R. v. Lewis, 2011 ONCJ 804

COURT FILE No.: Toronto RegionCitation: R. v. Lewis, 2011 ONCJ 804ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN )M. Mandel, )for the Crown ) — AND — ) ) ) ralph lewis )J. Herszkopf, )for the accused ) ) ) ) HEARD: October 6, December 9, 23, 2011 feldman J.: [1] Ralph Lewis has a January 19, 2012 date for trial on a charge of Blow Over 80. On October 6, 2011, he brought anapplication under s. 24(1) of the Charter of Rights and Freedoms for a stay of proceedings on the basis that his s. 11(

b) right to be triedwithin a reasonable time has been infringed. Chronology [2] Mr. Lewis was arrested on May 29, 2010. For unclear reasons, the Information was not sworn until July 23 and thedefendant not served with a summons until August 12 for a Sept. 14 first appearance. It is accepted in the authorities that overall delaycalculation commences when a person is charged, that is, when the Information is sworn: R. v. Kalanj, (SCC), [1989]S.C.J. No. 71 (SCC), at para. 13. [3] On Sept. 14, Mr. Lewis appeared by designation as he did for almost all of 15 attendances.

Initial, but substantial,disclosure was provided. The Crown indicated that Mr. Lewis was a candidate for the ignition interlock program. Duty counsel askedfor a one month adjournment to complete disclosure. [4] On Oct. 12, an agent for counsel requested the matter go to the plea court on Oct. 18. On that date, counsel suggestedOctober 29 for a possible plea. [5] On Oct. 29, the accused did not resolve his matter and said he wished to have a trial.

Counsel informed the court that hestill did not have a copy of the breathalyser DVD and for the first time indicated he wished copies of the Intoxilyzer testing records. Crown counsel asked that a disclosure letter be sent to his office. Counsel agreed to do so. He did not send a letter until Dec. 8. [6] On Nov. 9, duty counsel asked for two more weeks. On Nov. 16, an agent for counsel informed the court that there wasstill no DVD and requested a return date of Dec 7. Crown counsel again asked that a disclosure letter be sent to his office. [7] On Dec. 7, the agent reported no DVD and asked for Dec. 15.

On Dec. 8, counsel faxed a disclosure request for a copyof the DVD to the Crown’s office and included, in addition, a demand for Intoxilyzer test records. All of this final disclosure wasprovided to counsel one week later on the Dec. 15 appearance. [8] To this point in time, incomprehensibly, the defence had not scheduled a Crown pre-trial. [9] During the Jan. 5 attendance, confusion reigned. The agent came looking for disclosure and was under the impression atrial date had been set.

She was advised to the contrary but still asked for 2 more weeks. [10] On Jan. 18, the same agent asked again about the availability of the DVD and then sought one more week of acontinuance. One may wonder about the level of communication between agent and counsel. There is no transcript for Jan. 25 or anyunderstanding of why the matter went next to Feb. 8. [11] No surprise, on Feb. 8, the same agent was still looking for the DVD and was not prepared to accept the Crown’s word thatit had been provided almost 2 months before. She asked for March 9.

It appears counsel held a telephone Crown pre-trial on March 3,finally paving the way for the setting of a judicial pre-trial [JPT]. [12] It is also worthy of note in relation to the state of defence preparedness that on March 3, as well, counsel faxed a request tothe Crown for maintenance calibration records, evidence disclosed previously on Dec. 15. It would appear counsel was open to conducta Crown pre-trial without this evidence, but not until March. [13] March 9 was a peremptory JPT date. The agent attended to indicate that counsel was unable to attend, although no specificreason was given.

She adjourned the matter to March 22. On that date, the agent attended to advise that counsel was sick and asked forApril 12. [14] This time, counsel attended, as usual by designation, and conducted the JPT, it would appear, without the DVD that he

claimed to have misplaced. It was not made clear if counsel had actually reviewed it prior to the JPT. In perhaps an ironic comment,counsel told the court that in relation to disclosure, there had been no delay on the part of the defence. Legal Principles [15]

Section 11(

b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonabletime. The primary purpose of this

section is to protect the individual rights of those charged. This right contemplates security of theperson, as well as their liberty and fair trial interests. This

section also weighs in the balance society’s secondary interest in ensuring thataccused persons are tried promptly and fairly on the merits: R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1 (S.C.C.); R. v.Qureshi (2004), (ON CA), 190 C.C.C (3d) 453 (Ont. C.A.). [16] The principles to be applied in a stay application for delay are well known and are set out in R. v.

Morin, supra, whichdirects the trial court to consider four factors: length of the delay, reasons for the delay, waiver of time periods and prejudice. [17] The reasonableness of any delay is determined by a balancing of these four factors, taking into account the totality ofcircumstances, including any explanations for delay. The burden of proof is on the applicant to establish on a balance of probabilitiesthat his or her right to be tried within a reasonable time was infringed.

Analysis Operative Delay [18] The operative delay here from the swearing of the Information until trial was approximately 18 months, clearly warrantingan inquiry into its reasonableness: R. v. Morin, supra, at p. 14. Waiver [19] Full disclosure was obtained on Dec. 15. There was no acceptable reason for the defence to delay holding a telephone pre-trial conference until March 3, 2011, as a pre-requisite to scheduling a JPT.

