R. v. Finnerty, 2012 ONCJ 59

Court File No. 10-1454 & 10-197 Citation: R. v. Finnerty , 2012 ONCJ 59 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN

v. JOHN JOSEPH FINNERTY RULING BEFORE THE HONOURABLE JUSTICE B.E. PUGSLEY on January 13, 2012 at Orangeville , Ontario APPEARANCES : R. Fetterly Counsel for the Crown D. Lent Counsel for J.J. Finnerty

ONTARIO COURT OF JUSTICE TABLE OF CONTENTS Entered on Page RULING 1 Transcript Ordered: Jan. 13/12 Transcript Completed: Feb. 1/12 Ordering Party Notified: Feb. 1/12 FRIDAY, JANUARY 13, 2012 R U L I N G PUGSLEY, J. (Orally)

At the beginning of the trial the defendant moves for a stay of proceeding under

Section 24 of the Canadian Charter of Rights and Freedoms alleging a breach of his right to be tried within a reasonable time as set out in Subsection 11(

b) of the Charter . In a brief synopsis of the path that Mr. Finnerty's case has taken through the court system is as follows: The defendant faces two Criminal Code and two Highway Traffic Act charges.

The Crown alleges that on October 28, 2010, the defendant drove a motor vehicle while his ability to do so was impaired by the consumption of alcohol, that he operated a motor vehicle while his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood, that he failed to surrender his driver's licence upon the demand of a police officer, and that he drove a motor vehicle in contravention of a condition contained in his driver's licence. On October 28, 2010 he was released on a promise to appear on the criminal charges and summoned to court on the Highway Traffic Act charges.

In each case, his first court appearance was scheduled for November 18, 2010. The informations were sworn on November 17, 2010. On November 18, 2010, the first court appearance, the defendant appeared by way of counsel and a designation was filed. The matter was adjourned to December 2, 2010 to set a trial date. On December 2, 2010 a trial date was selected for June 22, 2011 for a, "four hour to one day" trial time estimate.

As is the practice in this jurisdiction, an earlier date April 28, 2011 was also selected so that both parties could appear before the court to confirm readiness for trial including the length of trial estimate. On that day the Crown confirmed its readiness for the trial as scheduled. The defence also confirmed readiness and indicated that Charter

Section 7, 8, 9, and 10 applications were going to be brought on behalf of the defendant. The defence also noted that two items of disclosure were still outstanding, but there appears to be no transcript of this court appearance. This information stems from the Crown and defence respective trial confirmation reports filed and attached to the information. Although the matter was not scheduled to be back before the court until the defendant's trial date of June 22, 2011, the Crown brought the matter forward to June 17, 2011.

The officer in charge of the defendant's case had been involved in a serious motor vehicle accident while on duty and the Crown was seeking to adjourn the defendant's trial. The presiding Justice granted the Crown's request and adjourned the matter to set a new trial date on June 21, 2011. On that day, the set date was adjourned to June 22, 2011, the original trial date. On June 22, 2011 the trial was rescheduled to today, January 13, 2012 for a full day trial.

Only dates after the four months it was anticipated that the officer in charge would need for her recovery were considered in the set date process according to the transcript. Prior to the new trial date a confirmation date was also scheduled for November 3, 2011. The presiding Justice noted that both sides were ready for trial, however defence counsel Mr. Lent also identified that he would be bringing a Subsection 11(

b) Charter motion as well. Justice Maund presiding, directed counsel to bring his delay application before the start of the trial. The trial date was otherwise confirmed. The record shows that the trial coordinator arranged for the Subsection 11(

b) application to be returnable before me on December 12, 2011. On December 12, 2011, Mr. Lent, counsel for the defendant, also had another trial, Regina v. Gary Collins . That trial started before Mr. Finnerty's application. Originally scheduled for four hours, Mr. Collins' trial commenced with a four hour

Section 11(

b) application, which was subsequently granted by me. Mr. Finnerty's trial therefore commenced at 3:00 p.m. in the afternoon. At the start of the defendant's trial the Subsection 11(

b) application was commenced. Both the applicant and the respondent chose to call evidence on that application. As a result, there was insufficient time to complete the application. Counsel were unable to obtain a date before today for their

