R. v. Shaffie, 2011 ONCJ 769

COURT FILE No.: Toronto Region – Scarborough DATE: 2010·10·21 Citation: R. v. Shaffie, 2011 ONCJ 769 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Vanessa Shaffie Before Justice M.

Wong Heard on January 11, 2011 Reasons for Judgment released on February 9, 2011 Rob Fried ................................................................................................................ for the Crown Sean Robichaud .......................................................................... for the accused Vanessa Shaffie Wong, J.: [1] Vanessa Shaffie is charged with the offences of Impaired Operation and Over 80. In advance of her trial, Defence counsel broughta motion arguing that Ms. Shaffie’s right to be tried within a reasonable time as guaranteed by

section 11(

b) of the Canadian Charter ofRights and Freedoms has been violated. The applicant seeks a stay of proceedings pursuant to section 24(2) of the Charter. Analysis: [2] The Supreme Court of Canada in the decision of R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1 (S.C.C.), outlined thefactors that courts should consider in determining whether or not a delay in any given case is unreasonable. They are: (

a) the length ofthe delay; (

b) waiver of time periods; (

c) the reasons for the delay, including (

i) the inherent time requirements of the case; (ii) actions ofthe accused; (iii) actions of the Crown; and (iv) limits on institutional resources; and (

d) prejudice to the accused. (

a) Length of the Delay: [3] The alleged offence date is July 31, 2009 and the information was sworn on August 6, 2009. Her trial date is currently scheduledfor March 3, 2011. [4] The total delay is approximately 19 months since the date the information was sworn. As such, Crown counsel does not dispute thatan inquiry is necessary as to the reasons for the delay. (

b) Waiver of Delay [5] Crown counsel does not argue that the Applicant waived any period of time. (

c) Reasons for the Delay: [6] In this case, the information was sworn on August 6, 2009. Ms. Shaffie was released on a promise to appear and anundertaking with her first date to appear in court set for September 11, 2009 [7] On her first appearance, the Crown was unable to provide disclosure. Although no transcript of this appearance wasfiled, subsequent transcripts suggest Ms. Shaffie had also not retained counsel. The matter was adjourned to October 13, 2009. [8] On Ms. Shaffie’s second appearance, again the Crown did not have any disclosure and the Applicant had not retainedcounsel. The matter was adjourned to November 2, 2009.

[ 9 ] On her third appearance, Ms. Shaffee received disclosure as well as a DVD. Ms. Shaffee indicated she was leaving the country until December 19, 2009. Duty counsel on behalf of the accused asked for the matter to be remanded until December 23, 2009. [ 10 ] By her fourth appearance, Ms. Shaffee indicated she had retained counsel Sean Robichaud, but he was out of the province, and had asked the matter be adjourned until late January. The Crown provided Ms.

Shaffee with further disclosure and the matter was remanded to January 27, 2010. [ 11 ] On this December 23, 2010, Crown counsel indicated to the accused that ideally a pre-trial should be conducted in the interim. At page 2, line 11 of the December 23, 2010 transcript, the Crown indicated that “counsel could have had a pre-trial today, just down the hall”. The significance of this will become apparent momentarily. [ 12 ] 5th appearance on January 27, 2010, agent for Mr. Robichaud appeared and filed a designation so Ms. Shaffie was not required to attend in person. Agent Ms.

Kwan indicated counsel had been unable to conduct a pre-trial since the client’s last court date because the Crown’s office said (to paraphrase) that insufficient notice had been given to the Crown’s office in order to retrieve the police brief from the station. There was some back and forth on the record between Defence counsel’s agent and Crown counsel about when counsel had contacted the Crown’s office. The matter was adjourned so counsel could have a Crown pre-trial in the interim. [ 13 ] 6 th appearance – another agent appeared on behalf of counsel and the client. Again the agent complained that Mr.

Robichaud’s office had been unable to complete the Crown pre-trial during the interim because the Crown’s administrative staff had taken the same position that there were no times available. The same discussion between Defence and Crown took place on the record about whether counsel had called the Crown’s office early enough to

schedule a pre-trial. [ 14 ] However, on page 3, line 18, Crown counsel O'Connor stated the following with counsel’s agent present that not only can a pre-trial be held any day; a pre-trial could be held “right now”. Defence suggested the matter be remanded to March 1, 2010, to give his office ample time to conduct a Crown pre-trial. [ 15 ] 7 th appearance – on March 1, 2010, another agent appeared on behalf of Mr. Robichaud and his client. The agent indicated they had successfully completed the Crown pre-trial on February 25 th , and the trial was estimated to take 4 hours.