The time from Jan. 5 to April 12 when a JPT was finallyheld and a date for trial set was prolonged in significant part by defence laxity and is properly conceded by counsel for the applicant tobe neutral time. Inherent Time Requirements [20] The intake period is considered neutral time except for any portion that is unnecessarily prolonged. It contemplates thetime taken up in processing the charge, retaining and instructing counsel, applying for bail and other pre-trial procedures and prosecutioncompliance with disclosure obligations.

These are traditional activities of benefit to both parties who are not yet ready to set a date fortrial: R. v. Lahiry et al, 2011 ONSC 680. [21] The more complicated the case, the longer this “neutral” time will be extended: R. v. Morin.. For a relativelyuncomplicated drinking and driving case, it is the experience in this jurisdiction that a time frame of 2-3 months to complete disclosureand conduct a judicial pre-trial is acceptable and is deducted from the total length of the delay: R. v. McCourt, [2005] O.J. No. 6023(Ont. C.J.); R. v. Wilson, [2005] O.J. No. 152 (Ont. C.J.); R. v.

Sabapathipillai, [2010] O.J. No. 4172 (Ont. C.J.). [22] The 5 ½ months of intake, from July 23, 2010 to Jan. 5, 2011, was too long, the problem being the late disclosure of thebreathalyser DVD. The authorities indicate that this is essential evidence requiring timely disclosure prior to a JPT in order to allow thedefendant to make an informed choice as to how best to proceed: R. v. Maxwell, [2006] O.J. No. 4604 (Ont. C.J.). It should be routinelyprovided at or very near to the accused’s first appearance in court: R. v. Godfrey, [2005] O.J. No. 2597 (Ont. S.C.).

It is part of theCrown’s continuing obligation to disclose evidence during the pre-trial process. [23] At the same time, the applicant need express his or her sense of urgency about obtaining a speedy trial by being proactive inthe event disclosure is too slow. That was not done in this case. During part of September and October, the applicant was focused onthe possibility of a resolution permitting entry, despite his antecedents, into a stream of the interlock system. On Oct 29, as noted earlier,he determined to go to trial and noted the absence of the DVD.

Counsel for the accused undertook at the Crown’s request to write aletter to that effect. That was inexplicably not done until Dec 8. [24] I don’t consider the agent’s oral disclosure notice in busy set date courts on Nov. 16 and Dec. 7 helpful in this analysis. That form of notice is unwieldy, unfair to rotating set date Crowns and would lend itself to unreliable and inconsistent results.

Whendisclosure is either late or missing, it is not asking too much of counsel to indicate urgency by formally notifying the Crown’s office,where a structured, but layered system is set up to facilitate the delivery of substantial amounts of evidence in response. [25] On Oct. 29, counsel also put on the record that he didn’t have “any information regarding Intoxilyzer testing etc”. At thetime, he provided no specifics of what evidence he required, but undertook to write to the Crown.

He only did that, as well, on Dec. 8. [26] In relation to the delayed request for this new, but potentially large material evidence, I attach a degree of laches to theapplicant and infer a reduced sense of urgency on his part. It is probable the matter could have moved forward more expeditiously withproper notice faxed to the Crown, as it was on Dec. 8, particularly so in light of the fact that full disclosure was provided one week later. [27] This inference can be drawn, as well, from the fact that the defence inexplicably did not hold a Crown pre-trial until almost3 months after disclosure was complete.

The unnecessary defence delay after Jan. 5 enhances this inference and ultimately tends todiminish any claim of prejudice. [28] In these circumstances, I am of the view that the applicant contributed to a degree to the prolonged intake period. It isdifficult to assign a specific period of time in this regard, but would attribute a minority portion of this time frame to the defence,

bringing this neutral period closer to the line of acceptability, although still somewhat outside the acceptable range for this jurisdiction. Iwould attribute one month of unnecessary delay to the prosecution. Limits on Institutional Resources [29] The period of institutional delay runs from the time both parties are ready for trial, but the system cannot accommodatethem: R. v. Morin. In this case, the trial date was fixed 9 months, 7 days after the parties were prepared to set a trial date. This fallswithin the 8 to 10 month judicial guideline recommended in Morin, one more recently confirmed in R. v.

Godin, 2009 SCC 26 ,[2009] S.C.J. No. 26. In Godin, Cromwell J. cautioned that these guidelines were not limitation periods and that “deviations of severalmonths in either direction can be justified by the presence or absence of prejudice.” [30] Very recently, Code J., in a comprehensive judgment in Lahiry, clarified for trial courts that an important dimension in thedelay analysis, seemingly apparent below the judicial radar at this level and rarely applied, is to be weighed in the balance.

In thisregard, Justice Code said, at para 34, following binding appellate authority, that “once counsel have completed various preliminary stepsduring the intake period and are ready to set a date for trial, they need to set aside sufficient time in their calendars to prepare the newcase for trial and to then conduct the trial”. [31] In effect, counsel’s preparation time is to be considered part of the inherent, not institutional, time requirements.

