R. v. Delangel-Chavira, 2016 ONCJ 501

CITATION: R. v. Delangel-Chavira , 2016 ONCJ 501 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ISRAEL DELANGEL-CHAVIRA Before Justice S. R. Shamai Heard on July 13, 2016 Ruling on

Section 11(

b) Charter Application released on August 16, 2016 Mr. F. Bartley...................................................................................................... for the Crown Ms. S. Shikhman ............................................. for the accused, Israel Delangel-Chavira SHAMAI J.: [ 1 ] Mr. Delangel-Chavira brings an application for relief under

Section 11(

b) of the Canadian Charter of Rights and Freedoms , and seeks the remedy of a stay of proceeding. Having been charged on April 14, 2015, his trial is set for September 26 and 27, 2016. He set down the motion for the hearing of the Charter application and I heard it on July 13, 2016. Noteworthy is the release of the decision of the Supreme Court of Canada on July 8, 2016, in the case of R. v. Jordan . This decision changes the law on applications under

Section 11(

b) of the Charter . In fact, the case makes specific reference to cases which are in the system at the time of the release of the Supreme Court of Canada decision. Mr. Delangel-Chavira’s case is an example of such a case. [ 2 ] Mr. Delangel-Chavira was charged with impaired driving and “over 80” – driving while his blood alcohol proportion exceeded the legal limit. The incident stems from observation and report of erratic driving made by another driver on the Highway 401. OPP were dispatched, and made further observations on Warden Avenue in Toronto, leading to the vehicle stop.

The driver was noted to be lethargic and barely awake, with a strong odour of alcohol emitting when the driver side window was rolled down. The investigation continued and charges were laid in due course that night. [ 3 ] Mr. Delangel-Chavira retained counsel before his first appearance in Court. A request was made for disclosure before the first appearance in Court. Both counsel have provided detailed and helpful material in support of their respective positions.

It is interesting to note the divergence in emphasis in the summaries of events leading up to the point when, on December 18, 2015, trial was set for September 26 and 27.

It is not clear from the material when the motion date of July 13 was set. [ 4 ] The events may be summarized this way: April 14, 2015 – arrest and charged; May 11, 2015 – information sworn; May 26, 2015 - initial request for disclosure; June 1, 2015 – first appearance in Court (Old City Hall, Courtroom 111); June 29, 2015 – disclosure provided to agent for defence – adjourned two weeks; July 12, 2015 – letter from Applicant counsel requesting further disclosure including in-car DVD and breath room DVD; July 13, 2015 – due to diary error, no one appeared for Applicant – bench warrant and adjournment one week; July 17, 2015 – respondent advises that in OPP cars, no “in- car” DVD recordings are made; July 20, 2015 – Applicant asks for further adjournment to receive DVD’s still not received – toxicology report disclosed.

Adjourned three weeks;

July 31, 2015 – Second letter from Respondent to Applicant: no “in-car” recordings exist for OPP cars; August 10, 2015 – Court appearance: Applicant advised waiting for “in-car” and breath room DVD’s. Adjourn 2 weeks; August 24, 2015 – Applicant advises still waiting for “in-car” DVD. Adjourn 2 weeks; September 8, 2015 – Applicant asks for “in-car” and breath room video. Adjourn 2 weeks; September 21, 2015 – Applicant asks for further adjournment, in expectation of various video’s. Adjourn 3 weeks; October 13, 2015 – Applicant requests “in-car” video.

Adjourn 2 weeks; October 27, 2015 – Counsel appears personally on behalf of Applicant; advised that disclosure of breath room video available that day. Adjourn 2 weeks; November 9, 2015 – Counsel appears personally – advises wishes Crown pre-trial but had not yet scheduled one. Adjourn 2 weeks; November 24, 2015 – Student for counsel attends – schedules JPT.

Adjourn 3.5 weeks; December 18, 2015 – JPT conducted – 2 day trial set for September 26, 27 2016. [ 5 ] The analysis, which, until July 8, 2016, required a review of the four criteria set out in Morin , has been distilled down to “a ceiling for delay, beyond which delay is presumptively unreasonable” ( Jordan , para 46). That ceiling, in the case of prosecutions in this Court, is 18 months. The delay in this case is alleged by the Applicant to be 17 months of which 14.5 months are attributable to Crown and institutional delay.

