R. v. Neisen, 2011 ONCJ 903

Citation: R. v. Neisen , 2011 ONCJ 903 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. TODD B. NEISEN ********** P R O C E E D I N G S BEFORE THE HONOURABLE JUSTICE G.J. BROPHY on April 7, 2011 at WALKERTON, Ontario **********

APPEARANCES : D. Scapinello Counsel for the Crown B. Starkman Counsel for the accused THURSDAY, April 7, 2011 THE COURT: Thank you very much. Mr. Starkman, any other submissions? MR. STARMAN: No, Your Honour. THE COURT: Ms Scapinello? MS SCAPINELLO: No thank you, sir. THE COURT: All right. R E A S O N S F O R D E C I S I O N BROPHY, J. (Orally): This matter involves a Todd Bernard Neisen born the 18 th of August 1979 who has been charged with an over 80 offence.

It is alleged that on the 19 th of November 2009 in the Town of Hanover he had a blood alcohol concentration in his blood that exceeded 80 milligrams of alcohol in 100 millilitres of blood, and that was the case while he was operating a motor vehicle. The information in this matter was sworn the 18 th of December 2009, and the first court date was the 18 th of January 2010. This matter at this stage of the proceedings is a Charter application under

Section 11(

b) of the Charter of Rights and Freedoms. It is an argument advanced by the defence that Mr. Neisen’s 11(

b) rights have been breached in that the trial has not taken place at a date which is reasonable under all of the considerations we take into account. The Rules associated with a matter of this nature are fairly straightforward, and counsel have not suggested anything which takes it completely outside the ordinary range of considerations; and in

summary the court is first to determine whether or not the length of time between the first court date and today’s date April 7 th , 2011 is of such a nature that the court should conduct an inquiry. The timelines associated with this matter would suggest firstly, that the first court date was January the 18 th , and the matter then went to February the 8 th , 2010, approximately three weeks. Mr. Starkman was retained relatively early. Disclosure was made and on February the 8 th , 2010 a trial date was set for September the 28 th , 2010 which ordinarily would place it inside the accepted guidelines of eight to ten months for a trial to take place. So, so far so good.

Having said that, in late August 2010, Sergeant Degroot, of the Hanover Police Service suffered a heart attack. The Crown’s office was notified. Sergeant Degroot was, I believe, the breathalyser technician in this case. He was a necessary witness for the Crown. The Crown brought an application on September the 21 st , 2010 to adjourn the trial date to a future date in the absence of Officer Degroot as a necessary witness. There was no argument made about that. The defence readily conceded that that was going to have to happen, and a new date was set.

I will refer to the transcripts in a moment, but the new trial date was then set for April the 7 th , 2011. What this means is that the timeline, if I accept January the 18 th through to February the 8 th , 2010 as being neutral time, that is to say, it is part of the inherent intake process of a charge, leaves me with this calculation: from February the 8 th , 2010 to April 7 th , 2011 is 14 months. Now there are some factors to that which I have already alluded to, but the reality is it is 14 months.

It is beyond the guideline time period of eight to ten months; and therefore, the matter is one which needs to be reviewed in some detail. The factors in assessing this matter that counsel have addressed include issues of the following nature: Firstly, the length of the delay. Secondly, whether there has been any waiver of time periods by the defence.

Next, the explanation for the delay including references to the inherent time requirements of the case, the actions of the accused and the actions of the Crown; and further considerations with reference to institutional resources and perhaps other reasons for delay in which obviously the medical issue in this case plays a role. Lastly, the court is to consider the prejudice to the accused individual of the delay. It is also important to bear in mind that there are two overarching principles involved in issues of this nature.

The first is that the Crown bears the responsibility to bring the matter on for trial as a general principle. The Crown is the shepherd of this process and the Crown has the responsibility, as we understand it, to ensure that matters are dealt with in a timely manner. The second principle that needs to be in the backdrop is that the burden is on the defence to establish that there has been a breach of the rights of Mr. Neisen in this matter, and I take that into consideration in assessing the case.

