R. v. Kamboj, 2013 ONCJ 650

COURT FILE No: 12-12270 DATE: 2013-11-28 Citation: R. v. Kamboj , 2013 ONCJ 650 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — SHAANDEEP KAMBOJ Before Justice J. Stribopoulos Heard on November 5, 2013 Reasons for Judgment released on November 28, 2013 G. Hendry………………………………… … for the Crown / Respondent. R.S. Mann ………………………………….. for the Defendant / Applicant. Introduction [ 1 ] Mr. Kamboj is charged with having care or control of a motor vehicle after having consumed alcohol in such a quantity that his blood alcohol ratio exceeded the legal limit, contrary to section 253(1) (

b) of the Criminal Code . [ 2 ] He applies for an order to stay the proceedings based on the alleged violation of his right to be tried within a reasonable time, which is guaranteed by

section 11(

b) of the Charter . [ 3 ] This is a relatively straightforward case. On September 20, 2012, in the City of Mississauga, Mr. Kamboj was discovered by police sitting in a car, along with two female passengers, drinking beer. It is alleged that he ultimately provided two breath samples, revealing a concentration of 115 milligrams and 110 milligrams of alcohol, respectively, per one hundred millilitres of blood. [ 4 ] I am told that the key issue at trial will be whether the Crown can prove that the defendant was in “care or control” of the vehicle.

More specifically, the third prong of the governing test, which focusses on whether or not, in the circumstances, there was a realistic risk of danger to persons or property. [1] [ 5 ] The parties agree that the trial of this matter could be completed in a single day. Nevertheless, it has taken thirteen months to

bring this case to trial. On its face, this delay is long enough to raise an issue as to its reasonableness and therefore warrants closer examination by the Court. [2] Chronology of the Case [ 6 ] The history of this matter is straightforward: September 20, 2012 – The defendant is arrested and released on a promise to appear. September 26, 2012 – The information is sworn and process is confirmed. October 5, 2012 – The defendant appears in court, he requests a three week adjournment in order to consult with counsel.

October 26, 2012 – Counsel is retained, attends on this date and conducts a pre-trial with the Crown. When the matter is called, the Crown formally elects to proceed summarily. Counsel appears on behalf of the defendant. The first available trial date offered by the Court is June 6, 2013. Although the defence is available on that date, the Crown is not. The matter is scheduled for trial on the next available date, June 10, 2013. March 22, 2013 – The Crown applies for an adjournment of the scheduled June 10, 2013 trial date, due to the unavailability of a police witness. The defence consents to the application.

The Court offers an alternative date of June 13, 2013. Although the defence is available on that date, the Crown is not. The next available date offered by the Court, that is agreeable to the parties, is June 24, 2013. The trial is rescheduled for that date. June 24, 2013 - On the scheduled trial date, the defendant is ready to proceed but his matter cannot be accommodated due to the other cases on the Court’s docket. By the lunch hour the Court indicates that the matter is unlikely to be reached and suggests an adjournment.

However, the defendant, through his counsel, expresses the desire to wait and see whether the case might be reached. Later in the afternoon, once it is apparent that the case will not be reached, a new trial date is scheduled. The first available date offered by the Court is July 29, 2013. Although the Crown is available on that date, the defence is not. The next available date offered by the Court is August 9, 2013. Although the defence is available on that date, the Crown is not. Three additional dates are offered by the Court (October 30, 31, and November 1, 2013).

Although the defence is available on all three dates, the Crown is not. The trial is scheduled for November 5, 2013, the first available date that is also agreeable to the parties. October 9, 2013 – The defendant serves and files an application for a stay of proceedings, alleging a violation of his

section 11(

b) Charter right to be tried within a reasonable time. The application is made returnable on the scheduled trial date, November 5, 2013. November 5, 2013 – The defendant appears with counsel. He is arraigned and pleads not guilty to the charge. The defendant testifies on his Charter application. Argument with respect to the application is also heard. Judgment on the application is reserved, with the Crown undertaking to provide written submissions. The matter is adjourned to November 28, 2013 for judgment and, potentially, the continuation of the trial. November 15, 2013 – By way of e-mail, the Crown electronically serves and files written submissions in response to the