On the Crown assessment of the time to trial, none of the delay was attributed to Crown, and approximately 8.5 months were to be attributed to institutional delay. [ 6 ] While Applicant and Respondent provided helpful analyses of the events between date of charge and date set for trial, these analyses were necessarily predicated on jurisprudence superseded by the Jordan decision, released, per supra , on July 8.

Oral argument was directed to the new guidance provided in that decision. [ 7 ] To review that decision, and the framework which applies to this case, the easy points are that the majority decision sets presumptively reasonable times to trial, in this case 18 months, and in a case like this one, where the alleged delay is below that ceiling, the defence bears the onus to show that the delay is unreasonable: “To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.” (emphasis in text; para. 48) I would emphasize the final sentence in that paragraph: “We expect stays beneath the ceiling to be rare, and limited to clear cases” [ 8 ] As indicated earlier, the Court specifically adverts to cases already in the system.

While acknowledging that the new framework is a departure from the law that was applied to s. 11 (

b) applications in the past, such a change is presumed to operate retroactively and apply to past conduct (para 93). I am mindful that the Court reflects that “slightly more relaxed rules apply to judicial changes to the

interpretation of constitutional provisions”. The court continues, acknowledging that “It is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice” (para. 94). [ 9 ] Specifically, regarding cases currently in the system in which the total delay (minus defence delay) falls below the ceiling, the court directs our attention to two criteria – defence initiative and whether the time the case has taken markedly exceeds what was reasonably required.

To assist our understanding of these criteria, the court, says these terms must be applied contextually, “sensitive to the parties reliance on the previous state of the law”. Particularly apt in this case the court explains: Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision.

However, in close cases, any defence initiative during that time would assist the defence in showing that the delay markedly exceeds what was reasonably required.

The trial judge must also still consider action or inaction by the accused that may be inconsistent with a desire for a timely trial ( Morin , at p.802) (emphasis added; para 99) [ 10 ] Final excerpt which guides the analysis in this case relates to institutional delay, in paragraph 101: “We note that given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system.” [ 11 ] The Court refers numerous times, from the start to finish of its analysis, to the culture of complacency concerning expeditious management of cases in our system.

That culture is seen to be at the root of the intolerable delays amounting to the context of unconstitutionally delayed trial dates. Despite almost uniformly timely appearances by counsel in this case, the laxity and inattention given to the content of the appearances and the reasons for them exemplifies the culture of complacency described by the Supreme Court. One thinks of a passive check-in date to review the condition of a patient over whom the observers had no power. Through this

lens, I wish to review some of the time which elapsed on the way to setting a trial date, approximately eight months after the date of the charges (April 14 – December 18, 2015). [ 12 ] I take this approach as the new rules declare presumptive delay times to be reasonable: anything over 18 months is deemed unreasonable in this Court; cases slightly below that time will be considered in terms of whether meaningful steps were taken to expedite the setting of a trial date. A remedy of stay will be “rare” where the time to trial is only slightly under the eighteen months, as here.

Where a case was in the system at the time of the change in the common-law, July 8, 2015, as Mr. Delangel-Chavira was, two criteria must be applied: whether the time to trial (total delay minus defence delay) markedly exceeds what was reasonable; and whether any defence initiative is evidenced, in getting the matter to trial.

While the Court remarks on the unfairness of judging steps taken at a time when such steps were not required by law, hence demanding a “somewhat relaxed” application of the new framework, it is not hard to examine the transcripts of set date appearances and correspondence throughout the period from April to December, and arrive at a characterization of steps taken in the context which then prevailed. [ 13 ] In all, thirteen court appearances were required of Mr. Delangel-Chavira, before his trial date was set. On one of those appearances, no one appeared, due to an error in diarisation by counsel. In fact, Mr.

Delangel-Chavira never appeared personally. Even when the discretionary warrant, issued June 29, was rescinded on July 20, Mr. Delangel-Chavira did not appear in court. [ 14 ] The court appearances show the easy civility, indeed, camaraderie among counsel. While this is to be commended, as is accommodation of counsel at bar, what it does not reflect is any co-ordination with the reasons for adjournment being stated on the record, and the correspondence concerning disclosure.

