. Nor did it take all necessary steps to ensure that the trial commenced without delay after the appeal. The file has changed hands within the Crown ’ s office numerous times.

In any event, 38 months is well beyond the recommended 14 to 18 month guideline. [ 10 ] Defence counsel argues that Crown did not pursue disclosure of police disciplinary records in a timely fashion.

This was addressed by the Court of Appeal in reversing the stay, but defence counsel argues that although the law was not entirely clear on disclosure of police disciplinary records at the material time, the Crown nevertheless made an unwise choice in not pursuing timely disclosure, adding a further 4 months. [ 11 ] Defence counsel notes that disclosure was made in December 2011 of notes regarding Crown ’ s interview of a civilian witness. In March 2012, Crown disclosed some of the Accused ’ s own medical records.

The Accused was entitled to complete disclosure prior to his plea. [ 12 ] Further the Accused had pre-booked a date by phone right after February 3, 2012, but the matter was brought back in March 2012 because the Court was under a misapprehension that it was a jury trial. When setting the trial date, Crown had some earlier dates available in September and defence was also free, so the October date was probably set to accommodate Court availability. [ 13 ] Defence counsel submitted that running the Askov application at the beginning of trial was the most efficient manner of proceeding.

Otherwise, scheduling would have been further complicated as a trial judge would have had to have been assigned and available for an earlier date as well as the trial date. [ 14 ] Counsel argues that delay alone raises an inference of prejudice in this case. However, the Accused also testified to memory problems since an alleged assault on him by the police, involving trauma to the head, at the time of arrest. He produced his medical records from an emergency room visit. He testified that when he was in the Remand Centre, he could not keep a conversation going.

He suffered what he described as “ severe amnesia ” . Eventually the swelling came down and he “ started being normal person ” , but he still has problems with his memory. He testified that his memory is not as good as it was at the time of the incident. He started recording the events surrounding the incident three months after the fact. Counsel noted that memory loss of an older person, although it can be attributed to physical decline, is nevertheless aggravated by passage of time.

In the same way, the Accused ’ s memory loss should not be discounted just because it did not result merely from the passage of time. [ 15 ] Counsel adds that the police witnesses ’ memories will have faded since the incident. [ 16 ] Finally, counsel submits that the Accused has already been punished because he pled guilty to driving without insurance, resulting in a significant fine and mandatory default higher than anything provided for in the Criminal Code . Position of the Crown

[ 17 ] Crown concedes there has been a lengthy delay. However, Crown submits that disclosure was essentially finished on December 17, 2009 (17 months from July 2008), and the Court of Appeal more or less vindicated the Crown in relation to its approach on disclosure of the information relating to the parallel proceeding instituted by the Accused under the Police Act . [ 18 ] The proceedings have been unremarkable from January 2011 to the present time.

Additional disclosure was made of interview notes prepared in anticipation of the preliminary hearing, but the civilian witness had already provided a written statement which was disclosed. As for disclosure of the Accused ’ s own medical records, he was always aware of, and had access to, these and did not require the Crown ’ s participation to obtain them. There was a one month delay after the Court of Appeal Decision when two other available arraignment dates passed by. This was due to internal Crown file turnover.

Although there have been changes in Crown counsel, no adjournments have been sought on that basis. [ 19 ] The Crown notes that the Accused did not bring the trial matter forward for the s. 11(

b) application. [ 20 ] As for prejudice, the Crown submits that the memory loss of which the Accused testified resulted from alleged trauma, not from delayed proceedings. He testified that he had an opportunity to make a record when his memory revived. It remains to be seen whether any police officer ’ s memory has been affected by the passage of time. However, they will be testifying from notes in any event.

The Accused was released on bail when it was sought on September 19, 2008 on $300 cash deposit. [ 21 ] Crown notes that the charges faced by the Accused in this proceedings are much more serious than the one to which he pled guilty. Law [ 22 ] The Supreme Court in Morin at 787-88 outlined the factors to be taken into account on a s. 11(

b) application: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused. Analysis [ 23 ] The delay in this case of over 51 months warrants examination. [ 24 ] There was no waiver of time periods.

[25] No period of time is attributable to actions of the Accused in the sense that this phrase is used in Morin. [26] The Accused took the position that the Crown did not move forward in a timely fashion in relation to obtaining anddisclosing material generated as a result of the complaint instituted by the Accused under the Police Act. This issue was addressed in theCourt of Appeal Decision. [27] As for limits on institutional resources, defence counsel submitted that the trial could have been booked in September 2012 ifthe court had been available.

