R. v. Turner, 2010 ONCJ 153

Citation: R. v. Turner, 2010 ONCJ 153 ONTARIO COURT OF JUSTICE BETWEEN: ) ) C. Stratos for the CrownHER MAJESTY THE QUEEN ) ) ) — AND — ROBERT TURNER ) ) G. Lafontaine for the applicant ) ) ) ) ) ) lipson J.: RULING ON

SECTION 11(

b) CHARTER APPLICATION [1] Mr. Turner seeks an order pursuant to section 24(1) of the Charter to stay the charges of impaired operation and refuse breathsample on the basis that his right to be tried within a reasonable time pursuant to

section 11(

b) of the Charter has been violated. Chronology of the case [2] On April 25, 2008 the applicant was arrested and charged for impaired operation and refuse to provide breath sample. Theinformation was sworn on May 6, 2008. On his first court appearance on June 10, 2008 Mr. Turner appeared with duty counsel andreceived substantial disclosure including the charge screening form, CIPS materials, the breathalyser test record, the police officers’notes, certificate of analysis and the breath technician’s notes and report.

At his second appearance on July 3, 2008 the accused hadalready retained counsel and the Crown provided the booking/breath DVD. The student from Mr.

Lafontaine’s law office advised thecourt that counsel would be conducting a Crown pre-trial and the matter was adjourned to July 24, 2008. [3] On July 23, 2008 the defence made a written request for further disclosure of audio recordings of communications between officersand dispatch and other audio police communications concerning the events and the ICAD report that summarizes those transmissions.On the third appearance of July 24, 2008 the Crown advised the court that the requested audio transmissions are not normally disclosed.The defence requested an adjournment to August 14.

The Crown did order the ICAD report but in a letter to counsel dated August 1,2008 the Crown took the position that sufficient disclosure had been provided for the defence to conduct a pre-trial with the Crown. OnAugust 14, 2008 the defence requested a further adjournment to September 4 to obtain the disclosure of the ICAD report. On September4, 2008 the defence again requested an adjournment to September 16, 2008. On September 9, 2008, counsel conducted a telephone pre-trial with the Crown.

The court was advised that the Crown undertook to disclose the audio transmissions in addition to the ICAD report.On September 16, 2008 a student appeared for Mr. Lafontaine but could not conduct a judicial pre-trial. Only counsel is able to do that.Counsel attended on September 19, 2008 and conducted a judicial pre-trial. The ICAD report and the audiotapes were still outstandingwhen the trial date was set but counsel was content to set a trial date of September 25, 2009.

The court was advised that the ICAD reportwas printed out on September 15, 2008 and a CD containing the audio transmissions were made available to the defence in January,2009. The trial date of September 25, 2009 was adjourned because the defence was missing certain set date transcripts needed for a section11(

b) application. The defence waived delay from the time of the first trial date to the present. The

section 11(

b) analysis [4]

Section 11(

b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. In R.v. Morin (SCC), [1992] S.C.J. No. 25, the majority of the Supreme Court of Canada held that the primary purpose of theprovision is the protection of the rights of the accused to security of the person, liberty and a fair trial. Speaking for the majority, JusticeSopinka stated at para. 28: The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure tocriminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result frompre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take

place while evidence is available and fresh. [5] Justice Sopinka recognized a secondary societal interest that is protected by

section 11(b), namely, that those accused of crimes bebrought to trial and dealt with according to law. The decision as to whether s. 11(

b) has been infringed is not to be made “by the application of a mathematical or administrative formulabut rather by a judicial determination balancing the interests which the

section is designed to protect against factors which eitherinevitably lead to delay or are otherwise the cause of delay.” Some delay is inevitable. The question is when is it unreasonable? Thatquestion is to be answered in light of the following (Morin, para 31): 1. The length of the delay; 2. Waiver of time periods; 3. The reasons for the delay, including (

a) Inherent time requirements of the case; (

b) Actions of the accused; (

c) Actions of the Crown; (

d) Limits on institutional resources; and (

e) Other reasons for the delay; 4. Prejudice to the accused. The length of the delay [6] The total period of time commencing from the swearing of the information on May 6, 2008 to the original trial date of September 25,2009 is approximately 16 months and 19 days. The Crown concedes that this length of time warrants inquiry. Waiver of time periods [7] The applicant expressly waived the period of delay after September 25, 2009. This period of time should not be considered in theoverall delay or towards prejudice.

Reasons for delay including inherent time requirements of the case and actions of Crown and defence [8] By the time of the second appearance on July 3, 2008, the Crown has provided substantial disclosure including the booking roomDVD. By that date the applicant had retained counsel. A further defence request was made to adjourn the case to July 23 in order toreview the disclosure and conduct a Crown pre-trial. The period of delay between May 6 and July 23, 2008 is fairly characterized asneutral intake.

