R. v. Vendittelli, 2012 ONCJ 314

DATE: 2012·05·02 Citation: R. v. Vendittelli, 2012 ONCJ 314 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DAVID VENDITTELLI Before Justice D. Oleskiw Heard on April 12, 2012 Reasons for Judgment on s. 11(

b) Application released on May 2, 2012 Stuart Rothman ................................................................................................ for the Crown Jonathan Rosenthal ........................................................ for the accused David Vendittelli OLESKIW, J.: 1. Mr. Vendittelli is charged that on February 10, 2011, he operated a motor vehicle while his blood alcohol level was over 80 mgs. His trial was scheduled to proceed on April 12 and 13, 2012 for 1 ½ days. 2. Mr. Rosenthal initially made the s. 11(

b) Application returnable in advance of the trial date, but was unable to argue it then due toillness. Accordingly, the Application for a stay based on an alleged violation of s. 11(

b) of the Charter was argued on the first day oftrial. Argument on the Application consumed a half a day of court time. 3. On April 13, 2012, I advised the parties that the Application was allowed and that a stay of the proceedings is entered. These aremy reasons for finding that the Applicant’s right to be tried within a reasonable time as guaranteed by s. 11(

b) has been violated. The Analytical Framework 4. The primary purpose of

section 11(

b) is to protect the rights of the accused to security of the person, liberty and a fair trial. Oursociety also has an interest in

section 11(b). This includes seeing that citizens who are accused of crime are treated fairly. In addition,there is a public interest in having those who break the law dealt with quickly on the merits of their cases. As the seriousness of theoffence increases, so does the societal demand that an accused person be brought to trial. 5. A decision as to whether

section 11(

b) has been violated is not to be made by the application of a mathematical or administrativeformula. Rather, it is a judicial determination that balances the individual and societal goals with the length and causes of delay. In R. v.Morin, (SCC), [1992] S.C.J. No. 25 the Supreme Court of Canada laid out the framework for this judicial balancing.The Court must consider the following factors: 1. the length of the delay;

2. waiver of time periods; 3. 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 4. prejudice to the accused. Application of the Framework to this case 6 . The total period of delay in this case, being seven days shy of 14 months , warrants inquiry. There was no waiver of any time periods by the defence. 7 . The chronology is as follows: Date or Period Duration Attributed to: Reason / Tasks Feb 10, 2011 Alleged offence date and A arrested Feb 22, 2011 Information Sworn Feb. 22 – March 23, 2011 29 days Intake Period between the date that the Information was sworn and the first appearance. Defence Counsel is retained prior to the set date.

Agent appears for counsel and the accused, receives disclosure, including notification that video disclosure is available. Adjourned for 3 weeks to April 15, 2011 April 11, 2011 Crown pretrial conducted March 23 – April 15, 2011 23 days Intake Agent appears on April 15, 2011 and sets a Judicial Pre-trial date for May 17, 201. He notes that Mr. Rosenthal had earlier dates but “that was the first available” April 15 – May 17, 2011 32 days IN ISSUE

May 17, 2011 Counsel appears by designation. Judicial Pretrial was conducted and parties set April 12 and 13, 2012 as trial date with 1 ½ days necessary because defence is bringing a constitutional challenge to s. 254(2) of the Criminal Code , as amended. Counsel notes that those were the first dates offered and that he has dates available every single month between now and April 12 and 13, 2012 May 17, 2011 to April 12 & 13, 2012 10 months and 26 days IN ISSUE Feb. 22/11 - Apr; 13/12 13 months and 23 days Total Delay 8 .

The parties agree that the 52 day period of delay from February 22 to April 15, 2011 is properly characterized as neutral intake time. Considering that this was a simple, single over 80 charge, counsel was retained prior to the first appearance, all disclosure was received and a Crown pretrial was conducted during this period, I find that this 52 day intake delay was reasonable. The Issues 9 .

The live issues in this case are: (1) how the Court should characterize the 32 day delay between April 15 to May 17, 2011 for the purpose of conducting a judicial pre-trial; (2) whether the Court should characterize the whole 10 month and 26 day delay between May 17, 2011 and April 13, 2012 as institutional delay, and, if not, how the time should be allocated; and (3) the Crown takes the position that there was no prejudice to the Applicant, notwithstanding that Crown Counsel did not cross examine the Applicant on his affidavit.