Section 11 (

b) submissions. Today's court date therefore commenced with submissions on the application and those submissions encompassed one and a half hours. At twelve noon I recessed to prepared this decision and it's now 3:30. Thus, even before any evidence was heard on the one day trial itself, more than half of the scheduled trial time has already been lost. It would appear that no one besides me notes the irony of a delay application itself causing further delay, although this has been noted by this court before, as recently as my decision in Collins on December 12, 2011. Even after Justice Maund's direction to have the Subsection 11(

b) application heard before today, in the result, unless stayed, the trial will surely not end today. I should indicate parenthetically, counsel, that when I wrote that, it was about twenty after twelve. It's now eminently clear we may not even start the evidence today. I continue my decision. The role of counsel in making proper time estimates - vital in an appointment based trial court process - seemingly has been honoured in the breach rather than in fact, and in my view, for far too long.

Trial time estimates of course are arrived at by a consensus of the parties guided sometimes by a pre-trial Justice if necessary. Both sides therefore bear some responsibility for a failure to provide proper time estimates such that the court may efficiently organize its very limited resources.

A further example is from the Regina v. Collins case. That trial was not reached on a earlier court date because another case, with other counsel, exceeded that counsel's time estimate by a factor of 100 percent and the charges against Mr. Collins were subsequently stayed as a result, at least in part, of that misestimate by other counsel. In this case, I cannot understand how the original trial date was scheduled as a "four hour to one day trial." With respect, if four hours is scheduled then the matter should take four hours, and if one day, the matter should take one day. It can't be both.

The inevitable result is that if a second trial is scheduled, anticipating that the defendant's trial will only take four hours, that the second trial would not be reached or not completed. I remind counsel again that Orangeville has two resident Judges in the Ontario Court of Justice. Each Judge sits on trials, duty courts, appellant matters and shares family court case management responsibilities. Our criminal lists are heavy. They are also heavily cased managed compared to many other jurisdictions and to the discomfiture of some counsel.

Every court day starts at 9:30 not 10:00 o'clock as is normally the case in other jurisdictions. Every trial is proceeded by a confirmation date where counsel and the defendant, in person, appear and confirm that the trial time estimates are accurate. Orangeville as has been observed before, is not Brampton or Toronto or any other large well staffed location. When a trial exceeds the time scheduled by the court based on the solemn estimate of counsel, there is usually no other trial court available to pick up the trial that was not reached that day.

In our two Judge jurisdiction many cases are pre-tried by one of the two resident Judges, either due to its length or complexity, or at the request of counsel. I pause to note, this matter was not pre-tried. In such cases the availability of a court to assist when a matter is not reached is similarly constrained due to a resulting conflict of one of the two local Judges. In our two Judge jurisdiction when one or the other Judge is scheduled for education, judgment writing days and vacation time it also makes it more complicated to

schedule trial time than in other jurisdictions, particularly when matters are scheduled to continue because of a initially poor trial time estimate or some other reason. In short, case law stemming from larger jurisdictions is not always helpful in the context of this small judicial center. We have a large case load and every individual litigant's reasonable right to an early trial date has to be balanced between those of all other individual defendants.

If counsel are unable to accurately assess the length of time a case will take, it may be that a different system of setting trial dates may have to be considered, such as, the running list system used in the Superior Court of Justice where a matter is scheduled for a sitting rather than for a fixed date. I do not think that this is what counsel, witnesses, the parties, or the court would like, but it would certainly end the seemingly endless bifurcation of trials recently experienced in this jurisdiction. Mr.

