R. v. Cabading, 2011 ONCJ 762

COURT FILE No.: Toronto Region - Metro East Region (Scarborough) DATE: 2011·10·17 Citation: R. v. Cabading , 2011 ONCJ 762 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — FERNANDO CABADING Before Justice M. Wong Heard on May 31 and August 31, 2011 Reasons for Judgment released on October 17, 2011 L. Will ...................................................................................................................... for the Crown R.

Tsang ............................................................................... for the accused Fernando Cabading Wong, J.: [ 1 ] Fernando Cabading pleaded not guilty to Refusing to Comply with a Breath Demand. The Crown elected to proceed summarily and the trial commenced on May 31, and continued on August 31, 2011. The matter was adjourned to October 17, 2011 for judgment because Mr. Cabading’s wife was due to deliver their first child at the end of September. [ 2 ] The Defence argues that Mr.

Cabading’s right to counsel of choice was violated because the officers did not make reasonable efforts to contact his lawyer. Counsel also brought a

section 11(

b) application on the 2 nd day of the trial arguing that his client’s rights to have a trial within a reasonable period of time were violated. On August 31, 2011, the trial continuation date, I gave oral reasons dismissing the s. 11(

b) application with further reasons to follow, which are part of this judgment. [ 3 ] The facts in this case are not largely disputed: Crown’s Evidence: [ 4 ] On February 24, 2010 at approximately 3:08 am, Police Constable Manfred Lavers was on radar enforcement and he clocked the defendant’s vehicle going 96 km/hours in a 60 km/hour zone. [ 5 ] At 308 am, P.C. Lavers spoke to Mr. Cabading and noticed the defendant’s glossy eyes and a distinct odour of alcohol coming from his breath. [ 6 ] At 3:15 am, the officer read the approved screening device demand to Mr. Cabading. At 3:16 am, Mr.

Cabading provided a sample of his breath and registered a “fail”. At 3:17 am, the officer arrested Mr. Cabading for Over 80 and read him his rights to counsel and secondary caution. Mr. Cabading replied he understood and that he wanted to speak to a lawyer. At 3:19 am, P.C. Lavers read the approved instrument demand; to which, Mr. Cabading said he understood. [ 7 ] After radioing for assistance to help tow Mr. Cabading’s vehicle, at 3:35 am. P.C. Lavers left the scene with Mr. Cabading in his cruiser. [ 8 ] At 4:00 am, they arrived at the 41 Division. The booking video shows that at 4:06 am, Mr.

Cabading was paraded before the officer in charge of the station. During the booking, the officer advised the sergeant that Mr. Cabading had been advised of his right to counsel and that he wished to call a lawyer. After the booking was completed at 4:12 am., the officer took Mr. Cabading to the washroom then to the report room. [ 9 ] Police Constable Lavers then began searching for a phone listing for Mr. Cabading’s counsel of choice, who the defendant had mentioned by name. Here are the steps which the officer undertook to find Mr. Cabading’s lawyer of choice, which is not disputed by the defendant: • Mr.

Cabading told the officer that his lawyer was “Brian Kolman”. • The officer first checked the 2010 Ontario Lawyers Directory but could not find a listing.

• P.C. Lavers told Mr. Cabading that he could not locate Mr. Kolman’s number in the Lawyer’s Directory. • Next, P.C. Lavers continued to search for “Brian Kolman” on the internet. • At 4:26 am, the officer found a “B. Kolman” listing for a home address with a “416” area code. • At 4:26 am, the officer tried calling the home phone number for a B. Kolman, but the line was busy. • At 4:28 am, the officer tried the home number again, but it was still busy. • P.C. Lavers told Mr. Cabading that he had tried the number twice but got a busy signal both times. • Mr.

Cabading then asked the officer to call the law firm of “Worsoff and Associates”. The defendant did not know the number so P.C. Lavers began to look up the number. • At 4:29 am, the officer located the phone number for “Adam Little” of Worsoff and Associates and he called the number. The line went to voice mail and P.C. Lavers left a voice mail message explaining the purpose of the call. • P.C. Lavers advised Mr. Cabading that he had left a voice mail message for Adam Little. • Mr. Cabading then remembered that he might have Brian Kolman’s phone number in his cell phone directory. The officer retrieved Mr.

Cabading’s phone from his property bag and at 4:35 am the officer retrieved the number. P.C. Lavers could not remember if he needed Mr. Cabading’s assistance to unlock a password. • At 4:35 am., P.C. Laver’s placed what was the 3d set of calls for Brian Kolman: this time calling the number he had retrieved from the accused’s cell phone. P.C. Lavers testified the phone rang to a fax line and he advised Mr. Cabading. • Mr. Cabading then requested that the officer try calling “Mitchell Worsoff” at Worsoff and Associates. At 4:43 am., P.C. placed the 4 th of set of calls – this time to Mitchell Worsoff.

Again the officer had to leave a voicemail message on behalf of Mr. Cabading; and the officer again reported back to the defendant. [ 10 ] By this point, P.C. Lavers had spent 23 minutes trying to reach Mr. Cabading’s counsel of choice. He began his search at 4:20 am and it was now 4:43 am. [ 11 ] However, P.C. Lavers did not stop there: • At 4:45 am, P.C. Lavers placed a call to duty counsel. • At 4:53 am, duty counsel called back. • P.C. Lavers advised Mr. Cabading, who was still seated and cuffed to the bench which was standard procedure, that duty counsel was on the line for him.

