R. v. Emanuel, 2011 ONCJ 62

Citation: R. v. Emanuel , 2011 ONCJ 62 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — KONSTANTIN EMANUEL Before Justice B. Knazan Ruling released on January 14, 2011 Mr. T. Goddard .................................................................................................... for the Crown Mr. P. Lindsay .............................................................. for the accused, Konstantin Emanuel KNAZAN J. : [ 1 ] This is an application under s. 11(

b) of the Charter to stay charges of operating a motor vehicle while one’s ability to do so is impaired by alcohol, and with a blood alcohol level of greater than 80 milligrams of alcohol per 100 millilitres of blood. Mr. Emanuel was arrested on May 10, 2009 and charged on June 16, 2009. His trial began on July 23, 2010 a day set to argue his motion to obtain the disclosure he had requested and had not received until just before that day. [ 2 ] When it comes to applying the reasons for delay prong of the Supreme Court’s approach to s. 11(

b) in R. v. Morin , [1992] 1 S.C.R. 77 there is disagreement between Mr. Emanuel and the Crown on the proper characterization of every portion of the delay up to July 23, 2010 and beyond into the period of the continuation of the trial. Mr. Emanuel was arrested on May 10, 2009 and says that the period until the information was sworn on June 16 th counts and the Crown says that it does not. Mr. Emanuel says that the 2 months and 16 days from June 30 to September 15 th , 2009 required to obtain disclosure and have a pre-trial with the crown was too long and the Crown says that is was not.

Both parties agree that the 29 days required to hold a pre-trial with a judge was institutional delay, but the Crown submits that the defence request for irrelevant disclosure necessitated a judicial pre-trial to argue about disclosure.

Finally, each party attributes the case requiring 2 days of trial time including a day to argue the disclosure application, to the other. [ 3 ] When a justice finally set a trial date on October 19 th , 2009 Crown counsel advised the justice that a pre-trial with a judge had just been held and that the parties wished to set down a motion date for July 23 rd , 2010 and that that was the first date offered for the motion. The parties also agreed to a trial date of September 23 rd , 2010.

Both Crown counsel and defence counsel advised the court that they had earlier dates but that the court did not and defence counsel added that the defence had earlier days than September 23 but that the court did not and that the pre-trial judge had said that there had to be 30 days between the date set for the disclosure motion and the date set for trial. [ 4 ] The trial began with arraignment on July 23 rd , 2010, the date originally set to argue the disclosure motion.

On that day both counsel advised that the requested disclosure had finally been provided to defence counsel on Tuesday July 20 th following a message from Crown counsel on July 16 th that it was ready to be picked up. As the July 23 rd date was never set for the trial proper, it was not ready to proceed and I adjourned the case to September 23 rd , 2010.

On that date the trial could not proceed because the defendant was not available, so the period since September 23 rd , at this point in the proceedings, is not relevant to the issue of trial within a reasonable time. [ 5 ] Thus the trial began with arraignment on July 23 rd , 2010, 13 months and one week after the day Mr. Emanuel was charged, and fourteen months after he was arrested, and the court was ready to hear evidence on September 23 rd , fifteen and sixteen months after those dates respectively.

[6] The periods from the arrest May 10, 2009 to June 16th, 2009 and September 15th, 2009 to October 19th, 2009 are most easily dealtwith in terms of reasons for delay. The period before charge simply cannot be counted as part of the delay within the meaning of s.11(b). It may go to an abuse of process, but the period starts when the charge is laid, R. v. Kalanj (SCC), 48 C.C.C (3d) 459. An information in cases of drinking and driving is usually sworn within a few days but here it was not. So the period under consideration begins on June 16th.

In any event, in submitting that the delay from arrest to trial is unreasonable, Mr. Emanuel admits that the time from May 11th to August 11th is neutral intake time. [7] From August 11 to October 19, Mr. Emanuel was ready to set a date but could not obtain a date for a pre-trial with Crowncounsel. Part of the reason was Crown counsel’s holiday. The period from the time the Crown pre-trial being completed until thejudicial pre-trial being held is institutional delay: R. v. C.R.G., (ON CA), [2005] O.J. No. 3764.

