R v Tooke, 2013 ABQB 743

Court of Queen ’ s Bench of Alberta Citation: R v Tooke, 2013 ABQB 743 Date: 20131217 Docket: 101300929Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Jessie Eldon Tooke Accused _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Don J. Manderscheid _________________________________________ ______________ Introduction [ 1 ] On November 8, 2013, I heard an application by Jessie Eldon Tooke [the “Accused”] for a judicial stay of proceedings on the grounds that his right to a trial within a reasonable time as guaranteed by s 11(

b) of the Canadian Charter of Rights and Freedoms had been infringed and that the appropriate remedy under Section 24(1) of the Canadian Charter of Rights and Freedoms is a judicial stay of proceedings. [ 2 ] At that time I dismissed the application with formal reasons to be filed within a reasonable time. What follows below are my

reasons for denying the Accused’s application for a judicial stay of proceedings. Facts [3] The Accused is charged with three counts of dangerous driving causing bodily harm pursuant to s 249(3) of the CriminalCode, RSC 1985 c C-46. [4] It is alleged that at approximately 4:00 a.m. on the morning of April 17, 2010, the Accused was driving a vehicle containingthree other occupants when it was involved in a roll-over accident. The vehicle was travelling at 136 km/h in a 50 km/h zone. [5] The Accused suffered serious injuries, and was taken to the hospital.

The remaining three occupants suffered only minorinjuries, and were not at the scene when emergency medical personnel arrived. [6] It appears that all available witnesses to the incident were intoxicated: it is alleged that all four of the vehicle’s occupantswere drunk, as was the individual who called 911 to alert authorities that the accident had occurred.

Procedural History [7] While the parties disagree on the cause and length of some of the delays between the date of the accident and the ultimatetrial date, they share a basic chronology of the events as follows: - April 17, 2010 – the date of the accident; - April 21, 2010 – the occupants of the vehicle were interviewed; - September 5, 2010 – Mr. Tooke’s arrest; - September 6, 2010 – Mr. Tooke released on recognizance; - October 26, 2010 – information sworn; - October 27, 2010 – Mr.

Tooke’s first appearance; - March 2, 2011 – first trial date scheduled for March 1, 2012; - January 25, 2012 – Crown applies for witness to appear by CCTV; - February 29, 2012 – Crown requests and receives a 1-week adjournment due to unavailability of CCTV; - April 4, 2012 – trial scheduled for October 18, 2012; - October 18, 2012 – trial converted to preliminary inquiry; Mr.

Tooke’s re-election from Provincial Court to Court of Queen’sBench; - October 18, 2012 – Defence resolution offer put to the Crown; - January 8, 2013 – Crown rejects resolution offer; - January 11, 2013 – second trial date scheduled for November 12, 2013; and - November 5, 2013 – Defence application for Judicial Stay of Proceedings. [8] The total length of time from the date the information was sworn until the trial was to conclude was 36 months and 20 days.If I instead accept the start date as the date of arrest, as defence counsel urges me to do, the total time is 38 months and 7 days.

Analysis [9] In R v Morin, (SCC), [1992] 1 SCR 771, [1992] SCJ No 25 [“Morin”], the Supreme Court of Canada setsout the factors to be considered when determining if there has been an unreasonable delay in the trial procedure. The adjudicator mustconsider: 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. [10] Where the Court finds that an accused’s s 11(

b) Charter rights have been violated, “a stay of proceedings is the only possibleremedy” (R v Askov, (SCC), [1990] 2 SCR 1199, 42 OAC 81, at para 131). Given the extreme nature of this remedy, astay must only be granted where these factors clearly indicate that an Accused’s right to be tried has been adversely affected by delay. [11] In 2010, Hughes J of this Court, reviewed and applied these factors in R v Navales, 2010 ABQB 817 [“Navales”]. Thetimeline of events and the procedural history of this case is very similar to the case at bar. Mr.

Navales was charged with possession of cocaine for the purpose of trafficking. Although the charges were laid on November 14th, 2007, the final trial date was ultimately scheduled for December 6th, 2010. The Accused brought an application to stay the charges, alleging that the 37 month delay infringedhis right to be tried within a reasonable time. [12] I have relied on this decision throughout for its organization and analysis of the law to aid me in applying the law to the factsin this case. 1. Length of the delay [13] The parties do not agree on the total length of the delay in this case.