This might have saved one or two months at most. [28] The period of time from the offence date to the time of the stay (July 11, 2008 to January 25, 2010) was 18 months. As notedby the Court of Appeal, the Crown’s disclosure duties were affected by the existence of the parallel proceedings arising from theAccused complaint under the Police Act. The Supreme Court’s decision in R v McNeil, 2009 SCC 3, [2009] 1 SCR 66 was issued onJanuary 16, 2009.

In June 2009, a disclosure motion was set to be heard on December 2, 2009 in anticipation of a decision in R vLetourneau, 2009 ABPC 222 and other cases which would bear on the disclosure proceedings. Defence counsel suggested deadlines inthe fall for filing of briefs, the Accused’s reply to be filed on November 18, 2009 - again in contemplation of a trial in April 2010.

Thestay application was heard on December 3, 2009 and the decision was rendered on January 25, 2010. [29] The time from the stay decision to the appeal decision (January 25, 2010 to December 14, 2010) was just under 11 months.The Court of Appeal Decision in this case focussed on delayed disclosure.

Section 11(

b) was not squarely before the Court, and itdeclined to consider Askov. However, the Court’s comments regarding disclosure to the date of the stay are informative. In particular,the Court held that late disclosure did not produce even a risk of adjourning the scheduled trial.

The Court also rejected the suggestionthat the Accused had to wait on Crown for disclosure of his own hospital records. [30] In my view, the 18 month period to January 25, 2010 is explained almost entirely by the inherent requirements of the case. [31] Crown concedes that following the Court of Appeal Decision, two arraignment dates passed prior to plea due to internalCrown office file turnover. On February 18, 2011, defence elected judge and jury. The preliminary inquiry was booked for andproceeded on December 12 to 14, 2011. On February 3, 2012, the Accused made his first appearance in this Court.

On March 2, 2012,defence re-elected to judge alone, and the trial was booked for October 29 to November 2, 2012. Defence counsel asserts that the trialcould have been set for September if there had been Court availability. [32] Again, in my view the vast majority of the period of time since the Court of Appeal Decision is explained by the inherenttime requirements of the case. [33] It is true that this case has taken a long time to get to trial. In R v MacDougall, (SCC), [1998] 3 SCR 45,[1998] SCJ No 74 at para 45, the Supreme Court noted that “inherent time” and “average time” are not synonymous terms.

In my view,the principle espoused in Wilson whereby cases are to be moved along with dispatch after mis-trials (and arguably appeals) must bebalanced with Fraser C.J.A.’s observation in R v Koruz, 1992 ABCA 144 , 125 AR 161, [1992] AJ No 490 at para 33 (CA) thatbumping cases in favour of others will not necessarily promote or achieve the policy objectives of s. 11(b). [34] As for prejudice, the Accused has been out on cash bail from the time he first applied. Defence counsel submitted that hismemory loss constitutes prejudice.

The Accused’s own evidence on this point is that immediately following his arrest his memory wasvery poor, as a result of the incident in question (including an alleged beating by police) as well as his withdrawal from anti-anxietymedication shortly before the incident. He stated that at that time his memory problems were so severe that he could not maintain asimple conversation.

However, he testified that his memory improved quite substantially after three months in the Remand Centre. [35] Having observed the Accused on the stand, I conclude that he is no longer experiencing the severe memory problems whichhe states he experienced following the incident. Further, there was no evidence that his memory has been declining any more rapidlythan that of an average individual since his recovery within several months of the incident. In my view, based on the evidence before theCourt, any prejudice of this nature is minimal.

[ 36 ] Crown submits that if an accused is suffering prejudice as a result of delay, he should move expeditiously to have the matter heard. Defence counsel submitted that running this application at the beginning of trial was the most efficient manner of proceeding, as scheduling would have been further complicated by the need to designate a trial judge for both the s. 11(

b) hearing and the trial. In my view, it is speculative that this would have resulted in further delay. The s. 11(

b) application took one half day, which in the normal course could be scheduled much sooner than a five day (or in the result, a four day) trial. [ 37 ] Finally, the Court must be mindful of the societal interest in pursuing a prosecution on the merits. The Accused is facing charges of failing to stop while being pursued by police, impaired and dangerous driving, and threatening to use a vehicle as a weapon in committing an assault upon an officer. These are serious charges, and in my view the public has a significant interest in these charges proceeding to trial despite the delay in this case. [ 38 ] I find that breach of s. 11(

b) of the Charter has not been established on a balance of probabilities. Conclusion [ 39 ] The application for a stay based on breach of s. 11(

b) of the Charter is dismissed. Heard on the 29 th day of October, 2012. Dated at the City of Edmonton, Alberta this 1 st day of November, 2012. Gerald A. Verville J.C.Q.B.A. Appearances: Michelle Kai Suzanne Thompson for the Crown/Respondent Alex Millman for the Accused/Applicant