Crown counsel, Leslie Pasquino, however, indicated the Crown’s pre-trial form indicated that one day was the trial estimation. It was agreed that a Judicial Pre-trial was required. [ 16 ] Agent for counsel suggested the matter be remanded to March 2 nd . Crown counsel inquired whether (again to paraphrase) March 2nd was the suggested date for the judicial pre-trial because the JPT’s take place in court, but Defence agent said no “to set the date for the judicial Pre-trial”.

Agent for counsel then asked to hold the matter down because she did not have counsel’s dates when he would be available to do the in court JPT. When she returned, the agent suggested April 8, 2010. [ 17 ] On April 8 th , 2010 – the 8 th court appearance in this matter – the Judicial pre-trial was held before Justice Hackett. It was estimated the case would take one day because the Crown would likely be calling one civilian; 2 police officers; and a toxicologist. There was also anticipated to be a

section 8 and 10(

b) Charter motions, and Defence may called between 0-1 witnesses. The matter was adjourned to March 3, 2011, which was the first date the court had available. Findings : (

i) Inherent time requirements: [ 18 ] Inherent in every case is the need to prepare disclosure and retain counsel. Generally two to 3 months is typically the time required to prepare a case and to set it down for trial. There are no mathematical formulas or fixed rules. Each case must be determined on a case by case basis. [ 19 ] In this case, the Crown provided initial disclosure on November 2, 2009 (albeit the accused’s third appearance date) and then further disclosure on December 23, 2009. [ 20 ] Defence counsel submits the Crown ought to have provided disclosure on Ms. Shaffie’s first court date.

According to counsel, the Crown had 42 days after her initial arrest on July 31, 2009 to have photocopied police officer notebooks, copy the DVD and obtain a report from the toxicologist – all of which was not disclosed fully until December 23, 2009. [ 21 ] Respectfully, case law has ruled that for the purposes of s. 11 (

b) motions, the operative starting time for calculating any delay is the date the information is sworn – not the date of the accused’s arrest. As such, to recalculate Defence counsel’s position, Mr. Robichaud’s submission, properly stated, ought to be that 35 days should be a reasonable period of time for the Crown to have provided disclosure in this case. [ 22 ] It is the Defence position that without the disclosure, Ms.

Shaffie was unable to meet and retain counsel because she needed to make an informed decision as to whether counsel was necessary; she needed to know the strength of the Crown’s case against her; and to consider her options. [ 23 ] Ms. Shaffie did not receive any disclosure until her 3 rd appearance on November 2, 2009 – approximately 3 months after the information was sworn. [ 24 ] While I was originally inclined to consider all of the this time from August 6 and December 23, 2009 period as neutral or intake – as both the Crown was unable to provide disclosure while simultaneously Ms.

Shaffie was not in a position to set a trial date because she did not have counsel, on close inspection, I am satisfied the Crown ought to have provided initial disclosure to Ms. Shaffie at least by her second court appearance on October 13, 2009. I am satisfied that after hearing submissions from both counsel that some of this time ought to be attributable to the Crown and that all the time cannot properly be considered “neutral”, i.e. intake period. I accept

to a limited degree, Ms. Shaffie’s position that she needed disclosure to make a visit with a lawyer meaningful. [ 25 ] However, I do not accept her position in its entirety that she was unable to contact counsel – let alone retain counsel – without first receiving disclosure. There are many accused persons who come to court on their first court appearance, especially on drinking and driving charges, having already retained counsel.

Part of the reason for the early retention of counsel, is that persons charged with these types of driving related offences can afford private counsel and do not have to apply for legal aid assistance. [ 26 ] As such, I find the inherent time that ought to have been required to at minimum was 2 court appearances – from August 6 to October 13, 2009 - or roughly 2 months and 1 week. The Crown not being able to provide even minimum disclosure until Ms. Shaffie’s 3d court appearance, must bear some responsibility.

Therefore, from October 13, 2009 (the 2 nd appearance) and November 2, 2009 (the 3 rd appearance) ought to be considered as Crown delay – a period of approximately 3 weeks. [ 27 ] Once disclosure was provided to the Defence on December 23, 2009, it would be expected that Ms. Shaffie needed to review the material with counsel of choice. Therefore, I consider the time from November 2, 2009 to December 23, 2009 as intake or neutral time. Actions of the accused: [ 28 ] Having been given disclosure on December 23, 2009, the matter was adjourned to January 27, 2010 because Defence counsel was unavailable.

