R. v. Matthews, 2011 ONCJ 506

Information No. 100391 00 Citation: R. v. Matthews , 2011 ONCJ 506 ONTARIO COURT OF JUSTICE PROVINCIAL OFFENCES COURT HER MAJESTY THE QUEEN

V. STEPHEN MATTHEWS ********** C H A R T E R A R G U M E N T BEFORE HER WORSHIP JUSTICE OF THE PEACE H. DeBACKER on the 12 th day of September, 2011 at St. Thomas, Ontario ********** APPEARANCES: I. Maedel Crown Prosecutor J. Pitblado For the defendant SEPTEMBER 12, 2011 REASONS FOR JUDGMENT

THE COURT: Good afternoon everyone. In the Stephen Matthews matter the defence brought and argued a motion for delay undersection 11(

b) of the Charter. Supreme Court of Canada case R v Morin (SCC), [1992] 1 S.C.R.771 is the wellestablished case that sets out delay analysis criteria. They are: the length of the delay; waiver of time periods; reason for delay, and underreason, inherent time requirements of the case; actions of the defendant; actions of the Crown; limits on institutional resources; otherreasons for delay; prejudice to the accused. These factors must be weighed and balanced for the Court to determine whether the lengthof delay is reasonable or not. There was no waiver of time periods in this matter. Mr.

Stephen’s offence date is the 30th of May, 2010. The charges against him were sworn and laid on the 29th of July, 2010. His first appearance was August 27th, 2010. Confirmed at paragraph 35 of R v Morin, pre-charge delay of itself is not counted in determining the length of delay; therefore, the time to trial was one year and 16 days starting from the 27th of August, 2010, the defendant’s first court appearance date to today, September 12th, 2011, the trial date.

From August 27th, 2010 defence request for disclosure was the endorsement and the matter was set to September 17th; the matter wasadjourned for disclosure, an agent appeared for the defence from the information’s notation. The Court’s record is not clear whether ornot the initial disclosure was provided to the defendant’s agent on the first appearance date or not. There were 21 days for disclosure,unless it was provided initially by the Crown on that date, that would be attributed to the Crown; explanation for this adjournment was“prosecution to provide disclosure”.

On the 17th of September, 2010 no one appeared for the defence. Duty counsel kindly spoke to it and it was adjourned for disclosurereview. It was presumed that all the initial disclosure was provided by that time. As stated, no one appeared for the defence. It couldhave been a misunderstanding by an agent on a busy court date; in any event, the matter was adjourned for a resolution meeting then to October the 22nd. Then to November 26th, where the notation is: “resolution meeting ongoing.” On November the 26th, Mr.

Pitbladoappeared in person and the Crown and Court were then made aware that there was a further disclosure issue and the matter wasscheduled for a pre-trial. This Court counts the time from September 17th to November 26 attributed to the defence and there was no one appearing on September 17th and there was a request for resolution meetings at the request of the defence and that was 70 days. The time from November 26th to pre-trial date of January 12th was 46 days.

After the pre-trial it was adjourned to January 28th for the setting of a trial date, and the date was set for a two hour trial on April the 28th, 2011. On March the 10th, 2011 the defence brought a motion and argued the motion for further disclosure. The Court adjourned its decision on the motion until March 25th. The decision was rendered then and the trial date of April 28th, 2011 was confirmed. On April 28th it was apparent the trial would not take two hours because of the additional experts both Crown and defence now intendedto call.

One day would be needed and not enough court time was available then for the trial to proceed on that date. Also there was abelief that a further pre-trial was needed because of the one day estimate for trial time. May 11th, 2011 was the additional pre-trial and the trial was set for September 12th, 2011, on May the 27th. The time from November 26 to May the 27, 2011 appears to be more neutral than systemic, the reasons for delay.

The time of 182 dayswas attributed primarily to the defence who made a motion for additional disclosure of what is normally provided, above and beyond thenormal disclosure and in the context of the complexity of this case. This is a more than ordinary speeding or stunt driving matter. It isalleged a speed of 226 kilometers in an 80 kilometer zone, driving quite beyond ordinary and in fact, stunning speed.

Normally, only the relevant pages regarding testing and operation of radar or speed measuring device manuals are all that is required tobe disclosed and normally speed or radar manuals are made available for viewing at police detachments and not normally are CalibrationCertificates from the manufacturer required to be disclosed. Given the seriousness of this unique and remarkable matter before the Court, yes, it was under these circumstances and in this contextthat those items, not normally ordered disclosed were ordered disclosed. The action of the parties.

The Crown provided all normal disclosure initially and in its usual and timely fashion. When it was aware ofthe expanded disclosure issue, the matter was set for a pre-trial. As we know, the motion was argued and once the decision wasrendered the Crown provided the manual to defence on that very date. The Crown did not possess the Calibration Certificate then and it diligently sought out that certificate which it provided to the defence on or about April 12th, a very short time after the motion decisionwas rendered.

