R. v. Ghobrial, 2015 ONCJ 288

Citation: R. v. Ghobrial , 2015 ONCJ 288 Ontario Court of Justice (Toronto Region) In the matter of Her Majesty The Queen Respondent V Joseph Ghobrial Applicant Before His Worship Justice of the Peace V. Fatsis Ruling on a Motion to Stay Pursuant to Sections 11(

b) and 24(1) of The Canadian Charter of Rights and Freedoms Charge:

Section 128 Highway Traffic Act –Speeding Dates of Hearing: 5 and 26 January, 2015 Date of Ruling: 19 May, 2015 Appearances: Ms. S. King Municipal Prosecutor for the Respondent

Mr. M. Tadros Applicant’s Licensed Paralegal Agent Reasons for Ruling The Issue: Mr. Joseph Ghobrial, (the “Applicant” in this Motion or “the “Defendant”) contents that his rights under s.11(b) [1] of Canada’s Charter Of Rights and Freedoms were violated in the alleged single charge against him for driving his motor vehicle at a higher rate of speed (72klm in a zone limit of 50klm) than was permitted under the Highway Traffic Act, R.S.O.1990,

Chapter H.8 . The Court is asked in this Motion to decide whether there is an unreasonable delay for this charge to proceed to trial without the fault of the Applicant. Both parties in this Motion, at the request of the Court, submitted oral and written arguments to support their respective position on this issue. Chronology: • 23 August, 2013 : Date of Offence and Notice to File a Defense (“NIA”). • 22 May 2014: 1 st trial date • 17 September 2014: 2 nd trial date • 27 October 2014: 3 rd trial date • 5 January 2015: 4 th trial date and commencement of 11(

b) Motion hearing • 26 January 2015: 11(

b) Motion hearing continued • 19 May 2015: Decision of Motion date Position and Submissions of Applicant Agent for the Applicant presented the three transcripts of the earlier appearances to court and argued that, due to the Prosecution’s failed duty to provide full disclosure to the defense, an unreasonable delay of 19 months and 19 days has violated the Defendant’s rights protected under s. 11(

b) of the Charter and such a delay should be attributed to the fault of the Prosecution, for the following reasons: 1.

On May 14, 2014, the defense requested disclosure for some 13 items, including the charging officer’s typed Notes to decipher his hand-written notes and acronyms, any video or DVD of the offence, document record of officer’s training and qualifications to use and operate a Laser speed detection device, a copy of the full Manual of the Manufacturer pertaining to this Laser device-including its installation instructions (later waived)- and its service or repair maintenance records. (see transcripts of 22 May, 2014 and 17 September, 2014). 2.

On May 22, 2014, the first trial date, the defense could not proceed to trial, because it had not received the requested disclosure and because it could not understand the illegible hand-written officer’s notes. On this date it also learned that a DVD is available and, therefore, was forced to request an adjournment to receive it along with the other requested items of disclosure. It argued that according

to the case of d’Avernas [i] “ it was absolutely dangerous to go ahead ” [ii] . 3. On 17 September, 2014, second trial date, the defense received the DVD but it argued it could not proceed without viewing it and without receiving first the other requested disclosure items [2] . 4. On 27 October, 2014, the defense was ready to argue an 11(

b) Motion but the Court did not allow the motion to proceed on the basis that it was a “busy docket” and it was adjourned to 5 January, 2015, for the period henceforward to be determined as “neutral time and peremptory to both sides” to proceed on the next appearance date. [3] . 5. On 5 January, 2015, the first 11(

b) Motion hearing-date, the defense again argued and requested the disclosure denied to it by the Prosecution on all the previous court appearances. 6. On 26 January, 2015, the second 11(

b) Motion hearing-date, the defense argued that the disclosure issues must be addressed by the court on the basis of “unfairness” to the Defendant and based on the continued denial of the Prosecution to provide full disclosure to the defense. Agent for the Applicant submitted to the court that ( ..in my respectfull view, I think the disclosure that was provided has to be addressed by somebody. It is-was it legible? Were these acronyms, can anybody pick them up and know?