Importantly, it is to be understood from Justice Code’s analysis that an additional aspect of preparation includes the period from the timethe parties are ready to fix a date until counsel’s first available date for trial, information he or she is bound to provide to the court as partof the calculation: see R. v. Morin, per Sopinka J.; R. v. M.(N.N.) (2006), (ON CA), 209 C.C.C. (3d) 436 at paras.28, 29 and 90 (Ont. C.A.), per Juriansz J.A.; R. v. Schertzer et al (2009) 2009 ONCA 742 , 248 C.C.C. (3d) 270 at para. 71(Ont. C.A.); R. v.

Khan, [2011] ONCA 173, per Karakatsanis J.A (as she then was). [32] Lahiry was an uncomplicated one witness Refuse Roadside Sample case. Justice Code pointed out that “in routine drinkingand driving cases, the amount of time needed to prepare for a short trial is not great”.

On the setting of the trial date, he attributed onemonth and 20 days as inherent time for counsel to accommodate a new case and prepare for it. [33] Following the Lahiry reasoning on this issue of fact in the case at bar, there is no realistic inference on the evidence thatcounsel was immediately ready and available for trial when setting the date, although there is no record of his earliest dates. In thatregard, as in Lahiry, I would attribute one additional month of inherent time to this routine case and reduce this portion of institutionaldelay by that amount to 8 months.

I would, however, add to that one month from the prolonged intake period and, as well, one month ofinherent delay from Feb. 8 to March 9 when the first JPT date was obtained, leading to 10 month of unjustified systemic delay which isat the upper end of the Morin guidelines. [34] In R. v. Campagnaro, [2005] O.J. No. 4880 (Ont. C.A.), the court said: [35] “Where the institutional delay is on the edge of the constitutionally tolerable, the issue of prejudice will be central to theoutcome of the s. 11(

b) analysis. Prejudice can only be assessed on a case-by-case basis. We stress the need for evidentiary support forallegations of prejudice made by the applicant.” Prejudice [36] The relevant prejudice in an s. 11(

b) analysis is, “that which is due to the delay in the proceedings, not that caused by beingcharged with a criminal offence”: R. v. Kovacs-Tatar, (ON CA), [2004] O.J. No. 4756 (Ont. C.A.). [37] Prejudice can be inferred from the length of the delay or be specific to the applicant if established by the evidence: R. v.Campagnaro. The longer an accused must wait for trial, the greater the likelihood prejudice will be inferred and shape the use of theadministrative guideline in the balancing of the Morin factors.

It is by the presence or absence of prejudice that the application of theguideline will then be influenced in either direction: R. v. Morin; R. v. Tricker, [2008] O.J. No. 4147 (Ont. C.J.). [38] Given the overall delay and his role in it, Mr. Lewis has, in these circumstances, asserted only inferred prejudice to hissecurity interests as a result of the overall delay.

As described by Sopinka J. in Morin, this involves “evidence of ongoing stress ordamage to reputation as a result of overlong exposure to the vexations and vicissitudes of a pending criminal accusation.” [39] The extended delay from May 29 until July 23 in swearing the Information is properly considered in this regard, althoughof minimal weight: see R. v. Singh.

At the same time, the accused appeared almost throughout by designation and has not asserted actualprejudice to his liberty or fair trial interests, particularly in light of a reasonably inferred lack of urgency on his part during the intakeprocess. [40] As indicated in Morin, at paras. 62 and 64: “Action or non-action by the accused which is inconsistent with a desire for atimely trial is something that the court must consider…Inaction may…be relevant in assessing the degree of prejudice, if any, that anaccused has suffered as a result of delay…” In this case, prejudice is not a strong factor.

Balancing of Interests [41] In Morin, the court held that an accused’s interest in a trial within a reasonable time must be balanced against society’sinterest in law enforcement that by its nature is adverse to the interests of the accused: R. v. Conway, (SCC), [1989] 1SCR 1659: R. v. Qureshi (2004), (ON CA), 190 C.C.C. (3d) 453 at para. 41 (Ont. C.A.). [42] It is clear that while the presence or absence of prejudice affects the strength of the applicant’s interest in a trial within areasonable time, the seriousness of the offence intensifies society’s interest in bringing an accused to trial.

Drinking and driving chargesare viewed seriously by the court, as indicated in R. v. Bernshaw (1996), (SCC), 95 C.C.C. (3d) 193 (SCC), whereCory J. spoke of the “terrible trail of death, injury, heartbreak and destruction” left by drunk driving that has a far greater impact on

Canadian society than any other crime. [ 43 ] I am mindful that in Morin, McLachlin J. (as she then was), wrote that: “where the accused has suffered clear prejudice, which cannot be otherwise remedied, the balance may tip in the accused’s favour, and justice may require a stay”. That is not this case. Conclusion [ 44 ] On this evidence, following a weighing and balancing of the relevant factors, the applicant has not satisfied me on a balance of probabilities that his s. 11(

b) rights have been infringed. The application is dismissed. Released: December 23, 2011 Signed: “Justice L. Feldman”