Police Constable David Mailer, who was the breath technician that evening, answered the phone and offered it to Mr. Cabading. Mr. Cabading was uncuffed and lead to the private room to speak to duty counsel. Mr. Cabading refused to take the phone and stated that he wanted to speak to quote: “ my lawyer”(emphasis mine) [ 12 ] P.C. Lavers testified he told Mr. Cabading that they had made every effort to locate a phone number for his counsel of choice but none of the lawyers had returned his call. The officer testified that after Mr.

Cabading had refused to speak to duty counsel for free legal advice, he decided it was time for police to continue their investigation. [ 13 ] At 4:55 am, Mr. Cabading was escorted into the breath room. The breath room videotape was marked as an exhibit on this trial, as was the video recording of Mr. Cabading’s booking and eventual release from the station. [ 14 ] The breath room videotape starts at approximately 4:55:10 and ends around 5:04:38. It begins with P.C. Mailer, the breath tech, first asking Constable Lavers the circumstances of Mr. Cabading’s arrest. Mr.

Cabading interrupted the officer to say that he had never got a chance to speak to his lawyer. P.C. Mailer advised Mr. Cabading that he should stop interrupting and that he would discuss the lawyer issue momentarily. After reviewing with the Officer Lavers that Mr. Cabading had been given his rights to counsel and the caution, and the defendant understood, Mr. Cabading again interrupted the officer and repeated that he did not get a chance to speak to his lawyer; and again the officer asked him to wait. P.C. Mailer summarized for Mr.

Cabading that the officer had called 4-5 times, three or four lawyers: as well, the officer had contacted duty counsel, to whom Mr. Cabading had refused to speak. Mr. Cabading said the officers were forcing him to speak to duty counsel. The officer pointed out that they were not forcing him to speak to anyone because, in fact, Mr. Cabading refused to speak to duty counsel, which was his right. [ 15 ] P.C. Mailer advised Mr. Cabading that the officer had made every effort reasonably possible to call his lawyers but the odds that counsel would be in their offices at 4:30 am were “pretty slim”.

The officer explained to Mr. Cabading that none of the lawyers had out call services and one of the lines – a home number for “B. Kolman” – found on the internet through Canada 411 – was busy. Mr. Cabading replied that he understood they could not find a number for Brian Kolman. The officer explained that he had tried the Lawyers’ Directory and could not find an office number but had found a listing for a home address. [ 16 ] Mr. Cabading said he was not read the demand at the roadside. P.C. Mailer asked Constable Lavers to retrieve his memo book, and Mailer read aloud the demand. Mr. Cabading said P.C.

Mailer was not there when he was driving: therefore, challenging P.C. Mailer’s grounds for making the demand. P.C. Mailer explained to the defendant, in very simple terms, that he was continuing the investigation. [ 17 ] Mr. Cabading asked P.C. Mailer what would happen if he refused to provide a breath sample. P.C. Mailer told him

“you’ll be charged”. [ 18 ] Mr. Cabading then replied that he had already provided a sample of his breath. The officer explained that the defendant had failed the roadside test and he was now required to provide a second sample of his breath into the instrument before him. P.C. Mailer patted the machine. [ 19 ] The defendant repeated that he wanted to speak to his own lawyer to decide what was right and wrong – and that he wanted to speak to his lawyer before doing anything. [ 20 ] P.C. Mailer again explained they had already made calls to his lawyers and he had a chance to speak to duty counsel.

The officer said he was not going to wait until 8 or 9 am when the lawyers arrived at their offices to retrieve their messages. [ 21 ] P.C. Mailer repeated: “I am asking you right now if you are going to provide a sample of your breath?” Mr. Cabading repeated that until he spoke to his lawyer he was not going to do anything. [ 22 ] At 5:03 am, the officer stated that Mr. Cabading would be charged with Refuse. [ 23 ] However, the officer continued to answer Mr. Cabading’s questions: the defendant asked what would happen if he provided a sample. P.C.

Mailer said the accused might blow “over” or “under” the legal limit and that he may or may not be charged. Mr. Cabading then asked what would happen if they just waited for his lawyer? P.C. Mailer said that he was not going to wait for 4 hours because by then the alcohol would be out of Mr. Cabading’s system. Mr. Cabading said he was not expecting to wait for 4 hours. The officer repeated that they had contacted duty counsel for him and that Mr. Cabading did not want to talk to them. The officer said “I will assume you do not want to provide a sample of your breath and I am not going to push it”. P.C.

Mailer began to recite the steps already taken P.C. Lavers, who had read to the accused the demand, to which Mr. Cabading said “He did not read it to me”. The officer repeated that the P.C. Lavers read it to him at 3:19 am, right after the right to counsel and caution. [ 24 ] At 5:04 am, P.C. Mailer said Mr. Cabading was going to be charged and asked that the accused be removed from the breath room [ 25 ] At 6:16 am, the booking tape shows Mr. Cabading released from the police station on a promise to appear and an undertaking with a condition that he not consume any alcohol or intoxicating substances.