That’s something you need to address, and I leave it in your hands whether you want to..look at what’s provided to me. [4] The Agent also submitted that the issue of a late request for disclosure should not be for the benefit of the Prosecution in an 11(

b) consideration because, he said, “ Well I don’t tell when I become retained and how fast I can do things, number one. Number two, she (the Prosecutor, editor’s note) just admitted that the prosecution doesn’t look at any of this until the morning of. So what difference does it make if I sent you a disclosure request 10 months prior to this date? ….The disclosure request was not late. That wasn’t the issue that caused all this. The issue that caused all this is there’s no communication between officer and prosecution, and no communication, respectful communication, between prosecution and defence.

That’s the issue that caused all this…...the officer knew that there was a DVD as he was writing his disclosure in his cruiser following that-the incident, the offence. So I believe that argument she makes has absolutely no basis. ” [5] 7. Agent for the Applicant submitted that the case of Andrade and Hariraj [6] is in support of his proposition (see Agent’s written submissions) that “ less than 30 days for intake ” should be subtracted from the entire period of delay of 20 months and 19 days, leaving an unreasonable delay of 19 months and 19 days at the feet of the prosecution.

He also accused the prosecution of introducing case-law to the court in an attempt “ ..to clutter the eyes of the court ” (see Agent’s written submissions). He presented the case of Millar (et all) [7] (although he understood this case is not binding on this court being a decision of a court of equal jurisdiction) which is “ ..highly persuasive.. ” on the issue that disclosure “.. is imperative to give the defence these items so they can make a full defence to the charge ” [8] . The defense also made a simple mention of the case of Stinchcombe [9] , on the issue of a defendant’s rights to disclosure. 8.

Finally, Agent for the Applicant submitted that a defendant is not required to submit repeated requests for disclosure once the items sought to be disclosed are enumerated in the initial request. In his opinion “.. the prosecution may have not disclosed the video so that the adjournment will be marked at the defense’s feet. Some can argue this was done to sabotage the court record in regards to the adjournment sought ”. (see his written submission).

Position and Submissions of the Respondent The Municipal Prosecutors on behalf of the Respondent (three different prosecutors were involved prior to the first motion day of 5 January, 2015) argued that, due to the applicant’s failure to retain a representative agent in a timely fashion to be ready for the first trial date on 22 May, 2014, a request for disclosure was not received by the prosecution but only seven days prior to that date.

From that date onwards agent for the applicant kept repeating the same points of disclosure requests although as early as 17 September, 2014, he was clearly advised that there was nothing else to disclose. For this reason the delay, other than 10 months and 10 days, acknowledged to be the Crown’s fault, the remaining periods should be attributed to the defense’s fault. Even if the prosecution were to be generous, it could be acknowledged that the period from the 5 th to the 26 th January, 2015 11(

b) Motion hearings is not the fault of the defense. That will bring the total unreasonable delay to a little over 11 months. [10] The Applicant’s 11(

b) Motion should be denied for the following reasons: 1. Most of the Applicant’s arguments are requests for disclosure rather than establishing the foundation for 11(

b) Motion.

2. The delay from the offence date of 23 August, 2013, to the first court appearance trial date on 22 May, 2014, a total of a little over nine (9) months, is not the defendant’s fault. The defense is informed on this date that disclosure of the DVD, clarification of the officer’s hand-written notes and a portion of the Manual of the speed measuring Laser device testing procedures are the only items to be disclosed. The remaining items are not mandatory or relevant and are issues to be dealt with at trial. 3.

The delay from 22 May, 2014 to 17 September, 2014, was caused by the late disclosure request, only one week prior to the first trial date, and should be attributed to the defense. 4. The delay from 17 September, 2014, to 27 October, 2014, except one (1) week in which agent for the applicant was not available [11] , is placed at the prosecution’s feet, because the applicant was entitled to review the DVD, which he received on this date. On this date he also met the officer who deciphered his notes [12] but the agent insisted again for typed notes.

Again the prosecution asserted its position that nothing else would be disclosed unless proven by the defense to be relevant. 5. On 27 October, 2014, hearing date the prosecution was ready to proceed with the 11(

b) motion but the Court adjourned the matter to the 5 th of January, 2015, although the defense still appeared to be not ready again arguing disclosure issues. 6.

