R. v. Kevin Roy, 2012 ONCJ 199

1 . R. v. Kevin Roy Ruling - Pugsley, J. TUESDAY JANUARY 31, 2012 THE COURT: Thank you for your patience. MR. FETTERLY: You're more than welcome, Your Honour. R U L I N G O N 11(

b) A P P L I C A T I O N Pugsley, J. (Orally): Kevin Roy faces a single Criminal Code allegation of driving a motor vehicle with an excess blood alcohol level. At the start of the trial he moves for a stay of proceeding under

Section 24 of the Canadian Charter of Rights and Freedoms , based upon an alleged breach of his right to be tried within a reasonable time under subsection 11(

b) of the Charter .

As I observed to counsel, such a motion should be brought well before the trial date. This matter is scheduled for a four hour trial and now roughly three-quarters of that time has been taken up by this application. Luckily, a one and a half day trial matter scheduled to complete today was delayed such that Mr. Roy's matter now has the full day to be heard. I'm grateful to counsel for their characteristically focused submissions. Both counsel incorporated consideration of the new leading cases on delay which were recently released. Justice Code’s decision in the Superior Court of Justice in, Regina v.

Lahiry, and the decision of the Ontario Court of Appeal in, Regina v. Tran et al . The date of the alleged offence here is August 5th 2010, and the information was sworn on August 19th 2010, which is also the defendant's first appearance court date. Counsel agree that the time between August 19th 2010 and today, some 17 months and 12 days, meets the threshold wherein this court ought to inquire into the reason for the delay. This is a case that was not reached on the first trial date. Counsel have focused their submissions upon three time periods.

First, the time from August 19, 2010, when the information was laid, and January 20th, 2011, when the first trial date was scheduled. Second, the time between the set date on January 20th, 2011 and the first trial date June 28th, 2011. And finally, third, the timeframe between the first trial date, June 28th, 2011, and January 31st, 2012, today, the date when Mr. Roy's trial has begun. The time when Mr. Roy was charged here was a time when the Interlock Program had recently been established. Mr. Roy and counsel had to consider the effect of this program on his decision making process.

In order to do this, matters were on a potential resolution road for a time. Significantly, there was no degree of immediate urgency to the initial defence journey along this road. For example, on the initial court appearance on August 19th, 2010, the defendant appeared by designated counsel and adjourned the matter nearly a month to September 16th, 2010. On September 16th, 2010, a further adjournment of nearly a month was sought by the defence to arrange a Crown resolution meeting. Notably, such meetings can take place very quickly and by telephone in this jurisdiction.

The matter was nonetheless adjourned from September 16th, 2010, to October 14th, 2010. On October 14th, 2010, the defence had still not had a Crown resolution meeting and asked to adjourn the matter to October 28th, 2010, to allow that meeting to take place, as scheduled on October 20th. Also, the matter was adjourned by the defence agent to the duty court, courtroom 101 on October 28th, 2010, to be marked for resolution before a judge in that court. On October 28th, 2010, counsel appeared on behalf of the defendant and indicated that the defendant had changed his mind and would like to

schedule a trial. Ms. Williams, appearing for the defendant that day, asked if a trial date could be set, however the Crown, noting that counsel had only canvassed a plea at the October 20th resolution meeting, indicated that no one had put their mind to the issue of trial length. Counsel agreed that they needed a couple of weeks for that purpose and adjourned the matter again, but this time to November 18th, 2010, to set a trial date. On November 18th, 2010, Ms. Williams again appeared before the court and sought a further adjournment as counsel had again picked up resolution discussions.

She sought a December 9th, 2010, set date, which was then ordered by the court. On December 9th, 2010, there is no transcript of the proceedings filed by the defence. The matter was next before the court, still in assignment court on December 16, 2010. On that day duty counsel spoke to the matter on behalf of defence counsel who was unable to come to court, apparently due to the weather. The presiding justice of the peace adjourned the matter to December 23rd, 2010, peremptory to set a trial date, and issued a bench warrant for the arrest of the defendant, to be treated with discretion.

On December 23rd, 2010, the matter was addressed in the assignment court but there is no transcript filed by the defence with respect to that court appearance. The information discloses that on that date the defendant appeared by a paralegal agent and the matter was also adjourned on a peremptory basis to January 20th, 2011, at 9 a.m. to set a trial date. The discretionary bench warrant was rescinded as the agent appeared by designation. On January 20th, 2011, the defendant's agent set June 28th, 2011, as the trial date here and four hours were set aside for the case to be completed.

