R. v. Carson, 2012 MBPC 42

Citation: R. v. Carson Citation No. 2012 MBPC 42 Date: April 19, 2012 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Deborah Carlson, for the Crown ) - and – ) ) Robert Ronald Carson ) Sarah Inness, for the Accused ) ) Judgment delivered: ) April 19, 2012 SANDHU, P.J. Introduction [ 1 ] This is the Court’s ruling with respect to an Askov trial delay Motion, alleging breaches of s. 11(

b) of the Charter of Rights and Freedoms , and seeking a Stay of Proceedings of charges driving a motor vehicle with a blood alcohol level over the legal limit, impaired driving and a Highway Traffic offence, alleged to have occurred on March 17, 2010 at the City of Winnipeg. Essentially the Motion is with regard to a claim of a breach of the right to a speedy trial, engaging the noted Charter

section by way of the temporal delay from charge to trial. The Applicant has elected trial by a Provincial Court Judge and is not in custody. [ 2 ] The Motion was heard on April 18, 2012 for oral argument, although Motion Briefs were filed in advance and were reviewed by the Court prior to that date. The trial is scheduled to take place on May 14, 15 and 16, 2012. [ 3 ] The first appearance of the applicant, who is normally resident in Jasper, Alberta, after his arrest on March 17, 2010, was the next day in bail court.

He was released on March 18, 2010 on his own recognizance on non-restrictive conditions with the consent of the Crown. [ 4 ] The Court has had the opportunity to review the Record of Proceedings, pre-trial memorandums, certain court transcripts, the Motions Brief and Affidavit of the Applicant, and Motions brief and Affidavit of the Applicant and Respondent, along with related Casebooks.

Record of Proceedings [ 5 ] Record of Proceedings indicates as follows: • March 17, 2010 – arrested for impaired driving; driving over .08 and an HTA offence • March 18, 2010 – released from custody upon entering into a non-restrictive recognizance and posting $500 cash bail on consent of the Crown • August 24, 2010 – trial date set for March 11, 2011 (first trial date). Trial dates had been offered by the Crown to the defence representing 30 separate other dates offered, a block of time from December 10, 2010 to as late as March 25, 2011.

The defence accepted March 11, 2011. • January 28, 2011 – new trial date requested by the defence and consented to by the Crown. The defence indicated they required more time to prepare and assess their case as they were just then given notice of intent of the Crown to call an expert witness for the purposes of extrapolating the breathalizer readings to the time of driving. The defence had had possession of the expert report on this extrapolation since November, 2010, and was contemplating calling their own expert.

The Crown points out that as the particulars disclosed the breath readings to be outside the time limits in the Criminal Code for the admission of the Certificate of Analysis as proof of blood alcohol readings at the time of driving, that the calling of the expert by the Crown for which they had both the report and the notice should not have been a surprise.

• February 4, 2011 – new trial date of October 27, 2011 set (second trial date). The Crown had offered dates on at least 30separate dates, as early as April 26 and as late as October 27, 2011. The defence accepted October 27, 2011, after a second set of dateswas offered, a first set of dates ending August 26, 2011 being not available to defence counsel. • October 27, 2011 – trial could not proceed as there was not a judge available.

The transcript of proceedings indicates thatthere were insufficient institutional resources, namely a judge, available to deal with this trial and also proceed with other trialsscheduled. On the same day, new dates of May 14 and 16, 2012 were offered and “held” by the Court pending the holding of a CaseManagement hearing which is required in Manitoba Provincial Judges Court for multi-day matters. As well, multi-day trial matters areassigned a trial judge several weeks in advance, which is not the case for single day trials.