section 11(

b) Charter application. November 18, 2013 – By way of e-mail, the defence electronically serves and files written submissions in reply on the

section 11(

b) Charter application. Law and Analysis [ 7 ] Like many Charter guarantees,

section 11(

b) is deceptively simple in its wording. It provides that, “[a]ny person charged with

an offence has the right to be tried within a reasonable time.” [ 8 ] In Morin , the Supreme Court of Canada explained that

section 11(

b) is primarily meant to protect individual rights, while acknowledging that it also serves societal interests. [3] [ 9 ] In terms of protecting the individual, the Court identified the various ways in which the guarantee safeguards those who are charged with a crime. First, it helps to protect the right to security of the person by reducing the risk of overlong exposure to the anxiety, concern and stigma that are, for most accused, the inevitable by-product of a criminal charge.

Second, it protects the liberty of those charged by seeking to minimize their exposure to pre-trial detention or restrictive bail conditions. Finally, it protects the right to a fair trial by increasing the likelihood that trials will take place while evidence is available and fresh. [4] [ 10 ] The Supreme Court also explained the societal interest served by

section 11(

b) in terms of our shared desire to see those accused of crime treated fairly and humanely. It noted that promptly held trials assist in maintaining public confidence in the administration of justice. At the same time, the Court acknowledged that in this context there is also a societal interest that is in direct tension with the interests of those who break the law; a need for offenders to be held accountable for their transgressions. The Court noted that the public’s demand that law breakers be held accountable increases with the seriousness of the crime. [5] [ 11 ] In Morin the Supreme Court eschewed the use of mathematical or administrative formulas in deciding whether

section 11(

b) has been violated. Instead, the Court recognized the need for an approach that balances “the interests which the

section is designed to protect against the factors which either inevitably lead to delay or are otherwise the cause of delay.” [6] The Court identified the relevant factors to be considered in making this determination and they supply the analytical structure for the remainder of these reasons. 1. Length of the Delay [ 12 ] For the purposes of

section 11( b ), “the clock” began to run in this case when the information charging Mr. Kamboj was sworn on September 26, 2012. The matter finally came on for trial on November 5, 2013, a period just slightly exceeding 13 months. [ 13 ] Mr. Mann, on behalf of Mr. Kamboj, argued that in considering this application I should not use November 5, 2013 as the end date, but rather November 28, 2013, which would essentially place the total delay at 14 months. I am disinclined to do so. [ 14 ] Although anticipatory delay is undoubtedly relevant on a

section 11(

b) Charter application, I note that the defence chose to make this application returnable on the scheduled trial date. Had the application been made returnable on an earlier date, it is rather likely that this matter could have been resolved on November 5, 2013. [ 15 ] Accordingly, in terms of yardsticks, for the purposes of my assessment, I think the relevant period is from September 26, 2012 to November 5, 2013, essentially 13 months and 9 days. [ 16 ] The delay between November 5, 2013 and today’s date, will be treated as neutral and not be apportioned against the state in determining whether or not

section 11(

b) has been violated. 2. Waiver of Time Periods [ 17 ] On behalf of Mr. Kamboj, Mr. Mann has filed the transcript from each and every court appearance in this matter. I have carefully reviewed these transcripts. In my view, there has been no agreement or conduct by the defence that would amount to either an express or implied waiver of any of the delay in this case. [7] [ 18 ] With respect to express waiver, there is only one isolated reference to s. 11(

b) in any of the transcript. That occurred on June 24, 2013, just before the lunch recess. By that point the Court made clear to the defence that the case was unlikely to be reached and suggested that counsel might want to adjourn the matter after lunch. Mr. Mann agreed to consider the suggestion, but made clear that he did not intend to waive his client’s

section 11(

b) rights. In short, there was never an express waiver of any of the delay in this case.