That trial date was scheduled to be confirmed on the earlier date of May 17th, 2011. On the confirmation date, both parties indicated to the court, formally, that they were ready to proceed and the date was

confirmed for trial. On June 28th, 2011, Mr. Roy's trial was second on the list behind another trial scheduled to take six hours. As previously mentioned, Mr. Roy's trial was to take four hours. It is trite to note that although this court starts at 9:30 a.m., it does not sit uninterrupted until 7:30 in the evening. In other words, ten hours was scheduled to be heard but only roughly five and a half hours of court time was available for these two trials. Something had to give and Mr. Roy's matter was re-addressed in the early afternoon after the earlier trial had commenced.

It was clear that, even if started, there was no likelihood that Mr. Roy's trial would finish, although Crown and defence were both ready to go. When Mr. Roy's matter was addressed, the first witness in the other trial was still being examined in-chief. It was therefore not unreasonable to address the matter before the end of the day and to seek a replacement trial date. That date was immediately scheduled for today, January 31st, 2012. There is no transcript of the confirmation date filed. I turn then to consider the delay here. Defence submits that the total delay invites judicial scrutiny.

The Crown agrees, as do I. Mr. Darroch also submits on behalf of the defendant, that there is no express wavier of delay by the defendant. It is hard to confirm this submission without all of the transcripts here. Certainly the transcripts that have been produced support this submission and the Crown did not submit otherwise. This does underline, however, the necessity of applications such as this being argued on a complete evidentiary record. For the purposes of today, I take it that the defendant has not made an express wavier of delay.

I turn to the reasons for that delay, which is the heart of this application. And I agree that the three periods of time identified by counsel are a convenient way to address this issue. The defendant submits that period one from August 19, 2010, when the information was sworn, to the date the first trial date was set on January 20th, 2011, should be allocated between neutral delay and systemic or institutional delay. The Crown submits that the entire five month period of time ought to be cast as neutral delay. I agree with the Crown position here.

The defendant spent virtually all of this time either exploring resolution (in fact a resolution was agreed to at one point) on the face of the record, or not appearing to set the requested trial date. Notably, according to the face of the information and the transcripts, on at least three dates, December 16 and 23rd of 2010, and January 20th, 2011, the court had ordered that the matter be marked peremptory to set a trial date. Only on the last of these dates was the date in fact set. The defendant cannot in any way be faulted for exploring resolution at length or indeed on more than one occasion.

But to attempt to label some of the resulting delay as systemic, on this record, is plainly put, a non-starter. Until January 20th, 2011, the defendant was in no position to set a trial date due to his own decision to extensively pursue resolution and to not attend to set a trial date on dates scheduled peremptory for that purpose.

While there is no express waiver of this delay, the action of the defendant created and extended the neutral delay here such that I find that the entire timeframe from the laying of the information to the date when the first trial date was scheduled on January 20th, 2011, is to be cast as a neutral time period required by the facts of Mr. Roy's specific case. The second timeframe is from the set date court on January 20th, 2011, to the first trial date, June 28th, 2011, some five months and eight days.

On January 20th, 2011, one date was available from the court before June of that year, that is, February 3rd, 2011. Counsel agreed in submission that offering this single very early date should not stop the subsection 11(

b) clock from running, and I agree. Pursuant to Regina v. Tran et al, the defendant submits that a reasonable time for the parties to be ready for the trial here was one month, and that when considering this second timeframe, I should allocate one month of the five months and eight days to the neutral preparation time anticipated by Tran . The Crown, in agreeing to the February 3rd 2011 trial date, is taken to have conceded that it would be fully prepared for trial by that date, only two weeks after the set date.

The defence submission on this neutral preparation time, on the facts of this case, is a very fair submission and I adopt that submission in my analysis. Notably, this trial, unlike many Over 80 trials in this jurisdiction, is indeed a demonstrably simple trial. There are two Crown witnesses, perhaps a voluntariness voir dire and no Charter applications, save and except this one. The defendant's counsel are vastly experienced in the defence of such charges. A month neutral preparation time on the facts of this case is therefore reasonable.

Therefore, the institutional delay related to the time between the set date and the first trial date is four months and eight days. The third timeframe takes us from June 28th, 2011, when Mr. Roy's trial was not reached, to January 31st, 2012, today. This

timeframe is seven months and three days. The defendant concedes that his counsel of choice was unavailable until August 29th, 2011, due to other commitments. Again, very fairly, counsel agree that essentially no preparation time was needed by either party for this second trial date, given that both sides were ready and able to try the case on June 28th, 2011. No further issues that complicated the trial arose between June 28th and today, other than the necessity of using trial time today to determine this application.

The defendant therefore submits that of the seven months and three days of delay in time frame number three, five months and two days, that is, from August 29th, 2011 to today, should be found to be institutional or systemic delay. The Crown submits that many court dates were available to the defence to try this case, starting as early as July of 2011. Indeed, dates in July and August as well as dates in October, November, December and earlier in January, were offered by the court to the parties. Significantly, none of the fall 2011 dates were shown to be available to the Crown.