This period of inherent delay is, in my view, reasonable and appropriate for a drinking and driving case such as this. The delay from July 23, 2008 to September 19, 2008: The ICAD issue [9] While substantial disclosure was completed by July 3, 2008, the defence did not conduct a Crown pre-trial until September 9,2008 nor a judicial pre-trial until September 19, 2008. The Crown argues that the delay between July 23 and September 19, 2008 isattributable to the actions of the accused.

The defence submits that the delay resulted from the Crown’s failure to disclose the requestedICAD report and police radio communications relating to the investigation. [10] It is not disputed that the ICAD report and audio transmissions would be information that meets the Stinchcombe test forrelevance. Relevance for the purpose of disclosure is broadly defined and includes any information that could reasonably be used by theaccused for the purpose of making full answer and defence: R. v. Dixon (SCC), [1998] 1 S.C.R. 244 (S.C.C.) at para.21, R. v. Chaplin, (SCC), [1995] 1 S.C.R. 727 (S.C.C.) at para. 27.

The Crown had a duty to provide what wasrequested by the applicant as part of its continuing disclosure obligation. [11] The issue here is whether the applicant had sufficient disclosure by July 23, 2008 to set a trial date? The applicant submitsthat since the Crown agreed on August 1, 2008 to provide the ICAD report and then on September 9, 2008 to provide the defence withthe radio transmissions, it was reasonable for the defence to delay setting a trial date until September 19 after conducting a judicial pre-trial. Mr.

Lafontaine argues that it should not have been necessary for the defence to debate this disclosure issue with the Crown forseveral weeks. As it was, counsel, in an effort to move the case along, agreed to set a date once the Crown undertook to provide theaudiotapes. It was submitted that the delay between July 24 and September 19 should be attributed to the Crown. [12] The Crown submits that the defence was in a position to set a date for trial by July 23, 2008.

The outstanding disclosure,namely the ICAD report and audio transmissions, was not of such a vital nature so as to prevent the applicant from setting a trial date.The Crown submits that the actions of the accused caused the delay between July 23 and September 19, 2008. [13] It is not contested that by July 3, 2008, the Crown had fulfilled its initial disclosure obligations. The Crown had acontinuing obligation to provide disclosure of the ICAD report and the radio transmissions. [14] However, the Crown is not obliged to disclose every last bit of evidence before a trial date is set: R. v. Kovacs-Tator 2004

42923 (ON CA), [2004] OJ No. 4756 (C.A.) at para. 47. [15] One can envisage drinking and driving cases where the ICAD report and radio transmissions would be of such importanceto defence preparation and the issues at trial that no trial date could be set without their prior disclosure. One example is where policeradio transmissions might possibly expose an arbitrary detention by officers of an accused. Another example is a case where the arrestingofficer relies on hearsay information relayed via the police radio for the requisite grounds for an approved screening device orintoxilyser demand.

A further example might be where there is an issue relating to timing and the “as soon as practicable” requirementfor the taking of the breath samples. [16] In my view, the delay in the disclosure of the ICAD report and radio transmissions in this case should not have preventedthe applicant from setting a trial date. According to the materials submitted by the parties in this application, the arresting officerobserved the alleged impaired driving conduct of the applicant.

Counsel for the applicant has not been able to point to anything in thecase that would lead the court to conclude that such disclosure was necessary before a trial date could be set. [17] I do not take issue with the position of counsel that he reasonably expected to receive some of the requested disclosuremuch earlier than he did. In its August 1, 2008 letter to counsel, the Crown’s office indicates that the request for the ICAD report wasbeing sent to the officer in charge of the case and would be disclosed as soon as the Crown’s office received it.

During the August 14,2008 set date appearance, Crown counsel agreed to a further return date of September 4, 2008 so counsel could get the disclosure. Bythe time of the Crown pre-trial and judicial pre-trial counsel was prepared to set a date for trial on the basis of an undertaking by theCrown to provide this disclosure before the trial date.

I conclude that there was sufficient uncertainty about whether and when therequested disclosure would be provided to the defence so that it is not reasonable to attribute the delay to either the defence or Crown.On one hand, the applicant was in a position to conduct a judicial pre-trial and set a date by July 23, 2008. The Crown’s office had urgedhim to do so in its letter of August 1, 2008. On the other hand, it is clear that by July 3, 2008, the applicant had been provided with allmaterial usually disclosed in impaired driving and refuse sample cases including the booking/breath DVD.