[ 19 ] In terms of implied waiver, the defence has acted with dispatch from the prosecution’s inception. For example, exactly a month after the information was sworn, some three weeks after the first court appearance, Mr. Kamboj had already retained Mr. Mann, who had conducted a pre-trial and appeared in court to

schedule a trial date. The defence agreed upon the first date offered by the Court that was also available to the Crown. [ 20 ] One could argue, however, that there was an implied waiver for at least the 10 days between July 29, 2013 and August 9, 2013. It will be remembered that when the matter was not reached for trial on June 24, 2013, the next date that was offered by the Court for trial was July 29, 2013. That date was available to the Crown but not to the defence. There was also a further date offered of August 9, 2013. Although that date was available to the defence it was not available to the Crown.

Hence, the potential for an argument of implied waiver for the ten day period between these two dates. [ 21 ] I am disinclined to characterize this ten day period as the subject of an implied waiver by Mr. Kamboj. As the Supreme Court of Canada instructed in Godin : “Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(

b) purposes, require defence counsel to hold themselves in a state of perpetual availability”. [8] The Court adopted Glithero R.S.J.’s comments, dissenting at the Court of Appeal for Ontario in Godin , in which he stated that: “To hold that the delay clocks stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.” [9] [ 22 ] Looking at the procedural history in its entirety, it appears that when it came to matters of scheduling the defence consistently sought the earliest available date.

In fact, of the many dates offered by the Court, the only date that the defence ever turned down because of unavailability was July 29, 2013. As a result, I do not believe any conduct on the part of the defence can fairly be characterized as amounting to waiver with respect to any of the delay in this matter. 3. Reasons for the Delay [ 23 ] I am next required to consider why it took slightly more than thirteen months to bring this case to trial. In Morin , in explaining how the reasons for delay should be catalogued and assessed, the Supreme Court identified a list of relevant variables, including the: (

a) inherent time requirements of the case; (

b) actions of the accused; (

c) actions of the Crown; (

d) limits on institutional resources, and (

e) any other reasons for the delay. [10] Based on the record before me and the submissions of the parties, it is clear that only some of these variables were operative here. [ 24 ] I will begin with the inherent time requirements of this case. In every criminal matter, a lawyer must be retained, disclosure must be provided and reviewed, the lawyer must interview her client, a pre-trial may need to be conducted, and counsel must then prepare for trial.

Lawyers cannot be expected to devote themselves exclusively to a single case and courts must be alive to this reality in deciding on the amount of time that should be treated as part of the ordinary intake period for any case. [11] [ 25 ] In Morin the Supreme Court recognized that the length of time that should be treated as part of the inherent time requirements, or intake period, will be influenced by local practices and conditions.

As a result, the period will tend to be the same in a particular region for most offences, but with some variation between some categories of offences. [12] [ 26 ] In Peel Region, two months has been described as the ordinary intake period for cases like this one which involve a routine drinking and driving allegation. [13] This is in accord with the position of the parties in this case, who are agreed that the period from September 26, 2012 to December 1, 2012 should be treated as neutral.

That essentially leaves 11 additional months of delay to be apportioned. [ 27 ] Beyond the initial intake period, the Crown also submits that one-quarter of the delay between the trial date on June 24, 2013, when the matter was not reached, and the further trial date of November 5, 2013, should be apportioned as neutral rather than institutional delay.

The Crown emphasizes the complexity of the case, which was anticipated to last a day and involve testimony from six witnesses, as justifying this apportionment. [14] [ 28 ] In my view, the Crown’s argument that at least some of the delay between June 24, 2013 and November 5, 2013 should be apportioned as neutral would be far more compelling if the defence had shared some role in creating the circumstances that necessitated the delay. For example, if the defence had been complicit in underestimating how much time would be required for trial and the matter

was not completed as anticipated, then it would seem sensible to me to treat at least a portion of the resulting delay as neutral. This iswhat the Court of Appeal seemed to contemplate in Allen, explaining that: When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete thatcase: R. v. Morin, supra, at p. 16. Those time requirements can include adjournments necessitated by the need to find additional courttime when initial time estimates prove inaccurate: R. v.

Hawkins (1991), (ON CA), 6 O.R. (3d) 724 at 728 (C.A.),aff'd, (1992), (SCC), 11 O.R. (3d) 64 (S.C.C.); R. v. Philip (1993), (ON CA), 80 C.C.C. (3d) 167 at172-73 (Ont. C.A.). The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(

b) calculus. Therecognition and treatment of such inherent time requirements in the s. 11(

b) jurisprudence is simply a reflection of the reality of the worldin which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand oncourt resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases.