Counsel for the Accused submits that the starting pointshould be the date of arrest, rather than the date the information is sworn: R v Goreski, 2011 ABPC 361; R v Grass, 2013 ABPC 19. [14] Despite counsel’s submissions that the clock should start running at the date of arrest, the Supreme Court of Canada case lawis clear: the relevant time is “when an information is sworn alleging an offence against him, or where a direct indictment is laid againsthim” (R v Kalanj, (SCC), [1989] 1 SCR 1594, 40 CRR 50, at para 16).

This expression of the law was affirmed by theSupreme Court in Morin (at para 30), and Jeffrey J of this court earlier this year (R v Dahl, 2013 ABQB 54, at para 18). [15] I see no reason to deviate from this established practice. I agree with the Crown’s submissions, and find that the total length ofthe delay was 36 months, 20 days. 2.

Waiver of time periods [16] The authorities establish that where “the Accused has waived in whole or in part his or her rights to complain of delay thenthis will either dispose of the matter or allow the period waived to be deducted” (Morin, at para 37). [17] The Crown submits that the entire period from October 18, 2012, to the proposed trial end date of November 15, 2013 isattributable to the Accused. It suggests that period of just over 12 months was waived by the Accused when he re-elected, on the eve ofhis trial, to be tried by the Court of Queen’s Bench rather than the Provincial Court.

In addition, during this period the Accused made afurther re-election from a judge and jury trial to judge alone. This re-election compounded the delay, further adding to the amount oftime before the Accused could be tried. [18] Navales considered the issue of delay arising from last-minute re-election regarding the mode of trial. Hughes J found that theAccused’s decision to be tried by judge and jury rather than judge alone was the sole reason that the trial was postponed.

At para 15, shedescribes the re-election as “an implicit waiver of the time period” from the date of the original trial to the new trial date. [19] Similarly, in this case, the Accused’s re-election on the eve of his trial date substantially delayed the proceedings. Were it notfor this last-minute re-election, the case should have concluded as scheduled on October 19, 2012. [20] This Court must also consider whether the actions of the Accused underpinning the allegations of waiver support the inferencethat he wished to be tried as quickly as practicable.

The Crown cites R v Bennett, (ON CA), [1991] 46 OAC 99[“Bennett”] for the proposition that where there is no evidence that an Accused wants to be tried as soon as possible, it will be difficult toconclude they were denied the right to be tried within a reasonable time. [21] It appears on the facts that the Accused had no desire to be tried as soon as reasonably possible.

His decision to re-elect lastminute from Provincial Court to Court of Queen’s Bench, followed thereafter by another re-election from judge and jury to judge alone,is inconsistent with his expressed desire to be tried quickly. [22] Defence counsel has suggested that because the Crown consented to the re-election, the delay cannot be placed at the feet ofthe Accused. I disagree. If it had been the Crown seeking a last minute re-election the circumstances and possible result may be quitedifferent.

However, the Accused chose, presumably for strategic reasons, to fundamentally alter the trial process in such a way that a newtrial date had to be found, agreed upon, and scheduled. The Crown’s consent on this point is irrelevant. As a result, I find that the period of time from October 18th, 2012 until November 15th, 2013, was waived by the Accused, and must be deducted from the overall delay.

3. The reasons for the delay: a. Inherent time requirements [ 23 ] In each trial there will be some inherent delay that is considered neutral as between the parties, and not attributable to either side. Navales describes some of the common inherent time requirements such as “retaining counsel, speaking to bail, police preparation of disclosure, Crown review of the file and providing disclosure, etc.” (para 19). [ 24 ] One of the factors to be considered in determining whether these inherent time requirements are unreasonable is the complexity of the case to be tried.

The more complicated a case is, the longer it will take to litigate ( Morin , at para 41 ). [ 25 ] The Court in Morin illustrates factors that may contribute to the complexity of a given case. For example, in cases of fraud it may be necessary to analyze and interpret large numbers of documents, or to coordinate and call numerous witnesses. These cases will typically be more complex, and will require more time to resolve all of the issues.

As a result, a longer delay will be more easily justifiable. [ 26 ] In this case, it may be necessary to call expert witnesses at trial, and as a result the time taken to qualify those witnesses and review expert reports should be taken into consideration. However, it is apparent that there is nothing about the facts of this case that suggests it is particularly complex. Of the remaining few witnesses who might provide any useful testimony, most, if not all, of those witnesses appear to have been very intoxicated at the time of the accident.

