R. v. Jordan, 2017 MBPC 55

Citation: 2017 MBPC 55 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Theresa Cannon and ) ) ) ) ) Sivananthan Sivarouban for the Crown Michael Bodner Constitutional Law Branch- and – ) ) ) Zachary Curtis ) ) Frank Coniglio or the Accused ) ) ) Judgment delivered: ) December 8, 2017 ROLSTON, P.J. Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit fromthese efforts. - R. v. Jordan, 2016 SCC 27 at paragraph 116 [1] Mr.

Curtis is facing charges for drinking and driving, and has filed a motion asking the Court to dismiss the charges becausehis right to trial within a reasonable time has been infringed. It is common ground that this case was delayed due to issues surroundingwhether the crown is responsible for disclosure of approved screening device “ASD” maintenance and calibration records. However, inso far as delay is concerned, the present case is as much about the inability of counsel to identify the issues and focus the litigation as itis about disclosure.

The Court is required to examine who bears responsibility for the fact that the real issues in the case were notproperly identified and efficiently advanced in order to bring the case to trial in an expedient manner. The Jordan Framework [2] It is now well known that the legal landscape relating to the right to be tried within a reasonable time pursuant to section11(

b) of the Charter of Rights and Freedoms changed when the Supreme Court of Canada released R. v. Jordan, supra on July 8, 2016. Given that the present case relates to a

summary conviction trial, the new presumptive ceiling established by Jordan is 18 months. It isalso common ground that the proper analysis pursuant to a delay motion involves a calculation as to the time that information is sworn tothe expected end of the trial, followed by a reduction for time attributable to defence delay (see: R. v. Jordan, supra; R. v. Cody, 2017SCC 31; R. v. Schenkels, 2017 MBCA 62; R. v.

Ashraf, 2016 ONCJ 584). [3] According to the new framework, if the remaining time after defence caused delay is over 18 months, the onus is on thecrown to establish that the delay was not unreasonable in the circumstances. On the other hand, if the 18 month threshold has not beenreached, the onus is on the defence to establish unreasonable delay. It is also agreed that the present case qualifies as a transitional casesuch that R. v. Morin, (SCC), [1992] 1 SCR 771 applies in a limited way. (R. v.

Jordan, supra.) [4] Counsel also agree that the total delay in this case, from the swearing of the Information to the time the trial is expected totake place is 21 months, 16 days. The crown says that much of this delay was caused by the defence and therefore only 16 months, 7

days should be factored into the calculation for delay. The defence contends that 20 months, 4 days should count as the total delay for calculating the so-called Jordan timeline. While both parties agree that 42 days are attributable to the defence due to availability for trial dates, the reason for the bulk of discrepancy in time calculation is due to who should be held responsible for delay caused by late disclosure of the nature of the ASD. The Disclosure Issue [ 5 ] Mr. Curtis was stopped while driving his car on February 20, 2016. As a result of an investigation that followed, the police had Mr.

Curtis blow into a handheld device, then advised him that he would be charged with impaired driving. The police obtained breath results at the RCMP station. Mr. Curtis was released by the police that night, but subsequently charged on February 26, 2016, with driving while his ability to operate a motor vehicle was impaired by alcohol and driving with a blood alcohol content over the legal limit. [ 6 ] By the first court appearance on April 12, 2016, Mr. Curtis retained counsel and appeared in court. After meeting with his counsel in May, 2016, Mr.

Curtis identified that one live issue in the case related to the nature and performance of the handheld device used by the police in concluding that he was committing an offence under

section 253 of the Criminal Code at the relevant time. One of the identified areas of concern appears to be that the device in question was identified by the arresting officer (Cst. Demchuk) as an “ASD #200924”. There is no such device approved in the Criminal Code for use by police. As it turns out, the moniker “ASD #200924” was a serial number for an “Alco-Sensor FST”, which is an alcohol screening device approved for use in the regulations of the Criminal Code . It was not apparent to either Mr.

