R. v. Collins, 2011 ONCJ 830

Information No. 10-721 Citation: R. v. Collins , 2011 ONCJ 830 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. GARY M. COLLINS R E A S O N S F O R R U L I N G BEFORE THE HONOURABLE JUSTICE B. PUGSLEY on December 12, 2011, at ORANGEVILLE, Ontario APPEARANCES : D. GARBATY Counsel for the Crown D. LENT Counsel for G. Collins MONDAY, DECEMBER 12, 2011 R E A S O N S F O R R U L I N G PUGSLEY, B. (Orally):

Thank you for your patience. It’s indeed ironic that I’m now returning to give my decision, almost exactly four hours after westarted this four hour trial, and we haven’t actually started the trial. This is my decision on the

Section 11(

b) application. Gary Collins faces charges of impaired driving and driving with excess alcohol. At the commencement of the trial, the defendantmoves for a stay of proceeding based upon a breach of his right to be tried within a reasonable time under

Section 11(

b) of the CanadianCharter of Rights and Freedoms by way of

Section 24. The offence date alleged in the information before the court is June 13th, 2010. Today is December 12th, 2011, a delay of 18months. Counsel correctly concedes that this delay requires examination by the court. Today is the third time the case has come before this court for trial. On the first date, the trial did not proceed due to the suddennon-availability of the defence counsel due to a death in his family. On the second date for trial, the matter was scheduled to proceed behind a continuing trial which was set for a half day to complete.

In fact, that trial did not take only ahalf day, but instead, took the entire court day and, indeed, spilled over onto a third day, double the original time estimate of that trial. When it became clear that Mr Collins’ trial would not be reached, counsel obtained a new date from the trial coordinator, and that datewas today. From the start, on each occasion, counsel agreed that the matter should be scheduled for a four hour trial. That trial time estimatewas not modified by the defence in anticipation of this

Section 11(

b) application, which commenced at 9:40 a.m., and continued insubmissions for 1½ hours. How counsel’s own trial estimate remained unchanged is a mystery. The crown relies heavily upon the

summary conviction appeals in Regina v. Lahiry, Regina v. Carriera, Regina v. Davidson andRegina v. Shelson, all heard together by Mr. Justice Code of the Superior Court of Justice, and the subject of His Honour’s OmnibusDecision now recorded at 2011 ONSC 6780 , [2011] OJ 5071 on November 16, 2011. For convenience, I’ll cite Justice Code’sdecision as Lahiry. The defendant submits that Lahiry is flawed in that there are higher court decisions which are not cited by Justice Code andwhich remain binding upon me.

More specifically, broadly summarized, the defendant submits that Justice Code’s focus on the startingpoint for a consideration of institutional delay as the date when the parties are ready for trial, turns the law in a new and improperdirection from the long established practice of assessing the time between the set date court and the trial date. A full analysis of Lahiryand its effect on the assessment of

Section 11(

b) delay will, it seems to me, have to wait until another day. Given that the defendant chose to bring this application on the trial date, and that the application is properly considered in itsentirety before the evidence in the trial proper is called, there is not sufficient time to consider the full import of the wide range of caselaw filed by the defendant totalling two Books of Authority and some 53 cases. Mercifully, only selected cases were actually cited bycounsel in submission. Further, and ultimately, in determination of the application, in my view, regardless of whether Lahiry sets a new standard inSection 11(

b) case law, or merely refines the existing process, on the facts of this case, the consideration of

Section 11(

b) incorporatingLahiry does not lead me to a different result than I would have come to had Lahiry not been released last month. Briefly, my analysis of the delay here is as follows, broadly tracking the rationale set out in the well known case law descendingfrom Morin and Sharma in the Supreme Court of Canada. The information was laid on June 23, 2010. This commenced the criminalcourt process against Mr. Collins and the

Section 11(

b) clock started to run. On July 20, 2010, Mr. Collins made his first court appearance. By that time he had retained counsel and he appeared bydesignation on that day. The matter was the subject of preliminary disclosure and was adjourned to allow for defence and crown pre-trial discussions, being returnable then on August 3, 2010. The crown also made its election to proceed by way of

summary convictionprocedure.