I find this request for an adjournment was to accommodate counsel’s availability and hence, the delay is attributable to the Defence. [ 29 ] The next three court appearances are troublesome. On each of the three dates – January 27, February 10, and March 1, 2010, Defence counsel Mr. Robichaud did not appear in court in person, but instead he sent an agent.

On the first two occasions, the agent complained that they were unable to conduct the requisite Crown pre-trial because the Crown’s office administration refused to set a pre-trial date because they did not have enough time to retrieve the brief from the police station. [ 30 ] It is the Defence position that this time ought to be considered Crown delay. Mr. Robichaud submits there are obstacles in Scarborough courthouse which unduly encumber Defence counsel who are trying to set dates for their clients by having both mandatory pre-trials and Judicial pre-trials.

Defence counsel says he was aware of Scarborough courthouse policy that both mandatory pre-trials can be held on the same date – one right after another – the first with the Crown in the pre-trial office and the latter before a judge in open court. However, Mr. Robichaud submits in his practise, he chooses not to send agents with instructions to complete Crown or Judicial pre-trials: rather, he likes to conduct them himself. Counsel submits he was unavailable to attend court with Ms. Shaffie in person on each of the three dates her matter was in court – January 27, February 10 and March 1, 2010.

So instead he exercised the other option – conducting the pre-trial over the telephone. His efforts to set an appointment for Crown pre-trials on two occasions failed and he submits the fault (and delay) lies at the feet of the Crown. [ 31 ] With respect, I disagree with Defence counsel’s position. Having presided over cases in Scarborough for now almost 9 years, there has been a deliberate and cooperative effort from all the participants in the justice system to stream line the process of getting a case of Impaired/over 80 to trial.

With these types of charges it has been found that pre-trials – both Crown and Judicial pre- trials – are rather pro forma. They go something like this: “everything is in issue and there are Charter arguments –

section 8 , 9 and 10(b) ”. More or less, the only thing different in these cases is whether either side is calling a toxicologist. Generally speaking, an allegation of impaired/over 80 is usually scheduled for one day. [ 32 ] Counsel is free to opt to have his client’s Crown pre-trial either in person on any date the matter is scheduled for court and then move directly into 406 to have an in court judicial pre-trial and then set a trial date (transcripts reveal this position was put on record at least twice – once when Ms. Shaffie appeared in person and the second time with agent for Mr. Robichaud present).

The other option available is counsel can conduct a Crown pre-trial by telephone with a judicial pre-trial to be held on a later date. [ 33 ] In this case, Defence’s counsel was unavailable to come to court on January 27, February 10 and March 1, 2010 – all dates that were chosen by his respective agents. Mr. Robichaud’s unavailability and counsel’s practise not to instruct an agent to conduct pre- trials cannot inure to the detriment of the Crown. If that is Mr. Robichaud’s practise - it is completely acceptable so long as the matter moves along in a reasonably timely fashion.

However, if counsel chooses to conduct personally all of his client’s pre-trials (even those that are more pro forma) then he cannot later complain that the matter was unduly delayed. [ 34 ] In a similar fashion, on March 1, 2010, after a crown pre-trial had been completed presumably by Mr. Robichaud, the agent was unable to complete the Judicial pre-trial because Agent Scott did not have instructions from counsel.

The matter was again adjourned – this time to April 8, 2010. [ 35 ] as such, I find the Defence is responsible for the delay from December 23, 2009 to April 8, 2010 – a total of approximately 3 ½ months. (ii) Actions of the Crown [ 36 ] As stated previously, the Crown ought to have provided Ms. Shaffie disclosure at least by her 2 nd court appearance.

Having not done so, the defendant returned to court 3 weeks later and received initial disclosure. [ 37 ] I find the 3 week period between October 13 and November 2, 2009 – as Crown delay. (IV) Limits on Institutional resources [ 38 ] Both parties were ready for trial on April 8, 2010 and the first available trial date was March 3, 2011. The total delay is approximately 11 months

Total operative delay: [39] The total operative delay is 11 months and 3 weeks.

Prejudice to the accused: [1] Prejudice in this context is concerned with the three interests of the accused: • Liberty, as regards to pre-trial custody or bail conditions; • Security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge;and • The right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses or otherwise to raise a defence (See Morin, supra, pp 801-3) [40] A delay of 11 months and 3 weeks is outside the upper end of the range recommended by the Supreme Court of Canadain R. v.

