R. v. Leo, 2017 ONCJ 673

CITATION: R. v. Leo , 2017 ONCJ 673 DATE: 2017-10-06 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ANTHONY LEO Before Justice M. Greene Reasons for Judgment released on October 6, 2017 F. Bartley …………………………………………………………………… for the Crown J. Herszkopf…………………………………………………………….. for the Defendant Greene J.: [ 1 ] Mr. Leo is charged with driving while having over 80 mg of alcohol in 100ml of his blood and with operating a motor vehicle while his ability to do so was impaired by alcohol. Mr. Leo argued that his charges should be stayed because his right to have a trial within a reasonable time as guaranteed by

section 11(

b) of the Charter has been violated. On September 26, 2017 I provided counsel with brief oral reasons and indicated that written reasons were to follow. This is my written judgment in this matter.

Summary of the Evidence [ 2 ] Mr. Leo was arrested on December 23, 2015. His trial is not set to proceed until October 5, 2017 some 21 and a half months after his arrest and 20 and a half months after the information was laid with the court. This is well above the ceiling of 18 months outlined in R. v. Jordan and the guidelines articulated under the old regime in R. v. Morin . Counsel for Mr. Leo argued that under both Jordan and Morin , this case exceeds the guidelines and as a result this is a clear violation of

section 11(b). Crown counsel argued that the vast majority of the delay was caused by the defence and as such there was no Charter violation. Review of the Facts [ 3 ] Mr. Leo was arrested on December 23, 2015 and given an appearance notice to attend court. The information was sworn on January 25, 2016. [ 4 ] Mr. Leo’s first appearance in court was on February 3, 2016. By this time, Mr. Leo had retained counsel and initial disclosure was received. A Crown pre-trial was conducted on March 9, 2016. The matter was then remanded a number of times as counsel discussed resolution.

On April 22, 2016 the assigned Crown emailed defence counsel and advised that the matter would not be resolving and indicated that he was available to meet on the following Monday to finish the Crown pre-trial and finalize trial time estimates. It is clear from the material filed that the pre-trial was not conducted on that Monday. No information was provided to the court about the reason for the pre-trial not being completed at that time. [ 5 ] On June 9, 2016 the court was advised that the Crown pre-trial had been completed and that a judicial pre-trial was scheduled for June 29.

After the judicial pre-trial, counsel for the defendant asked that the matter be remanded for two more weeks so that he could confirm the dates of his toxicologist.

[6] Over the next few months the matter was adjourned multiple times. On each occasion the defence requested additional time as hewas awaiting a toxicologist report. On each occasion the Crown consented to the adjournment request noting that it was a defencerequest. [7] On October 31, 2016, the assigned Crown sent an email to counsel for Mr. Leo stating that he wanted to confirm that a trial datewould be set on the next court date. A second email was sent by the Crown on November 1, 2016 inquiring as to why the matter had notyet been set for trial.

Finally, on November 2, 2016 a trial date was set for October 5 and 6, 2017. Legal Framework [8] In July of 2016, the Supreme Court of Canada provided a new framework for determining whether 11(

b) of the Charter has beenviolated in the case of R. v. Jordan, 2016 SCC 27 , [2016] S.C.J. No. 27. This new framework was meant to address the cultureof complacency and delay that exists in the Canadian Criminal Justice System. The heart of the new frame work is that any delay inmatters proceeding in the Ontario Court of Justice that is above 18 months is presumptively unreasonable and the burden lies with theCrown to justify the additional delay.

The additional delay will only be justified in exceptional circumstances. [9] The 18 month ceiling takes into account the time from when the information is laid until the end of the trial minus defence delay. Defence delay can come in two forms. Firstly, through a voluntary waiver and secondly, when the delay is caused solely by the actionsof the defendant. [10] Exceptional circumstances requires the Crown to prove that it took reasonable steps to avoid or address possible sources of delayearly on in the proceedings.

The Supreme Court of Canada noted that unforeseeable or unavoidable developments can cause delay andthese delays should not put a trial on the merits in jeopardy. For example, if a case takes longer than planned when counsel have madegood faith efforts to properly estimate the length of the trial, this sort of delay is likely unavoidable and may amount to exceptionalcircumstances.

