2011 MBPC 46, 2011 MBPC 46

Citation No. 2011 MBPC 46 Date: 2011-03-04 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) Libby Standil, for the Crown ) - and - ) ) Daniel Trotter ) Sheldon Pinx, for the Accused ) ) Judgment delivered: ) March 4, 2011 KELLY K. MOAR, P.J. INTRODUCTION [ 1 ] The accused, Mr.

Daniel Trotter, is charged that on December 12, 2008 that he did without lawful excuse refuse to comply with a demand pursuant to s. 254(2) of the Criminal Code of Canada that he provide a sample of his breath into an approved screening device, contrary to s. 254(5) of the Criminal Code of Canada . [ 2 ] On October 8, 2010 he served upon the Provincial Department of Justice a motion that is now before the court alleging that his right to be tried within a reasonable time, as is guaranteed by s. 11(

b) of the Canadian Charter of Rights and Freedoms , has been violated. [ 3 ] On November 17, 2010 this court heard argument from counsel for the accused who indicated that he was seeking a judicial stay of the proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms . Crown counsel opposed that motion asking that the motion be dismissed and the trial be permitted to proceed as scheduled. [ 4 ] As is the usual procedure in these types of applications, the matter proceeded on the basis of documentary materials including the affidavit of Mr. Daniel Trotter and the affidavit of Ms.

Monica Kapoor, both of which were filed as numbered exhibits. [ 5 ] As it relates to the latter, defence counsel did exercise the right to examine Ms. Kapoor on her affidavit and such was done at the hearing on November 17, 2010. EVIDENTIARY BASIS OF MOTION [ 6 ] RECORD OF PROCEEDINGS I. On December 12, 2008 this accused was arrested and charged with the offence of failing or refusing to provide a breath sample. II. The first appearance of the matter occurred on January 12, 2009 and was adjourned to February 9, 2009 at the request of counsel for the accused. This request was not opposed by Crown counsel. III.

The matter next appeared on February 9, 2009 at which time counsel for the accused sought a trial date. A date of April 12, 2010 was agreed upon and the case was adjourned directly to that date for hearing.

IV. When the matter appeared for trial on April 12, 2010 Crown counsel advised that they became aware that the investigating officer had prepared notes of the matter before the court and those had not been disclosed to counsel for the accused. Having said that, I understand Crown counsel did not become aware of those notes until attending on the morning of trial and meeting with the witness police officer. V. As there was now new and relevant disclosure, defence counsel sought and was granted an adjournment to consider the notes and obtain instructions from the accused.

The application by defence counsel was not seriously objected to by counsel. Of note is that there was no information or explanation put before the court at that time as to the reason for the non-disclosure by the arresting officer. VI. On April 14, 2010 the matter once again appeared in court and a new trial date of December 9, 2010 was agreed upon. VII. As previously indicated, the motion alleging unreasonable delay was served upon Crown counsel on October 8, 2010 and a hearing date for the motion was set for November 17, 2010.

At the conclusion of the hearing the matter was adjourned back to the trial date of December 9, 2010. VIII. On December 9, 2010 the court was not in a position to render a decision and thus the matter was reset for March 7, 2011. [ 7 ] EVIDENCE OF MONICA KAPOOR I. Ms. Kapoor is and has been an administrative secretary with the Provincial Department of Justice since December 8, 2008. At their behest, she did file an affidavit in the cause outlining her involvement in the setting of the trial dates for the matter. II.

As previously indicated, counsel for the accused did exercise his right to examine her on the affidavit filed and in my view, her testimony was largely uncontested. III. The actual process in accessing and determining available trial dates was explored with Ms. Kapoor. She indicated that when asked to obtain and provide dates for a matter she initially looks for dates where the court has scheduling availability. She then would cross reference those dates with the availability of the assigned Crown Attorney, which in this case was Ms. Standil.

She would then provide counsel for the accused with those dates where both the court had availability and Ms. Standil herself was available. IV. When asked as to the involvement of defence counsel in this process, Ms. Kapoor agreed and confirmed that at no time is the availability of defence counsel a consideration in this initial process. Given the concept of Crown ownership of files, Ms. Kapoor agreed that the availability of defence counsel is irrelevant in this process of the setting of dates.