Defence Evidence: [ 26 ] Mr. Cabading does not dispute any of the above facts. Mr. Cabading’s evidence was that he wanted to get advice from someone he knew as opposed to duty counsel; and that he did not outright refusing to provide a sample. Mr. Cabading’s position is that if he had just been told that the consequences for refusing to provide a sample were the same as impaired driving or Over 80, then he would have provided a sample. Mr. Cabading said after he was taken out of the breath room and was seated on the bench seat, he spoke to an Asian police officer who was seated nearby doing some paperwork. Mr.

Cabading asked the officer how bad was a charge of Refuse? The Asian officer told him it was the same as being Over 80 and said I “should have just blown”. Afterwards, Mr. Cabading says he asked P.C. Mailer if he could provide a breath sample and the officer refused. [ 27 ] In cross examination, neither Constables Lavers nor Mailer recalls Mr. Cabading asking for another chance to provide a breath sample after he was taken out of the room. Submissions: [ 28 ] Defence counsel acknowledges that P.C. Lavers made fairly good attempts to reach Mr. Cabading’s counsel of choice.

However, counsel argues the officer fell short of making “reasonable efforts” to contact counsel because he ought to have gone back to the first number he had called for “B. Kolman” – a residential number wherein twice the line was busy. Counsel Mr. Tsang submits P.C. Lavers ought to have tried the number again in case the line was free. As such, Defence argues Mr. Cabading’s right to counsel of choice was violated pursuant to

section 10(

b) of the Canadian Charter of Rights and Freedoms and the evidence of his refusal ought to be excluded pursuant to section 24(2) of the Charter . [ 29 ] Counsel also argues the Crown has not established the necessary mens rea for the offence of Refuse. Mr. Tsang submits his client did not outright refuse, but was asking for some guidance in deciding whether he ought to provide a sample or not. Defence counsel agrees that the officers were not obligated to outline in significant detail the legal consequences of refusal. However, counsel argues that once Mr.

Cabading received some further information from the “Asian officer” that the legal consequences of a refuse were as serious as being Over 80, the defendant asked for another chance to provide a sample and the officers should have afforded him the opportunity. [ 30 ] Crown counsel Ms. Will asks the court to reject Mr. Cabading’s evidence that he asked for another chance to provide a sample after he spoke to an unknown officer. Even if I were to accept his evidence, Crown counsel argues that the officers were acting reasonably in trying to contact counsel as well as offering Mr.

Cabading several opportunities to provide a breath sample, which he flat out refused. Ms. Will submits that in breath cases, and in particular in Mr. Cabading’s case, the officers were working with a time limit of 2 hours from the time of driving to obtain the first of the two breath samples. In this case, P.C. Lavers stopped Mr. Cabading driving at 3:08 am, which gave the officer until 5:08 am, if the presumptions were to apply. By the time the officers had exhausted all efforts to contact Mr. Cabading’s lawyers of choice and had called duty counsel, it was 4:55 am. By 5:04 am., P.C.

Mailer had answered all of Mr. Cabading’s questions and the officer was entitled to charge the defendant with Refusing to Provide a Sample. [ 31 ] Crown counsel submits the officers were exemplary in their efforts to reach all three lawyers Mr. Cabading had requested. Furthermore, the officers contacted duty counsel for the defendant who exercised his right and refused to seek legal advice.

The Law: [32] In R.v. Winterfield, [1], Justice Durno of the Ontario Superior Court sitting as a

summary convictions appeal courtreviewed the obligations police officers have in relation to the proper implementation of

section 10(

b) rights under the Charter. I cannotsay it more succinctly so I will quote Justice Durno starting at paragraph 53 to 55: On arrest or detention everyone has the right to retain and instruct counsel without delay and to be informed of that right: Charter ofRights and Freedoms, s. 10(b). The Supreme Court of Canada has found the right imposes several duties on the police. First, the policemust advise the detainee of the right, and provide the detainee with a reasonable opportunity to exercise the right to retain and instructcounsel without delay.

Second, the police are required to facilitate contact with counsel: R. v. Brydges (S.C.C.),(1990), 53 C.C.C. (3d) 330 (S.C.C.). Third, the police are under a duty to cease questioning or otherwise attempting to elicit evidencefrom the detainee until the detainee has had a reasonable opportunity to retain and instruct counsel: R. v. Manninen (S.C.C.), (1987), 34 C.C.C. (3d) 385 at p. 391. In R. v.

Prosper (S.C.C.), (1994), 92 C.C.C. (3d) 353, the Supreme Court examined the implementational component asit related to the availability of duty counsel concluding: As this Court has stated on a number of occasions, s. 10(

b) imposes both informational and implementational duties on state authoritieswho arrest or detain a person. (See Bartle, at pp. 192-94; R. v. Manninen, (S.C.C.), [1987] 1 S.C.R. 1233, at pp. 1241-42; R. v. Evans, (S.C.C.), [1991] 1 S.C.R. 869, at p. 890; Brydges, at pp. 203-4.) Once a detainee has indicated a desireto exercise his or her right to counsel, the state is required to provide him or her with a reasonable opportunity in which to do so. Inaddition, state agents must refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonableopportunity to reach counsel.

As the majority indicated in R. v. Ross, (S.C.C.), [1989] 1 S.C.R. 3, at p. 12, once adetainee asserts his or her right to counsel, the police cannot in any way compel him or her to make a decision or participate in a processwhich could ultimately have an adverse effect in the conduct of an eventual trial until that person has had a reasonable opportunity toexercise that right. In other words, the police are obliged to "hold off" from attempting to elicit incriminatory evidence from the detaineeuntil he or she has had a reasonable opportunity to reach counsel.

In my view, what constitutes a "reasonable opportunity" will depend on all the surrounding circumstances. These circumstances willinclude the availability of duty counsel services in the jurisdiction where the detention takes place. As the majority in Brydges suggested(at p. 216), the existence of duty counsel services may affect what constitutes "reasonable diligence" of a detainee in pursuing the right tocounsel, which will in turn affect the length of the period during which the state authorities' s. 10(

b) implementational duties will requirethem to "hold off" from trying to elicit incriminatory evidence from the detainee. In determining what is a reasonable opportunity, the fact that the evidence may cease to be available as a result of a long delay is a factorto be considered. Making the police hold off in situations where a detainee has been reasonably diligent in exercising his or her right to counsel, includingwhere appropriate trying to reach a private lawyer, and where "Brydges duty counsel" is not available would accommodate a detainee'sprivilege against self-incrimination.

The police investigation with respect to evidence in the construction of which a detainee mustnecessarily participate (e.g., confessions, identification evidence, and breath and blood samples) would have to be held in abeyance untilsuch reasonable time as a detainee is able to make contact with a private lawyer or whatever duty counsel service is in existence in thejurisdiction.

While there is no constitutional obligation on governments to make available “Brydges duty counsel”, the alternative solution is theobligation on police to “hold off” until a detainee has been given a reasonable opportunity to contact counsel: Prosper, at para. 33. There is duty counsel available in Ontario. [33] In a more recent decision of R.v. McCrimmon[2], the Supreme Court of Canada restated the same. [34] In Mr.

Cabading’s case, it is agreed that the police complied with the informational component of their duties and advisedthe defendant he had the right to contact counsel, which he understood. [35] Regarding the implementational component of those rights, Defence counsel submits a number of cases where courtshave held that the detainee’s right to counsel of choice was violated. [36] In R.v. Zaidi [3], the accused was arrested for impaired operation and indicated he wanted to call his own lawyer. Policeobtained the phone number from the accused’s brother.

Officers called the number and discovered it was a pager and they inputted theirphone number. No return call was received. The police then asked the accused if he had any other phone numbers for his lawyer, whichhe did not, so they asked the appellant if he wanted to call duty counsel. The appellant said “no”, but duty counsel was called anywayand Mr. Zaidi spoke to duty counsel. Afterwards, the defendant told the police that he was dissatisfied with the advice he received fromduty counsel and wanted to call his own lawyer.

The breathalyzer technician ignored the accused’s demand to speak to his own lawyerbecause he thought it was just a tactic to delay the taking of the breath samples. Each time the accused was asked a question, heresponded that he wanted to have his own lawyer present. In allowing the appeal and entering an acquittal, the

summary convictionappeal judge found that the appellant had displayed reasonable diligence in the exercise of his right to counsel, which the police ignored.At a minimum, the police ought to have given the accused a phone book to try and find another number for his lawyer. [37] In R.v. Pendleton[4], Justice Cleary of the Ontario Court of Justice found the accused’s right to counsel of choice wasviolated. Police called the accused’s counsel of choice twice and left messages within 30 minutes; then they let the accused speak to dutycounsel.

Afterwards, the accused did not complain about the quality of the advice received but testified that he would have calledanother lawyer if given a chance. The Court held that by the police maintaining control of the phone book, the officer failed to give theaccused an adequate opportunity to exercise his right to counsel.[5]

[ 38 ] In R.v. Snider [6] , the Court found the accused’s rights to counsel of choice were violated when the defendant specifically named two lawyers he wanted to speak to, but because there was no phone book available, the police called duty counsel. [ 39 ] In R.v. Hess [7] , the accused indicated he wanted to speak to a particular lawyer. Police called the lawyer’s number and let the phone ring five times and then hung up. The police gave the accused a list of other names of lawyers and eventually he spoke to one of them.

The court held that the police controlled the system of accessing counsel and found the officers, in that case, made little or no effort to contact counsel of choice. [ 40 ] In R.v. Perry [8] , the accused complained after speaking to counsel of his choice that it was a “pointless phone call” because the lawyer was retired and could not give him any legal advice. The officer did not provide the accused with further opportunity to consult with counsel in order to obtain meaningful advice. The officer’s conduct was found to be “wilful, inappropriate, deliberate and reckless”. [ 41 ] In R.v.

Winter [9] , the accused spoke to duty counsel and was told to contact another lawyer for advice. Upon telling the police officer that she was told by duty counsel to call another lawyer, the officer refused to allow the accused another phone call. [ 42 ] In Mr. Cabading’s case, I find P.C. Laver made every reasonable effort to contact the defendant’s counsel: the officer checked the Ontario Lawyer’s Directory; he searched on the internet checking Canada 411; he phoned a possible home number of “B. Kolman”; he placed calls and left messages for two other lawyers Mr. Cabading had requested as alternatives to Mr.

Kolman. Then the officer retrieved the defendant’s cell phone and tried calling a number for counsel; and finally he called duty counsel. Throughout all of these attempts, P.C. Laver advised Mr. Cabading of his progress (or lack thereof) and sought further direction of the accused. [ 43 ] The only thing Defence counsel can criticize Constable Lavers of not doing was to try calling the home phone number of “B. Kolman”, which originally had been busy. According to the officer, calling the residential number of B. Kolman, was “a stab in the dark”, and he was unsure the listing was even the right person.

When asked why he did not call back after the 23 minutes of trying the various lawyers and duty counsel, P.C. Lavers said he could have called back, but asked “Where do you draw the line?” The officer said he was more confident someone from a law office would return the call as opposed to a home number for someone with the same initial “B” and surname “Kolman”. [ 44 ] I find it is highly speculative that calling back “B. Kolman” at 4:43 am, would have resulted in Mr. Cabading speaking to his lawyer.

The issue is whether the police provided the appellant with the information required to assist him in exercising the rights to counsel and whether police acted reasonably to facilitated that contact ( R.v. Gentile, [2008] O.J. No. 3664 (S.C.J.) . [ 45 ] In this case, there is no suggestion that P.C. Lavers was perfunctory or dismissive of Mr. Cabading’s request to speak to counsel. Mr. Cabading agreed in cross examination that P.C. Lavers was polite and professional, and the officer following the defendant’s directions. Moreover, P.C. Lavers called duty counsel and suggested to Mr.

Cabading that he speak to counsel – albeit duty counsel. Mr. Cabading had the right to refuse to speak to duty counsel, which he did. Whether it was a ploy or a poor decision to refuse to speak to duty counsel, the net result was that P.C. Lavers had done everything reasonably required of him and then some, and the police investigation had to move forward. In McCrimmon , supra [10] the Supreme Court to Canada repeated that what amounts to a reasonable period of time depends on the circumstances as a whole, including factors such as seriousness of the charge and the urgency of the investigation.

Unlike the case of R.v. MacKenzie [11] , where the Ontario Superior Court held in an over 80 case that the accused’s right to counsel was violated after counsel was called but one hour remained before the 2 hour statutory presumption expired: in Mr. Cabading’s case, there was an increasingly narrow window of the 2 hour statutory limit in order for the presumption of the breath readings to apply. P.C. Lavers was entitled to move forward with the taking of the breath samples. [ 46 ] The onus is on the accused person to prove a breach of his Charter rights on a balance of probabilities.

In this case, I am not satisfied Mr. Cabading’s rights under

section 10(

b) were breached and the application is dismissed. Refuse: [ 47 ] There is clearly an overlap in the proof that is required to prove both the actus reus and the mens rea in “failure” cases. Whenever there has been an outright refusal, mens rea can be presumed. [12] What constitutes a refusal depends on all the circumstances of each individual case. A single conversation may contain many twists, turns or pauses, and one should not dissect it minutely or take a single sentence out of context. [13] [ 48 ] In this case, Defence counsel asks the court to accept that after Mr.

Cabading was taken out of the breath room and he had a change of heart after speaking to an unknown Asian officer who told him that he ought to have “just blown”. Defence counsel submits the court should accept Mr. Cabading’s evidence that he asked the officers for another chance and that it was part of the same transaction. Counsel Mr. Tsang submits neither officer can dispute that Mr.

Cabading changed his mind because neither says they recall the conversation. [ 49 ] The Defence referred the court to four cases wherein the court held the accused initial refusal to provide a breath sample was vitiated by his later changing his mind and that the officers ought to have allowed the party to provide a sample. Much turns on the facts of each case and the time between the refusal and the assent, and whether the testing device was still readily available. [14] [ 50 ] In this case, the only evidence that Mr. Cabading changed his mind is from the accused.

Even based on his own evidence, his change of mind occurred sometime between 5:04 when he was taken out of the breath room and 6:16 am, when he was released from the station. There is no precision as to the time he made this request. [ 51 ] By 5:04 am Mr. Cabading had been in police custody for close to 2 hours – having been stopped at 3:08 am. Besides the issue of the two hour presumption, Mr. Cabading had plenty of time to consider his options. For four minutes shy of two hours, the defendant had been dealing with P.C. Lavers, who everyone agrees was acting professionally and courteously.

I have already reviewed the efforts of the officer to contact counsel of choice and duty counsel as well as the efforts the breath technician made to answer Mr. Cabading’s questions and re-read to him the caution. In some ways, Mr. Cabading appeared to be stalling and challenging the steps that

had lead him to the breath room. Mr. Cabading was treated respectfully and was given sufficient time to consider his options. [ 52 ] Even if Mr. Cabading changed his mind and had requested that he be given another chance to provide a breath sample, I am not satisfied that his change of mind was part of the same transaction; and I find the police were entitled to refuse to give him another chance. The officers were patient, thorough, and extremely diligent throughout their entire interaction with Mr. Cabading to provide him a meaningful right to counsel. Based on the circumstances of this case, I am satisfied Mr.

Cabading had the requisite mens reas and that he wilfully refused to provide a sample. As counsel is aware, ignorance of the law is no defence. [ 53 ] Mr. Cabading will be found guilty as charged.

Section 11(b): [ 54 ] Defence counsel brought a motion on the 2 nd date set for trial arguing that because the trial did not conclude on the first date, the delay caused by having to set a continuation date resulted in a breach of his client’s

section 11(

b) rights to have a trial within a reasonable period of time. What was acceptable delay from the date the information was sworn on February 25, 2010 to the first trial date of May 31, 2011 (total delay of 15 months) became unacceptable delay when the trial did not finish on May 31 st and a second trial date was chosen for August 31, 2011. On that later date, I dismissed the application with reasons to follow. These are those reasons: [ 55 ] The Supreme Court of Canada in the decision of R. v. Morin [15] , outlined the factors that courts should consider in determining whether or not a delay in any given case is unreasonable. They are: (

a) the length of the delay; (

b) waiver of time periods; (

c) the reasons for the delay, including (

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

d) prejudice to the accused. [ 56 ] Defence counsel emphasises two main areas of argument: first, the pre-charge delay between the date of the arrest and the first appearance date for Mr. Cabading to appear was approximately 6 weeks, which is significantly longer than in jurisdictions such as Peel Region; and secondly, actual prejudice to the defendant. (

a) Length of the Delay : [ 57 ] The following is the history of the case coming to the court: • February 24, 2010 - Mr. Cabading is charged with Refuse Breath Sample; • February 25 th – information was sworn • April 7 th – Mr. Cabading made his first court appearance and the Crown provided him with initial disclosure. The defendant requested 4 weeks to retain counsel; • May 6 th – Counsel retained and designation filed.

Student at law for counsel asked the court to remand the matter in order to review disclosure and receive instructions from the client; • June 3 rd – Counsel had already completed the required Crown pre-trial. In court, Crown provided Defence with copies of the DVD from the booking tape and breath room video. Defence was still waiting for disclosure on a fail to comply charge. Defence counsel asked for 3 weeks, which would have been a date the week of June 24 th , but the Justice of the Peace advised that the week is not available because of the G20 Summit. The J.P. suggested a date after July 5 th .

Counsel agreed to July 8 th • July 8 th – Counsel was unable to attend in 406 court to set the date because he was busy in another courtroom. Matter adjourned to July 13 th . • July 13 th – an in court Judicial Pre-trial was conducted and all parties agreed to May 31, 2011 for a one day trial. • On May 31, 2011, the trial began before this court. The trial did conclude and the matter adjourned to August 31, 2011 for trial continuation scheduled for 2 hours. • August 31, 2011 –

Section 11(

b) motion dismissed; the trial continued and completed. [ 58 ] It is agreed by both parties that the total delay in this case is 18 months and 7 days, which is outside the guidelines recommended in R.v. Morin [16] , and as such an inquiry is required. (

b) Reasons for the Delay: [ 59 ] According to the Crown and Defence, the main reason for the delay is the lack of institutional resources wherein it took approximately 13 months and 18 days to have this matter completed from July 13, 2010 (the date when both parties were ready to proceed after having completed the Judicial pre-trial) until August 31, 2011. Added to that length of delay, Defence counsel argues ought to be two other periods of time: first, the time between the information was sworn which was February 24, 2010 through until Mr. Cabading’s first appearance in court which was on April 7, 2010.

Defence counsel argues this period of approximately 6 weeks should not be considered neutral intake period but rather Crown delay. Counsel argues police ought to have given Mr. Cabading a earlier first appearance date from the date of his arrest and the information being sworn. [ 60 ] The second period is between June 3 and July 8 th , when Defence counsel was prepared to return to court sometime around June 24 th but could not because the G20 Summit limited the kinds of cases that were to be heard during that period.

Crown counsel agrees that 14 days ought to be considered Crown or institutional delay because the courts could not accommodate the matter.

[ 61 ] In

summary, the Defence argues a total of 14 months and 2 days is the operative delay to be considered. [ 62 ] The Crown submits the total delay is 13 months and 21 days. (

i) Inherent time requirements: [ 63 ] 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. [ 64 ] Defence counsel submits the police ought to have given Mr. Cabading a first appearance date that was closer to the time he was charged. Counsel Mr. Tsang submits that had Mr.

Cabading been given a date within a week or two of being charged, then the process could have started much quicker. Counsel filed a total of 55 copies of promises to appear dating back from 2007 through to 2011, wherein Peel Regional police have accused persons appearing before the court within 7 to 21 days of their arrest and release.

Counsel also provided an affidavit from local counsel in Peel Region who has practised for 4 years and who apparently keeps copies of his client’s promises to appear and now serves as an expert on local practise. [ 65 ] In this case, even though Defence counsel argues police ought to have given Mr. Cabading an earlier first appearance date, the defendant needed more time to retain counsel because on April 7, 2010 – some 6 weeks after he was initially charged – on his first appearance date, duty counsel on behalf of Mr. Cabading asked the court for an addition 4 weeks to retain counsel.

The matter was adjourned to May 6 th . There were subsequent Defence requests for brief adjournments to review and obtain additional disclosure, [ 66 ] It was not until Mr.

Cabading’s 5 th scheduled appearance in court on July 13, 2010 that counsel for both sides were prepared to move the matter to trial. (Without going into any greater detail, leading up to this date, the Crown was responsible for 14 days of delay because of the G20 Summit scheduling issues and Defence was responsible for 5 days because he was in another courtroom and could not speak to the matter). [ 67 ] What this establishes is that both parties needed time after Mr. Cabading was charged to be ready for trial. It is unfair to hold one party to a different standard than the other. Defence counsel Mr.

Tsang argued that if Mr. Cabading had been given an earlier first appearance date then there would not have been a problem scheduling around the G20 summit and he would have been given an earlier trial date; then counsel would have been able to appear for the set date because it would not have been a date when he was required in another courtroom, etc, etc.

Frankly, I find counsel’s attempt to speculate of what would have happened if there had been an earlier first appearance date as unhelpful. [ 68 ] The courts have recognized that inherent in getting a case ready for trial both parties require some time: hence, any delay for this purpose ought to be considered neutral time. In this case, both sides required from at February 25 to July 13 th , less the time attributable to the Crown and the Defence already mentioned, for a total of approximately four months to be ready for trial.

Four months is outside the recommended guidelines for intake period as set out in Morin , but they are guidelines and not fixed terms. ii) Actions of the Defence and the Crown: [ 69 ] I have already found that the Crown was responsible for 14 days of delay and the Defence was responsible for 5 days of delay iii) Institutional Delay [ 70 ] Both counsel agree that the court ought to consider the time period when both parties were ready to proceed to trial on July 13, 2010 to May 31, 2011, when the trial started as institutional delay. The main point of contention is that Mr.

Cabading’s trial which began on May 31 st and which was scheduled for a full day had to compete with other cases on the docket and did not finish that date. The 2 nd date for trial was not until August 31 st , 2011 – exactly 3 months later. [ 71 ] In Mr. Cabading’s affidavit he outlines what took place in court on May 31, 2011. In paragraph 12, Mr. Cabading outlines that his trial did not start until 11:40 am because the court was dealing with other cases. Mr.

Cabading also writes that the lunch break started at 12:50 p.m., and while he was told to be back at 2:00 p.m., his case did not resume until 2:50 p.m. because there was another matter being dealt with after the lunch break. Mr. Cabading also recalls the court recessed from 3:40 p.m. to 4:00 p.m., and the case did not finish that day. Obviously either Mr. Cabading or his counsel was checking his watch a lot that day. [ 72 ] In preparing this judgment, I reviewed the Digital Recording Device (known as DRD) that was implemented in Metro East Court in April 2011. On May 31 st , it turns out that Mr. Tsang, Mr.

Cabading’s Defence counsel, appeared for another client, which admittedly took time away from Mr. Cabading’s trial, as did other cases: • At 10:12 am, Mr. Tsang had another case before me called Suntharinham . The case was addressed from 10:12 to 10:22 am. It was held down for Mr. Tsang to go to the Trial Coordinator’s office to chose a trial date. • The court dealt with another unrelated matter. • At 10:36 am., Mr. Tsang returned and advised that another Crown counsel was helping him obtain officer leave dates for the Suntharingham matter and that he would return.

The matter was held down. • The court recessed to 11:00 am., wherein I met with counsel on an in-custody matter regarding a possible resolution. • At 11:23 am, Mr. Tsang returned and the court conducted an open court Judicial Pre-trial on the Suntharingham matter. The matter was remanded to the chosen trial date.

• At 11:28 am., Mr. Cabading’s trial commenced and evidence was heard until 12:49 am. • At 2:00 p.m., the court resumed and dealt with the in custody robbery guilty plea and sentencing, which I had pre-tried at the11:00 am morning recess.

The accused in that case was sentenced to a penitentiary term of imprisonment. • At 2:50 p.m., the Court continued with the Cabading trial. • At 3:41 p.m., the Court took the afternoon recess and advised counsel to see the trial coordinator and obtain a trialcontinuation date. • The trial resumed from 3:56 p.m. until 4:20 pm. • On May 31st, the date next available date for the trial continuation was August 31, 2011. However, the Court was available as early as June 6 and June 28th to resume the trial, but neither counsel was available.

The Crown was available on August 23rd, butDefence was not. [73] Hence, it took 3 months to August 31st for the trial to continue and conclude. [74] Defence counsel who likely assisted Mr. Cabading prepare his affidavit, failed to note that part of the reason why Mr.Cabading’s trial did not begin at 10:00 am., was because he was working for another client. I do not fault Mr. Tsang at all for speakingto a matter before the same judge, on what is the trial date for another client.

However, before pulling out the stop watch and makingnote of everything that happens in court, perhaps, counsel should make sure he does not share part of the blame. By addressing theSuntharingham matter, time was inevitably taken away from Mr. Cabading’s case. [75] There are also the realities of a busy provincial court docket in a jurisdiction such as Metro East in Toronto. There are many cases that have to be juggled, managed and be spoken to.

When a person is in custody such as was the case on May 31st with thematter that was judicially pre-tried at the morning recess and resolved in the afternoon, the case gets some priority; and often in custodymatters get scheduled on top of an already busy court docket. [76] There is precedent that the inherent time requirements needed to complete a case are considered to be neutral in thesection 11(

b) analysis. In R.v. Allen[17] , the Ontario Court of Appeal stated: When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete thatcase: R. v. Morin, supra, at p. 16. Those time requirements can include adjournments necessitated by the need to find additional courttime when initial time estimates prove inaccurate: R. v. Hawkins (1991), (ON CA), 6 O.R. (3d) 724 at 728 (C.A.),aff'd, (1992), (SCC), 11 O.R. (3d) 64 (S.C.C.); R. v. Philip (1993), (ON CA), 80 C.C.C. (3d) 167 at172-73 (Ont. C.A.). The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(

b) calculus. Therecognition and treatment of such inherent time requirements in the s. 11(

b) jurisprudence is simply a reflection of the reality of the worldin which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand oncourt resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a caserequires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide thoseadditional resources. [77] In the more recent decision of R.v. Meisner[18], the Ontario Court of Appeal reviewed the decision of Justice Hill’s of theOntario Superior Court wherein he upheld the trial judge’s decision to dismiss a

section 11(

b) application. The first trial did not proceedbecause the matter was moved before another judge and an issue about a potential conflict of interest arose. The matter had to beadjourned for 3 months for a new trial date. The Court of Appeal held: The adjournment of the appellant's trial is an example of one of those things that happens from time to time in the criminal process forwhich no one can be faulted and which almost inevitably requires an adjournment and rescheduling.