To state that disclosure is the primary reason for delay and then place the burden on the Crown would be inaccurate or unjust. TheCrown in fact acted diligently as soon as the disclosure motion decision was rendered and when it became an issue the matter was set forpre-trial forthwith. In the case of R v N.N.M. (May 8, 2006) ONCA, and this is a case that was not provided, Ontario Court of Appeal case, May 8, 2006, itheld that a person charged should not be able to generate a basis for an 11 (

b) motion by making a continuous stream of requests fordisclosure. In that case some of the disclosure requests were for items that were irrelevant. Dissimilarly, the expanded disclosureordered in this case was for items that were relevant, on the other hand however, somewhat similarly, the radar manual existed and it wasavailable to be viewed at all relevant material times. Defence counsel was invited to view it and did not respond to that invitation andthis speaks to the actions or non-actions of defence.

Moving on from that issue to the issue of scheduling trial now, it should be noted there was no transcript provided of the availability oftrial time, or the availability of Crown, Crown witnesses, the defendant, Mr. Pitblado himself, and his defence witnesses’ availability as it relates to the trial time that may have been available and offered in comparison to counsels’ schedules from May 27th, 2011 to September the 12th, 2011. This is a period of 109 days.

Confirmed in R v Morin, this is institutional delay, which normally can be attributed to Crown and it runs from the time the parties areready for trial and continues until the system can accommodate the proceedings. Without a transcript, or at the very least, a written record or notes of when the first court date was offered available to the parties and theirresponses regarding their availability and their witnesses’ availability, it is unfair to attribute that squarely on the shoulders of theCrown.

The Court notes R v Askov (SCC), [1990] 2 S.C.R. 1199 was a matter dealing primarily with institutional delay,where the institutional delay was eight or nine months, and that was the institutional part of the delay itself. There may have been manydays where this trial could have been accommodated but for one reason or the other, it could have been the Crown, it could have beendefence witness, a party was unavailable. It is really not up to this Court to speculate. This matter, in fact, was not similar to the defence cases that were presented and argued before the Court and here is why.

In R v Roberts(unreported August 5, 2010 OCJ Chatham), Justice Kowalyshyn found disclosure was unavailable to the defence for eight months. There was first a video disk and then a manual. There was no indication whether or not the manual was available to be viewed. ThisCourt was left with the impression that it was not available to be viewed until it was ordered disclosed, which is unlike our matter. R v Arsenie [2006] O.J.

No.3495, and these are all cases the defence argued, on the first trial date the Crown was not ready to proceedbecause of new evidence and the defence, of course, was then entitled to disclosure of this new evidence. That issue had not surfaceduntil the first trial date. The Justice of the Peace found in that matter not only was that reason the cause for the delay, the main reason fordelay was also lack of court time. Coupled with what happened on the first trial date, this was all a burden born by the Crown, hence thedelay argument was granted.

In R v Moffatt [2004] O.J No.2892, that case confirmed the Crown should disclose in a timely fashion relevant and necessary materialthat it has in its possession. This was a case where an audio tape essential to the trial had not been produced by the time the first trialwas to begin. The first trial did not proceed for that reason. This was an obvious piece of disclosure. It is very similar to Arsenie. Thispiece of disclosure should have in no way been overlooked and the delay was obviously attributed to the Crown in those circumstances

and the delay application succeeded. R v Somerville [2004] O.J. No. 4426 , it stands similarly for the same thing. There was no reason why disclosure readily available should not have been provided and produced in a timely manner. In R v Meier [1998] O.J. No. 3489 lastly, it took the Crown five months to provide complete disclosure that it had in its possession all along. In Meier there was actual prejudice demonstrated. Mr. Meier was employed as a heavy equipment operator.

While he waited and was left not knowing about disclosure and ultimately the setting of his matter for trial, which outcome would possibly affect his livelihood; this kept or prohibited him from bidding on jobs. He did not want to be legally responsible for a job contact he may not be able to fulfill. This was the only case where, in fact, prejudice was demonstrated. To say that the defendant has incurred cost of paying his counsel is not, in my view, a demonstration of prejudice.

Further, in this case, the Crown cannot be expected to disclose more than it has or more than it usually does without direction from the Court. That direction was sought, the matter was set for a pre-trial and there was a motion argued for above and beyond disclosure than what is normally disclosed. There was an Order for more disclosure by this Court in the circumstance of this very unique case. In the circumstances of it, the defence received that disclosure from the Crown in an extremely timely manner, if not immediately once that Order was made.

Given the reasons for delay in this case, there was no prejudice demonstrated in my view, and given that established in R v Askov eight to ten months is an appropriate guideline or range for institutional delay in our Provincial Courts, this Court finds any delay in this matter was not excessive, in these circumstances it was not unreasonable and the defence motion for delay will be marked dismissed. The trial can proceed.