It is only the availability of the Crown assigned that is considered when dates are initially being considered and arranged. V. As for the specifics in this case, Ms. Kapoor indicated that on February 5, 2009 she provided counsel with a series of available of trial dates by e-mail. Those dates were July 9, 2009, October 13 & 29, 2009, November 19, 2009, December 18, 2009 and January 8, 2010. Defence counsel was not available for any of the six dates offered at which time additional dates were offered, the first being April 12, 2010 which was set for the trial of this matter. VI. Ms.

Kapoor was made aware that the matter did not proceed on that date and once again she was asked to provide available dates for the trial of this matter. She did provide dates and once again those were dates that considered based on the

schedule of Ms. Standil.

VII. Initially the dates of November 12 & 23, 2010, December 9 & 29, 2010 were offered and then a subsequent offerof May 12, 2010, August 6, 2010 and December 21, 2010 were made available. Defence counsel accepted December 9, 2010 and thatdate was set for the trial of the matter. THE LAW [8]

Section 11(

b) of the Canadian Charter of Rights and Freedoms reads as follows: “Proceedings in criminal and penal matters – Any person charged with an offence has the right, (

b) to be tried within a reasonable time.” [9] The case law is clear that the remedy being sought by counsel for the accused, that is a judicial stay of the proceedings, is anexceptional remedy and one that is to be granted only in the clearest of cases. [10] The general propositions in law pertaining to how one assesses what is an unreasonable delay are well settled. Given that thelaw to be applied is not contested by counsel, I have chosen to speak broadly in this regard. [11] With respect to the issue of delay, it is the applicant, in this case the accused, who bears the onus of proving the Charterviolation.

At the outset, it is only delay which is prima facie unreasonable that will engage the attention of the court and necessitate ananalysis as to the reason for that delay. [12] As is recognized in the leading case of R. v. Morin, [1992} (SCC), 1 S.C.R. 771, the primary purpose of s.11(

b) is the protection of the individual rights of the accused which includes, amongst others, the right to security, to liberty and the rightto a fair trial. There is also the societal interest of law enforcement. [13] In general, s. 11(

b) seeks to have matters heard expeditiously based on the merits of the case. [14] In Morin, supra, the court set out in paragraph 31 that: “The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect against thefactors which either inevitably lead to delay or are otherwise the cause of delay.” [15] The court goes on in paragraph thirty-one to list what are stated to be accepted factors to be considered in analyzing how long istoo long. They are as follows: A. The length of the delay B. Waiver of time periods C. 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; and D. Prejudice to the accused

[16] In the case of R. v. Conway (1989), (SCC), 49 C.C.C. (3d) 289, Madame Justice L’Heureux-Dube provides thefollowing caution at paragraph 24: “…the correct approach is in my view to evaluate the reasonableness of the overall lapse of time. A piecemeal analysis is generally notappropriate.

In a case where each individual period, taken in isolation from the others, may constitute a reasonable delay, the total periodmay nevertheless be unreasonable for the purpose of s. 11(b)…However, nothing prevents a court from focusing on specific time periodswhich may be significant in the overall assessment, as going to the weight to give to specific delays, as opposed to their reasonableness.” ANALYSIS [17] At the outset, it should be noted that this accused is charged with the offence of refusal to provide a breath sample into anapproved screening device without lawful excuse.

It appears to be a straightforward matter that was anticipated to be concluded withinthe one day that was set. I am prepared to characterize this case as one that was not anticipated to be complicated and one that could havebeen finished in the time allotted, if not sooner as suggested by defence counsel in his submission. A. The Length of Delay [18] The accused was initially charged on December 12, 2008 with the offence now before the court and an ultimate trial date ofDecember 9, 2010 was set to proceed.

That time period is about 24 months and Crown counsel has conceded that the elapsed time periodis prima facie sufficient to engage the court in an inquiry as to the reasonableness of the delay. B.

Waiver of time periods [19] It is trite law to say that any waiver by an accused must be clear and unequivocal with an understanding of the right that issought to be protected and knowledge of the effect a waiver will have on that right. [20] In the case at bar, defence counsel asserts that there were no express waivers of any rights by the accused and a review of theevidence tendered would support that statement. [21] However a waiver may be inferred by the court through the actions, or non-action, of the accused.

There is support for theproposition that the mere acquiescence in the setting of a trial date may be inferred as a waiver of the right to complain of unreasonabledelay at a later date. In that case, it is the Crown who has the onus to prove that such an inference is reasonable as it is the Crown whohas the burden of having matters brought to trial. [22] In this regard defence counsel asserts that when the various dates were being set he was merely acquiescing to the inevitablegiven the Crown procedure in obtaining and setting trial dates. He further suggests, as was agreed to by Ms. Kapoor, that the

schedule ofcounsel for the accused is of no consequence in the early stages of arranging trial dates. [23] Crown counsel suggests that there were many additional dates offered to this accused that would have brought this matterbefore the court prior to the first trial date agreed upon and once again prior to the second date that was set.

