R. v. Dunwell, 2016 ONCJ 134

COURT FILE NO.: Central East – Newmarket – 14-03558 DATE: 2016-03-07 CITATION: R. v. Dunwell , 2016 ONCJ 134 O N T A R I O C O U R T O F J U S T I C E BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — BRITTANY DUNWELL Applicant Before Justice P.N. Bourque Ruling On 11(

b) Charter Motion Released on March 7, 2016 J. Lee/D. Moull................................................................................................... for the Crown J. Dos Santos................................................................... for the accused, Brittany Dunwell BOURQUE J.: Overview [ 1 ] The defendant (the “Applicant”) Brittany Dunwell, is charged that on May 4, 2014, she did commit the offence of impaired care and control and care and control with excess alcohol. Trial within a reasonable time under 11(

b) Charter of Rights and Freedoms [ 2 ] The Applicant makes an application pursuant to

Section 11(

b) of the Charter of Rights and Freedoms and states that her right "to be tried within a reasonable time", has been infringed. She further asks that if I find that such an infringement has occurred, then pursuant to the provisions of Section 24 (1) of the Charter , that the only remedy which is "just and appropriate under the circumstances" is a Judicial stay of the charges against her. The Onus [ 3 ] The onus to satisfy me that there has been a Charter breach as alleged is upon the Applicant on a "balance of probabilities".

Relevant time periods and actions by the parties that impact upon the issue of delay Date Event Date of Offence: May 4, 2014 May 4, 2014 1st court appearance: May 28, 2014 Counsel attends for accused and files designation. First disclosure received. Adjourned to June 24, 2014 2 nd court appearance: June 24, 2014 Defence seeking further disclosure, breath room DVD. Adjourned to July 23, 2014. 3 rd court appearance: July 23, 2014 Crown delivers in car DVD and matter adjourned to August 20, 2014, for a Crown pre-trial.

4 th court appearance: August 20, 2014 Counsel is awaiting breath room video. Crown agrees that disclosure is till outstanding. Adjourned to September 17, 2014. 5 th court appearance: September 17, 2014 Breath room video still not disclosed. Adjourned to October 15, 2014. 6 th court appearance: October 15, 2014 Breath room video disclosed.

Adjourn to November 12, 2014. 7th court appearance: November 12, 2014 Adjourned at counsel's request to December 10, 2014 for Crown pre-trial - Disclosure complete. 8th court appearance: December 10, 2014 Matter set for one day trial to April 27, 2015. 1st trial date: April 27, 2015 Defence admits the entire Crown case. Admits that client would be found guilty but for a charter application under

Section 8 alleging a "strip search" of the defendant. Matter not completed and adjourned to November 3, 2015 for continuing trial. There was an interim date of July 3, 2015 set but that date was subsequently vacated below. 10th court appearance: June 2, 2015 Crown does bring forward motion. Police officer not available for November 3, 2015. Continuing trial set for January 7, 2016. Total time from charge to trial completion: (May 4, 2014 - Jan. 7, 2016) 20 months Total intake time: (May 4, 2014 – Dec. 10, 2015 7 months Total time from first set date to trial completion: (Dec. 10, 2014 - Jan. 7, 2016 13 months Legal Framework [ 4 ]

Section 11(

b) explicitly focusses upon the individual interest of liberty and security of the person. Nonetheless, there is, at least by inference, a community or societal interest implicit in s. 11(b). The failure of the justice system to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community's frustration with the judicial system and eventually to a feeling of contempt for court procedures.

When a trial takes place without unreasonable delay, with all witnesses available and memory is fresh, it is far more certain that the guilty parties who committed the crimes will be convicted and punished and those that did not, will be acquitted and vindicated. [ 5 ] As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial: R. v. Morin [1] at p. 13. This applies not as a separate analysis of the 11(

b) issue but is applied throughout the analysis. [ 6 ] To decide whether s. 11(

b) has been infringed, the court must balance these individual and societal goals with the length and causes of the delay. In Morin , the Supreme Court of Canada set out the framework for this judicial balancing. Four factors must be considered. 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 delay, and 4. prejudice to the accused. [ 7 ] In R. v. Godin [2] , the Supreme Court of Canada revisited and confirmed the R. v. Morin analysis. As stated at paragraph 18: [18] . . . It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin , at p. 787, "[t]he general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11 ( b )] is designed to protect against factors which either inevitably lead to delay

or are otherwise the cause of delay." [ 8 ] The Court went on to restate "...that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice". The court went on to say: [37] It is difficult to assess the risk of prejudice to the appellant's ability to make full answer and defence, but it is also important to bear in mind that the risk arises from delay to which the appellant made virtually no contribution.