(1) Scheduling of the JPT 10 . The only matter that takes this over 80 charge out of the ordinary is Mr. Rosenthal’s Application, as an alternative remedy, to have s. 254(2) (as amended in 2008) declared to be of no force or effect. Otherwise, the accused makes the common Charter applications alleging breaches of his

section 8, 9 and 10 rights. All of the evidence on the trial and constitutional applications would be heard through three witnesses: the arresting officer and his or her escort and the breath technician, with the matter proceeding by way of a blended voir dire . The constitutional challenge centred around the elimination of the so called “immediacy” requirement of the previous version of s. 254(2) . A judicial pre-trial was required by virtue of a policy at the Toronto West Courthouse that required a judicial pre-trial in all cases estimated to take more than one day. 11 .

The issue before me is, whether the 32 day delay between April 15 – May 17, 2011 is institutional, part of the inherent time requirements of the case, or some combination thereof. Treatment of Judicial Pre-trial Scheduling by the Ontario Court of Appeal 12 . I was referred to seven Ontario Court of Appeal cases characterizing delay attributable to judicial pre-trials. I will briefly

summarize the points to be taken from those cases: 13. In R. v. Chatwell, (ON CA), [1998] O. J. No. 206 (C.A.) at paragraph 11, the Court noted that, except for sometime allotted to defence counsel’s failure to follow up with the trial coordinator, the time spent trying to arrange a judicial pretrial mustbe considered institutional delay. 14. In R. v. C.R.G., (ON CA), [2005] O.J. No. 3764 (C.A.) Rosenberg J.A., writing for the Court, specificallydiscussed the utility of judicial pre-trials as an important case management tool for some courts.

However, whether they are beneficialand whether there is room for flexibility in the requirement for and scheduling of pre-trials are principally matters for each individualCourt. Having fully acknowledged this case management rationale, the Court held at paragraph 30: That said, I do agree that the delay needed to

schedule the judicial pretrial is properly considered to be institutional delay, not an aspectof the inherent time requirements of the case. [citing Chatwell] 15. In R v. Rego, (ON CA), [2005] O.J. No. 4768 (C.A.), the Court again noted in a brief endorsement that thedelay from the time when the parties were ready for trial to the judicial pre-trial was part of the systemic delay (at paragraph 4). 16. In R. v. N.N.M., (ON CA), [2006] O.J. No. 1802 (C.A.), the Court followed Rosenberg J.A.’s finding inC.R.G. and held at paragraph 33: ...the delay needed to

schedule the judicial pretrial is properly considered to be institutional delay. The time that the parties require toprepare for and conduct the pretrial is inherent time. 17. Again, in R .v. Cranston, 2008 ONCA 751 , [2008] O.J. No. 4414 (C.A.), the Court made the same distinction as thatnoted in N.N.M. stating at paragraph 46: While this Court has recognized that the delay needed to

schedule a judicial pretrial is properly considered institutional delay, the timethe parties require to prepare for and conduct the pretrial may be an inherent time requirement. 18. In two more recent cases, the Court of Appeal has characterized the delay leading up to the pre-trial as neutral delay attributable tothe intake and inherent time requirements of the case. In R. v Khan, 2011 ONCA 173 , [2011] O. J. No. 937 (C.A.) the Courtcharacterized the judicial pretrial as part of the intake process in the Superior Court.

However, this was done in the specific context of amega-prosecution subsequent to a preliminary hearing wherein the accused still had yet to determine whether the wiretap authorizationwould be challenged in Superior Court and where he was being remanded with a larger group of co-accused (paragraphs 53-55). TheCourt did not refer to any of its earlier decisions set out above. 19. In R .v Tran, 2012 ONCA 18, a case involving several charges arising from a large grow operation, the Court addressed the issueat paragraphs 34-37.