The Respondent relied on the case of Stinchcombe [13] , to advance its position that “ The obligation to disclose is triggered by a request..(that) has been timely ”, the case of Reybroek [14] that an accused “.. is not entitled to disclosure simply by requesting it ”, the case of Longmire [15] , that a defendant must lay “ ..a rational basis or factual foundation for the disclosure requested”, the case of Irwin [16] that lack to disclose the entire Manual “..did not impact upon the ability to make full answer and defense ..” , and the case of N.N.M. [17] that when a defendant is not available to proceed on an offered trial date, s/he should not be able to use this delay in the defendant’s benefit to argue an 11(

b) unreasonable delay.

Finally, the Respondent relied on the Supreme Court of Canada leading case of Morin [18] to support the propositions that in Provincial courts “ a longer period of institutional delay.. is justified..by reason of the demands placed on these courts” that, although the defense in the case at bar did not provide evidence of or argued unreasonable delay on the basis of prejudice to the applicant , “..a guideline of 8- 10 months be used by courts to assess institutional delay in Provincial courts, deviations of several months in either direction can be justified by the presence or absence of prejudice” , that “ the general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which this

section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of the delay ”. s.11(

b) of Charter Applicable Law In addition to the case law mentioned above in the Applicant and Respondent positions, the following jurisprudence is applicable to this case. (I owe a vote of gratitude to my brother Justice Paul Kowarsky who enumerated many of these cases in his decision of Regina v. Gardex Chemicals dated October 23 rd 2006). 1. In R. v. Morin, the Supreme Court of Canada set out the relevant factors for consideration in motions under

section 11(

b) of the Charter as follows: 1. The length of the delay 2. The reasons for the delay including • The inherent time requirements of the case • The actions of the accused • The actions of the Crown • The limits on institutional resources, and

• Other reasons for the delay 3. Waiver of any time periods by the accused, and 4. Prejudice suffered by the accused as a result of the delay 2. In R. v. Galassi[19], the Ontario Court of appeal noted that there must also be some recognition of the nature of the case, and that inconsidering whether (a Defendant’

s) Section 11(

b) rights were infringed, the trial judge was required to look at the whole period, not justwhether the case met the Morin guidelines in the Ontario Court of Justice. 3. In R. v. Herrington[20] the Ontario Court of Appeal held that what constitutes an acceptable period of systemic or institutional delay will vary depending on the nature and circumstances of each case. There are no fixed or inflexible time limits. And in Kovacs-Tatar[21] the same court reiterated its ruling in Herrington that the guidelines should not be given the force of a judicial- ly developed limitation period. 4. In R. v.

Seegmiller[22], the Ontario Court of Appeal held that administrative time guidelines, such as those described in Morin, are not intended to reduce the concept of reasonableness in s.11 (

b) to a simplistic computation of time.This approach was the position affirmed by the S.C.C. in R. v. Bennett[23]. Disclosure Applicable Law 1. In Morin Sopinka J. noted that “account must also be taken of the fact that counsel for the prosecution and the defense cannot beexpected to devote their time exclusively to one case. It follows that some reasonable allowance for the schedules of counsel must bemade. In my view, the party who causes the adjournment is responsible for the entire delay until the matter can be re-scheduled, unlessthe other party is unavailable for an unreasonable length of time.” 2. In R. v.

Stinchcombe, the Supreme Court held that “The Trial Judge on a review should be guided by the general principle thatinformation ought not to be withheld if there is a reasonable possibility that the withholding of information would impair the right of theaccused to make full answer and defence, unless the non-disclosure is justified by the law of privilege.” (See also: R. v. Egger, (SCC), [1992] S.C.J. No. 66). Also that initial disclosure should occur before the accused is called upon to elect the mode of trial or plead.

Subject to the Crown'sdiscretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which itdoes not, and whether the evidence is inculpatory or exculpatory. All statements obtained from persons who have provided relevantinformation to the authorities should be produced, even if they are not proposed as Crown witnesses. Where statements are not inexistence, other information such as notes should be produced.

If there are no notes, all information in the prosecution's possessionrelating to any relevant evidence the person could give should be supplied. 3. R. v. Vanbots Construction Corp[24] the Court held that when there is an impasse in disclosure discussions amongst counsel, theaccused should apply to the Court prior to the trial date for an appropriate determination. On the application, the Crown should have hadthe opportunity of presenting its reasons for failing to provide disclosure, and the Court could then have made an order for disclosurewith which the Crown would have been obliged to comply.