Now if I can deal with the matters which I think are relatively uncontroversial, I would say first of all, there is no particular quarrel about the length of the delay. How it is to be allocated bears some comment, but the length of the delay is clear. It is 14 months from the date in which the trial date was set in the first instance. It is also clear on the record as I have read the submissions and also have read the transcripts, there is no waiver of 11(

b) by the defence at any point in time; indeed, on September the 21 st there was some discussion about waiver, and it was said in a positive manner there was no waiver, and that 11(

b) rights were retained. With reference to the explanation for the delay, there are some interesting considerations, but before I get into the specifics of the analysis as it is set out in the factums that have been provided, let me just review briefly the positions taken by the Crown and the defence. The defence in its argument says that the eight to ten month guideline, albeit being a guideline, nevertheless, is indicative of what the Supreme Court of Canada thinks is appropriate in cases in the provincial court of an ordinary nature without any particular complexity to them.

It has been suggested in argument here by the defence, and I do not think the Crown takes issue with this, that this is a matter which this court, the Ontario Court of Justice tries on a regular basis. It is an over 80 offence. It has the usual aspects of an over 80 defence. There would be police investigation typically. There may or may not be civilian witnesses. I do not know anything about that, but it is not

suggested there is any great complexity in how the investigation came about, and there was obviously a breath technician who becameinvolved as well. But there is nothing about the case that makes it extraordinary or makes it unduly complicated or indeed lengthy, atleast that is what has been suggested to me, and I have not heard anything to the contrary. So in that sense it is an ordinary case. The defence then says well, if it is an ordinary case, then the ordinary guidelines should apply and that is to say it should be brought onfor trial within eight to ten months.

The defence readily agrees that the eight to ten months is guideline only. There can becircumstances where a trial could properly be held earlier, but certainly the timeframe, if I can call it that, eight to ten months isreasonable under the ordinary circumstances for an ordinary case. So then the defence says that this case did not come on for 14 months after February the 8th, and that is well in excess of the guidelinesby some six months. Mr.

Starkman in argument concedes that given the unusual circumstances that caused the delay, that is to say, themedical condition of Sergeant Degroot, that he recognizes that there would have to be some reduction in the systemic delay; Mr.Starkman argues that Officer Degroot’s unfortunate medical experience was uncontrollable. It happened. It was not anybody’s fault. The Crown cannot take responsibility for it. The defence does not take responsibility for it.

It was just a fact of life, and the defencethen says it could be readily understood how one would then say there was a period of time in which the systemic delay really was notoperative; it was more in terms of an inherent time or a neutral time. Now that would appear to be at face value from September the 28th through to, and I think Officer Degroot’s affidavit says November the 10th he was back at work, although with light duties. I have not had any description given to me about what light duties means. Iwould take in an ordinary sense it means reduced physical activity.

I do not think it necessarily means reduced ability to do office work,paper work, administer office issues and perhaps come to court. I would find it difficult to think that a professional police officer withOfficer Degroot’s seniority and experience as a breath technician would find attending at court particularly stressful. I suspect it is notsomething that officers relish, but having said that it is part of any ordinary function that they perform on a regular basis, and it iscertainly not physical. So I would think light duties would probably include coming to court.

Having said that, Officer Degroot was back at work on or about November the 10th, but clearly would have been careful, would havebeen observant of his doctor’s instructions, and the Crown would be mindful of that in terms of trying to reset the trial.

Having said that, the defence says perhaps in response to my inquiry, the defence says perhaps we could take two months then from September the 28th through to November 10th and a little bit past that, and say that that is neutral time; and that the defence then arguesthat that would reduce the systemic delay from 14 months to 12 months, still in excess of the eight to ten month guideline that isrecommended by the Supreme Court of Canada. So the defence then simply says that all of that taken into consideration, recognizing that the prejudice to Mr.

Neisen is inherentprejudice as opposed to specific prejudice; but nevertheless, prejudice which is real particularly with respect to the apprehension of whatis going to be happening or not happening; and this is expressed in a number of cases, particularly the case of R. v. Bergen, [2005] O.J.No. 2481 by Justice Duncan in some detail; and it seems to me that the defence then says well, this prejudice is something ofconsequence. It is inherent. It is not specific, but it is real and there is in Mr. Starkman’s submission no evidence before the court thatsays that the prejudice did not exist.