Curtis or his counsel that the serial number, rather than the type of device, had been recorded nor was the true nature of the device revealed in the initial police disclosure. [ 7 ] On June 6, 2016, the defence requested, amongst other things, …the calibration logs and maintenance logs for the last 12 months in relation to the ASD machine used by Cst. Demchuk in this case, together with a copy of the manual for that particular machine. The purpose of this request was apparently twofold.

The defence wished to challenge the functionality of the device, but also wished to confirm that the device was not approved (see paragraph 8 of the Affidavit of Zachary Garry Curtis sworn October 16, 2017). In any event, it is clear that the defence was aware that it would raise an issue as to the nature of the handheld device as of May, 2016. [ 8 ] On June 8, 2016, the crown responded to defence’s request, indicating some of the disclosure would be provided, but that, As for the ASD information, the crown will not be disclosing this information as it is our position that it is third party information.

Aside from that, the case law is clear that the demanding officer need only believe that the ASD was in proper working order. The crown invited the defence to file a motion for disclosure. [ 9 ] On July 27, 2016, the crown satisfied the defence’s other requests for disclosure to the point that both parties were content to reserve a trial date for July 25, 2017. [ 10 ] On August 26, 2016, the defence advised that it was not advancing the motion for the ASD records. According to the affidavit of Mr.

Curtis, this decision was due to a financial cost benefit analysis, “as there was already a strong argument available regarding the invalidity of the handheld test given that it was not an approved device” (see Affidavit of Zachary Garry Curtis sworn October 16, 2017, at paragraph 11). The trial date of July 25, 2017, was formally set in court on August 30, 2016. [ 11 ] Aside from the formal setting of the reserved trial date, nothing happened from July 27, 2016, until June 23, 2017, some 10 months and 27 days. On June 23, 2017, Mr. Curtis filed a Charter motion alleging a breach of Mr. Curtis’

section 8 rights based upon the contention that the “ASD#20094” was not an approved screening device (“the ASD#20094 issue”). [ 12 ] The allocation of responsibility for the period of delay from July 25, 2017, to December 12, 2017, forms the most significant part of the delay motion. Mr. Curtis says that this portion of time should be attributed to the crown. He says that the crown refused to fulfill the initial request for further information as to the ASD device and then did not take any steps to review the evidence with Cst. Demchuk until July, 2017.

Part and parcel of this argument as advanced by defence is that the accused was not required to identify aspects of its defence to the crown. Therefore, the defence suggests all of the 4 months and 17 days should be considered as delay

counting towards crown delay for the purposes of the

section 11(

b) application. [13] At the outset, it should be noted that it is evident that defence sought the ASD records for two purposes. Firstly, the recordswould assist to identify the nature of the device used by Cst. Demchuk and clarify whether he was using a device approved by theregulations in the Criminal Code. In this respect, the disclosure was part of the crown’s case to meet in that the nature of the deviceshould be disclosed at first instance. The defence also clearly wished to challenge the functionality of the ASD.

For this purpose, thecalibration logs and maintenance records were not part of the crown’s basic disclosure obligations (for the reasons already set out by thiscourt in reasons for decision rejecting Mr. Curtis’ disclosure motion). It is clear from the correspondence between the crown anddefence that as of June 8, 2016, the crown did not appreciate the relevance of the requested disclosure to identify the device. The reasonwhy the requested information was relevant (to clarify the nature of the device) was not identified to the crown by defence.

Accordingly, there would have been no reason for the crown to take steps to disclose the information before June 23, 2017, as until thattime the information requested was not clearly relevant to an issue for trial. There would have also been no reason for the crown toclarify the matter with Cst. Demchuk. [14] At the same time, it is a basic tenet of the law that the accused is not obligated to disclose information regarding their defenceto the crown. This fact was simply stated in R. v.

Stinchcombe, (SCC), [1991] 3 SCR 326: …the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. Theabsence of a duty to disclose can, therefore, be justified as being consistent with this role. [15] Mr. Curtis suggests that based upon the principle espoused in Stinchcombe, he was not obliged to reveal the defence positionthat the ASD was not approved pursuant to the Criminal Code regulations. At first blush, the defence position has some merit.