Morin (S.C.C.), (1992) 71 C.C.C. (3d) 1 (S.C.C.). [41] The focus of the prejudice assessment under s.11 (

b) is the prejudice flowing from a situation “prolonged” by delay ratherthan the mere fact of being charged with a criminal offence. However, that the delay to trial beyond the guidelines prolongs anaccused’s shame and increases his or her anxiety. Thus, what was initially prejudice from being charged may become prejudice causedby institutional delay due to a delay beyond the guidelines. The Courts have also held that there is inherent prejudice whenever anindividual is charged with a criminal offence.

The question whether there was actual prejudice demonstrated by the Applicant must bedecided on a case-by-case basis. [42] In this case, the Defence filed materials and the applicant testified. Ms. Shaffie is 29 years old and works as a researchcoordinator at the University of Toronto’s Faculty of Medicine. She has a Bachelor’s degree in Science and she is hoping to start aMaster’s degree. [43] As far as Ms. Shaffie’s liberty interests are concerned, she was released on a promise to appear and an undertaking. Oneof the restrictions Ms.

Shaffie ought to have been complying with from the date of her arrest and release to the trial date a condition thatshe not to enter any premises licensed primarily to serve alcohol (i.e. bars). In Ms. Shaffie’s affidavit at paragraph 9 she complains thather ability to entertain clients has been adversely affected by the restriction. However, in court Ms. Shaffie testified she believed therestriction only applied for the first three months of the undertaking. After the three month period – Ms. Shaffie resumed her life withoutthat condition impeding her.

The Applicant was mistaken about the condition applying only for 3 months, because she likely assumedincorrectly that the undertaking condition was similar to the 90 day Automatic Driver’s License Suspension (ADLS) imposed by thisprovince. As such there is no evidence that her liberty, as a result of bail conditions, was affected. [44] Ms. Shaffie similarly does not complain that her ability to make full answer and defence has been compromised by thedelay. [45] The main focus regarding prejudice is Ms.

Shaffie’s security of the person because she claims to have suffered greatemotional distress as a result of the delay. According to Ms. Shaffie, her brother-in-law passed away from cancer 1 ½ weeks after shewas charged and on May 16, 2010, her mother died. The defendant says her late mother was extremely upset with the charges and thefact they were taking so long to come to trial, which in turn caused her to be stressed. Ms. Shaffie began seeing a therapist immediatelyafter being charged, who has helped guide her “through the charge” and according to her affidavit, has also referred her to a psychiatrist. Ms.

Shaffie says she has a strained relationship with her younger sister, who was troubled by the accused being charged. According toMs. Shaffie, she has avoided changing apartments or buying a house with another family member because she is not sure if there is abackground check. Similarly, she is uncertain if a records check is made for someone applying for a Master’s program although she hasnot made inquiries. Ms. Shaffie worries she will not be able to cross the border or take vacations – the anxiety of which I am satisfied isincreased the longer the case continues. [46] I am satisfied Ms.

Shaffie has suffered actual prejudice from the length of time this case has taken to come to trial.However, I am not satisfied that the 11 months and 3 months even with actual prejudice is sufficient for the charges to be stayed. [47] First, I have to consider the entire time period the case has been delayed to come to trial. While the operative delay is, ascounsel submits, beyond the recommended guidelines in Morin, supra, the delay was created in part by Mr. Robichaud’s practise of notdelegating authority to his agents. Ms.

Shaffie’s position that she wanted this matter to proceed as expeditiously as possible to trial isinconsistent with 3 ½ months – and three court appearances – waiting for a crown and then judicial pre-trial. [48] Secondly, while the primary purpose of s.11(

b) of the Charter is to protect the individual rights of the accused person,there is also a societal interest in ensuring that serious matters are dealt with on their merits and that matters are resolved in a timelyfashion. [49] Any case of impaired operation and over 80 is serious; however, some cases are obviously more serious than otherswhen there is an accident or high readings. According to the transcript of April 8, 2010, the Crown alleged that Ms. Shaffie’s bloodalcohol readings were high.

This is yet another factor I have taken into consideration. [50] The burden of proof of establishing the delay is on the Applicant. I am not satisfied that in view of the overall period oftime, the reasons for the delay and the seriousness of the allegations, that Ms. Shaffie’s

section 11 (

b) rights to a trial within a reasonableperiod of time has been infringed. Ms. Shaffie’s fair trial interests have not been prejudiced by the delay.

[ 51 ] As such, the application will be dismissed. Released: February 9, 2011 Justice M. Wong