When a caserequires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide thoseadditional resources.[15] [29] In my view, in a situation like this one, where a case was simply not reached on the scheduled trial date because of a heavydocket and insufficient judicial resources, the resulting delay is by definition institutional in nature. At that point, the inherent timerequirements have long passed and the parties are ready and waiting for trial.

In such circumstances, the failure to afford the accused thetrial that was promised falls squarely on the institutional shoulders of the administration of justice. [30] Finally, for the sake of completeness, I note that nothing with regard to the actions of either the defendant or the Crown hascontributed in any way to the delay in this case. [31] Rather, once the 2 months of inherent delay are removed from consideration, what remains is essentially 11 months ofinstitutional delay. [32] In Morin the Supreme Court identified 8 to 10 months of institutional delay in the provincial court as a guideline to assist trialjudges in adjudicating

section 11(

b) Charter claims. It explained that this time period was not meant to be treated as an inflexiblelimitation period; it is simply a guideline. As such, the Court expressly contemplated that trial courts in different regions across thecountry might adjust the period to take into account local conditions and changing circumstances.

Further, the Court anticipated that thecourt of appeal in each province will play a supervisory role with respect to such local adjustments.[16] [33] In Brampton, the guideline for a straightforward case like this one has been adjusted to between 8 and 9 months.[17] As aresult, the 11 months of institutional delay in this case exceed the guideline by approximately 2 months. 4. Prejudice to the Accused [34] The next consideration is whether the accused has suffered any prejudice. Here, the object is to measure any specific impact onthe particular claimant in relation to the various constitutional interests that

section 11(

b) aims to protect, i.e. the right to liberty, to rightto security of the person and the right to a fair trial.[18] [35] In this case the defendant claims actual prejudice. In support he filed an affidavit on this application, and was subject to cross-examination in relation to it. In

summary, the prejudice claimed is as follows: [36] First, he asserts that with the passage of time his memory of the relevant events has deteriorated. He also claims that the same istrue for the two civilian witnesses he was planning on calling to testify at trial. I accept that with the passage of time both the defendantand his two witnesses would likely suffer some adverse impact in terms of their ability to recollect events relevant to the charge. Thatsaid, I note that the defendant’s evidence in this regard was lacking in precision and detail.

In addition, I have no direct evidence fromeither of the two other potential defence witnesses regarding their loss of memory. As a result, I am left in a position where I am simplyunable to quantify the extent to which the delay has been responsible for adversely impacting on the defendant’s ability to advance adefence. Further, although 11 months is not an insignificant period, I find it difficult to believe that the memory of the three witnesseswould be so affected that it would materially impact on the defendant’s right to make full answer and defence to the charge.

Given all ofthis, I essentially place no weight on this aspect of the defendant’s claim of actual prejudice on this application.

[ 37 ] Second, the defendant also claims that he has suffered anxiety associated with having the charge outstanding against him. He deposed that this interfered with his ability to study and testified that this adversely affected his academic performance. He testified that his grades were good before he was charged, but that last year he dropped a course and failed two others. He also testified about the importance of his license to him, given that he needs his car to drive to and from work, and because he is also responsible for driving his mother to work and his sister to school.

I accept the defendant’s evidence regarding the anxiety occasioned as a result of the charge. Unfortunately, the evidence in this regard lacked temporal precision. As a result, it is impossible for me to quantify the extent to which the stress and anxiety was the result of the charge versus the delay. Nevertheless, I accept that the delay would have only served to accentuate and prolong these feelings.

Accordingly, I will give this aspect of the defendant’s evidence regarding actual prejudice some weight in my analysis. [ 38 ] Finally, the defendant also asserts that he has been financially burdened by the delay in the proceedings as a result of the additional legal fees that this has occasioned. The defendant is 22 years of age. He is single and lives with his parents and his sister in Brampton. He works at a Petro Canada gas station in Mississauga. When he was charged in September of 2012, the defendant was studying accounting at the University of Toronto, Mississauga campus.