He uses the argument – I think it was the R. v. Morin decision, (SCC), [1992]S.C.J. No. 75 which talked about the defence being offered earlier dates and specifically not accepting those dates and then coming tocourt later on and saying well, 11(

b) should create a delay argument in that case. The point being that there is an absence of evidencewith reference to specific prejudice, but there is no evidence that says that prejudice was not a factor. Inherent prejudice did exist. I thinkall persons can agree that waiting a major event in your life is stressful for many, many different reasons, and when it involves thepossibility of criminal conviction and punishment, that has to weigh heavily on an individual’s psyche. So inherent prejudice is real and Iaccept that. Mr.

Starkman simply says the case then is made out because it is in excess of the guidelines at the 12 month mark; inherent prejudiceexists; and there is no reasonable explanation that would militate in favour of the court exceeding the guidelines. The Crown makes a number of responses to that, and indeed, adds to the argument in an innovative fashion.

The Crown would first argue that the defence’s suggestion that the period of time from February the 8th through to April the 7th is all systemic, that is to say,inherent in the system and attributable to the Crown for the purposes of this analysis is not quite correct because when the original trial date was set, which was set on February the 8th for September the 28th, there were discussions that took place which have been reflectedin what this court has been calling a trial date coordination form wherein a number of court trial dates were offered.

So appreciate that this was being done on February the 8th, 2010 and at that point the court offered the following dates for trial: March the 9th, 2010, the 13th of April 2010, the 17th of June 2010 and the 31st of August 2010. Those dates were not acceptable to the defence, but in addition

they were not acceptable to the Crown. I have not had details given as to why each and every date was not acceptable, but one assumesthat it is the ordinary reasons: availability of witnesses in the case of the Crown, and of course from the defence, the availability ofcounsel. Then, and only then September the 28th, 2010 was agreed upon by both defence and Crown. The Crown, Ms Scapinello today arguesthat if the starting point - and Mr.

Starkman did, in fact, say this at the beginning of his argument, but perhaps elaborated and qualified itlater, that the starting point for calculation of systemic delay is when both parties are ready for trial. The Crown would argue well, both parties were not ready for trial until the 31 st of August 2010 when that last date went into abeyance and we were able to hit on September the 28th as the trial date. So the Crown would say that that vast period of time from February the 8th to August 31st is neutral time or inherent time requirements.

The defence’s response to that in argument is simply well, look, we were ready for trial on February the 8th, but then we had to find anappropriate date and both Crown and defence had to massage their schedules to find something that was agreeable between the two of them, and that is how we came up with September the 28th; but we were ready for trial. The defence also responds by saying the defence counsel are not in a position where they can be available every day that is offered. It issimply irrational to do that. The defence points to R. v.

Godin, a decision of the Supreme Court of Canada which is cited at 2009 SCC 26, [2009] S.C.J. No. 26 and in that case at Paragraph 23 in particular the Supreme Court agrees that defence counsel are not tohold themselves in a state of perpetual availability, and it takes away from the idea that a single date being offered is the date in whichclocks start running or do not start running in matters of that nature. In other words, the rejection of an earlier date does not mean thatthe systemic delay has gone away.

I accept that argument although I appreciate the Crown advancing the argument that all of this time is neutral time until the trial date isset on the theory that the parties were not ready for trial until that date was set. It seems to me that that does not accord with ordinarylogic. The defence is saying it is ready for trial, let’s find a date. The date is found. Everybody agrees that will be the trial date, but the matter is in the system from February the 8th, and indeed from January the 18th forward, and I believe that the system is in play and certainly systemic time begins to run on February the 8th.