On August 3, 2010, the defendant appeared by agent and the parties selected February 11, 2011, as the trial date for a four hour trial. As is his counsel’s habit, the defence filed a lengthy letter setting out counsel’s available trial dates. Those dates were as early as nine days after August 3 rd , 2010. In this jurisdiction, as is often the case elsewhere in the province, counsel and the representative of the appropriate police force attend upon the trial coordinator’s office for the purpose of selecting a trial date that is available to the Crown, the defence and to the court.

It is trite to note that the court, on a daily basis, needs to consider a multitude of diverse trial matters for a multitude of counsel, police officers, defence counsel and witnesses and defendants. This is a particularly daunting process in a small jurisdiction such as Orangeville, where there are only two resident judges at this level of court and the trial coordinator needs to

schedule around the availability of those two judges. This availability is affected by holidays, judicial education dates and other matters each judge is already scheduled to hear. When one local judge has pre-tried the case, not the case in this trial, only the second judge’s

schedule is routinely then available for the trial of that case. This is a roundabout way of noting that one size fits all rules of thumb, with respect to delay, are ill suited to a small judicial centre, particularly rules of thumb constantly referenced by counsel that come out of very large judicial centres such as Toronto or Brampton. Here, the trial coordinator offered the parties dates commencing in August 2010, and extending into February of 2011.

Apart from two very early dates, August 17 th and 20 th , defence counsel was unavailable to try the case until February 11, 2011, on dates that were offered by the court. The trial coordinator’s verification of trial date form sets out the dates that were offered and declined by both crown and defence. Just before February 11, 2011, defence counsel had a death in his family. The funeral was set for February 11 th . Before that date, counsel told the crown that he would be seeking to adjourn the trial. Not surprisingly, the crown did not oppose the adjournment which was granted by the court.

The matter was adjourned a few days to set a new date for Mr. Collins’ trial. On February 15, 2011, the parties once again approached the trial coordinator to select a new trial date. The trial coordinator’s verification form outlines the dates she offered. The first date available to defence counsel was July 8 th , 2011, and July 29, 2011, was selected for the defendant’s trial, again stipulated to take four hours. Notably, the defendant’s trial on July 29, 2011, was to follow a continuing trial scheduled for a half day that morning. I was the trial judge on that continuing trial, Regina v. Charlie Butler .

By mid-day it was clear that the Butler trial was not going to conclude in time to allow Mr. Collins’ trial to be started. Indeed, Mr. Butler’s trial didn’t conclude that day at all. In other words, Mr. Collins’ trial was not reached because the parties in Mr. Butlers’ trial misestimated the length of that trial by a factor of 100 percent. On July 29 th , 2011, counsel again attended before the trial coordinator to reschedule Mr. Collins’ trial. Once again, the trial coordinator’s verification form sets out the dates offered to the parties, and once again, defence counsel provided a letter of his available dates.

The earliest date both offered by the court and available to defence counsel, was today, December 12, 2011. Again, four hours was booked, although by that time, counsel surely knew that an 11(

b) application was pending. As I write this decision, 100 percent of the time scheduled for this trial has already passed, and more than half of the court’s entire sitting day has passed because of Mr. Collins’ 11(

b) application. The crown’s analysis concedes as much as nine months of institutional delay here. The defence submits that the delay is more likely 12½ months. In addition, the defendant claims specific added prejudice here, based on the overall delay and the cost of having to

schedule more than one trial date. My analysis here is briefly as follows: First, as already stated, a delay of 18 months requires that I examine the reasons for that delay. Second, although there is no express waiver of delay, on the occasion of the first trial date, that delay was essentially all caused by the request of the defendant to adjourn the trial for the personal relief of defence counsel. Notably, while we can debate the individual days between February 11, 2011, and July 29 th , 2011, there was no

Section 11 (

b) application brought, returnable on July 29 th . The implicit message is that while

not waived expressly, the defendant was realistically understanding that this delay was caused by a request made on his behalf and accepted the new trial date, had that date proceeded as a trial on that day. When it did not so proceed, however, the entire period must then, of necessity, now be considered and parsed between the court, the crown and the defence. The defence submission is that roughly two-thirds of that time should lie with the crown. The crown submits nearly all of that delay is neutral.