In my view, the Crown hadfulfilled its initial disclosure obligations by July 3, 2008. While the Crown had a continuing obligation to make disclosure of the ICADreports and radio transmissions, the Crown is not obliged to disclose every last bit of evidence before a trial date is set. The lack ofcomplete disclosure does not provide justification for refusing to set a trial date. I am satisfied that the applicant had sufficientinformation to know the nature of the case against Mr. Turner in order to conduct the necessary Crown and judicial pre-trials and set atrial date.

Yet it must also be said that it was not unreasonable for counsel to think that he might be receiving at least the ICAD reportbefore having a judicial pre-trial. In these circumstances I am prepared to characterize the delay between July 23, 2008 and September19 when the trial date was set as part of the neutral inherent time requirements of the case. [18] I am also satisfied from the record that the actions of the Crown did not delay the proceedings in any meaningful way. TheCrown fulfilled its disclosure obligations in this case.

Institutional Delay [19] The period of institutional delay runs from the time both parties are ready for trial but the system cannot accommodatethem. The delay from September 19, 2008 until September 25, 2009 is institutional delay. This period is 12 months and 6 days. [20] The operative delay in this case is 12 months and 6 days. Prejudice to the accused [21] Whether or not the applicant’s 11(

b) rights have been violated will depend to a great extent on the degree of prejudicesuffered by the applicant. The more prejudice an applicant suffers, the stronger is his interest in being tried within a reasonable time.Prejudice can be inferred from the length of the delay or proven by evidence.

The case law establishes that the prejudice the courts areconcerned with is that arising from delay in processing or disposing of the charges against the accused and not the impairment orprejudice arising from the fact that the applicant has been charged. [22] Here there is no allegation that the prejudice suffered by the applicant relates to his ability to receive a fair trial and makefull answer and defence. Nor is there any suggestion that any liberty interest has been compromised. Mr.

Turner was released on apromise to appear. [23] The applicant bases his claim of prejudice on the stress and anxiety of waiting for the resolution of his case. Unfortunately,he injured his leg while working as a recycle operator for the City of Toronto in November, 2006. He later reinjured his leg and has notbeen able to return to work. He supports himself with money received through the Work Injury Support Board. In his affidavit andtestimony in the application, Mr. Turner spoke of his concern that if convicted of these offences, he could lose his employment with thecity.

He also believes that the stress and anxiety of waiting for trial has had a significant impact on his overall health and slowed therecovery process of the injury to his leg and has hindered his resumption of employment with the city. [24] It is difficult to assess the claim of the applicant that the stress of the delay in his case has hindered the recovery process ofthe leg injury. He is being treated by medical professionals and has been involved in a Pain Management Program. However, there is anabsence of medical evidence to support Mr. Turner’s position.

Nor were any of the applicant’s health concerns ever communicated bycounsel to the court in any of the set date appearances before the first trial date was set. It is also clear that Mr. Turner’s anxiety reallyrelates to the fact that he is facing these charges and the potential adverse effects on his employment and union leadership aspirationsshould he be convicted. As in any case involving a delay of this length, there is here some inferred prejudice. However, I find that thespecific prejudice alleged by the applicant is linked to being charged as opposed to the delay in the case.

In the absence of medicalevidence to support Mr. Turner’s claim that his recovery from his leg injuries has been adversely affected by the delay, I am notpersuaded that a case for specific prejudice has been made out. The balancing of interests [25] A

section 11(

b) analysis requires a proper balancing of interests of society and the accused. The allegations underlying

these drinking and driving charges are serious in that they involve very poor driving conduct while impaired by alcohol followed by refusing to provide breath samples. In other words, there is a significant societal interest in having these charges determined on the merits of the case. [ 26 ] The operative delay from September 19, 2008 until September 25 th , 2009 is attributable to institutional delay. I note that when the trial date was set, counsel for the Crown and defence did not indicate if earlier dates were available or whether counsel for the applicant was available for trial on an earlier date.

Assuming that September 25, 2009 was the earliest date the court could provide, defence counsel did not raise 11(

b) concerns at the time the trial date was set. [ 27 ] The 12 ¼ months of delay in this case is outside the Morin guidelines of 8-10 months. The Morin guidelines are not meant to constitute a firm limitation period and deviations of several months in either direction can be justified by the presence or absence of prejudice. I have concluded that any prejudice to the accused is really the result of being charged and the potential consequences of conviction as opposed to the delay in bringing this case to trial.

After balancing the interests of society and the interests of the accused, I am not persuaded on a balance of probabilities that Mr. Turner’s right to be tried within a reasonable time as guaranteed by

section 11(

b) of the Charter has been violated. [ 28 ] The application is dismissed. Released: April 23, 2010 Justice T. Lipson