Acentral feature to the adversarial system where the state has the power and resources to investigate alleged crimes, is the ability of theaccused to remain silent and require the crown to prove its case. It is therefore a valid strategy for an accused to not reveal trial strategyto the crown. [16] Was the decision to not advise the crown of the nature of motion a valid trial strategy? In this case, Mr. Curtis elected to framethe ASD#20094 issue as an unlawful search pursuant to

section 8 of the Charter. This decision was undoubtedly based upon thedirection of the Manitoba Court of Appeal in R. v. Forsythe (J.R.), 2009 MBCA 62, which necessitates that a motion be filed where theaccused is challenging the basis of a breath demand. A Charter motion in turn requires that the Charter issue be properly identified. Since the Charter issue had to be identified by Mr. Curtis when the motion was filed, the decision to not identify the fact the device wasapparently not approved by the regulations makes no strategical sense.

In other words, what could possibly have changed from the dateof the arrest to the filing of the motion that would truly change the nature of the motion if the device was truly not an approved device?

The accused would gain no benefit from waiting to advance the argument that the police used an unapproved device, since that factwould have been cemented in time from the moment the unapproved device was utilized by the police. [17] Therefore, the only conceivable benefit to the defence in electing to wait to identify the issue was to capitalize on the delayresulting from an adjournment once the true nature of the device was disclosed. Indeed, the email sent by Mr. Curtis’ counsel on August26, 2016, (see Affidavit of Zachary Garry Curtis sworn October 16, 2017, Exhibit

D) seems to suggest that this is precisely themotivation for counsel waiting to address the issue: Accordingly, we will be preparing our defence strictly based on the evidence you have disclosed to us. If the Crown attempts to adduceany particular as part of its case that is not contained in the disclosure provided to date, then we will object to the admission of thatevidence.

If for some reason, the court should allow the Crown to adduce additional evidence at the trial that was not previouslydisclosed, then we will of course be left in a position where we would have to request an adjournment of the trial due to non-disclosure. Counsel’s words proved to be prophetic as the trial was adjourned due to the revelation that the device was an Alco-Sensor FST. [18] With respect, there is a fine line between trial strategy and prudent identification of the issues for trial.

While counsel isentitled to put the crown to the burden of proof in respect of the elements of the offence, counsel have an obligation to ensure that issuesthat tend to cause delay in the trial process are identified and dealt with in a timely way. This obligation was clarified in Cody, supra, atparagraph 28: In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from“its own delay-causing action or inaction” (Jordan, at para. 113).

It applies to any situation where the defence conduct has “solely ordirectly” caused the delay (Jordan, at para. 66). This comment provides context to the already quoted passage from Jordan (paragraph 116): Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit fromthese efforts. The end result of the lessons learned from Jordan and Cody is that it is incumbent upon all counsel to identify areas that will result indelay and address those areas clearly and expeditiously.

An accused person simply cannot benefit from delay caused by their ownsleight of hand.

[19] Mr. Curtis also argued that he did not advance themotion for disclosure due to constraints on his resources, thusrationalizing the decision to proceed with the ASD#20094 issueas an alternative. The court must be mindful that individuallitigants must exercise prudence in formulating trial strategydue to their limited resources as compared to the state. However, the defence has a duty to pursue relevant disclosure. Long before the Supreme Court set the Jordan timelines,defence obligations relating to disclosure was mandated. Thiswas set out in R. v.

Dixon (SCC), [1998] 1 SCR244: It must be remembered that defence counsel is not entitled to assume at any point that all relevant information has been disclosed to thedefence. Just as the Crown’s disclosure obligations are ongoing, and persist throughout the trial process, so too does defence counsel’sobligation to be duly diligent in pursuing disclosure.

To do nothing in the face of knowledge that relevant information has not beendisclosed will, at a minimum, often justify a finding of lack of due diligence, and may, in certain circumstances, support an inference thatcounsel made a strategic decision not to pursue disclosure. [20] There were several options open to defence counsel that did not involve the expense of a formal motion. It is evident that thedefence did not advance any of these. As already stated, the defence did not clarify with the crown that the relevance of the requesteddisclosure was to properly identify the device.