I agree with the defendant that not all of the time between the first trial date and the second ought to count against the defendant, since his adjournment request was very shortly followed up by a pointed statement of the dates available to his counsel for the new trial date. This made it clear that there was no blanket waiver of the delay caused by the defence’s adjournment request. Practically, however, the defendant was, as has been observed, prepared to accept this delay had the trial gone ahead on July 29 th .

Third, the delay here was caused by two factors beyond the institutional availability of the court. The first was a defence adjournment request, already cited. The second was the failure to start the defendant’s trial on July 29 th , 2011. As Mr. Justice Code stated in Lahiry , the issue is not one of fault but rather involves an analysis of the factors set out in Regina v. Morin and summarized by His Honour in Lahiry . I observe first that, save for the unexpected delay caused by a death in defence counsel’s family, the defendant has vigorously sought the earliest trial date available to his counsel of choice.

In the system of fixed date trials, such as we have at this level of court, the reasonableness of a delay must be considered in relation to the multitude of other litigants engaged in each courthouse. We cannot run a system of trials where Mr. Collins’ counsel’s availability alone governs when he’ll have his trial. There are others who come to this court for adjudication.

The difficulty in this case, it seems to me, is that the crown’s submission focuses on the dates offered by the court to the parties, rather than on the dates that could have been offered by the court to the parties were the crown to open a closed date for Mr. Collins’ case, or where the police service would agree to free up witnesses who would otherwise be off duty or on other duties. When a date is set for the first time, there should be no expectation that the crown will consider bumping another scheduled trial, or seek an officer’s attendance on a less than convenient date for the police force.

In my view, however, the same consideration does not apply when a trial has not gone ahead as scheduled, absent of waiver, and is in jeopardy of exceeding the Morin guidelines. In a case such as Mr. Collins’, the crown should be prepared to consider freeing up other, less vulnerable cases, to favour a case that did not proceed due to no fault of the defendant. This is the factor that causes me to fix a delay here that is greater than the nine months or so advocated by the crown.

At the same time, it makes little logical sense to me to fail to consider counsel’s availability whereas here, early dates and more than one or two, were offered by the court. As stated earlier, however, in my view, the use of a Lahiry or pre- Lahiry analysis here leads me to a similar conclusion on the facts of this case. The delay is too long and infringes Mr. Collins’ right under

Section 11 (

b) to be tried within a reasonable time. I find that the last two months of the most recent delay are institutional delay here, not neutral, as the crown would suggest, and that the overall delay is in excess of 11 months, even considering all of the time between February 11, and July 29 th , as neutral, which, in my view, is not the case. Finally, on this point, and in considering Justice Code’s decision, this defence counsel does hundreds of drink-drive cases each year. His preparation time to be ready for court is likely calculated in terms of days, not weeks or months.

With respect to prejudice, up until July 29, 2011, I find that Mr. Collins suffered no more prejudice than he would have suffered from the fact he was charged with these offences. There is, however, some prejudice to be assumed by the overall 18 month delay here, and further, some specific prejudice based on the need for Mr. Collins to pay his counsel for two trial dates, July 29 th and today. Combined with the delay I found here, this is sufficient real prejudice to push what is a case on the margins of the guidelines over into the realm of unreasonable delay.

The overall message here, I think, is that, when a trial is not reached, the set date status quo may

not be sufficient to avoid an unreasonable delay and in the result, these charges are stayed under

Section 24 of the Charter and I thank both counsel for their submissions.