Missing from the analysis of the majority of the Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforward case to trial. As noted already, prejudice may be inferred from the length of the delay. [38] Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant's ability to make full answer and defence that the overall delay in this case was constitutionally reasonable.

Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(

b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred. Analysis Length of the delay [ 9 ] In this case, the total length of the delay from charge until attendance for the completion of the trial is 20 months. In my opinion, this length of time requires an inquiry into the reasonableness of the delay. Waiver of some or all of the time periods [ 10 ] Courts have recognized that a defendant may waive 11(

b) rights in their entirety or for specific periods during the course of the proceedings. Such a waiver must however be unequivocal and made by an informed Defendant. Waiver by counsel for the defendant will almost always be assumed to be unequivocal and informed. [ 11 ] In this proceeding, there has been no express waiver of the all or part of the time periods. Reasons for the delay: Inherent time requirements of the case [ 12 ] This is a matter for which the Crown is proceeding by

summary conviction. The police investigation was complete by the time of the laying of the charge. The Crown and defence agreed that the trial would take no more than one day. [ 13 ] As the case unfolded, the defence admitted the entire facts of the Crown case. Counsel indicated that at the time of the setting of the trial date, that position was known to the Crown. The defence argument was based on the alleged strip search of the defendant. In that regard, the defendant has taken active steps to shorten the trial of the matter.

I will also refer to this below in assessing the reasons it took so long to complete the intake period. In all other respects, it is the type of case which is routinely dealt with in the Ontario Courts of Justice in this jurisdiction. [ 14 ] There is therefore no reason in the time requirements of the case that the time frame as suggested in Morin should not be complied with; that is, an institutional delay period of between 8 and 10 months. [ 15 ] The application of a guideline will be influenced by the presence or absence of prejudice.

If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact. Judicial pre-trials [ 16 ] There was no judicial pre-trial in this case and thus no delay was occasioned for that reason. Availability of Counsel [ 17 ] In R. v.

Tran , the court also stated that "Parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their

schedule so they can be available for the hearing as well as time to prepare for the hearing...and these times are part of the inherent time requirements of the case." In determining these issues there should be some evidence, either at the time the trial date was set or at the 11(

b) hearing, upon which this matter can be ascertained. If not it would appear that the court is free to (as in Tran ) to substitute its own estimates. In assessing the defence preparation time, obviously the counsel's expertise in dealing with this type of case is a consideration. [ 18 ] At the time the trial date was set, there was nothing put on the record indicating the defence readiness for trial. As the defendant counsel has some experience in these matters, and taking account that there had to be a Charter application prepared and filed, I would allocate at least a month for this purpose.

Defence counsel stated that 2 months’ time would be needed by the defence to be ready for trial. I accept that admission. Actions of the Accused [ 19 ] The record does not indicate that there are any delaying steps taken by the defence in this matter. Actions of the Crown

[ 20 ] The intake period for this matter was unduly long. I believe that an intake period of up to three months is normal for this type of case. Usually 2 to 3 months is the allotted. The defence agreed to a 3 month prior and I am prepared to assign 3 months of that time to neutral intake period. [ 21 ] The Crown did not have all of the disclosure until October 15, 2014, which consisted of the final video of the breath room.

Unlike documentary disclosure which counsel can review within a short period of time, video disclosure needs some time to view, make notes about and then decide whether it is relevant to the issues. I note in this case that the in-car camera video was not delivered until July 23, 2014. I also note that as this case was defended, the station videos have become one of the most important aspects of the case. As the case as developed before me, I can make a finding of fact that the providing of these video's had to be important to the development and preparation of the defendant's case.