Where delay is caused by a discrete circumstance that is justifiable, the time associated with this discrete circumstance isto be subtracted from the overall delay. [11] The Supreme Court of Canada acknowledged that many cases will fall into a timeline where the delay occurred prior to the decisionin Jordan. The Supreme Court of Canada allowed for a flexible approach when dealing with cases that fall into his transitional time. Allocation of time [12] In the case at bar, there are a few areas of disagreement between counsel about attribution of delay.

The main source ofdisagreement is what amount of time, if any, can be attributed solely to the defence. [13] There is no suggestion that the defendant waived any of the delay. In R. v. Jordan, the Supreme Court of Canada held that despitethe absence of a waiver, some of the delay in bringing a matter to trial could be still considered defence delay and deducted from theoverall delay where that delay was caused “solely by the conduct of the defence”. The court stated that defence will have caused thedelay where “the court and the Crown are ready to proceed but the defence is not” (see para 64).

The Supreme Court of Canada went onto state, however, that legitimate defence preparation will not count as defence delay. The court stated at paragraph 65, To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, thedefence must be allowed preparation time, even where the court and the Crown are ready to proceed.

In addition, defence applicationsand requests that are not frivolous will also generally not count against the defence. [14] In the case at bar, the Crown argued that the delay from April 6, 2016 until May 11, 2016 was defence delay because the defencewas seeking resolution in this case. Respectfully, I disagree. It is completely reasonable for some time to be spent prior to setting a trialdate discussing resolution. Delaying the matter to give both parties some time to assess the possibility of resolution is often very useful.

This, in my view, falls into the area of proper defence preparation and should not be deducted as defence delay.

[ 15 ] On April 22, 2016, however, the Crown sent an email to defence counsel indicated that the resolution sought was not agreeable to the Crown. The Crown suggested meeting on the following Monday to complete the Crown pre-trial. It is clear that no such meeting took place that Monday, or in the weeks that followed. The Crown pre-trial did not conclude until sometime after May 25, 2016 and before June 9, 2016. It is unknown why it took so long to complete the Crown pre-trial. There is some indication that counsel for Mr.

Leo had been ill in early May but there is no information on the record before me as to how long he had been ill or whether or not this impacted the scheduling of the continuing Crown pre-trial. Given the absence of information about why the Crown pre-trial was not completed earlier, this court is unable to conclude that the delay in finishing the Crown pre-trial is delay caused solely by the conduct of the defence. [ 16 ] The next period of delay that is in issue is the time from the completion of the judicial pre-trial until the setting of the trial date.

On June 29, 2016 after the judicial pre-trial, counsel for Mr. Leo requested a two week adjournment in order to determine the availability of his expert. In the subsequent appearances, agents, acting on behalf of counsel for Mr. Leo continued to ask for adjournments at two week intervals because they were now awaiting the report of the defence toxicologist. The Crown argued that the four months spent waiting for the report from the defence toxicologist is delay caused solely by the conduct of the defence. The court and the Crown were in a position to set a trial date and the defence was not. Counsel for Mr.

Leo argued that only a portion of this delay is attributable to the defence. He argued that pursuant to Jordan , delay caused by the defence to properly prepare for trial is not delay caused solely by the conduct of the defence and therefore should not be deducted from the overall delay. [ 17 ] It is difficult for this court to understand why a trial date could not have been set while the defence toxicology report was still outstanding. In fact, it is difficult to understand why steps to retain a toxicologist and obtain a report did not take place until after the judicial pre-trial.

During this application, counsel for Mr. Leo argued that retaining a toxicologist prior to the judicial pre-trial would have been a waste of resources as they were still exploring resolution. With the greatest of respect the record suggests the contrary. Counsel was advised in writing on April 22, 2016 that the Crown would not accept a plea to a careless driving. A month later, the Crown advised the court that a further Crown pre-trial was necessary in order to estimate how long the trial would take.

The only inference from this is that the resolution discussions concluded in April and that thereafter, it was expected that a trial would take place.

In any event, even if counsel did not speak to a toxicologist before the judicial pre-trial, there is still no clear explanation as to why a date for trial could not have been set while the defence awaited the report. [ 18 ] In my view, in light of this, while the original two week adjournment request to obtain the dates of the toxicologist was reasonable defence trial preparation, the delay thereafter from July 13, 2016 until November 1, 2016 was in my view delay caused solely by the conduct of the defence. [ 19 ] The overall delay in the case at bar was 20 months and 12 days.