As it turned out, had they simply articulated the reason that the information was relevant,they would have received the information in short order (the crown provided the calibration log twelve days after the motion was filed). Another option available to the defence was to request a case management conference as per the Manitoba Provincial Court protocol. Inthe event that the crown did not appreciate the relevance of the information at the outset, the court could have mediated the dispute in aninformal setting so as to assist the defence without the necessity and expense of a formal motion.

This option was not exercised either. At the end of the day, the expense of filing a motion for disclosure of the information as to the nature of the device would have beenunnecessary had counsel engaged in frank discussion aimed at identifying and pursuing disclosure related to the real triable issues. [21] In seeking an adjournment of the July 25, 2017 trial date, defence advised the court that there was inadequate time to preparefor trial in light of the clarification as to the device. Counsel cited two reasons for the need for an adjournment.

Firstly, to advance anadditional Charter argument that was initially not advanced on the basis that the ASD#20094 argument was the strongest. Secondly,counsel wished to consider the new disclosure (the calibration log for the Alco-Sensor FST serial number 20094) and pursue the motionfor further disclosure of the historical ASD maintenance and calibration records.

The trial was adjourned by Judge Killeen based uponthese reasons (see Transcript of Proceedings, July 10, 2017 at page 27). [22] Full consideration of how to attribute the delay caused by the adjournment of the trial date requires consideration of the extentto which each impacted the timeliness of the trial and how they fit into the Jordan framework. [23] Dates for the continuation of the case were discussed in motions court on July 26, 2017 (Transcript of Proceedings, RemandsJuly 26, 2017). The crown was ready to proceed with the trial as early as August 15, 2017.

Defence was unavailable due to holidays formany of the earliest dates offered. Defence also wished to consult with an expert as to the calibration log that now had been disclosed. Accordingly, no dates were considered prior to September 12, 2017. Judge Killeen set reasonable timelines with respect to advancingthese motions. Initially November 20, 2017 was selected as the new trial date for Mr. Curtis’ case. The trial date was changed toDecember 12, 2017 in Beausejour in order to secure a trial judge.

The time from November 20, 2017, to December 12, 2017, is delaycaused by the court system to facilitate a trial date. Both counsel were diligent in resetting the matter and neither are at fault for the factthat it was easier to obtain a trial judge in Beausejour than it was in Winnipeg. This amounts to 22 days of delay. [24] There is naturally some time that was required to reset after a matter has been adjourned. No one can expect to beautomatically available. In this case, counsel had holidays booked but also needed to assess the case in light of new informationreceived.

The calibration information was beyond the scope of his own expertise and consultation with an expert was required. Defencehad attended to his holidays and filed motions regarding disclosure by August 29, 2017 (Affidavit of Zachary Garry Curtis swornOctober 16, 2017 at paragraph 29). These 35 days are reasonable in the circumstances and reflects diligent efforts to acquaint himselfwith the new disclosure and determine his next steps. In the court’s view, the 35 days reflect legitimate actions taken by defence(prearranged holidays and consultation with an expert).

Accordingly, 57 days shall be subtracted from the delay attributed to the defencedue to the matter being adjourned from the first trial.

[25] The remaining delay amounts to 83 days (140 days from July 25, 2017, to December 12, 2017, less the 57 days subtracted above). There were trial dates available during this time such that the court and the crown were ready to proceed. The case did not proceed due to the disclosure motion filed by Mr. Curtis that has now been considered and dismissed by this court. [26] In R. v. Cody , supra , the Supreme Court revisited the Jordan timelines in the context of delay caused by defence actions.

At paragraph 30 of that decision, the court stated: The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.

As we said in Jordan , the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests” ( Jordan , at para. 63 ). [27] The court concluded that the decision as to whether a defence action caused delay should be left to the discretion of the trial judge. Not all failed motions are necessarily “frivolous”. [28] In the case at bar, crown counsel argued that Mr. Curtis’ motion for calibration records and maintenance logs was frivolous. The basis for this position was R. v.