Lent on behalf of the defendant, with his usual thoroughness, submits that the total institutional delay here exceeds the Morin guidelines and that his client's actual and presumed prejudice is such that a stay is required. Mr. Fetterly on behalf of the Crown, submits that a proper application of the law guided by Justice Code's fairly recent decision in Regina v. Lahiry , in the Superior Court of Justice, and the decision of the Ontario Court of Appeal released only yesterday in Regina v. Tran et. al. , should lead me to concluded that the overall delay here does not offend the Subsection 11(

b) right to a trial within a reasonable time. I note, with appreciation, counsel's quick ability to assess and incorporate the Tran decision (released only yesterday and reported at 2012 ONCA 18 ) into their submissions, considering that neither counsel had seen a copy of the case before 9:45 this morning. Before hearing submissions, we recessed for 45 minutes to allow that consideration to take place. In Regina v. Tran , the Ontario Court of Appeal cites Justice Code's decision in Regina v. Lahiry with approval and adopts His Honour's view that delay runs from the time that the parties are ready for trial.

In Tran a delay found by the trial Judge to be eight months was reduced to three months by the analysis of the Ontario Court of Appeal. Here, Mr. Lent relies heavily upon the letters that he habitually files, setting out every date that he is available for each trial. He notes that in Tran the court did not have information as to defence counsel's availability before it. There is some utility in these submissions. It is not so clear however that availability for trial equates with readiness for trial. For example, Mr. Lent notes that the first trial date was set on Mr.

Finnerty's second court appearance, which was December 2, 2010. Mr. Lent's availability letter filed with the court that day states that he was available for trial on dates as early as December 3, 2010, the next day. Mr. Lent made special note of this in his submissions today, seeking to counter the need for a delay to be ready for trial as set

out in Lahiry and Tran . Unfortunately, I find this argument to be facile. Both cases, and common sense, underline that the clock starts to run when the parties, not just the defendant, are ready for trial. Nor do I accept that Mr. Lent as vastly experienced as he is, would be ready for a trial mere hours after the set date court rose. For one thing, Mr. Lent habitually, in every single case, files Charter applications alleging breaches as here, of multiple Sections of the Canadian Charter of Rights and Freedoms .

In the past, such applications were commonly the worst of boilerplate applications, on occasion, entitled with the name of a different defendant. Now however Mr. Lent quite properly particularizes his materials, at least somewhat, although often without any basis in the evidence, such that a properly crafted application could not possibly be created, served, responded to and filed in accordance with the rules of court, let alone fairness, in just a few hours. Thus, the December 3, 2010 date is seen for what it is, a gilding of the lily intended to set up a future Subsection 11(

b) application. This is a significant feature of the reminder set out by the court in Tran . The parties cannot possibly be ready for trial instantly. The counsel need to be available, the parties need to be available, counsel needs time to create and respond to motions and application, to seek out witnesses and interview them, or to obtain and consider expert reports, witnesses and the parties need to be subpoenaed to court perhaps, and the availability of the court and the rights of other litigants also must be considered, for this defendant is not the only client of this court, nor indeed of Mr. Lent.

On this point, between the setting of the trial date and the scheduled first trial date of June 22, 2011, the defendant not only moved for Charter relief under Subsections 7, 8 and 9 of the Charter , by fax served June 6, 2011, but also, under separate cover, applied for a finding that paragraphs 258.1 (c)(d.01) and (

g) of the Criminal Code were unconstitutional. That application record was also served on the Crown on June 6, 2011. The Crown then had to respond to each application with their own filings. Before the June 22, 2011 date was scheduled, the defendant states that the Crown knew that these applications were going to be pending. I revisit my comments of earlier in this discussion, to observe that this being the case, suggesting that a four hour time estimate was realistic is nothing short of a fancy.

The matter clearly required in excess of a day from the start, but counsel were content with the low time estimate which severely mislead the court. Experience suggests that the Crown should not agree to

schedule any matter involving Mr. Lent for less than a full day. This is not a criticism of Mr. Lent, a very skilled experienced counsel, but rather recognizes the thoroughness of his approach in every case, an approach often very beneficial to his clients. That said, a four hour time estimate is a chimera on any case defended by Mr. Lent. The first trial date did not proceed as scheduled, due to no fault of the parties or the court. The officer in charge was on duty and was involved in a very serious motor vehicle accident. This took place on June 4, 2011.