These dates were accepted and confirmed, butthe defence indicated they were not waiving any delay past October 27, 2011. • October 27, 2011 to January 31, 2012 – Case Management hearings determined that now 3 days were required for the trialand May 16 was also made available, accepted and confirmed. [6] Subsequently the accused made this application. Point in Issue [7] Has the Applicant demonstrated that there has been a breach of s. 11(

b) of the Charter of Rights and Freedoms and, if so, isthe appropriate remedy a stay of proceedings? The Law [8] The law with respect to an Askov Motion is uncontroversial. [9] A judicial stay is an exceptional remedy and is generally to be granted only in the clearest of cases. A somewhat lesserstandard is applicable to s. 11(

b) breaches as opposed to s. 7 breaches in the nature of abuse of process. Usually, but not always,regarding s. 11(

b) breaches a stay of proceedings also means that an accused has suffered actual prejudice as a result of the delay. [10] Only delays that are prima facie unreasonable will engage the attention of the Court and demand an analysis of the factorsarticulated in the jurisprudence of the Supreme Court of Canada. See Askov and R. v. Morin, (SCC), [1992] 1 S.C.R.771. Steel J.A. summarized these factors in R. v. George (D.P.), 2006 MBCA 150, 208 Man. R. (2d) 300.

She wrote (at paras. 23-24): In Askov and Morin, the Supreme Court of Canada developed the factors to be weighed and balanced in determining whether there hadbeen an infringement of s. 11(b). These include: • the length of the delay; • any waiver of time periods; • the reasons for the delay, including • inherent time requirements of the case; • actions of the accused; • actions of the Crown; • limits on institutional resources; and • other reasons for delay; and • prejudice to the accused. [11] As well, the interests of the accused must be balanced with the interests of society in law enforcement.

The societal interest inhaving cases disposed of on their merits must be considered before concluding that a stay is warranted.

As the seriousness of the offenceincreases, so does the societal demand that the accused be brought to trial. [12] When assessing the delay and the reasons for it, care must be taken not to be overly mathematical as the approach is one ofweighing and balancing all of the factors to determine “whether, in all the circumstances, the constitutional right of the accused to be tried within a reasonable time has been infringed”.(George, at para. 81) [13] Waiver of delay must be clear, unequivocal and informed as to the effect of the waiver.

The Crown has the onus to provewaiver. “Conduct of the accused that falls short of waiver, but that does make a contribution to delaying the proceedings will be taken intoaccount in evaluating the reasonableness of the delay”. (George, at para. 40) [14] Such conduct includes adjournments requested by the defence not amounting to waiver. Prejudice may be inferred from delayalone, but it is not an irrebuttable presumption: “Prejudice is more likely to be inferred from a lengthy delay where the accused’s actions did not in any way contribute to the delay.”(George, at para. 74)

[ 15 ] While s. 11(

b) does not apply, s. 7 may in appropriate circumstances afford a remedy. This is simply the application to delay of the Court’s power to remedy an abuse of process which is enshrined in s. 7 as a principle of fundamental justice. [ 16 ] It should be, and is noted, that despite previous jurisprudence about a stay of proceedings being given only “in the clearest of cases”, this is a standard routinely applied to abuse of process arguments, and a lesser standard, in the nature of “extraordinary circumstances” is the test for a breach of the right to a speedy trial, thereby contrasting s.7 and s. 11(

b) remedy standards. Analysis [ 17 ] The time frame in question in this matter is 26 months, from date of charge, March 15, 2010 to date of Trial (third trial date) of May 14, 2012. [ 18 ] The 26 months from charge to Trial is outside of the guidelines of the Supreme Court in Askov and Collins and warrants a review by the Court. Such a delay for an out of custody matter trial matter, complicated by the fact that the first two trial dates required one day while the current third trial date requires 3 days, is in technical breach of those guidelines, giving rise to legitimate Charter of Rights and Freedoms s. 11(

b) constitutional guarantees to a speedy trial. [ 19 ] Five and a half (5½) months from charge to first appearance to the date of setting of the first trial date is neutral as exigent circumstances existed to warrant a lengthy first appearance delay, predicated on the out of province status of the Applicants and the attendant delays thereby occasioned to retain and instruct counsel. [ 20 ] Six and a half (6½) months from appearance to set the first trial date is neutral as necessary to accommodate institutional resource availability and is not outside Morin guidelines.

The totality of 12 months from the day of arrest to the first trial date of March 11, 2011 as noted can be attributed to the inherent pre-plea requirements of this particular matter and was a normal procedure and time delay to trial in Manitoba Provincial Court. [ 21 ] This matter was agreed by counsel to be a 1 day trial case. This was the understanding for the first trial date of March 11, 2011 and the second trial date of October 27, 2011. The Applicants did not protest this delay or any of the delay to up to and including October 27, 2011.