In fact, Crown counselsuggests that the any of the time that occurred after the first date offered and not accepted by the accused should be accrued to the ledgerof the accused. [24] Specifically, that once the initial date of July 9, 2009 was offered and not accepted, the time from that date until April 12, 2010should not be viewed as an implicit waiver by the accused as he wished to have his counsel of choice and that is the reason for the delay.Similarly, the time from the adjournment of the trial up to the first date offered for the second trial date should accrue to the Crown butanytime thereafter must be put onto the accused and his counsel.

C. The Reason for Delay a. Inherent Time Requirements [25] Inherent time requirements deal with that time required by an accused to retain and instruct counsel, time for counsel to obtainand review the disclosure and time for counsel to provide legal advice to the accused so that he or she may determine their position onthe allegations before the court.

[26] I note the accused was arrested and charged on December 12, 2008. He retained Mr. Pinx to represent him who appeared at thenext remand date of January 12, 2009 where particulars were obtained. The matter was then adjourned to consider them and on the nextappearance date of February 9, 2009, Mr.

Pinx sought a trial date and April 12, 2010 was agreed upon. [27] Therefore the time period between the date of charge (December 12, 2008) and February 9, 2009 when the trial date was fixedcan be said to be a part of the inherent time requirements of a criminal matter and does not occasion to any of the parties specifically. b. Actions of the Accused [28] In this case the accused took no actions that can be constituted to be those of person seeking to delay this matter.

In fact thisaccused took steps to have this matter dealt with expeditiously which is exemplified by his seeking a trial date on his second appearanceon the matter. c. Actions of the Crown [29] It is in this vein that court must address the issue of the adjournment of the trial on April 12, 2010. As is contained within thematerials, this matter had been set for trial for many months. On the date set for hearing I am advised that Crown counsel attended andlearnt that the investigating officer was in possession of notes that had not been previously disclosed to Crown counsel.

That of coursemeant that defence counsel did not have what are certainly agreed to be relevant disclosure. [30] A copy of the notes was disclosed to defence counsel at which time he sought an adjournment of the matter to permit a reviewof the evidence and have a discussion with his client.

This was not opposed by Crown counsel and of importance no explanation wasprovided by the officer or by the Crown for the failure to honor the obligation to disclose all relevant information. [31] As counsel for the accused pointed out in his brief, “…the sins of the police are the sins of the prosecution.” (a comment of Justice Stayshyn in the case of R. Greganti [2000] O.J. No. 34) [32] Then Judge Joyal of the Provincial Court in the case of R. v. Sheikhi [2001] M.J.

No. 523 commented on the implications oflate disclosure as follows: “The adjournment of the September 5, 2000 trial date, because of the late disclosure by the police, led to an adjournment whose resultingdelay must also be attributed to the Crown.” [33] As a result, the delay of the trial from April 12, 2010 to December 9, 2010 resulted solely as a result of the late disclosure ofrelevant evidence by the police officer involved. Neither the accused nor counsel for the accused contributed to that delay and as a resultthe entire time period, in the view of this court, shall accumulate to the Crown. d.

Limits on Institutional Resources [34] Much of the submissions of counsel centered around the issue of when does the “clock start to run” as it relates to the provisionof trial dates, defence availability and the acceptance of a trial date. [35] Crown counsel suggests that once a date is offered, it is that date that starts the clock running on the issue of trial within areasonable time and the time from then on until the start of the trial ought to accumulate to the accused. [36] More specifically, in the case at bar the Crown did offer July 9, 2009 as a first potential date for trial.

That date was notaccepted by the accused as well as a number of other dates. Crown counsel suggests that the time between July 9, 2009 and April 12,2010 ought to be looked at as a waiver by the accused of a right to allege any unreasonable delay. It is accepted that counsel for theaccused was not available for the dates that were offered. [37] In support of that contention, Crown counsel cited the following passage from the case of R. v. Barkman (2004), 2004 MBCA151 , 190 Man. R. (2d) 75, at paragraph 34:

“But for our purposes it matters not whether defence counsel’s agreement for later trial dates amounts to waiver, actions of the accused, or simply an indication of an absence of prejudice; whichever it may be, the agreement stops the running of the clock against the breach of the accused’s constitutional rights to be tried within a reasonable period of time.” [ 38 ] What is important to consider is the context of the statement made by Chief Justice Scott on behalf of the Manitoba Court Appeal.