In other words, I do not feel that this is a case where a defence lawyer can with confidence set a pre-trial or trial date without this information. [ 22 ] The Crown has provided no reason why the obtaining of what is now (in this jurisdiction anyway) a very normal and regular part of the disclosure in a drinking and driving case, should take some 6 months. I would have thought that the videos could be obtained within the 3 month intake period. Therefore, I will assign the remaining period of time to the setting of the first trial date as the responsibility of the Crown.

Limits on institutional resources [ 23 ] The Crown has not brought to my attention any specific limits on the institutional resources in this jurisdiction. Other reasons for the delay Failure to procure the attendance of witnesses [ 24 ] The trial had to be adjourned for a second time because of the unavailability of a Crown witness. While the Crown flagged the probable issue in advance and the application for the adjournment was brought in advance, it still made necessary a further delay of the case.

Unreasonable estimations of trial time [ 25 ] The case began on April 27, 2015 and both counsel estimated that it would take a day. That estimate was not correct and it will take a portion of another day to finish. I note that the defendant made efforts to shorten the case by admitting the crown's case and proceeding with his Charter argument. The Crown felt the need, notwithstanding to call the bulk of their case, in any event. I do not fault the Crown for this but in assigning issues of unreasonable estimates, I cannot find that it was the defence who set out any unreasonable estimates.

The defendant testified on the Charter application and only two Crown witness needed to be called to complete the matter. In all the circumstances, I do not fault the defendant for an unreasonable estimate. I do not find that the estimate was unreasonable. The defence however, acknowledges that some of the delay from the first trial date to the ultimate trial date today should be neutral (as one of the exigencies of any trial) and believes that 2 months of that time should be neutral. [ 26 ] The Crown states that all of the time from April 27, 2015 to November 3, 2015 should be neutral.

I have already rejected the Crown argument that the delay was caused by the failure of the defence to properly estimate the trial time. The Crown also alleges that since the defence did not object to the setting of the new date, then he is deemed to accept it as neutral delay or is admitting that there is no prejudice of any kind to the defendant because of the delay. I do not accept that assertion.

In any event, that fact that the defendant attended in court on June 4, 2015 to seek an earlier date, put paid to that assertion that the defendant was not interested in getting an earlier date. [ 27 ] I believe that when a trial is not completed but must be continued then, the obtained of a return date should have some priority over the regularly scheduled cases. The defence suggests that 2 months delay would have been reasonable. I agree. Prejudice to the accused [ 28 ] The defendant has not filed an affidavit which sets out the prejudice that he has suffered as a result of the delay.

In that regard, I look at the delay as encompassing the obvious inferred prejudice coming from the delay and the fact that there is a greater expense to her on a second trial date with her counsel. Courts have recognized that more than one attendance for trial can result in an augmented prejudice. Several attendances for trial dates where the case is not reached can increase this "augmented prejudice".

The missing of one trial date is not a "great prejudice" but missing several trial dates certainly can be. [ 29 ] I have already cited the excerpts from Godin , which restates the prejudice resulting naturally from a situation where the guidelines in Morin are exceeded by a significant amount. Conclusion [ 30 ] The periods of delay as found by me are as follows: Total delay 20 months Neutral intake 3 months Time for defence to prepare for trial 2 months Any other delay which is neutral 2 months Total delay for 11(

b) purposes 13 months [ 31 ] I do not find any great prejudice other that noted above. I also find

that that the defendant has not waived by implication or otherwise any of her rights to be tried within a reasonable time. [ 32 ] Drinking and driving cases are serious and this must be weighed against all of the other factors including prejudice and the total amount of the delay. [ 33 ] In R. v Brace [3] , the Court of Appeal restated that where the delay is greater than the guideline period, the significance of actual prejudice is reduced (para 20). The court noted that "the public has an interest in having the charges dealt with on their merits.

The public also has an interest in having serious charges dealt with in a timely manner" (para 23). Conclusion [ 34 ] Based upon all of the factors referred to above, it is my opinion that the defendant has shown that her right to be tried within a reasonable period of time was indeed infringed. I therefore stay the charges against her. Signed: “Justice P.N. Bourque” Released: March 7, 2016