There is no indication in the record to indicate that defence counsel sought or was anxious to have an earlier date. [ 22 ] A good deal of the argument before me fixed on the vital period between the first trial date and the second trial date and to whom responsibility for this 61/2 month delay should attribute. In my opinion, this must be attributed to the accused. Counsel for the accused is experienced.

This appears to be a simple drive impaired, over .08 where particulars would have appeared to reveal to competent counsel that an over .08 conviction would mandate the Crown to call the breath technician and an expert to extrapolate the breath readings to the time of driving, which was beyond the time frame for the Crown to simply file a Certificate of Analyst on notice. Indeed, the receipt of the expert report by the defence in November, 2010 could not have left counsel in doubt.

However, it was only in January 2011, when the Crown gave formal notice of intention to produce the expert extrapolator of blood alcohol readings, that the defence appears to have fully turned its attention to what should have been obvious – that the Crown was going to call an expert.

Although I, as did the Crown who consented to the adjournment request, accept at face value that the defence needed more time, and as there was no prejudice to the Crown case, the issue remains as to the weight to be attached to this defence generated delay in assessing the overall reasonableness of the entire 26 month delay. [ 23 ] I have noted that the disclosure and requests for disclosure provided to the defence in this matter has been immense, outside the norm and highly responsive by the Crown.

The disclosure history, as evidenced in the attachments to the affidavit filed by the Crown, indicates that after March 11, 2011 (the first trial date), defence requested and received a large amount of material that related to the functioning, calibration and usage history of the breathalizer machine, anticipating an alternative form of defence that would not have been capable of being raised at that second trial in the absence of this particular requested disclosure.

This would evidence that defence strategy had shifted or had been added to, having nothing to do with the lack of time to prepare for a contest involving alcohol extrapolation expert witness.

The defence has put the delay occasioned by the first trial date adjourned to good use to bolster its defence position. [ 24 ] In my opinion the time frame from March 11, 2011 to October 27, 2011 is entirely the responsibility of defence and that time frame has been implicitly waived. [ 25 ] More problematic is the delay occasioned from the second trial date of October 27, 2011 to the current trial dates of May 14, 16, and 17. Complicating the analysis is the fact that now, being as of October 27, 2011, now 3 days of trial are required, following Case Management hearings.

As opposed to the one day said to be required for the first two trials. The Court is left with some confusion as to how a one day trial, set twice, the second time in full knowledge by the defence of both the case it is to meet and the case it wishes to present, which was unchanged in the interim, now morphs into a 3 day trial. Multi day trials cannot be accommodated by institutional resources as readily as 1 day trials. Normally, multi-day trials will be further off.

Nevertheless, and this is worth emphasizing, the Court was able to provide new multi-day trial dates on the very same day that the Court could not hold the scheduled (for the second time) one day trial on October 27, 2011, the Court offering and holding dates less than 7 months thence. [ 26 ] I do assign the entirety of those seven months of delay to the lack of institutional resources that is entirely not to be assigned to the defence. [ 27 ] Of the 26 month total delay I provide the following conclusions as to individual time frames: • March 17, 2010 (arrest) to August 24, 2010 (date plea entered and first trial date set for March 11, 2011): Inherent time requirement • August 24, 2010 to January 28, 2011 (new trial date requested by defence): Neutral, as within Morin guidelines regarding March 11, 2011 trial date previously fixed

• January 28, 2011 to March 11, 2011: Neutral, as in advance of first accepted trial date, within Morin guidelines • March 11, 2011 to October 27, 2011: Waived by defence. [ 28 ] In regard to this waiver, it is incumbent upon defence to state on the record or to the Crown that they either do not waive time periods or otherwise indicate some desire or anxiousness to proceed expeditiously to trial, or run the risk, as in this case, of the Court determining, in the absence of any evidence to the contrary, that expeditiousness was not paramount.

In so doing the institution providing the court dates can be alerted and accommodations may be made. No such expression was received and thus no such accommodation was made. Counsel is not encouraged to fall into the habit of accepting trial dates far in advance, not waiving the time delay or protesting, yet advancing delay arguments thereafter. [ 29 ] October 27, 2011 (second trial date) to May 14-17, 2012 (third trial date): attributed to lack of institutional resources.