A review of the facts as found by the trial judge showed a consistent pattern of actions by counsel which cannot be classified as actions of an accused who wanted the matter to proceed expeditiously. e.

Other reasons for the delay [ 39 ] With that background, the Manitoba Court of Appeal offered further clarification at paragraph 36 of the same decision as follows: “While the accused’s desire to be represented by counsel of their choice is both understandable and is supported by authority, there are other interests that need to be taken into account as well…there must be a reasonable balance.” [ 40 ] This issue of balance was discussed in the Supreme Court of Canada case of R. v.

Godin [2009] 2 S.C.R. [ 41 ] In that case, the court was asked to examine a 30 month delay in a matter that was described as being a straightforward criminal case of sexual assault. The accused was initially charged May 2005 and in mid-May trial dates were set for mid-February 2006. Just prior to the start of the trial, Crown counsel disclosed the results of some DNA testing, and then agreed to an adjournment of the proceedings to permit defence counsel a chance to consider the results. [ 42 ] An agreement was struck that there would be a re-election and a one day preliminary hearing would be scheduled.

That date ended up being in September 2006, which was the first date available. Despite the agreement to the date, defence counsel wrote to the court and the Crown asking for an earlier date and provided some 31 additional days of availability for himself. There was no response to this request from the Crown. [ 43 ] On September 15, 2006 the matter was scheduled to proceed but because of scheduling issues in the courtroom the matter could not be heard. A further date of February 5, 2007 was agreed upon.

Committal occurred on that day and the trial in Court of Queen’s Bench was set for November 2007, some 30 months after the date of charge. [ 44 ] Crown counsel advanced an argument on the issue of unreasonable delay that defence counsel was partly to blame as a result of unavailability for an offered date. [ 45 ] The trial judge found an unreasonable delay and directed a judicial stay of proceedings. The Court of Appeal heard the case and overturned the trial judge, finding that there was a waiver of time by the accused when the earlier date was not accepted. [ 46 ] Mr.

Justice Cromwell, on behalf of the Supreme Court of Canada, had the following to say on the issue of trial scheduling at paragraph 23: “Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11 (

b) purposes, require defence counsel to hold themselves in a state of perpetual availability.” [ 47 ] Justice Cromwell adopted the following comment from dissent from the Court of Appeal: “To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not unreasonable.” [ 48 ] In my view, the Supreme Court of Canada has directed the various trial courts to consider the issue of reasonableness when determining when the clock is to start and stop running. [ 49 ] On that basis I cannot accept the assertion of Crown counsel that the clock ought to stop solely upon the provision of any available date(

s) for the hearing. To do so in my view would not only erode an accused person’s right to counsel of choice, which is a fundamental pillar of the Criminal justice process, but also the right to a trial within a reasonable time.

[50] Having said that I do appreciate the brush cannot be so broad so as to create a rule that only upon the provision of block ofdates can it be said that the clock starts to run. In certain circumstances it may well be that the offering of a date amongst others may besufficient to answer the obligation upon the Crown. Each case has to be individually assessed on the basis of its particular circumstances. [51] I do note that during the initial offering of dates, there were six total days offered during a period of which approximately two-hundred total days were available.

Thus there were a number of other dates not offered, some of which counsel for the accused may havebeen available.

In this case it would be hard to accept as reasonable that one sporadic date would somehow bind the accused to acceptthat day or forego any argument pertaining to unreasonable delay. [52] The issue of reasonableness imports a consideration of the dates being offered and where a lone date is offered it cannot on itsown be the sole factor in the consideration of when an accused is obligated to accept the date or forego any future argument relating totrial within a reasonable time. [53] That being so, I am prepared to accept that there has to be some period of time where an accused does become obligated toaccept a date or at that time forego the right to later argue delay.

That obligation would seem to certainly arise where a reasonable clusteror group of dates are offered. The failure to make oneself available during the period in question or alternatively offer the Crownadditional dates of availability would place an accused person at risk to a finding by the court that they acquiesced in the date accepted. [54] With this background, I am of the view that the initial trial date of April 12, 2010 that was accepted by counsel was areasonable date.