Again, without reference to R.C.G. or any other of the earlier Court of Appeal cases Simmons J.A. stated: ...it seems to me that requiring a judicial pretrial to set the trial date(

s) is a reasonable and necessary case management tool in busyjudicial centres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in thepresentation of their cases. Accordingly, some reasonable period of delay in arranging a judicial pretrial should be treated as part of theinherent time requirements of the case. This observation, however, was made in obiter since the Court found on the record before it that defence counsel’s failure to give noticeof the accused’s

section 7 Application at the pre-trial demonstrated that defence counsel were not ready to conduct the pre-trial as of thescheduled pre-trial date. Accordingly, the entire 46 day period of delay in scheduling that pretrial was considered part of the inherenttime requirements of the trial. 20.

While the Court of Appeal may at some point provide clarification on the apparently conflicting views expressed in Tran, Khanand the earlier cases, in fact, the Court has only treated judicial pre-trial scheduling as intake or inherent time when defence counsel arenot ready and available at the time the judicial pre-trial is scheduled. It is my view that it is still good law in this province that, short ofunpreparedness, unavailability or inherent complexity that calls for judicial case management before a matter can truly be ready for trial,the delay needed to

schedule a judicial pretrial is properly characterized as institutional delay.

Application to this Case 21. The case before me as it relates to scheduling the judicial pre-trial is entirely distinguishable from Tran and Khan. In this case, Mr.Rosenthal, a very experienced counsel, especially in drinking and driving cases, made it clear at the Crown pretrial on April 11, 2011that he intended to bring a constitutional challenge to s. 254(2) as amended. He represented to this Court that he was ready for trial as ofApril 11, 2011, and that he could put the constitutional application material together in very short order since he had argued the sameconstitutional challenge previously.

There is nothing in the record to suggest that Mr. Rosenthal was anything but ready to proceed totrial as of April 11, 2011 as he represented. The unchallenged affidavit evidence of Mr. Rosenthal’s availability for the judicial pre-trialand trial dates is that he was available for several dates starting on April 18, 2011--that is the Monday following the Friday set date onApril 15, 2011. 22. The only reason a judicial pre-trial was required in this case was because of a policy that required judicial pre-trials in cases thatwere estimated to last more than one day. In light of this policy and the fact that Mr.

Rosenthal was ready for trial at the time ofscheduling the judicial pre-trial, I find that the 32 day delay is institutional delay.

(2) Allocating Delay from the May 17, 2011 set date to April 12 & 13, 2012 trial dates 23. It has long been established that institutional delay starts to run when the parties are ready for trial but the system cannotaccommodate them; R. v. Morin, (SCC), [1992] S.C.J. No. 25 at para. 47. The appellate courts in R. v. Lahiry, 2011ONSC 72019 and R. v. Tran, 2012 ONCA 18, recently reminded us that Justice Sopinka did not say in Morin that the parties should bedeemed automatically to be ready for a hearing as of the date a hearing date is set.

Specifically, counsel require time to clear theirschedule so they can be available for the hearing as well as time to prepare for the hearing; Tran at para. 32. 24. Again, Mr. Rosenthal represented on the record at the set date appearance on May 17, 2011 that he had dates available for trialevery single month between May 17, 2011 and April 12, 2012. His detailed availability is set out in an uncontested affidavit whichshows five days of availability from May 18 to May 26, and seven available days in June, 2011. Further, he had numerous dates availablefor trial in July 2011 through to April 2012. 25.

The only task left to be completed from the defence perspective by the set date on May 17, 2011 was to compile and file theApplication material for the constitutional challenge. There is no complexity to the case beyond the constitutional challenge which is notparticularly novel. At the time of filing, at least eight courts had considered the constitutionality of the amended section 254(2) whichwas at issue in this case. Mr. Rosenthal had argued the issue previously. In light or Mr. Rosenthal’s particular circumstances, I acceptthat he could have put his material together within far less than one day. 26. Mr.

Rosenthal also argues that trial preparation ought not to be artificially divided up into discrete time frames and that preparationtime should not be deducted from the timeframe between the set date and trial. He was ready for trial by the time of the Crown pretrialon April 11, 2011. The defence says that the Crown should have been essentially ready within days of that same meeting, since it wasthen that the Crown received notice that the constitutional challenge would be forthcoming. 27. I accept that complete trial preparation cannot realistically be compartmentalized into discrete time periods.