When the Crown found out about this accident they immediately told the defence and brought the case forward to seek an adjournment. Not surprisingly that adjournment was granted, although the Crown offered to call such evidence as they could as scheduled on June 22, 2011, so that not all of that day would be wasted. Mr. Lent stated that there was not a great deal they could accomplished if the trial was started, but not finished on June 22. Justice Maund who was scheduled to preside at the trial and was presiding on the date of the adjournment application, ruled that the trial should not be bifurcated.

Instead a new trial date was selected on June 22, 2011. Significantly, when today was scheduled to start the defendant's trial all parties, including the defendant and his counsel, anticipated that the officer in charge would be unavailable for the trial due to her injuries for four months. As Mr.

Lent stated when the new trial date was set, at line 15 on page two of the transcript of that set date process, "It was explained to the trial coordinator that the Crown witness which was involved in the motor vehicle accident would not be available for approximately four months and therefore the focus was on dates thereafter." In her evidence called at the Subsection 11(

b) application, the officer in charge was asked about her return to duty and described her gradual reintroduction to regular duty status after the accident. That she was able to gradually move back into her regular duties, including appearing in court on one occasion, during and after the four month time estimate is not really helpful when considering the delay that the accident caused here. The issue is what the expected return to duty scheme was at the time the trial date was set on June 22, 2011.

At that time, everyone agreed that four months was a reasonable time for the officer in charge to get back on her feet medically and as Mr. Lent told Justice Maund, dates after that four months is what the parties focused on when they set today as the new trial date. Four months after June 22, 2011 is about October 22, 2011. Constable Altink's evidence makes it clear this time estimate was somewhat liberal. As of the date of her evidence on December 12, 2011 she still was affected by the motor vehicle accident that had taken place on June 4, 2011.

My analysis here is therefore briefly as follows: First, the overall time between the laying of the information on November 17, 2010, to today January 13, 2012, nearly 14 months, requires an inquiry as to a breach of the defendant's Subsection 11(

b) right under the Charter to have his trial within a reasonable time.

Second, there was no express waiver of delay by the defendant. Third, the inherent time requirements for the case. I pause to note, that it would seem clear that at the present time, in any event, the assessment of an impaired over 80 case as a simple uncomplicated trial is fiction. The defendant has lead applications submitting that they are a multitude of Charter breaches here, and that the charging

section is constitutionally flawed. In submission the defendant noted that the evidence would have to be called in support of the so called Carter defence, even though I have already found in other cases that the Bill C-2 amendments are constitutional. An expert report has been obtained by the defendant in support of the Carter defence. Although the facts leading to the charge may be said to be simple, the case is not in any way a simple case and the inherent time requirements are consequently extended.

Further, the failure to accurately estimate the length of time for the trial gave the illusion of a simple trial at the set date stage where such was simply not the case. It is inconceivable that the trial would have concluded on June 22, 2011 had it gone ahead as scheduled. This matter was always a trial that was going to exceed one day in length. The defendant ought not to profit from a flawed time estimate he himself participated in creating. The defendant submits that the time from the offence date October 28, 2010 to the set date, December 2, 2010, is neutral and all else is institutional delay.

I disagree, and my analysis is assisted greatly by the reminders set out by the Court of Appeal in Tran . Although the set date was December 2, 2010, it is clear that the parties could not have been ready for trial on that date, the second court date and only some 16 days after the information was sworn, starting the defendant's jeopardy.

Given the volume of the defendant's materials, the need to particularize the defendant's extensive material and serve the Province and Federal Crowns and allow for the respondents to prepare and reply to their material, weeks if not months of time, would be required for the parties to prepare for trial, obtain reports, subpoena witnesses and formulate argument. Notably the defendant's material was not served until June 6, 2011. In my view, the time for the parties to be ready for a trial here is not less than three months.

Accordingly, I assess the time between November 17, 2010 and December 2, 2010 as neutral intake and from December 2, 2010 to March 2, 2011 as neutral preparation time. March 2, 2011 to the first trial date is institutional delay, three months and 20 odd days. There was much less time required to prepare for the second trial date, other than the fact that the defendant indicated at the confirmation date on November 3, 2011 his intention to bring this Subsection 11(

b) application. But for Justice Maund's direction, that application - three hours of evidence and argument and a further three and a half hours to prepare this decision, would have entirely consumed today's court date. As it was the application was left so late that it could not be properly completed before today, as has been the routine requirement of this court. This delay was created by the action of the defendant in not moving fully to complete this application, such that it could be heard long before today.