Both counsel anticipated that the matter would be heard that day and both counsel indicated that it was a fairlystraightforward matter that would have been concluded during the time allotted. [55] With that in mind, it is important to state that the court is not assessing whether the delay that was occasioned as a result of thedisclosure issues that arose on April 12, 2010 is unreasonable but rather the question is does that delay cause the overall time period to beunreasonable. As was suggested by the court in R. v. Allen (ON CA), [1996] O.J.

No. 3175 (C.A.) @ para. 23, it isthe reasons for and the length of the delay that is to be considered. [56] Based on my previous comments, I am not able to find that counsel for the accused was at fault in not accepting the earlyisolated dates. To find so would be in view unreasonable.

With that I do find that the acceptance of the December 9, 2010 trial date fromthe cluster of dates offered was reasonable and it is up until this point in time that the court has to assess the question before the court. [57] I also find that there is no evidence before the court to conclude that the accused waived any of this time period nor that he wasthe cause of the delay in the date that was re-set for the trial.

It is clear that the reason for the adjournment from the initial trial date wasthe non-disclosure of notes purported to have been made by the main investigating officer, something that is not in the control of theaccused. [58] There was no argument before the court concerning the time period up until the initial trial date of April 12, 2010. I doconclude that it is the Crown who must accept the responsibility for the non-disclosure by the police officer and thesubsequent delay.

The resulting impact is that the time period from the date the charge was sworn to trial is now about twenty-fourmonths. [59] I have examined the actions of the accused during this time period and conclude that he was not the cause for any of the delayin having this matter adjudicated. In fact, his actions are consistent with someone who wanted the matter heard as quickly as possible asevident by the request for a trial date on the second appearance.

In addition, I am advised that when he did appear for the initial trial datehe did so with a number of potential defence witnesses which is a further example of his apparent desire to deal with the matter.

PREJUDICE TO THE ACCUSED [60] I did take the opportunity to review the affidavit filed by the accused and noted his assertions that his physical health has beenaffected by this matter and the subsequent delay. [61] The issue of prejudice and the assertion of health related issues arising have been commented upon by various courts who havegenerally stated that it is expected that a person charged with a criminal offence, particular someone without a prior criminal record,would feel some sense of discomfort from that fact alone.

However, they have gone on to indicate that discomfort is not what prejudicein the context of an unreasonable delay argument is meant to address. [62] I am prepared to accept the assertions of the accused that he has developed eczema and his belief that it was brought about as aresult of this proceedings. However, I find that the affidavit in question does not contain sufficient information to permit me to concludethat the stated physical health issues and eczema are solely as a result of these proceedings.

The lack of medical information fromsomeone qualified to provide such an opinion leads me to conclude that the level of prejudice asserted by the accused is unsupported. [63] In addition to the assertions of the accused within his affidavit, the law is clear that prejudice can also be inferred from thelength of the delay. That statement of the law has been qualified, where the delay spoken of was not occasioned by any actions of theaccused. [64] The evidence before the court supports the conclusion that this accused wanted to have this matter dealt with expeditiously anddid nothing to hinder that from occurring.

He was ready to proceed on April 12, 2010 and arrived in the company of potential witnessesfor the defence to be called if required. The subsequent delay of the matter occurred as a result of non-disclosure by the police and not bysome action of the accused. In this regard I am prepared to draw the inference that the delay of twenty-four months in this case wasprejudicial to this accused. DISPOSITION [65] Based on all of the evidence that is before this court, I do find that Mr. Daniel Trotter has established that his right to be tried

within a reasonable time as is guaranteed by s. 11(

b) of the Charter has been breached. [ 66 ] I appreciate a judicial stay is an exceptional remedy and should only be granted in the clearest of cases.

In this regard, the court must balance the societal interest in having charges adjudicated through the trial process with that of the prejudice to an accused should the prosecution be allowed to continue. [ 67 ] The case before the court was one not noted to be complex, but rather by all appearances was a straightforward matter to be easily concluded within the time allotted. [ 68 ] None of the delay in having this matter can be said to lay at the feet of the accused and furthermore the responsibility for the latest delay must be borne by the Crown who has to accept the responsibility for the non-disclosure of police officer notes. [ 69 ] The delay in this matter goes far beyond the 8 – 10 months that was identified by the Supreme Court of Canada as being a guideline time frame to determine reasonable. [ 70 ] Based on the entirety before me, I do conclude that this is an appropriate case to grant the remedy of a judicial stay of proceedings pursuant to s. 24(1) of the Charter .

Original signed by: KELLY K. MOAR, P.J.