Counsel thinkthrough each case at different levels from the first consultation through to final submissions. Counsel often complete more finalpreparation close to the actual trial date. Obviously, the courts in Morin, Tran and Lahiry, contemplated a more basic type of readinessthan final trial preparation. However, even if the defence is ready to run a trial on the set date, our system of administration of justicedoes not allow for or require the Crown to be in a position to run a trial on a set date. The Crown must be allotted some reasonable timeto get ready for trial.

First, even in the simplest one witness trial, the Crown cannot have the witnesses subpoenaed and availableimmediately. Secondly, as Mr. Rothman accurately noted, while the Crown should certainly have a preliminary position formulatedupon receiving notice in a pre-trial that the constitutional validity of legislation will be challenged, it cannot be expected to formalize andsolidify its position until after receipt of the Applicant’s application material.

28 . In this case, the Rules provide that the Applicant must file its Application material at least 15 days prior to the hearing date and the Crown must file its responding material no later than 5 days before the hearing date. 29 . While it is difficult to assign a time limit to preparation, in this case I find that 15 days of the near 11 month delay between May 17, 2011 and April 12 & 13, 2012, should be considered inherent time requirements.

This takes into account a reasonable amount of time for the Crown to respond to the constitutional challenge, to subpoena its witnesses and otherwise prepare for the trial. Total Institutional Delay 30 . I find that the total institutional delay in this case is 11.5 months.

(3) Prejudice 31 . In an affidavit upon which he was not cross-examined, Mr. Vendittelli deposes that he is 51 years old with no criminal record. He has owned his own commercial cleaning business since 1992 and requires bonding for that business. The business services a number of commercial establishments, so he effectively drives for a living. 32 . He swears that he has worried about these charges since the day of his arrest on February 10, 2011 and that he has been extremely stressed, anxious and depressed with having the charges outstanding for such a long period of time.

He acknowledges that these stresses started shortly after he was charged, but says that the problems have only worsened over time. In May 2011 he was diagnosed for the first time with high blood pressure, and is now on medication for that condition. He has recently experienced great difficulty sleeping, and the problem is progressively getting worse over time. The limbo in which he finds himself has left him stressed and unable to enjoy life as he did in the past. He has turned down at least six jobs in the last year due to uncertainty over the outstanding charges. 33 .

The Applicant retained counsel prior to the first appearance and took all actions consistent with wanting the earliest trial date possible. There is nothing before me to negative any of the prejudice sworn to by Mr. Vendittelli. While it is clear that much of this prejudice arises from the prosecution of the charge itself, that prejudice is exacerbated by the failure of this matter to proceed expeditiously to trial. As the Supreme Court recently reaffirmed in Godin , the question of prejudice cannot be considered separately from the length of delay.

Even if there were no evidence of specific prejudice, inferred prejudice is properly inferred from long delay ( Godin at paragraph 31). In the case before me, I find that Applicant has suffered both inferred prejudice and some specific prejudice to his security interests as a result of the criminal proceedings hanging over his head for as long as they did.

(4) Balancing the Individual and Societal Interests 34 . The overall delay in this simple over 80 case with a constitutional challenge to amended legislation was seven days short of 14 months. The defence and the Crown are responsible for none of the delay. The institutional delay was 11.5 months. That is one and a half months outside of the upper end of the Morin guidelines. There is inferred prejudice and some specific prejudice. 35 . This Court acknowledges the serious nature of drinking and driving offences and that society has an interest in having these crimes tried on their merits.

However, the Court must balance the interests of society against the interests of the accused in an unreasonable delay application. The government has had many years to address the delay problems in the criminal justice system that came to a head in Askov. However, twenty years later, institutional delay for this type of case has not abated. Balancing all of the factors, I find that institutional delay of 11.5 months to bring a relatively simple 1.5 day trial to trial in the Ontario Provincial Court is simply unacceptable and unreasonable. 36 . I find that the Applicant’s s. 11(

b) rights have been infringed. The only appropriate remedy is a stay of the proceedings.

Released: May 2, 2012 _______________________ Justice D. Oleskiw