In my view, the first four months after the failure of the first trial date to proceed are entirely neutral. No one is at fault for a essential Crown witness being unavailable, due to a very serious motor vehicle accident. Everyone agreed that four months to heal up was a reasonable time estimate and a trial date within that time frame was not really considered by the parties, nor sought from the court. By her evidence, the officer in charge made it clear that if anything that time estimate was too short for a complete recovery. The defendant cannot demand the earliest trial date available to him and him alone.

The Charter protection is against unreasonable delay. Here an accident delayed the trial date for four months unexpectedly. While disappointing to the defendant, a delay to await the recovery of the officer in charge did not create a violation of the constitutionally protected right for those four months. The four months takes us to about October 22, 2011. The trial date is January 13, 2012 and a further two and a half months beyond the earliest date that the trial could of been commenced.

Of this two and a half months some delay is institutional, but some also was contributed to by the defence as has already been considered. In my view, the entire institutional delay in this case to date, is no more than six months in total, well within the guidelines even for a

simple trial which this is not. The defence did contribute to this delay in part, due to the poor trial time estimate already noted and due to the delayed service of the defence application and in particular, due to the Subsection 11(

b) application which has again taken up huge chunks of the trial time estimated here. This application was surely known by the defendant when the January 13, 2012 trial date was set on June 22, 2011, but no extra time was allocated to the matter for that

Section 11(

b) application today, nor was an earlier date for the motion scheduled until directed by Justice Maund on November 3, 2011. Significantly, even on that date the defendant was not in a position to argue the application as not all transcripts had been obtained, a prerequisite to any such application being considered. By a combination of errors, the defence has contributed to the delay here and in particular to the delay that will now continue given that the evidence on the trial proper has not even started yet and it is now four o'clock on the trial date.

This could of been entirely avoided had the application been heard before December, 2011. Highly experienced counsel such as Mr. Lent surely know this. In my view, these facts also paint a picture of a defendant who, protests to the contrary, is in no hurry to complete this case and rather the opposite. There were no steps taken by the Crown that caused any constitutionally unacceptable delay here. The systematic delay is just under six months.

In my view, the specific prejudice submitted by the defence is largely illusory - the focus of the defendant's enhanced anxiety is on the loss of his licence and thus, his entire livelihood. The cost of another trial date was inevitable given the misestimating of the length of trial time, a misestimate he himself participated in from the beginning. The trial adjournment was not caused by anyone. It is what used to be called

an act of God, an unfortunate, an unpredictable event. The need for extra court attendances was created as well by the tactical decision of the defendant to bring this application and to bring it late. His own informed tactical decision cannot be cited by the defendant in support of a claim of added prejudice. Similarly, the defendant chose to complicate the trial by other Charter applications and then discount the time needed to complete those applications when choosing his court dates.

While, no doubt, the passage of time may dilute witnesses' memories, the defendant retained very experienced counsel here before his first court appearance and any such counsel would have taken immediate steps to collect and preserve the defendant's recall and that of any required defence witnesses. Further, the experience of the criminal process would, one expects, concentrate the mind on every detail of the event. I find that there is no specific prejudice here that would take what is a timeframe clearly within the guidelines to a point where Subsection 11(

b) is offended. The presumed prejudice does not do so either. In the event, therefore, the defendant's application is dismissed.

FORM 2 CERTIFICATION OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act I, K.J. McFadden, certify that this document is a true and accurate transcript of the recording of R v. John Joseph Finnerty in the Ontario Court of Justice held at 10 Louisa Street , Orangeville, Ontario N9W 3P9 taken from Recording Number, 0611_102_20120113_085014.DCR, which has been certified in Form l. Dated: Feb.1/12 "K.J. McFadden" K.J. McFadden

*This certification does not apply to the Ruling which was judicially edited.