The Disclosure request [8] On July 8, 2009, defence counsel wrote to Crown counsel requesting: 1) Details and particulars of the inspection of the approved instrument (and the simulator and simulator thermometer used with it)when it was first placed into service and of all subsequent inspections thereafter up to the time of the breath test in this case, includingrecords of parts replaced and any modifications to hardware or software and any approvals of such modifications. 2) The calibration logs showing the changing of the alcohol standard for the two months leading up to the date of the alleged offenceand one month thereafter including: • the serial number and location of the instrument • the date that the alcohol standard was changed • the manufacturer, lot number and expiry date of the new alcohol standard • the simulator temperature during, and the result of the calibration check performed immediately after the standard was changed • any observations made during the changing of the standard • the name and/or badge number of the individual who changed the standard 3) the maintenance logs showing: • dates that the instrument was either placed in or removed from service • dates that the instrument was transferred to a new primary testing facility (NOTE: temporary use at a hospital would not have to beentered as this would not represent a change in the primary location) • information about preventative maintenance inspections and calibration of the instrument including: • date • inspection report • information about instrument malfunctions (NOTE: malfunction consist of Mechanical breakdowns rather than operational errorssuch as “INVALID SAMPLE” etc.) including: • date

• description of malfunction • action taken • repairs performed [9] On July 23, 2009 Crown counsel replied: For the reasons that follow we intend to resist your request for additional disclosure. Our position is that the historical and otherinformation sought is clearly irrelevant, as it can provide nothing touching on the accuracy of the instrument regarding the subject teststaken in this case.

While we would reconsider our position if you could provide an arguable basis of potential relevance, supported by anevidentiary foundation, we are presently prepared to call and rely upon evidence including the following: 1. An examination of the Intoxilyzer Test Record indicates that the calibration of the instrument was checked by the use of an externalalcohol standard and that the instrument appears to have been in proper working order at the time the tests were performed.

Any changein working status for the approved instrument used either proceeding or following the two subject tests or any maintenance performedwould be irrelevant to ascertaining the working order of the instrument at the time the tests were performed. The Intoxilyzer 5000C isdesigned to continuously monitor its functioning during each subject test, performing 20 checks of the system and two internal checks ofcalibration prior to each breath test, in addition to the calibration check performed using an alcohol standard solution, monitored by thequalified technician.

In the present case the system checks and internal standard tests performed prior to each breath test indicated nochange in the status of the instrument was reported during either subject test. It is generally accepted that when the Intoxilyzer 5000C isoperated properly by a qualified technician, it provides accurate readings of the blood alcohol concentration at the time of testing. 2. The Intoxilyzer 5000C test record, in the absence of any anomalies, is totally reliable to show the instrument is in proper workingorder and the results are accurate.

Requesting disclosure of calibration and maintenance records, without any identification of a problemwith the testing instrument is unnecessary. [10] Then on June 15, 2010, Crown counsel wrote to inform defence counsel that while maintaining his position that the requesteddisclosure was irrelevant, he was providing it in the interest of avoiding needless litigation. After a brief exchange regarding twooutstanding items, defence counsel was satisfied with the disclosure provided.

The relevance of the request for disclosure to the delay occasioned in this case 11] In withdrawing his disclosure motion on July 23, defence counsel advised the court that disclosure was not an issue “unless itarises in the trial” as disclosure was complete. He did however maintain the position that he could not have withdrawn the applicationbefore July 23 because full disclosure was only finally made a few days before that. [12] Now, however, the merits of the disclosure application have apparently returned as an issue in this s. 11(

b) application, in this way. In arguing that the trial really began on September 23rd, because the July 23rd date was only set down for motion because theCrown resisted disclosure that it ultimately gave, Mr. Emanuel submits that the Crown caused delay by refusing to provide certaindisclosure, by unnecessarily requiring time be set for extensive argument of the “disclosure” issue and then agreeing to provide thedisclosure but not in a timely fashion.

The Crown responds that the disclosure request was not a reasonable one; that the informationsought was not relevant to this case and that it was finally provided as a matter of expediency. The Crown’s initial position that it was notrelevant has not changed.

Therefore, the Crown submits that what Crown counsel calls the appellant’s “boilerplate” approach torequesting disclosure contributed to the need for a judicial pre-trial and caused a delay in his obtaining a trial date. [13] In my opinion the correct approach to the issue of the effect of the parties’ position on disclosure of the history of the intoxylizerused to take samples of Mr. Emanuel’s breath is not to resolve it on this application, but to consider the effect of the issue on the inherenttime requirement of the case, a relevant factor in assessing reasons for delay: R. v.

Smith (SCC), [1989] 2 S.C.R. 1120and the need for two days for this trial, whether or not one of them was set aside as a motion day only.

[14] This is a complicated issue. It arises in this way. Prior to the amendments to the Criminal Code effected by Bill C-2 that cameinto force in July 2008, an accused could rebut the presumption in s.254 of the Criminal Code that his blood alcohol level determined byhis providing a sample into an intoxylizer was his blood alcohol level at the time of driving, by adducing evidence of his consumptionand the blood alcohol level that would have produced at the time of driving. The amendments to s. 254 in Bill C-2 restrict the ways inwhich a defendant can rebut the presumption created by s.254 (2).

