R. v. Cano, 2014 ONCJ 71

COURT FILE No.:Toronto DATE: 2014-02-10 Citation: R. v. Cano , 2014 ONCJ 71 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — ANA CANO Applicant Before Justice F. Bhabha Ruling and Reasons on Sections 11(

b) and 24(1) Charter Application released on February 10 th , 2014 Ms. S. Siopis ................................................................................................. for the Respondent Ms. S. Nichols ................................................................................................... for the Applicant F. BHABHA, J.: Following the hearing of this matter, the application for a stay was dismissed with reasons to follow at the conclusion of the trial.

OVERVIEW [ 1 ] On September 8, 2012 the applicant, Ana Cano, was charged with one count of impaired driving as well as one count of driving with excess alcohol arising out of a serious motor vehicle accident. [ 2 ] The Information was sworn on October 9, 2012. Ms. Cano retained counsel prior to her first appearance on October 22, 2012. She received initial disclosure on that date and within four weeks most of the remaining disclosure, save for a toxicology report, was provided to the defence. On December 10, 2012 the matter was set down for trial on October 29 and 30th 2013.

TOTAL PERIOD OF DELAY [ 3 ] The total period of delay from the date of the laying of Information (Oct. 9th 2012) to the trial date (Oct. 29 th , 2013) is twelve (12) months and twenty one (21) days. ISSUE [ 4 ] The narrow issue in this application was whether or not the institutional delay was unreasonable in all the circumstances, including any prejudice suffered by the applicant, so as to warrant a stay of the proceedings. CONCLUSION [ 5 ] At the conclusion of the application, I dismissed the application with reasons to follow.

I determined that a reasonable period of time for intake needed to be taken into account as neutral delay and that the total institutional delay in this case was approximately 10.5 months (10 months 19 days). This is the period between December 10, 2012 when the trial date was set and the trial date of August 29, 2013. [ 6 ] There was a serious motor vehicle accident in this case involving multiple vehicles. A toxicology report was required given that the breath samples were collected outside the two-hour timeframe allowed for in the Code . The matter was also set down for a two-day trial.

As such, I concluded that the Morin guidelines could not strictly be applied to a case such as this. With respect

to the issue of prejudice I concluded that while the defendant suffered some prejudice, it arose primarily as a result of the chargesthemselves rather than the delay in getting the matter to trial. In any event the prejudice was not so significant as to warrant a stay. Balancing the various factors I am required to take into account on such an application, I concluded that in the circumstances, theapplication ought to be denied since there was a significant societal interest in having the matter heard on its merits.

THE TEST FOR UNREASONABLE DELAY [7] The test for assessing whether the applicant has met the onus of satisfying the court that there has beenunreasonable delay is well established. The court is required to consider the following four factors before the final balancing stage of theanalysis which requires consideration of the societal interest in a trial on the merits:

i) the length of the delay; ii) waiver of any of the time periods; iii) the reasons for the delay; and iv) any prejudice occasioned by the delay. [8] Even after this analysis, the court is required to engage in a final balancing. This means that even if the courtfinds that the delay is close to the line of what is constitutionally tolerable, the four Morin factors referred to must be balanced againstthe societal interest in a trial on the merits. In R. v. Godin the Supreme Court of Canada revisited and confirmed the Morin analysis.

Thecourt cautioned however against a mathematical or administrative approach or formula. Instead, the court emphasized that there must bea judicial balancing of the interests that s. 11(

b) is designed to protect against the factors that lead to the delay or are otherwise the causeof delay. [9] I have applied that approach to the analysis in this case. THE CIRCUMSTANCES OF THIS CASE [10] Although Ms. Cano was arrested on September 8, the day of the collision, the Information in this matter was notsworn until October 8, 2012. It is now very well-settled law that for the purposes of assessing unreasonable delay in the context ofsection 11 (

b) of the Charter the delay begins when information is sworn and not upon arrest. See R. v. Kalanj (SCC),[1998] S.C.J. No. 71. [11] Ms. Cano retained counsel without delay and in fact none of the delay in this matter can be attributed to her orthe actions of her counsel. [12] By the time of the first appearance on October 22, 2012 she received the initial disclosure package. The matterwas adjourned to November 19 for further paper and DVD disclosure which was still outstanding at that time.