If the Crown failed to comply, it would then be appropriate for the accusedto have sought an appropriate remedy under section 24(1) of the Charter. 4. In the cases of R. v. O’Connor[25], R. v. Wickstead[26] and R. v. Peterson[27] it has become clear that there is no autonomous right to

disclosure under the Charter . Where the Defence seeks to establish that the non-disclosure violates sections 7 or 11(

b) of the Charter, it must establish that the impugned non-disclosure has had an adverse effect on its ability to make full answer and defence. Such a determination requires reasonable enquiry into the materiality of the non-disclosed information. 5. In R. v. Knox [28] , the Ontario Court of Appeal held as follows: “To warrant a stay the appellant must meet the ‘clearest of cases’ standard.

Ordinarily a stay because of the crown’s failure to disclose relevant evidence is justified only if the non- disclosure either irreparably prejudiced the accused’s ability to make full answer and defense or irreparably harmed the integrity of the administration of Justice.” ANALYSIS AND FINDINGS Although I am of the opinion that many of the Applicant’s positions and submissions pertain to a proper Motion to Request a Disclosure Order and, therefore, not within the ambit of an 11(

b) Motion, I propose to address each of the eight enumerated points cited above in the applicant’s position in order to consider those elements or to determine whether there is foundation for a finding on the issue of unreasonable delay. ( 1 ) The period from 23 August, 2013 to 22 May, 2024, is approximately nine (9) months, when the defendant is given his first trial day.

Considering all the factors in Morin I find that a period of eight (8) months is not the fault of the applicant and is unreasonable institutional or ssystemic delay (I have deducted a period of 30 days for intake, pursuant to Andrade, referenced in my footnote #6, para.55, as sufficient intake time to prepare for a simple speeding trial date in Toronto. There is no evidence- and no argument was made- in this case to show that there are other inherent time period requirements or any prejudice to the applicant that flows from an 11(

b) delay). ( 2 ) The period from 22 May to 27 September, 2014, I find that it is to be attributed to the applicant, because it took the defendant approximately nine (9) months, and just one week prior to the first trial date on 22 May, 2014, to file through his agent a request for disclosure. I also find that the ratio and dicta referenced by the defense in the d’Avernas [iii] case do not apply to the circumstances of the case at bar.

The items requested appeared to be a “boiler-plate” type of request without first determining what existed in the possession of the prosecution or the disclosure materiality and relevancy to a simple charge of speeding. The applicant’s agent argued (on several occasions throughout the history of this matter in a circular, convoluted, demanding tone and at times offensive manner in front of four different prosecutors) that all items requested are relevant and should have been disclosed for a full answer and defence.

Such a position runs opposite to the disclosure jurisprudence cited above (see Disclosure Applicable Law). To illustrate the point, I am noting that the applicant’s agent requested “typed notes” before receiving or viewing the hand-written version, and he also reasonably expected a DVD to be available to the defense within one week of request (even if he had prior warning that such evidence was in the possession of the prosecution prior to 22 May first trial date and it was indented to be used against his client).

As an experienced paralegal, practising in the Toronto- GTA jurisdiction, he ought to have known that the availability of such a police DVD may be realized no less than six (6) weeks from request; I conclude this by taking “judicial notice” based on my presiding experience in the Toronto jurisdictional area. There is no evidence, as submitted by the applicant’s agent, presented to the court that a police charging officer has the ability immediately after possession of the roadside investigation-video to communicate it instantly by electronic means to the prosecutor’s offices.

Even if this were to be possible at the current high level of communication technologies and Justice administration had or not the funds to deploy it, the prosecutor in charge of a case still needs time, upon timely defense request, to receive the complete trial brief, to vet it for privileged material and decide which prosecution evidence is material, relevant to be used or not against a defendant at trial and consider the number of disclosed material needed to be disclosed for full answer and defence. In any event, this issue could be addressed either in a disclosure order motion or at trial.