Jacob , 2013 MBCA 29 which the crown relies on for the proposition that “the demanding officer need only believe that the ASD was in proper working order” (see Affidavit of Zachary Garry Curtis sworn October 16, 2017, at Exhibit C). With respect, the crown’s broad statement in this regard may be oversimplifying the finding in Jacob . What is clear from Jacob however, is that an officer is required to examine all of the circumstances known to him or her and to determine whether there is an objectively reasonable belief as to the legitimacy of the device.

In the present case, the defence argued that the historical functioning of the device would inform the objective belief of the arresting officer. While this position is a novel take on the case law relating to historical breath device records, by the time defence filed a motion for the historical records they had received the calibration record from February 2, 2016. That document demonstrated that the very officer involved in the Curtis investigation (Cst. Demchuk) was the same police officer who had conducted calibration tests just 19 days before and found the ASD to be properly working.

The historical ASD records jurisprudence, which was reviewed and ruled upon in Mr. Curtis’ disclosure application is quite clear that the information being sought does not assist in ascertaining the functionality of the device. Therefore, the court can see no value in pursuing the motion for disclosure. Accordingly, while not all failed motions are necessarily frivolous, the motion for disclosure in this case was unnecessary and falls under the category of cases contemplated by Cody . Accordingly, the time required to have the disclosure motion filed and heard is attributable to Mr.

Curtis. [29] The remaining 83 days is therefore attributable to the defence. That being the case, the total amount of expected delay is 21 months, 16 days (646 days). 42 of those days were agreed by counsel to be attributable to the defence. 83 more days have been attributed to the defence on the basis that defence caused that delay. That leaves 521 days or 17 months and 12 days as the total delay pursuant to the Jordan timeline. The onus is therefore on Mr. Curtis to establish that the delay is unreasonable.

Was the Delay in this Case Unreasonable? [30] Given that the delay in the present case is below the presumptive ceiling set out in Jordan , Mr. Curtis must establish that he took meaningful and sustained steps to expedite proceedings, and that the case took markedly longer than it should have, subject to the caveat that this is a transitional case. [31] As stated, Jordan was decided on July 8, 2016. Mr. Curtis’ case was approximately 4 ½ months old at that point. The transitional provisions of Jordan therefore only apply to the first 4 ½ months of Mr.

Curtis’ case. [32] Under the Morin framework, defence actions inconsistent with a desire for a speedy trial was considered against an accused’s assertion of unreasonable delay. The Jordan test as to whether Mr. Curtis has taken meaningful and sustained steps is perhaps more onerous, but speaks to a demonstration by the accused to move the matter along. The court has already commented on the lack of steps in the early going to seek disclosure as to the nature of the device through detailed requests, case management initiatives or a motion for disclosure.

These steps were inconsistent with Morin in that there was a specific decision made to not seek disclosure, thereby setting up the delay argument. Later on, there was no demonstration of sustained steps to expedite proceedings. Mr. Curtis advanced a new ground of Charter breach that was not initially advanced due to counsel’s opinion that the ASD#20094 issue was the strongest argument. While the court does not advocate that counsel advance every conceivable argument available, counsel must focus on viable arguments and advance them in a timely way. Judge Killeen exercised his discretion and allowed Mr.

Curtis the benefit of an adjournment in order to consider the new disclosure and advance the new Charter breach allegation. While the failure to advance the ground was not necessarily a deliberate action aimed at delaying the case, it would be improper to allow Mr. Curtis to benefit from the delay caused by his own strategic decision not to advance the Charter ground, as it does not demonstrate a sustained effort to expedite proceedings. [33] Lastly, as was recognized by Judge Killeen during Mr. Curtis’ application for an adjournment of the trial, early Beausejour trial dates can be difficult to schedule.

In this case, after the defence delay is factored in, 17 month, 12 days is not markedly longer than what is reasonable for an impaired driving case in that jurisdiction. [34] Accordingly, Mr. Curtis has not established that his right to a trial within a reasonable time was breached in this case and his application is dismissed. “Original signed by:” ROLSTON, P.J.