On November 19 thecrown provided the outstanding disclosure and the matter was remanded to December 10, 2012 at the request the defence for purposes ofconducting the second crown pretrial. In the interim, a crown pretrial was held on November 27. The trial estimate was one and a halfdays and following the crown pretrial defence was alerted that further disclosure, namely a toxicology report, would be forthcoming. Inadvance of receiving the outstanding disclosure defence counsel set the matter down for trial on October 29th and 30th 2013, althoughearlier dates were available to counsel.

An interim date of February 25th was set for outstanding disclosure which was in fact providedon that date. As well the trial dates were confirmed and the s. 11 (

b) motion was set down to be heard on August 29, 2013. INTAKE [13] I find that the entire period from October 8 to December 10, a period of eight weeks, can be properly attributedto intake. In this timeframe, disclosure was prepared and received and pre-trials were conducted. This is typical of what one expects theparties to be doing following the first appearance. I find nothing out of the ordinary that would justify reducing the eight week intakeperiod in this case. See: R. v. Lahiry, 2011 ONSC 6780 , [2011] O.J. No. 5071.

INSTITUTIONAL DELAY [14] The period from December 10, 2012 to the trial date: October 29 and 30th 2013 – a period of 10 months and 19days is purely institutional delay. It falls slightly outside the Morin guideline of 8 to 10 months. I find, in the circumstances of this case,that the Morin guideline is not applicable. I disagree with the defence suggestion that this was a mere “photocopy case”. It was not wasnot a “run-of-the-mill”, or “garden-variety” impaired driving case. There was a serious motor vehicle collision. A toxicology report wasrequired given that Ms.

Cano's breath samples were collected after some delay at the hospital where she had been taken for treatment ofher injuries sustained during the collision. Several civilian witnesses were called to testify at the trial as well as three police witnesses. Inaddition to the

section 11(

b) application, the defence also brought an application under

section 10 (

b) of the Charter. Ms. Cano testifiedon that application which proceeded as a blended voir dire. [15] In the circumstances therefore, absent any significant prejudice arising from the delay, the 10 month and 19 dayinstitutional delay, I find, is not inherently unreasonable.

PREJUDICE Ms. Cano swore an affidavit and testified in support of this application. She identified three areas of her life in which she alleged she suffered “hardship” as a result of the ten and a half month delay in getting this matter to trial. Firstly, it was her evidence that “during this criminal process” she had interviewed for various employment opportunities overseas including in Mexico, Scotland and Australia as a digital systems engineer. She produced a number of job offers for employment beginning in and around early October 2013, several weeks before the trial date.

However, since she never inquired whether or not prospective employers were prepared to delay the start date of any employment opportunities by a few weeks, I could place little weight on the assertion that she lost attractive job opportunities abroad as a result of the delay in getting the trial heard. [ 16 ] Secondly, Ms. Cano indicated that although she developed a dermatological condition prior to being charged, the delay in getting this matter to trial caused her to have very poor sleep and to further break out in hives and rashes thereby heightening her pre-existing skin condition.

I have no reason to doubt Ms. Cano's evidence on this issue. Her evidence, however, is uncorroborated by any medical evidence as to the deterioration of the condition or whether or not she required or sought out any specific treatment. To the extent that the condition worsened at a minimum I find there was some prejudice that likely was attributable to the uncertainty of the outcome in this matter. [ 17 ] Finally, Ms. Cano testified that as a result of the trial date being in October of 2013 she was unable to travel to Mexico to visit her family to attend a party for her uncle’s 55th birthday.

She had not seen her uncle since December 2011.

While missing an uncle's birthday is unfortunate, it is not the type of prejudice that this court considers significant enough in the delay calculus to warrant a stay of the proceedings especially in a case involving a serious motor vehicle collision with elevated breath readings. [ 18 ] While I have no doubt that having to wait almost eleven (11) months from the date the matter was ready to set the trial date coupled with the uncertainty of the outcome would cause anyone to be stressed and somewhat anxious, the nature of the prejudice alleged in this case is not so severe in my view as to warrant a stay. [ 19 ] Even if it could be said that this was “a close case”, there was, in my view, a significant societal interest in having this matter adjudicated on its merits.

The charges arose in the context of a serious multi-vehicle collision resulting in significant property damage and some injury to Ms. Cano. The collision occurred on a Friday evening in a residential neighborhood in the city of Toronto. The breath readings were well in excess of the legal limit. On balance, all the circumstances in my view militated for an adjudication on the merits. For all these reasons the application was dismissed. Released: February 10, 2014 Signed: “Justice Feroza Bhabha”