While this evidentiary issue will need to be dealt with at trial, it does not present any particular complexities for either counsel that would require a significant amount of time or preparation. [ 27 ] Other inherent delays include time allocated for a preliminary inquiry, pre-trial meetings, and additional court dates. Here, a preliminary inquiry was conducted in October of 2012. There were numerous docket and QBAC appearances in the period from October 2010 to November 2012. [ 28 ] The exact number of months directly attributable to inherent delay in this case is difficult to ascertain.

This period will thus be considered together with the institutional delay in my conclusion below. b. Actions of the Accused [ 29 ] When considering whether the amount of delay suffered by the Accused was reasonable, and the extent of any prejudice claimed, the court must factor into the equation the amount of delay that is directly attributable to the Accused’s conduct.

The Ontario Court of Appeal has affirmed that “[i]n general, the Accused should bear the responsibility for delays occasioned by a late election or a last minute re-election” ( Bennett , at para 96 ), be it by apportioning that time to the Accused as a waiver, or as directly flowing from their actions. [ 30 ] While not considering it as evidence in this application, it should be noted that following this application, on November 12, 2013, the scheduled trial date for this matter, the Accused dismissed his lawyer. The matter was adjourned to a future date to allow him to retain new counsel.

The Accused’s actions leading up to the application for a stay of proceedings on November 5 th , 2013, appear to be inconsistent with a desire to proceed quickly to trial. It seems this inconsistency persists. [ 31 ] I have already found that the Accused waived the time period between October 18 th , 2012, and November 15 th , 2013. However, in the event that I am incorrect on this point, I nevertheless find that this period is attributable to him rather than to the inherent delays in the court process. c.

Actions of the Crown [ 32 ] The Crown concedes responsibility for a period of 6 months, 15 days following its unsuccessful attempt to have a witness appear at trial by CCTV. The witness in question was being held in custody in California. It appears that the facility holding him was not equipped for CCTV appearances. As a result, on February 29, 2012, one day before the scheduled trial date, an adjournment was granted in favour of the Crown to give it time to sort out equipment and technological issues. [ 33 ] Further delay flowed from this adjournment.

Due to the absence of the trial coordinator, a new trial was not scheduled until April 4, 2012, to begin on October 18, 2012. It is this period, from April to October that the Crown concedes as attributable to it, as it flows out of its request for an adjournment. [ 34 ] Defence counsel has argued that a period of one month and five days prior to the February 29 th adjournment should also be attributed to the Crown.

They suggest that the CCTV application on January 25 th started the clock; the Crown should have taken steps at that time to inquire as to whether the equipment was even available to allow the witness in California to testify in this Court. If the Crown had made reasonable inquiries, it could have discovered well before February 29 th that the equipment did not exist. [ 35 ] I do not agree with this submission. The fact that the Crown applied to have a witness appear by CCTV did not, by itself, delay the proceedings.

It was only after February 29 th that the proceedings were delayed as a result of the inability to find appropriate equipment. [ 36 ] However, I do find that the entirety of the one week adjournment must be added to the Crown’s overall attributable delay. As a result, I find that a period of approximately 6 months and 22 days is Crown delay.

d. Institutional delay [ 37 ] Institutional delay recognizes the limits on government and judicial resources. In any legal proceeding some delay is to be expected, as the courts have neither the funding nor the time to dispose of every issue as quickly as each individual may like. More often than not, delay arises because “the parties are ready for trial but the system cannot accommodate them” ( Morin , para 47 ). [ 38 ] Some of the institutional delay in this case can be allocated to dates spent attempting to secure a new trial date after the February 29, 2012 adjournment.

For example, the period between March 7 th and April 4 th , 2012 was spent waiting for the trial coordinator to return to the office. [ 39 ] The Court in Morin suggests a guideline of delay in the range of 8 to 10 months for institutional delay where the case is heading for Provincial Court. Trial dates at Queen’s Bench almost necessarily take longer to acquire, so this guideline may be extended when dealing with trials proceeding in this Court. 4.

Prejudice to the Accused [ 40 ] The Accused claims that as a result of this 36 month delay he has been prejudiced not only in his right to fair answer and defence, but in his day-to-day life.