The most relevant limitation on the way in which the accused canrebut the presumption that Bill C-2 changed is that rebuttal of the presumption requires the defendant to establish that the approvedinstrument was malfunctioning or was operated improperly. [15] While accused persons may have sought disclosure of the history of operation and maintenance and repair of the approvedinstrument used in taking their breath samples before July 2008, this was not common: See R. v. Pfaller, [2009] O.J. No.1999 (RulingNo. 3) citing R. v. Ly [2005] O.J. No. 6065.

But persons charged after that date now often request the records that Mr. Emanuel soughtin his counsel’s letter of July 8, 2009. [16] In some cases, the Crown has resisted such disclosure and the Courts have upheld the Crown: e.g. R. v. Ahmed [2010] O.J.no.1500, R. v. Shrigley [2009] O.J. No. 5593. In other cases courts have ordered disclosure as relevant to full answer and defence:Pfaller, supra, R. v. Gubins, 2009 ONCJ 80 , [2009] O.J.

No. 848. [17] The discussions in these cases show how complicated the application for the records can become as the parties call evidence,including expert evidence as to how relevant the maintenance and repair records are to the issue of whether an approved instrument isdefective or malfunctioning: Shrigley supra is a good example. Against this background, it is not reasonable for Mr.

Emanuel to submitthat the Crown is responsible for causing delay by refusing to provide the disclosure and then thus unnecessarily requiring time to be setaside for the application to provide the disclosure that it ultimately provided. The necessity of the disclosure cannot be determined untilthe relevance of the disclosure is determined, and I agree with Crown counsel that providing the disclosure while taking the position thatit is not relevant, does not make it relevant. [18] Mr.

Emanuel was definitely entitled to request the disclosure, but his disclosure request, to use the words that he uses in arguingdelay occasioned by the Crown, required time to be set aside to argue the disclosure motion. I would not add the word unnecessarily ashe does in attributing the delay to the Crown, because it is the very nature of the case that necessitated the two days being set aside withthe first reserved for a disclosure application.

By the very nature of the case, I mean what it is about, breath readings, the legislation inforce at the time the charge was laid, the recency of that legislation, the continuing unresolved issue of relevance and defence entitlementto the historical evidence regarding the approved instrument, and the requirement of a judicial pre-trial and two days of trial in view of allof that.

The request for the disclosure, whose relevance is yet to be determined either in this case or by a court whose conclusion isbinding on this court is as much a voluntary action on the part of the accused intended to further his case: R. v. Morin, paragraphs 44 and45, as it is a result of the Crown’s original position. [19] In finding unreasonable delay, in the case of Pfaller, supra, Justice Green reached what could be viewed as an oppositeconclusion. As I noted above, in R. v. Pfaller, [2009] O.J.

No. 1999 (Ruling No. 3) Justice Green determined that the disclosurerequested relating to the history of the approved instrument was relevant and he ordered that it be provided. Then in staying theproceedings for unreasonable delay, he attributed the delay occasioned by refusing to provide the disclosure to the Crown. R. v. Pfaller,[2009] O.J. No. 3401 (Ruling No. 4). It is somewhat difficult to compare the Pfaller situation directly to Mr. Emanuel’s because thelitigation in Pfaller involved another issue, that is, whether Bill C-2 applied to Ms.

Pfaller who was charged before it came into force.However, on the disclosure issue, Justice Green was clear: he found it difficult to comprehend the Crown’s resolute refusal to providedisclosure of the very limited materials that Ms. Pfaller was requesting. The requested information in that case was similar to that whichMr. Emanuel requested, namely the inspection records and maintenance logs relating to the approved instrument. [20] The main difference between Pfaller and this case is that in Pfaller, the Crown adamantly refused to produce the records absent acourt order.

Justice Green noted that the Crown could have produced the records while maintaining that they were not relevant (Ruling4, paragraph 38) in order to avoid compromising the defendant’s right to a speedy trial. This is precisely what Crown counsel finally did in this case on June 15th, 2010, so that except for the 11(

b) motion, this case was ready to proceed on September 23rd.

Were there anyevidence that the Crown’s initial position and changed position were not principled and in good faith, this would be a different case. [21] In the absence of a determination in this case, that the refusal to provide the disclosure at the outset was not a reasonable positionfor the Crown to take, the decision in Pfaller, does not lead me to change my conclusion that the need for two days for trial at the time the October 19th date was set has been explained in this case. [22] From October 19th to July 23rd, that is the nine months that account for most of the 13 month delay, part of the reason for thedelay was the nature and complexity of this case and the Crown has explained it, though only in part.

[23] I say only in part because 9 ½ months to get a trial date is still a long time, only one half month short of the outer guideline limit for tolerable institutional delay established in R. v . Morin . [24] After the beginning of the motion, Mr. Emanuel sought to expand its scope by introducing statistics from the Ministry of the Ontario Attorney General website “Justice on Target”. These statistics show that the Toronto region had the second longest average number of days of the 52 courthouses reviewed in the website.