In addition, the adjournments of two and three weeks at a time seem to be taken without any regard for any informed appreciation of how much time the disclosure in question might require. Most concerning is that the advice by Crown that in-car video recordings do not exist for OPP cars appears to be entirely unacknowledged by defence. Thus, the opening paragraph of counsel’s letter sent, admirably, even before first appearance in court, states crisply: “Any delays in my obtaining full and complete disclosure would be attributable to the Crown and any such delays are without prejudice to my client’s rights under

section 11(

b) of the Canadian Charter of Rights and Freedoms ” (Tab 4, Application Record). The opening letter further betrays its pro- forma nature, perhaps understandable at that early stage, as it refers to the Tape Analysis

Section at the Toronto Police Communications Centre, an error which was perhaps understandable at the early stage of counsel’s retainer, however, the failure to appreciate the differences in proceedings investigated by OPP and TPS had an impact throughout the period in question. [ 15 ] To enumerate the correspondence: the first letter from defence, as indicated, was dated May 26, 2015. Unanswered, a more succinct letter dated July 13 followed initial disclosure being provided in Court on June 29, 2015. This letter specifically requested “in- car DVD”.

Crown letter dated July 17, 2015 stipulated, over the signature of the Case Management Co-ordinator at Old City Hall Crown Attorneys’ Office that no in-car DVD exists, as OPP scout cars do not have in-car camera recording. July 20, some disclosure was received by way of toxicology report; the in-car DVD was again mentioned in court with no comment about its non-existence, and a further adjournment to August 10 was set, though defence was suggesting August 17. Defence letter of July 23 refers to “initial request for disclosure, dated July 13, 2015”, the letter asks for items including in-car DVD.

No reference in that letter is made either to the actual initial request for disclosure on May 26, nor the Crown letter in response dated July 17. A further defence letter dated September 18 has finally stopped referring to the in-car DVD, and does enumerate prior letters seeking disclosure, though misstates the date of the first one as May 18 not 26. The three intervening court appearances after July 20 show further requests on the record for in-car DVD on August 10 and September 8. In fact, on September 8, Mr. Prutchi, who attended for Ms.

Shikhman on the majority of the adjournment appearances, says “We’re just waiting on an in-car DVD. That’s been the delay up to this point”. One wonders, has he read his file?? [ 16 ] The appearance of September 21 reflects Mr. Prutchi’s apparent impatience, and his reference to “a DVD or a couple of DVD’s potentially. There’s some video evidence we’ve waiting on for quite some time”. Mr. Pructhi continues about sending “yet another written request to bolster the weekly oral requests…[the delays] have cost consequences for Mr.

Delangel-Chavira and of course we are concerned about that.” Crown refers to a colleague who should be able to assist, and refers also to scheduling a pre-trial meeting. The adjournment proceeds to October 13, 2015. [ 17 ] October 13, another associate of Ms. Shikhman attends. This time, the in-car DVD is once again the subject of in-court discussion. He says: “I am told that we have made multiple written requests and are still continuing to wait for it. I don’t know if my friend has any updates on that”. Crown, Mr. DiMuzio says “No update. But I don’t have anything to provide today either”.

One wonders again, who is looking in file? Who amongst Crowns knows that OPP has no in-car camera system? Only the case management co-ordinator? Only Crowns on the OPP team? What is provided to the Crown in court, whether or not part of the OPP case assigned Crowns? On this date, the presiding justice of the peace asks some questions about when Crown might realistically expect to see the requested material, and what the chronology of requests might be. No specific answer is given – a general answer that the file is dated, and that counsel “is sure there have been requests made throughout the summer”. Mr.

Bytensky refers to the Crown’s case tracking forms, and suggests that the “record will speak for itself”. That court appearance ends with a query, just for clarification, by Justice of the Peace Kirke, “And it’s for in-car DVD?” Although this appearance, taking seven pages of transcript, appears to reflect concern, not one of the parties picks up the fact that OPP does not equip its cars with camera’s generating the DVD in question. [ 18 ] October 22, the lopsided correspondence continues, defence seeking disclosure other than the in-car recording, though stipulating the breath room DVD. On October 27, Ms.

Shikhman appears, and the record reflects that the breath room DVD is available. November 9, Ms. Shikhman appears again, this time saying she has received various material, like the “breath tech etcetera” but not the breath room video. She says she was prepared to have a Crown pre-trial but was unaware of the procedure for scheduling an OPP pre-trial. My comment is that it is unclear what signaled the readiness to defence to conduct a pre-trial at this point, since it appeared, notwithstanding the October 27 comments in court by Ms. Shikhman, that the breath room DVD was still outstanding.