He complains of stress and anxiety “hanging over him” as he waits for these charges to be resolved. [ 41 ] In their written submissions, both counsel acknowledge that the longer the delay before trial, the more likely the courts may infer prejudice to the Accused, even in the absence of evidence of such prejudice. [ 42 ] However, this inference is not to be drawn in a black hole: there are several factors the courts may consider to rebut the presumption of prejudice where there has been significant delay. [ 43 ] First, as McLachlin J (as she then was) notes in Morin , the accused’s s 11(

b) Charter right to be tried within a reasonable time must be weighed against society’s interests in ensuring that persons charged with criminal offences are brought to trial (para 90). [ 44 ] In this case, the Accused is alleged to have been driving a vehicle going 86 km/h over the speed limit; there are also allegations that he, along with the three passengers in the vehicle, had been drinking. These allegations indicate a serious if not reckless disregard for public safety.

Overall, the public’s interest in seeing individuals charged with such dangerous conduct brought to trial outweighs the prejudice the Accused claims to have suffered. [ 45 ] Second, prejudice must be considered with a view to the actual circumstances of the Accused: If an Accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern.

On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact. (at para 53) [emphasis added]. [ 46 ] Overall, the Accused appears to have suffered minimal hardship, or even inconvenience, as a result of the 36 month delay prior to trial. He was arrested on September 5 th , 2010, and was released on a $500 no cash up-front recognizance six hours later, on September 6 th . The terms of his release are as unrestrictive as possible: to keep the peace and be of good behavior.

There is nothing in the circumstances of his release that indicates there was any restriction on his liberty, mobility, or day-to-day conduct. [ 47 ] I conclude that there is little, if any, discernible prejudice to the Accused resulting from the delays that arose as this case progressed towards trial. Like Hughes J in Navales , I find that the prejudice the Accused has suffered is “little more than the norm expected for some individuals charged with a criminal offence” (para 35).

Conclusion [ 48 ] Following these guidelines, I find that the Accused has waived, through his late re-election, approximately 12 months and 28 days of the approximately 36-month, 20-day period. [ 49 ] Subtracting the period waived by the Accused, the remaining time to consider is a period of approximately 23 months and 22 days. Of this, the Crown is responsible for approximately 6 months and 22 days of the delay flowing from the one-week adjournment it was granted on February 29 th , 2012. [ 50 ] The remaining time, a period of approximately 17 months, is attributable to both inherent and institutional delay.

I do not find it necessary to apportion the time as between the two, as the effect of the delay is the same. In both cases, the delay is outside of the control of the parties, and attributable to the processes and procedures inherent in our legal system. [ 51 ] In his submissions, the Accused cites the Supreme Court’s decision in R v Godin , 2009 SCC 26 . In that case, a delay of 30 months until trial was found to be unreasonable. However, the facts of that case are distinguishable from the facts before me. In Godin , almost the entire delay could be attributed to either the Crown or institutional factors.

With respect to the delay in the Accused’s trial, I have already found that he was responsible for, and waived, at least one third of the entire period of time. [ 52 ] The Court in Morin found a total delay of just over 14 months to be reasonable, particularly in the absence of any significant prejudice to the Accused. Although the period here is almost 10 months greater than that considered in Morin , there is nevertheless no

evidence of any prejudice suffered by the Accused in excess of those hardships that accompany any pending criminal charges. [53] On the facts before me, the Accused comes off more as the “chutzpah” described by Southin J in Doman v British Columbia(Superintendent of Brokers), (BC CA), 85 BCAC 210, 138 WAC 210, than as a victim of unreasonable delayinherent in the judicial system. Mr.

Tooke is like “a man who has been convicted of murdering his parents seeking mercy on the groundthat he is an orphan” (para 21); he has been the source of much of the delay in this case, yet claims to be adversely affected by theamount of time that has elapsed. [54] Ultimately, I find that this case is most akin to the facts in Navales, in which Hughes J determined that a delay of 37 monthsdid not infringe the accused’s right to be tried within a reasonable time. Like Mr. Tooke, Mr.

Navales waived approximately one third ofthe period of delay due to a re-election; he did not suffer any discernible prejudice; and the interests of society in seeing the Accusedbrought to trial outweighed his interest in a prompt trial. [55] Based on these factors, I find that, taking into account the time waived by the Accused, the total period of just over 23 monthsis reasonable as apportioned between the Crown, institutional and inherent delay. The Accused’s right to be tried within a reasonabletime pursuant to s 11(

b) of the Charter has not been infringed. Heard on the 8th day of November, 2013.Dated at the City of Edmonton, Alberta this 17th day of December, 2013. Don J. Manderscheid J.C.Q.B.A. Appearances: Patricia Hankinson for the Crown Peter G. Northcott for the Accused