Clearly the institution is at fault by having insufficient resources to hold the trial. [ 30 ] Askov/Collins and Morin (SCC) have established clear guidelines for delay from time of charge to time of trial, with regard to the s. 11 Charter constitutional guarantees to a speedy trial. Guidelines are not written in stone as a purely mathematical exercise, but are provided as signposts for use by the courts in assessing whether individual cases meet the constitutional guarantee.

Just as deadlines are required and helpful for any given executive task, timelines are required and helpful in assessing temporally sensitive issues that are a component of that task. [ 31 ] The Askov/Collins and Morin guidelines of the Supreme Court of Canada of six to ten months is, in my opinion, a signpost for a routine or average one day criminal trial for an out of custody accused. I accept this timeframe as being the guideline from an analysis of those cases. The Ontario and Manitoba judgments submitted by counsel in their Motion Briefs seem to support that proposition.

It is a signpost from whence other signposts on the road to a judicial hearing can be planted, dependent on the various bumps on the road that may be encountered along the way. [ 32 ] The more complex the Provincial Court judicial hearing, the longer the permitted delay. Complexity is easily measured if the standard to be measured is time. A one day hearing is inherently less complex than a multi-day hearing. The court resources brought to bear to conduct a hearing are directly proportional to the time requirements.

The availability of judicial hearing dates are also diminished by any requirement that all multi-day matters be held on consecutive days, as opposed to single days over a short time span. Conclusion [ 33 ] Any delay may be waived. Although a delay in the right to a speedy trial is constitutionally guaranteed, the guarantee can be waived. The waiver may be explicit or it or it may be implicit. Any consent, explicit or implicit, should be actually or demonstrably an informed consent.

Any waiver must be reasonable given the applicable guideline and any other complicating features of the matter. [ 34 ] In my opinion the Applicants have demonstrably waived, prior to October 27, 2011 the prima facie violation of their right to a speedy trial, in an informed manner. No clear protest was made. There was no ‘acquiescence to the inevitable’ prior to October 27, 2011, more an acceptance of the normal. The defence was better prepared having received much more disclosure on specific points unrelated to the extrapolation issue than was the case prior to the first trial date.

Not only was the accused not prejudiced, he was advantaged. [ 35 ] In regard to waiver, reliance is made to the dicta at paragraphs 31 to 34 from the Manitoba Court of Appeal Decision in R. v. Nikkel (D.J.), 2009 MBCA 8 : “31. Key to the Trial Judge’s findings of waiver was the fact that the accused was represented by counsel who consented to adjournments and Trial dates “without expressing his objection to the delay that will inevitably be the result of such an adjournment” (at para. 39). 32. The accused argued that the Trial Judge erred in finding that these consents were waivers of delay.

It is true that consents are not necessarily waivers, but they can be, depending on the circumstances. Here, the Judge considered the record and the evidence before him and inferred from the lack of objection or comment (except for one comment, which I will refer to in a moment) from the accused’s counsel that such consents were waivers. He was entitled to do so, and his findings are entitled to deference. An accused concerned with delay normally puts such concern on the record, through counsel.

In any event, even if the consents were not waivers per se, I am of the view that they relate to periods of time that are attributable to the accused. 33. The Crown appears to have been more concerned about delay than the accused, at least early on in the proceedings. When the accused sought his adjournment of his first Trial in March 2004, the Crown expressed concern about delay and did not consent to the adjournment. Similar concerns were expressed on August 9, 2006, when the accused’s lawyer requested a traversal in Assignment Court.

The accused, through his counsel, raised the issue of delay for the first time at the October 2006 Resolution Conference. As noted earlier, the Askov Motion was then filed in June 2007 and argued just before the second Trial. 34.