He had begun his program in the Fall of 2009 and was supposed to graduate in 2013. [ 39 ] Unfortunately, the defendant was not the most articulate of witnesses. I also suspect that he was somewhat nervous when he testified, which I think caused him to be a bit reticent when giving his evidence.

Nevertheless, the combined effect of his affidavit, his viva voce evidence and the documentary evidence filed as an exhibit on this application, establishes, in my view, that one of the direct implications of the delay in this case, the additional legal fees, made it difficult for the defendant to pay his university tuition and necessitated his withdrawal from his academic program this past summer. [ 40 ] The Crown argues that added legal fees occasioned by delay should not factor into the Court’s assessment of prejudice when adjudicating on a

section 11(

b) Charter application. On behalf of the Crown, Mr. Hendry points out that a majority of the Supreme Court of Canada has never expressly endorsed the notion that additional legal fees should weigh in favour of a finding of actual prejudice. Apparently, the only judgment from the Court in which legal fees are expressly mentioned as connected to prejudice in this way is Lamer J.’s (as he was then) dissenting opinion in Mills v. The Queen . [19] [ 41 ] The obstacle for the Crown in making this submission is the fact that added legal fees are routinely considered by courts in assessing actual prejudice on

section 11(

b) Charter applications. I note that the Court of Appeal has referenced legal fees in this context without reservation or critical commentary, [20] as has the Superior Court in this Region. [21] [ 42 ] Mr. Hendry’s submission that legal fees should not be relevant to the prejudice assessment is based on policy concerns. He questions the potential implications of legal fees being relevant, which could occasion different entitlements under

section 11(

b) depending on variables such as whether an accused is paying their lawyer a block fee, or an hourly rate, is legally aided or is simply self- represented. Further, he expresses anxiety regarding the potential implications for all of this in terms of how the Crown might decide to triage cases in court where delay is an issue. Finally, he worries that by making legal fees relevant the Court will become involved in the unseemly exercise of piercing the veil of the solicitor and client relationship in order to probe questions regarding counsel’s remuneration.

In my view, these are admittedly all very fair concerns. [ 43 ] That said, I think there are two responses. First, the prejudice analysis is invariably fact driven and it is therefore unavoidable that the Court is required to delve into such questions in order to assess

section 11(

b) claims. The alternative, to simply hive of counsel fees as legally irrelevant would occasion a fiction. The reality is lawyers are paid for their work and, quite often, accused persons are the people who pay them. When an accused pays a lawyer, depending on his or her financial circumstances, the cost may have significant implications for that person. For a wealthy person the implications may be inconsequential. However, for a person of ordinary or modest means, paying one’s lawyer could require difficult choices as between other financial demands.

When cases are delayed due to institutional limitations in the administration of justice, the reality is that the financial implications for some defendants could be quite prejudicial. So, for example, a young student, like the defendant, might be required to choose between paying their tuition or paying their lawyer. I therefore think the concerns raised by Mr.

Hendry, which are all entirely legitimate, are best managed on a case-by-case basis rather than being subject to some blanket rule. [ 44 ] All of that to one side, and far more significantly, I am simply bound by the case law from higher courts which makes clear that additional legal fees occasioned by delay are relevant when making a prejudice assessment under

section 11(

b) of the Charter.

Conclusion [ 45 ] In

summary, balancing the individual and societal interests that are implicated by

section 11(

b) of the Charter , after considering each of the relevant factors identified by the Supreme Court of Canada in Morin in light of the circumstances in this case, especially the fact that there are 11 months of institutional delay in this case and the defendant has suffered actual prejudice of some magnitude because of the delay (i.e. the educational implications), I am satisfied that the defendant’s

section 11(

b) Charter right to be tried within a reasonable time has been violated. Accordingly, I am granting his application and ordering a stay of the proceedings. Stribopoulos J. There is now a substantial a body of case law dealing with this issue of rescheduling a trial that has not commenced or that has not been completed on the scheduled trial date. These authorities hold that the case must be given priority in the system and that the delays resulting from rescheduling the trial date will generally be treated as institutional, or as part of the inherent time requirements, or as a combination of both, depending on the circumstances.