Some of these dates were available to the defence and others were not. Further, these were dates that the trial coordinator could offer counsel that were otherwise free dates in the court's inventory at Orangeville. There appears to have been no effort by the Crown to offer to open up dates that had already been booked for other matters, to free up a wider selection of dates for Mr. Roy's trial. As noted previously by this court in Regina v. Collins , a subsection 11(

b) decision that I rendered here on December 12, 2011: "When a matter scheduled for trial is not reached due to no fault of the defence, the process of setting a new trial date cannot be treated by the Crown as if there was no particular urgency in setting the new date." As I said in Collins : "The overall message is that when a trial is not reached, the set date status quo may not be sufficient to avoid unreasonable delay." Another way to put it more plainly is that when trials are not reached, the replacement trial date should be given priority by the Crown.

While early dates were offered here by the court and three were said to be available to the Crown, seven earlier dates available to the court in the usual course were not available to the Crown and no explanation has been offered as to the reason for this, let alone whether other dates with other previously scheduled matters could be opened up for Mr. Roy's trial. In other words, there is little evidence that the Crown has prioritized the setting of the second trial date here.

When a trial date is not reached it may be prudent for Crown counsel to personally attend upon the trial coordinator to set the new trial date, however inconvenient this process might be, since in the end, only the Crown is in a position to assess whether any scheduling problems for the police service are such that offered dates should be turned down by the Crown. In these circumstances therefore, the defendant was completely unavailable from June 28th, 2011 until August 29th, 2011. Several dates thereafter, offered by the court, were available to the defendant.

In my view, five months and two days of the seven months and three days of delay from June 28th, 2011 until today, are properly termed institutional or systemic delay. I conclude therefore, that the total institutional delay here is as follows, still following counsel's three timeframes. The first timeframe from August 19, 2010 to January 20th, 2011, no institutional delay. The second timeframe from January 20th, 2011 to June 28th, 2011, four months and eight days institutional delay.

And the third timeframe from June 28th, 2011 until January 31st, 2012, five months and two days of institutional or systemic delay. The total institutional delay here is therefore nine months and eight days. This amount of delay is well within the guidelines set out in Regina v. Moran , even if those guidelines, dealing with a much larger, better resourced and busier court jurisdictions than Orangeville, can be properly imported without change into this two-judge jurisdiction, which is, in my view, doubtful.

This however does not end the inquiry since prejudice, both presumed and specific to this defendant, may cause the court to find that even a delay within the guidelines may be unreasonable on the facts of the individual defendant. Mr. Roy's affidavit here speaks to the prejudice he has suffered while waiting for this trial date.

His evidence of specific prejudice however is contained within a single line at paragraph seven of his affidavit: "The uncertainty of the outcome at trial and the continual delay and adjournments of the trial date has caused me undue hardship and stress." This is essentially little more than the presumed prejudice in any case that comes before the court having not been reached at a first trial date. Further, not less than five months of the total 17 months delay here was taken up by the defendant's intake and decision making process at the start of his journey through the trial courts.

To that extent, he would in part be the subject of a self-inflicted wound. I agree that not being reached on a trial date must have added to the defendant's frustration and anxiety, but in my view much, if not most of this stress relates to the very stressful appearance of a person caught up in the criminal justice system, due to serious allegations such as this charge. In the end, I do not find that this prejudice, while real, converts a reasonable delay into an unreasonable delay. And for the reasons, the defendant's subsection 11(

b) Charter Application must be dismissed. Form 2 Certificate of Transcript Evidence Act, Section 5(2) I, Barbara Thompson , certify that this document is a true and accurate transcript of the recording of the *Ruling in, R. v. Kevin Roy , in the Ontario Court of Justice, held at, 10 Louisa Street, Orangeville, Ontario , taken from Recording, 0611_102_20120131_091947, which has been certified in Form 1. Tuesday, April 10, 2012 Barbara-Ann Thompson Date Signature of Authorized Person *This Certification does not apply to areas of the Ruling that were/may have been judicially edited.

Information No: 10-1026 10-152 Citation: R. v. Roy , 2012 ONCJ 199 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. KEVIN ROY R U L I N G BEFORE THE HONOURABLE, MR. JUSTICE B.E. PUGSLEY on January 31, 2012, at ORANGEVILLE, Ontario

APPEARANCES : R. Fetterly, Counsel for the Crown S. Darroch, Counsel for Mr. Roy (

i) Table of Contents ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S Entered on Page RULING - on 11(

b) Application 1 **********

Transcript Ordered: Transcript Completed: Released April 10, 2012 Ordering Party Notified: