R. v. Dhaneshwar, 2013 ONCJ 514

DATE: 2013·07·19 Citation: R. v. Dhaneshwar, 2013 ONCJ 514 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — PARMESHWAR DHANESHWAR Before Justice D. Oleskiw Heard on June 24, 2013 Reasons for Judgment on s. 11(

b) Application released on July 19, 2013 Stuart Rothman ................................................................................................ for the Crown Michael Caroline ........................................ for the Applicant Parmeshwar Dhaneshwar OLESKIW, J.: 1. Mr. Dhaneshwar is charged that on May 24, 2012, he operated a motor vehicle while his blood alcohol level was over 80 mgs. Histrial was scheduled to proceed on September 3, 2013. 2. The s. 11(

b) Application was heard on June 24, 2013. These are my reasons for granting the application and imposing a stay of theproceedings. The Analytical Framework 3. 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 individuals who are accused of crime are treated fairly. Inaddition, there is a public interest in having those who break the law dealt with quickly on the merits of their cases. As the seriousnessof the offence increases, so does the societal demand that an accused person be brought to trial. 4. 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 5 . The total period of delay in this case, being three days shy of 15 months , warrants inquiry. There was no waiver of any time periods by the defence. 6 .

The chronology is as follows: Date Event Reason for Delay May 24, 2012 Date of Incident and Arrest June 7, 2012 Information sworn July 9, 2012 1 st Appearance At the Applicant’s first appearance, Counsel has been retained; Agent appears, receives initial disclosure and requests adjournment to July 30 to review disclosure July 12, 2012 Defence counsel writes letter requesting videos July 30, 2012 2 nd Appearance Videos have not yet been received but Crown notes that they have been ordered.

Crown agrees with defence that adjournment to August 20 th should provide reasonable time to obtain the videos August 20, 2012 3 rd Appearance Videos still have not been received and Crown again notes that they have been requested. Crown agrees that adjournment to September 10 is a reasonable time frame. September 10, 2012 4 th Appearance Videos still have not been received and Crown notes that they have been ordered but “no sign that it is here as yet”. Matter is adjourned to October 15 th .

September 13, 2012 Letter Defence counsel writes reminding Crown that he has not yet received the outstanding disclosure September 25, 2012 Letter Crown writes to defence saying videos have been ordered, 911 tape only to be disclosed after trial date is set.

September 25, 2012 Resolution Meeting Crown and defence meet September 29, 2012 Notice CEA Notice served on defence counsel by fax without either a

summary of the expert report or cv. October 9, 2012 Notice Defence notified that breath test and booking video is available for pick-up. October 12, 2012 Notice Defence notified that in-car video is available for pick-up. October 15, 2012 5 th Appearance Crown provides “additional disclosure” and Defence takes the first available JPT date for the Crown, being December 3, 2012. The parties agreed before me that the Toxicologist Report is dated and sworn on June 7, 2012. Although Notice of the Expert was faxed on Sept. 29, 2012 the Report itself was not received until October 15.

The Crown was unable to determine the reason for the delay in receipt of the Expert Report. December 4, 2012 JPT and set date-6 th Appearance JPT held: one day trial estimate with Punjabi interpreter for a Crown witness. Defence accepts earliest trial date offered, being September 3, 2013. Defence counsel stated that he had earlier dates available, including dates in December 2012 and January 2013, although he did not specify the days. June 24, 2013 11(

b) Application Heard September 3, 2013 Proposed Trial Date TOTAL DELAY 14 months and 27 days The Reasons for Delay (

a) Inherent Time Requirements and Crown Delay 7 . The Crown would characterize the timeframe from June 7 to September 10, 2012, being 3 months and 3 days, as neutral intake time. In my view, in the circumstances of this case, reasonable intake time, and thus, neutral time, is 1 month and 23 days (June 7 - July 30, 2012). Because of apparent police inaction, the Crown is responsible for the delay from July 30th to October 15, 2012 (2 months and 15 days). This was not a complicated case. The Applicant was charged with the sole offence of Over 80.

The breath tests were commenced well outside of the two hour window provided by s. 258(1)(c). The Toxicology Report, which was obviously critical disclosure, was ready on June 7, 2012, yet it was not disclosed until October 15, 2012. Further, while the dvd of the breath test may not be as important as in an impaired driving case, it is still an important piece of disclosure that should have been ready on the day of the alleged offence on May 24, 2012. It was not ready for pick up until October 9, 2012, notwithstanding two defence letters and three court appearances at which defence counsel requested it.