To demand and argue that all disclosure (existent or not, material or not, relevant or not, to be used against the defendant or not) is an automatic right to disclosure, especially on a very belated request, betrays a very serious misunderstanding of the applicable law. I find therefore that , in terms of determining an 11(

b) consideration, this delay is at the feet of the defense and is not an unreasonable delay. ( 3 ) On 27 September, 2014, the defense received a copy of the requested DVD and its argument that it should have been available on the first trial date is without merit. On this date the prosecution reiterated its earlier position (as it did in all of the subsequent appearances) that no other disclosure items will be provided other than a portion copy of the Manual guidelines with respect to testing procedures of the speed-measuring device used by the charging officer.

The prosecution had also offered to the defense the opportunity to view the entire Manual at its offices and had directed the charging officer to verbally decipher his hand-written notes to the applicant’s agent which the transcripts reveal that it occurred, although the agent continued demanding typed notes without establishing a reasonable basis for such continued request.

It is of cardinal importance to note that despite the applicant agent’s repeated requests for all requested disclosure on all appearances, he never formally applied to the court for an order to disclose (see #3 in Disclosure Applicable Law above), at which time both sides would have had the opportunity to address the relevant disclosure issues. In Stinchcombe the highest court makes it clear that the discretion of Crown counsel to disclose is re- viewable by the trial judge or justice.

A legal representative of a defendant, such as in the case at bar, could have initiated a review when an issue arose with respect to the exercise of the Crown's discretion. On a review the Crown must justify its refusal to dis close. Inasmuch as disclosure of all relevant information is the general rule, the Crown must bring itself within an exception to that rule. ( 4 ) The period from 27 September to 27 October, 2014, I find should be for disclosure re- view and in favour of the applicant, less one week in which the defense was not available.

In other words, three (3) weeks I find to be an unreasonable delay, despite of any disclo- sure defense request shortcomings, because a defendant is entitled to review the DVD evidence prior to any election mode of trial or plead. ( 5 ) On the defendant’s appearance on 27 October, 2014, I happened to preside in a very busy minor traffic court (39 charges to be dealt with within one hour tier) when the applicant’s agent indicated that the defense was ready to commence and argue an 11(

b) motion, although some disclosure issues were still outstanding. I was prepared to deal with the matter if it was on a “consent” basis but I was assured that it was a “contested” motion. I also confirmed that the practice protocol to engage at least a crown pretrial, if not a judicial pretrial, to determine the proper length of time needed to set it for a motion or trial hearing had not been followed. This task is primarily the defense’s duty after communicating with the prosecution. Without casting any particular blame to neither side and without been engaged in an 11(

b) motion, I indicated in a preliminary and cursory fashion that this motion could not proceed on that day (see my footnote #29) and since the practice protocol had not been followed the ensuing period to the next date of appearance could be marked as “neutral ”.

My concern on this date was that a heavy list could not be adequately managed for the benefit of most defendants who had appeared to resolve their simple minor- traffic offen- ces by pleading guilty (as is the case in the vast majority of such provincial offences in POA courts with exceedingly heavier lists) and thus avoid another or unfair return to their trial court. Although I fully realize that this issue is the court’s administration prob- lem, and not necessarily a trial court’s primary concern, I consider it my duty, as presid-

ing justice, to safeguard the practice protocols for the smooth and fair operation of my trial court and to preserve the integrity of the Administration of Justice. It was then and still is my impression and suspicion (I have no evidence) that some licensed paralegals (and I have made it clear to the Applicant’s agent of the case at bar that I was not referring to him or his case), intentionally or not, do not engage the proper scheduling protocol and thus create, purposely or not, a foundation for 11(

b) motions- when the Information or Certificate of offence reflects a “lack of time” court endorse ment. By not following the protocol, the applicant’s agent brought this case to a very busy court where the trial/motion time, as any experienced court practitioner may reasonably could have anticipated, is extremely constrained. These steps, in my view, are necessary in heavily loaded POA trial lists.

Rosenberg J.A’s comments, speaking for the Ontario Court of Appeal in Galassi (my footnote #19) are significant: “In my view, reviewing courts should be very cautious about judging the advisability of steps taken by the Ontario Court of Justice to manage its lists. That court has seen a huge increase in its caseload…” It is trite law that Charter Motions, if granted, are often tantamount to an acquittal and, therefore, must be given proper preparation, competent argument and full respect by those who argue them in court and by those judicial officers rendering a decision on them.