In my view, this lack of action to bring his Motion forward in a timely way is not demonstrative of an accused concerned about delay; nor is his Affidavit in Support of his Motion, which does not point to any concerns that he had about the delay at the time of the adjournments or the setting of trial dates.” [ 36 ] The accused in this matter has brought his Motion in a timely manner and that is not in issue. [ 37 ] In

summary, of the 26 month delay from time of arrest to time of the third trial date, the only time frame that is to be nominally attributable to lack of institutional resources and hence the Crown is the 6 and one half months from August 24, 2010 to March 11, 2011 and the 6 and a half months from October 27, 2011 to May 15, 2012, a total of 13 months. [ 38 ] Although this is outside the guidelines of Morin it is not by a great deal. As well, the Court must take some accounting of the

fact that when the first two trial dates were eventually set, on each occasion much earlier trial dates were offered by the Crown. The clock does not stop running on delay issues as of the first date of a block of dates offered by the Crown, but defence must be reasonably available at some time thereafter, or risk the Court stopping the clock some time thereafter.

Where, as in this case, the defence chose trial dates some months later than the first dates offered, and not complained of in any manner, the defence cannot claim that at least some part of the delay, from the date of the first date offered by the institute, should be attributed to the defence. This happened twice. [ 39 ] Some balance is required. Accused have the right of choice of counsel, and counsel cannot open their calendars to any date offered by the Crown. The Crown and the institution it represents, the Courts, have the right to fair availability of that counsel.

The clock does stop running at some point between the first day offered and the last day offered, which may be the actual trial date. Where much of the delay is due to the unavailability of counsel prior to the fixed trial date there must be a reduction in the delay attributable to the lack of institutional resources, especially where the institution has offered a plethora of different dates much in advance of the date for trial that was eventually accepted.

And this happened on two occasions, just to repeat. [ 40 ] I do not accept the position of the defence as advance in the Affidavit of the applicant that he has been grossly prejudiced by the pending 26 month delay. The normal strains, stresses and concerns of anyone facing a criminal allegation is not sufficient to ground meaningful prejudice as that term is used in the narrow Askov analysis sense. That the applicant may lose a job, lose monies, feel shame, to be subject to disclosure to an employee are all prejudices from being charged and possibly convicted, not from the delay.

Delay alone in itself may be prejudicial because these normal strains become abnormal merely by the passage of time, but that is not the case here. I appreciate that there is some financial and temporal inconvenience being visited upon the accused as a result of the second trial date of October 27, 2011 not occurring, but prejudice should not be confused with the mere consequences of criminal jeopardy.

In addition, there is no prejudice to his right to make full answer and defence and it is arguable that this right has been enhanced by now knowing and receiving 3 days of trial as opposed to the one day that had been required on two prior trial dates. In fact these 3 days of trial are necessitated by the defence now apparently advancing multiple issues that it was not intending to previously advance, which could not reasonably have been completed on October 27, 2011 in any event, which is evidenced by the fact that we do now have 3 days of trial, approved as necessary by a case management judge.

It appears that delay would have been inevitable on October 27, 2011 in any event, solely because of the shifted nature of the defence. [ 41 ] Financial costs associated with a criminal trial as referred to by the applicant are insufficient to establish the kind of delay prejudice contemplated by s. 11 (b). It is only prejudice that relates, to the actual delay, as opposed to prejudice from the fact of being charged and being subject to the vicissitudes of being charged.

Living at a distance from the loci of trial, and incurring the extra expenses inherent are not, in most circumstance, as in this one, is not related to delay prejudice. [ 42 ] The 13 month delay total attributable to institutional delay is a “gross” number. It must be reduced to a net number or range, because of the unavailability of defence counsel on much earlier dates than those accepted. I purposely do not use a rigid mathematical formulation for my conclusion to reduce, but a reduction is warranted for the reasons indicated, which brings, in my opinion, the overall delay within Morin guidelines.

The Charter , to be used as a shield only, should not be wielded as a sword. The purpose of s. 11(

b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or inaction by the accused which is inconsistent with a desire for a timely trial is something which the court must consider.

There was little action to expedite the trial of this matter at any time that I can determine. [ 43 ] In the overall circumstances of this case, and in assessing the overall delay of 26 months, and the particular delay attributable to lack of institutional resources, my conclusion is that the defence has not met its’ burden of probable demonstration of a violation of Morin guidelines, and therefore there is not a breach of the right to a speedy trial or a violation of the Charter . [ 44 ] The application/motion is dismissed. There will be a trial on the merits. Original signed by: SANDHU, P.J.