Further, the police made the first appearance returnable seven weeks after the day of the alleged offence. In this case, it is not unreasonable to expect that the Crown should have been able to make complete disclosure at the first appearance. Instead, it took a total of 4 months and 8 days. (

b) Actions of the Accused 8 . Defence Counsel was retained prior to the first appearance. Thereafter, defence counsel did everything to move this matter along, including conducting a crown pretrial without necessary disclosure. The defence is responsible for 1 day of delay from December 3 to December 4, 2012 when Mr. Caroline had a scheduling conflict. Other than the one day, the applicant set the earliest possible JPT and trial dates offered. (

c) Institutional Delay and Inherent Time Requirements The Judicial Pretrial

9. In R. v. Nguyen, 2013 ONCA 169 , [2013] O.J. No. 1243 at para. 54 the Court of Appeal for Ontario recently held that“the time required to schedule, prepare for, and conduct pre-hearing conferences should be considered an inherent time requirement ofthe case, both generally and specifically for the purposes of a s. 11(

b) analysis”. The Court also emphasized at para. 60: To conclude this discussion of pre-hearing conferences, I emphasize that barring cause to do so, courts tasked with deciding whether anaccused’s rights under s. 11(

b) have been infringed should be slow to second-guess the need for or number of such conferences.[emphasis added] 10. In R. v.

Vendittelli, [2012] ONCJ 314, a judgment given prior to the release of the Nguyen decision, I analysed the state of the lawas set out in the Ontario Court of Appeal decisions and held at para.20: While the Court of Appeal may at some point provide clarification on the apparently conflicting views expressed in Tran, Khan and theearlier cases, in fact, the Court has only treated judicial pre-trial scheduling as intake or inherent time when defence counsel are not readyand 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. 11. It appears that Nguyen overrules R. v. Chatwell, (ON CA), [1998] O. J. No. 206 (C.A.) at para. 11; R. v. C.R.G., (ON CA), [2005] O.J. No. 3764 (C.A.) at para. 30; R v. Rego, (ON CA), [2005] O.J. No. 4768(C.A.); and R. v. N.N.M., (ON CA), [2006] O.J. No. 1802 (C.A.),at para. 33, although none of these decisions arementioned in the Nguyen judgment.

Based on the broad, unconditional ruling in Nguyen, I find that the effect of Nguyen, Tran, Khanand Cranston is to characterize “some reasonable period of delay in arranging a judicial pretrial…as part of the inherent timerequirements of the case.”(Tran, 2012 ONCA 18 at para. 37). 12. Notwithstanding the relative simplicity of this prosecution, the policy at the Toronto West Courthouse required that a judicial pre-trial be held prior to setting a trial date.

The delay occasioned by scheduling this pretrial was 7 weeks (October 15- December 3, 2012).Counsel noted on the record on October 15 that the Crown had no earlier dates than December 3 for the JPT. Although the record issparse, it is my view 7 weeks to meet with a Judge about this simple case amounts to unreasonable delay. The system should have beenable to provide an earlier date. I am prepared to attribute three weeks to the inherent time requirements of the case following Nguyen. However, the additional fourweeks (1 month) is attributable to institutional or Crown delay.

Delay from the December 4, 2012 set date to September 3, 2013 trial date 13. September 3 was the earliest available trial date. 14. Institutional delay starts to run when the parties are ready for trial but the system cannot accommodate them; R. v. Morin, (SCC), [1992] S.C.J. No. 25 at para. 47. The appellate courts in R. v. Lahiry, 2011 ONSC 72019 and R. v. Tran, 2012ONCA 18, recently reminded us that Justice Sopinka did not say in Morin that the parties should be deemed automatically to be readyfor a hearing as of the date a hearing date is set. Specifically, counsel require time to clear their

schedule so they can be available for thehearing as well as time to prepare for the hearing; Tran at para. 32. 15. On December 4, 2012, Mr. Caroline noted that he had trial dates available in December 2012 and January 2013. As I havepreviously said, even if the defence is ready to run a trial on the set date, our system of administration of justice does not allow for orrequire the Crown to be in a position to run a trial on a set date.

The Crown must be allotted some reasonable time to get ready for trial.Even in the simplest one witness trial, the Crown cannot have the witnesses subpoenaed and available immediately. 15. In this case, I attribute one month to inherent time requirements and 8 months to institutional delay. Total Institutional Delay 16. I find that the total institutional and Crown delay in this case is 11.5 months.

Prejudice 17 . The Applicant relies on inferred prejudice. As the Supreme Court recently reaffirmed in Godin , the question of prejudice cannot be considered separately from the length of delay. Even absent evidence of specific prejudice, inferred prejudice is properly inferred from long delay ( Godin at paragraph 31). Balancing the Individual and Societal Interests 18 . The overall delay in this simple over 80 case is three days short of 15 months. The Crown is responsible for at least 2 ½ months of the delay due to delayed disclosure. The defence is responsible for one day.

The institutional and Crown 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. 19 . 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. In this case, high readings are alleged and the defence counsel advises that there is a defence. 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, more than twenty years later, institutional delay for this type of case has not abated. Balancing all of the factors, I find that institutional and Crown delay of 11.5 months to bring a relatively simple one day prosecution to trial in the Ontario Court of Justice is unreasonable. 20 . I find that the Applicant’s s. 11(

b) rights have been infringed. The only available remedy is a stay of the proceedings. The charge is stayed. Released: July 19, 2013 _______________________ Justice D. Oleskiw