Paramount in this is the duty of the applicant who seeks a Charter remedy to persuade the court, on a balance of probabilities, that the delay in bringing a charge to trial was unreasonably excessive in all the circumstances and thus impairing the defense’s ability to make a full answer and defense. I am of the view that on the 27th October, 2014 appearance such due respect, without following proper scheduling practice protocols, would not have been possible and, consequently, I find that the period from this date to the 5th January, 2015, first 11(

b) Motion hearing, is determined to be “ neutral ” not to be credited to the Respondent nor to the Applicant. ( 6 ) On 5 January, 2015 was the first 11(

b) motion-hearing. The reserved one tier was insufficient to conclude the motion and the matter was postponed to commence the Res- pondent’s submissions on 26 January, 2015. It is the view of the court that the applicant’s agent, as it appeared to the court, in his over zeal to protect the rights of his client or perhaps due to a lack of knowledge or misunderstanding of what is involved in an 11(

b) argument, he unnecessarily consumed the entire tier by still arguing the same disclosure issues. This on occasion created a tense court atmosphere and even unprofessional dis- course of the litigants so that the court had to call them back to order. It must be emphas- ized that it was mainly the agent’s conduct and his tone of voice that had created an imp roper court decorum in which, admittedly and unfortunately, the court’s patience was also briefly tested. I find, therefore, that the period between the 5 th to the 26 th of January, 2015 also to be “neutral” .

( 7 ) On 26 January, 2015, the second 11(

b) motion day, prior to the commencement of the Respondent’s submissions as scheduled, the court, in its attempt to remedy any perceived breach of the applicant’s right to cohesive, full and uninterrupted submissions (if indeed such disruption- breach may have been caused by either the court or the prosecutor, and which was mainly due to the agent’s insistence to dwell on the same disclosure “unfair ness” issue) the court granted another opportunity to the applicant’s agent to repeat or finalize-if he so wished- his submissions to the Court.

He did. ( 8 ) The period from 26 January, 2015, time from close of submissions, to the court’s deci- sion date on 19 May, 2015 three (3) months and seven (7) days) , I determine it to be al- so “neutral ” for the following reasons, because:

a) the court considered that the issues raised mainly by the applicant’s agent de- served, in addition to his oral submissions, to be presented in a more detailed and better structured written format. Both parties complied and submitted their written submissions by the 20th of April, 2015 deadline; they had requested time to complete them by the 10 th of April, 2015; and (

b) unlike the unreasonable delay found in the serious and complex criminal cases (referenced in my footnotes #30, #31and #32) after balancing the various fact- ors and taking into consideration the prejudice to the accused- relevant under s.11(

b) in processing or rendering promptly a decision, in the circumstances in the case at bar I do not find such a prejudice to the defendant exists. ( 9 ) Given my rulings in my analysis in response to the applicant’s position above, I do not find it necessary to respond to the Respondent’s submissions. However, I find that the applicant agent’s attribution to the Respondent for ill motivation either to create adverse 11(

b) considerations against the applicant’s constitutional protection rights, by allegedly not disclosing to the defense relevant items, or to purposely “clutter the eyes of the court” [29] is unfortunate, unprofessional and not advancing the cause of Justice. CONCLUSION Having balanced the competing interests and applying the 11(

b) law, and in accordance with the relative binding jurisprudence, to the facts before me, I conclude that the defendants’ s.11(

b) Charter rights have not been violated and his application is denied. Dated in Toronto, this 19 th Day of May in the Year 2015 Vasilios (Bill) Fatsis,

Justice of The Peace, Toronto Region [1] s.11. Any person charged with an offence has the right (

b) to be tried within a reasonable time; [21] R. v. Kovacs-Tatar, (ON CA), [2004] O.J. No. 4756 (O.C.A.). [i] Durham (regional Municipality) v.d’Avernas-2007 CarswellOnt 8840, Docket: Oshawa 999-00-85046836, 12 September, 2007, D.J.Halikowski, J, Ont. Court of Justice, as presented by defence) [ii] See transcript of 22 May, 2014, page 8, line 10 [iii] Durham (regional Municipality) v.d’Avernas-2007 CarswellOnt 8840, Docket: Oshawa 999-00-85046836, 12 September, 2007,D.J. Halikowski, J, Ont. Court of Justice, as presented by defence)