When 3 ½ months is deducted from this time, the operative delay is reduced to 17 months, one month below the Jordan guidelines. As there was no evidence or argument put before the court as to why the trial should have been heard is less than 18 months, nor is there any evidence that the defence took steps to move this matter forward expeditiously, applying Jordan , I find there is no 11(

b) violation. The Transition phase [ 20 ] Mr. Leo was charged in January, 2016, some six months before the decision in Jordan was released. Counsel for Mr. Leo argued that this is a transitional case and as such, the court should apply the guidelines from R. v. Morin . [ 21 ] In R. v. Jordan , the Supreme Court of Canada recognized that many cases presently in the system were working under the Morin guidelines. It would therefore be unfair to require apply the new rules from Jordan to these cases.

The court stated at paragraph 99, The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling. For these cases, the two criteria -- defence initiative and whether the time the case has taken markedly exceeds what was reasonably required - - must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision.

Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of the decision. However, in close cases, any defence initiative during that time would assist the defence in showing that the delay markedly exceeds what was reasonably required. The trial judge must also consider action or inaction by the accused that may be inconsistent with a desire for a timely trial.

[22] In R. v.

Picard, 2017 ONCA 692, the court of appeal in addressing the issue of how to assess delay in transitional cases, made thefollowing comments about transitional cases, [139] As stated in Jordan, at para. 102, “for most cases that are already in the system, the release of [Jordan] should not automaticallytransform what would previously have been considered a reasonable delay into an unreasonable one.” At para. 98 of Jordan, the courtmakes it clear that it will be relatively rare that cases already in the system when Jordan was decided, that complied with Morin, willnonetheless be found unreasonable under Jordan.

This case is not akin to the example given in Jordan of a case where the delay “in asimple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown”: para. 98. [140] Further, this is not a case where, as contemplated in Jordan, at para. 96, “the parties have had time following the release of[Jordan] to correct their behaviour”. There was no opportunity between the issuance of Jordan and the beginning of the trial for theCrown to change its position with respect to retaining the assigned Crowns or to take other steps to reduce the delay.

The few months ofdelay that accrued after Jordan was released were not enough time for the parties and the court to adapt: [23] In the case at bar, the vast majority of the delay took place after Jordan was released. Fourteen months of the 20 ½ months of thedelay took place after Jordan was released. Moreover, the defence did nothing to suggest that they wanted an early trial date and theirconduct was inconsistent with a desire for a timely trial. In my view, counsel had more than enough time to adapt to the new regime. Inlight of this, I find that it is appropriate to apply to the Jordan regime to the 11(

b) argument raised in this case. [24] In my view, even if the old regime applied, there would still not have been an 11(

b) violation in this case. The time between theinformation being laid and July 12, 2016 is in my view all neutral time. There is nothing on the record to support a finding that theCrown caused the delay or that it was caused by a lack of resources in the system. Counsel were discussing resolution and for reasonsunknown to the court, the Crown pre-trial was delayed for an extended period of time. The absence of information about why theCrown pre-trial was delayed precludes this court from making a finding that the delay in completing the Crown pre-trial was Crown orinstitutional delay.

As noted above, the delay from July 13, 2016 until November 2, 2016 is attributable to the defence. The final periodof delay is the 11 months from November 2016 until October 2017. As per R. v. Tran, 2012 ONCA 18 , [2012] O.J. No. 83(CA), I deduct six weeks to allow for trial preparation. In my view, as two days of trial time were required for this matter, it isreasonable to conclude that some time would be necessary to subpoena witnesses and prepare for trial. Therefore, I find that the totaloperational delay for the analysis under R. v. Morin, is nine and a half months, well within the guidelines set in R. v.

Morin. As noevidence of prejudice was placed before the court, and the record clearly establishes that the defence seemed content with the pace oflitigation, in my view, even applying the old regime, Mr. Leo’s right to have a trial within a reasonable time was not violated. [25] The Application is dismissed. Released October 5, 2017 Justice Mara Greene