It should also be noted, of course, that the Crown was not ready. The defence was ready. It is difficult to know on this without thebenefit of a transcript of exactly the nature of the discussions, what the nuances were of the discussions between the Crown and thedefence in terms of setting the date, that is to say, if the Crown had said well, look we could have our witnesses available for June the 17th and Mr. Starkman might then look at his

schedule and say well, I could rearrange this or I could do that. I do not know any of that. It is unknown to me what the background chat was about in terms of setting those dates. The form is useful. It creates a record of thegeneral propositions that were in play, and in another case it might prove to be vital in terms of determining 11(

b) application, but in thiscase I think it does not change, on the basis of the Crown’s argument the calculation that the clock started running in and around February the 8th, 2010. The Crown also argues that in terms of the neutral time associated with Officer Degroot’s medical circumstances that neutral time should start running on August the 24th when Officer Degroot became ill as opposed to September the 28th when the court return date was inplay, and that is an interesting argument as well.

With the greatest of respect, I do not accept that argument because it seems to me that the background fact of Officer Degroot becomingill is very real to him obviously and a very significant problem, but in terms of how that intersects with the court operations, it doesn’t become a relevant matter until Officer Degroot is unable to attend which is September the 28th. Fortunately, the court was given notice on September the 21st.

That would allow the court to perhaps use the time in some other useful manner, but the reality is that the neutral time does not start running until September the 28th occurs in my opinion. That is the point where Officer Degroot’s illness intersectedwith the court scheduling issue, and that is when the matter had to be adjourned from, to another date and the neutral time starts to runfrom that point forward.

Now the other argument made by the Crown, I think put summarily is that the event that caused the initial delay which is conceded bythe defence to be completely reasonable and could not be avoided was of such a nature that the Crown would not know when Officer Degroot would be able to return to work. That is absolutely true as at September 21st when the application was made to adjourn the trial.

The Crown would then say that at some point the Crown’s office would be notified about the circumstances of Officer Degroot. As it turned out in this case at some point in and around November the 10 th, presumably the Crown would have had the benefit of information about Officer Degroot and would have been able to reassess what was going on. This Crown, Ms Scapinello, says well, we would not necessarily know that on November the 10 th , but it is reasonable to think that sometime in December we would have become privy to that information.

So the Crown then says okay, if in December we became privy to that information, and then we were able to gear up to deal with the matter, then the trial date was set for April the 7 th which would only be approximately three months from when we would have had notice that Officer Degroot was ready to proceed. And that is an argument which is completely logical and is something the court can give some weight to. Having said the, the Crown argument becomes simply that we acted in a manner that was reasonable under all the circumstances.

The difficulty with that argument is that on September the 21 st several things happened. One of which is that Mr. Starkman was asked very directly whether or not he was waiving 11(b), and Mr. Starkman said no, I’m not. Now there was some further discussion about what that meant, but it was absolutely clear on the record that 11(

b) had been flagged, and Mr. Starkman was not giving up any rights; and indeed, the court then went on to say and I was the judicial officer at the time, on Page 2 of the transcript at approximately Line 17 and I quote: “And simply put if the Crown when assessing these cases thinks that there is some issue associated with 11(

b) that might be of concern, Mr. Starkman not being in a position to comment on it today, then I invite the Crown to seek to speak to the trial coordinator to see about getting an earlier date. Okay.” So the Crown is put on notice on September the 21 st that 11(

b) might be an issue. The Crown is, I think, inferentially asked then to monitor the case to see what the circumstances are going to be, and to bring an application to get an earlier date if possible. The record then is empty in terms of what happened after that; that is to say, did the Crown take any steps to secure an earlier trial date? There is no evidence that says the Crown did that and the Crown did not act on that as far as the record shows or discloses.

I appreciate what Ms Scapinello has said that in general terms the Crown would have logically dealt with the matter sometime in December, but there is no evidence before me to that effect, and I do not really know what happened. The only evidence I have is that Officer Degroot was available in some senses after November the 10 th , 2010, but I have no evidence about what happened after November the 10 th , 2010 in terms of advancing this case.

It is rational, I think, for me to think that there would have been some time period that would have been in a state of flux after November the 10 th , and I accept that, and I have sort of extracted from Mr. Starkman a concession that perhaps there would be another couple of weeks anyway that we could consider neutral time. But at some point this converts back into systemic time.

It is important to note in this analysis that although this was an unexpected event that caused the initial trial delay, and could not have been foreseen; and it was not anybody’s fault in the sense that the Crown did not cause it, and certainly Officer Degroot did not cause it. So there is no fault that applies to that, but it is also important to note that Mr. Neisen was not the cause of this delay. Mr. Neisen is a citizen. He is entitled to have his case tried as soon as is reasonably possible and as soon as is reasonable under all of the circumstances, and he is, of course, impacted by this unexpected delay.