For the third time, on the record, defence was directed to Ms. Kirec of the Crown Office, to

schedule the pre-trial. On November 24, a student- at-law on behalf of defence counsel suggests to the Court that a trial can be set as counsel is experienced and they are anxious to move the matter along. Suggestion is that counsel on both sides are experienced and could easily

schedule trial time without the judicial pre- trial. Crown comment that disclosure is in her possession goes without any comment in response. HOWEVER, Crown commented that even if no judicial pre-trial was required, at least a Crown pre-trial was required, so that an estimate under a day could be agreed on. Ms. Kirec was again named as the “go-to” person”.

[ 19 ] Oddly, a Judicial Pre-Trial Verification Form dated November 24, 2015 is included in the record, which shows that a crown pre-trial was held on December 18, after November 16 Crown pre-trial, and first date offered was December 7 2015. That form does show that a judicial pre-trial is scheduled for December 18. [ 20 ] The final pre-trial court appearance indeed shows that the judicial pre-trial was conducted that day with Justice Greene. In Court, Ms.

Shikhman indicated that a two day trial had been agreed upon, with assistance of Spanish interpreter, and that September 26 and 27 were agreed upon, with no interim date being required. Ms. Shikhman pointed out that earlier dates were available to her and her associates, in March, April, May, June, July and August. She characterized her client as trying to get an early date, and diligent in pursuing disclosure requests. [ 21 ] Interestingly, it was not until June 20, 2016, that the information was brought into court and a date set for the hearing of this motion set, less than two months later.

One might wonder how six months passed beyond setting the date for trial, for the concerns about an unreasonable delay to crystallize into an application. I have been provided no insight into that. [ 22 ] With respect to the efforts made by defence to obtain necessary disclosure prior to setting a date for trial, and to what is reflected on the record as efforts by Crown to obtain the breath room DVD from police, these efforts appear to me to be perfunctory and pro-forma.

Adjournments of weeks pass by, with correspondence reflecting Crown advising of non-existence of an in-car DVD, and yet on further appearances, neither counsel appears to have any knowledge of that correspondence. Adjournments are granted, apparently to allow for the production by way of disclosure of that non-existent video. Even without the correspondence from the Crown’s disclosure coordinator, one would think that experienced counsel, particularly for the Crown, would be aware that OPP is not equipped with in-car camera’s, hence no such disclosure could be made.

The actual disclosure of the breath room video is not entirely apparent. It seems to have been made in mid-August, as the Applicant advises in court that they are still waiting for the “in-car video”. I understood by implication that the breath room video had been disclosed. Yet, when Ms. Shikhman appears personally on October 27, she advises the Court that the breath room video is available just that day. [ 23 ] If one were to explain how the “culture of complacency” operates, this case would provide an excellent example of it.

Letters are written, words are spoken in court, but the words seem to have no impact in real life. The court is given to understand that earnest efforts are being made, by both sides, and yet there is no traction in terms of the impact of those words. Periods of time for next adjournment are negotiated, and with no apparent relationship to the underlying realities. When counsel suggests on behalf of Mr. Delangel-Chavira on October 13, that the record will speak for itself, I would agree: the record speaks for itself, but not for the inference which I think counsel wanted.

Not under the old tests nor under the current regime of law can this delay be seen to be attributable to the Crown or to the defence, without necessarily looking at the responsibility shouldered jointly by counsel. Indeed in terms of the period of time from trial readiness, December 18, to the trial dates, September 26, a consideration of institutional delay may yield a conclusion modified by the Trial Verification Form which was, for some reason, generated on November 24, 2015, indicating an available trial date offered for December 7, 2015.

It would appear that had counsel actually applied themselves to the task at hand, a much earlier date might have been available. [ 24 ] The conduct of counsel, while civil throughout, seemed to be entirely blind to the long-established procedures and practices, in particular, no “in-car” camera in OPP vehicles; and Crown pre-trials on OPP matters to be arranged through a particular member of Crown office. That the matter was generated by an OPP investigation must have been self-evident from first contact by counsel with client, or at latest, on receiving initial disclosure.

Counsel is a member of a highly respected criminal law firm: surely they are no strangers to these practices and procedures. [ 25 ] In the result, I conclude that the application for Charter relief fails. Applying the new test in a relaxed manner, mindful that the alleged delay falls slightly under the presumptively reasonable time to trial established by the Supreme Court in Jordan, and incapable of evincing any appearance of “meaningful steps” taken to expedite the proceedings, I am dismissing the application. The trial dates remain September 26 and 27. Released: August 16, 2016 Signed: “Justice S.R. Shamai”