Just as intake time is allowed whena case initially comes into the criminal justice system, it is inherent in the process that some time must be allowed to reschedule mattersthat are adjourned for reasonable and unforeseeable reasons for which no one can be faulted. In this case, the system was ready toaccommodate the appellant some three months after the first scheduled trial date. In our view, this was a reasonable accommodation andwe would regard that three-month period as neutral for the purposes of the s. 11(

b) assessment. [78] In R.v. Amyotte[19], the trial did not commence until 345 p.m., and counsel advised that they would be bringing a section11(

b) application on the next date. The court tried to accommodate an earlier date but ultimately between the start and the continuationdate there was a delay of 3 months. In R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1, Sopinka J. said that in Utopia zero tolerance would be permitted forinstitutional delay from the time the parties are ready for trial and their trial date. In Utopia, resources would be unlimited and theirapplication would be administratively perfect with no shortages of judges or courtrooms, essential court staff would always be available.His Lordship continued, "Unfortunately, this is not the world in which s. 11(

b) was either conceived or in which it operates." The samecomments apply to the appellant's submission. Hill J. rejected the same argument in R. v. Meisner (2003), 38 M.V.R. (4th) 271 at para. 45, affirmed, (ON CA), 7M.V.R. (5th) 1 (Ont. C.A.) concluding an overbooking scheduling model was the "only realistic option for a fixed date system in anurban judicial centre." I agree.

Trial scheduling has to take into consideration the realistic prospects that last minute guilty pleas will beentered, trial date adjournments will be granted, charges will be withdrawn or stayed, accused will fail to appear for their trial andwitnesses may be unavailable or not appear. In Meisner, Hill J. held that s. 11(

b) rights cannot be protected where the case flow management in an overbooking model is appliedwithout regard to historical tracking data to identify a reasonably predictable or stable fallout rate. Once the fallout rate emerges, trial

scheduling can proceed on the basis of scheduling a trial court in such a way that there will be a reasonable assurance that the matters that will proceed to trial will be dealt with on the assigned trial date. I agree with His Honour's comments. [ 79 ] I am satisfied that the additional 3 months it took to find the continuing trial date ought to be considered as neutral time.

Prejudice to the accused : [ 80 ] 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 [20] [ 81 ] The only prong of the prejudice analysis argued in Mr. Cabading’s case is the security of his person.

He was released from the police station on a form 10 promise to appear and 11.1 undertaking. The only restriction on him was not to consume alcohol, for which he did not seek a variation. Mr. Cabading also testified that he recalls the events and any delay in the matter coming to trial has not impaired his memory. [ 82 ] Mr. Cabading testified that as a result of the delay he has suffered great stress and anxiety. He cannot sleep properly and his mind is not 100% on his job.

However, he has not sought any medical help because he and his wife were expecting their first child and he had to work as many hours as he could to earn money. Mr. Cabading said he worked a minimum of 40 hours a week – upwards to 60 hours per week – installing kitchens and office furniture at TD Bank. He has received some accommodation from his employer who has allowed him to work mainly in the evenings and in the city. Part of the reason, Mr. Cabading’s boss has had to change the nature of Mr.

Cabading’s work is because the defendant was caught driving while he was suspended so another court imposed a driving prohibition and his employer of 8 years is aware of the suspension. [ 83 ] Mr. Cabading also claimed that he was so distracted from the anxiety that he crashed his bike and received 5 staples in his head. However, when he went to the hospital and hence, not having to take time off work, Mr. Cabading still did not seek medical or psychological attention for the stress because Mr.

Cabading said the medical staff did not seem to really care. [ 84 ] The defendant also testified he has borrowed money from his parents to pay for the added cost of the two day trial. [ 85 ] I find that Mr. Cabading was not forthcoming with the court about the reasons for the change in his work schedule; namely, he was found guilty of driving while prohibited and his driver’s license is suspended not because of this charge but because he committed a subsequent offence. Also, I do not accept his evidence that he has suffered the heightened level of stress and anxiety solely because of the trial delay.

There are a lot of reasons for Mr. Cabading to feel pressure and stress: he was expecting a new baby which comes with many levels of uncertainty and added responsibility, plus he has lost his driver’s license. [ 86 ] However, I do accept that Mr. Cabading suffered some actual prejudice insofar as the added costs of a second trial date. But as I have already reviewed, the reasons for the delay were in part because of his counsel’s busy

schedule and because the court was busy, too. Conclusion: [ 87 ] While 11 months is outside the guidelines set out by the various courts for a

summary conviction matter to come to trial, I have to consider the totality of the delay and the reasons for it. I do not find Mr. Cabading’s

section 11(

b) rights to have a trial within a reasonable time have been breached even though I have found some actual prejudice. The application is dismissed. [ 88 ] The Crown has proven the essential elements of the offence before this court beyond a reasonable doubt. [ 89 ] As such, Mr. Cabading is found guilty of refusing to provide a breath sample. Released: October 17, 2011 Justice M. Wong