So the duty, I think of the actors in the criminal justice system then is to recognize the impact this has on Mr. Neisen and I think it is fair for me to say that I appreciate that Mr. Neisen is in custody today and is facing another charge of a similar nature, but that has no impact on the decision I make. He is entitled to be treated in a neutral fashion in that sense, and simply put he is expecting a trial. The trial cannot go ahead. He recognizes through counsel that that is rational.

It cannot be otherwise because of the nature of the event, but it is fair for him to expect that the matter then would be brought forward as soon as possible. There is an interesting decision that appeared I believe in both books of authority which I have had some reference to and that is the R. v. Fulton decision by Justice Harris, [2006] O.J. No. 728 .

That was actually a medical case as well, but having said that, what I take from that case for my purposes right now is the comments where Justice Harris made mention of the idea that when a case is set for trial after some kind of medical event prevents it from going ahead, it does not go back into the ordinary listings for trial and gets put back, if I can call it to the beginning of the list and accept the dates that are available; but rather it has to gain some priority because there has been an unforeseen delay - nobody’s fault, but it should not lose its place in the queue.

In other words, there should be some priority given to the case.

So then, when I look at all of that, and think in terms of what is possible and what is not possible, I know certain things. I know that Officer Degroot was ready and back at work at least in his office on November the 10 th . If I give some buffer to that, I would think then that the Crown’s office should be in a position to know that and to deal with it in mid-December to late-December of 2010, and I would think then that the Crown should have been approaching the trial coordinator about getting an earlier date.

I do not think it is fair to say that simply because the date had been set for April the 7 th that we could think in terms of the additional three to three and a half months as being of no consequence because I think we have to look at these timelines in light of the entire set of timelines, not just what we look at in terms of setting a new case that had come into the system for trial and moving forward with that.

But rather we have to take a look at this case as being a case which is extraordinary, in the sense that it had been delayed because of circumstances beyond everybody’s control, and the key factor being, of course, Mr. Neisen is entitled to a trial as soon as is reasonably possible. So when I look at all of that, and then recognize that I think there is 12 months of systemic delay, if I allow two months for Officer Degroot being ill, and allow for even some buffer in that, I am still at 11 to 12 months of delay and this is an ordinary case - nothing extraordinary about the nature of the case itself.

And when I also consider that there are no issues raised about Mr.

Starkman being available or unavailable when the new trial date is supposed to be set; in other words, I am simply presented with the fact that the trial will be April the 7 th ; and lastly, when I am presented with the fact that the court cautioned – my words, not in the transcript, the Crown’s office to review this matter in due course and to seek an earlier trial date and when there is no evidence that that occurred, I am of the view that the eight to ten months guidelines set by the Supreme Court of Canada have been exceeded in this case, and in a way that does not allow for the court to expand the guidelines to the time period that is being requested by the Crown.

I am of the view that there has been a breach of the 11(

b) rights of Mr. Neisen to a trial within a reasonable period of time and given that it seems to me that a stay is appropriate under Section 24(1) of the Charter of Rights . So that stay will be granted and the case will not be proceeding. All right. Thank you. ********** C O U R T C O N C L U D E D FORM 2 CERTIFICATION OF TRANSCRIPT (SUBSECTION 5(2)) Evidence Act

I, Kathleen Inksetter, certify that this document is a true and accurate transcript of the recording of R. v. TODD B. NEISEN in the Ontario Court of Justice held at 207 Cayley Street, Walkerton, Ontario N0G 2V0 on April 7, 2011 taken from Recording Number 0311- 4-015-2011 in Courtroom No. 4, the original of which has been certified in Form l. _____________________ ________________________________ Date Court Reporter ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S WITNESSES IN-CH CR-EX RE-EX (none) ********** REASONS FOR DECISION . . . . . . . . . . . . . . . . . Page 1 ********** E X H I B I T S EXHIBIT NUMBER ENTERED ON PAGE **********

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