The average number of days to dispose of a drinking driving case was 420, and while Oshawa was longer with 463, Windsor cases took on an average of 407 days to be disposed of, that is within the same range. The other relevance that Mr. Emanuel urges for the statistics from the Justice on Target statistics is that the average number of days for Toronto has increased from 2000 until 2009, showing a worsening rather than an improving picture. [25] These statistics in this form do not change the significance of the delay in this case.

The raw length of time statistics, uninterpreted, show an average time for disposition of 14 months, longer than the delay in this case. Toronto’s position in the provincial list is of little probative value without any discussion of the populations of the courthouse districts in relation to their resources and the number of charges. [26] As for the worsening situation, the statistics stop at 2009 when this case began. And there is nothing in them that addresses the change in the legislation that I have already determined to be so important to this delay application.

Given the litigation and uncertainty over the issue of disclosure of the historical records that came about when Parliament amended the relevant sections relating to presumptions and charges under s.253 (

b) of the Criminal Code , the raw statistics of increasing average disposition times do not disclose a worsening situation.

Parliament is entitled to amend legislation, defendants are allowed full disclosure and the right to full answer and defence, the prosecution is allowed to process new amendments and disclosure requests and take reasonable positions on the issue of relevance and courts are entitled to take the time to respond to new amendments with the resources that they have without having to respond immediately to the ebb and flow of changed circumstances in the law by increasing court resources within short time frames.

The argument that the situation in Toronto is worsening, assuming the statistics on the Justice on Target website demonstrate that, falls for the same reasons that I have found that the need for two trial days and the period from the set date to July 2010 has been explained; this was a reasonable response to a reasonable disclosure request that turned this case into a more complex case than it would have been had the disclosure request not been made. [27] Summing up the reasons for delay, then, from the charge on June 16 th to August 11 th , there are two months that are conceded to be neutral time.

From then until October 19 th , another 2 months, the Crown was not ready for a pre-trial because of Crown counsel’s vacation. Crown counsel is entitled to vacations but three remands over two months are not reasonable and I would attribute one month to crown actions and the other month to neutral intake time. The judicial pre-trial was required in part because of the disclosure dispute. The time it took to arrange is one month institutional delay.

The nine months from October 16 th to July 23 rd is institutional delay, partly explained by the requirements of the case requiring time to be found for a two day case instead of a one day case. The time from July 23 rd to September 23 rd is institutional delay but explained for the same reason. After September 23 rd , the delay was caused by the accused. [28] Therefore there is a delay of 13 months and one week from the charge to the beginning of the trial.

Two months of that is for neutral intake, one month is actions of the Crown because of the slowness of the setting of the pre-trial, one month is institutional delay attributable to the time needed to set a judicial pre-trial and nine months and one week is the institutional delay needed to find the first day of a two day trial. There is a total of 11 months and one week of institutional and crown delay, but nine months and one week of it is explained satisfactorily. [29] Mr. Emanuel is presumed to suffer prejudice from this delay.

He perceives it, naturally as 16 months because he was arrested one month before he was charged and the taking of evidence was not possible before September 23, 2010. A citizen cannot be expected to know the niceties of the law relating to s.11(

b) of the Charter . In addition to any assumed prejudice, he submitted an affidavit describing how hard the delay has been on him: he feels limited in his job search options because he may lose his driver’s license; he is also worried that his ability to defend himself has decreased with time as his memory of the events of May 10 th has decreased.

He also alleges other prejudice such as worrying that his insurance rates will increase if convicted and having a criminal record that will impact on his job prospects. [30] In cross-examination he agreed with Crown counsel that the worst part of the wait so far was the first three months after arrest when his license was suspended, and that he did not take notes of the events since his arrest. [31] The concern about the insurance rates and the criminal record is as a result of the charge and not the delay. His uncertainty about

losing his license is a real prejudice that is aggravated by the delay because he cannot confidentially apply for jobs requiring driving, something that he has done in the past. [32] So Mr. Emanuel has shown prejudice but I have determined the delay is not unreasonable. Even though the time period exceeds the guidelines proposed by the Supreme Court of Canada in Morin many years ago for provincial court matters, and the time to set the trial date is at the upper end of those guidelines, I have concluded that Mr.

Emanuel has not shown, as he must, that what occurred here is unreasonable, once the whole context of the disclosure issue is understood. The guidelines are, as they are in the case of sentencing guidelines, just that. The real issue is the reason for delay and the prejudice suffered, when as here, the time period requires scrutiny and there is no waiver. It is not that I disagree with my colleagues when they have determined in other cases or even with myself when I have done the same, that institutional delay outside the guidelines is unreasonable. Only in this case, applying the approach set out in R. v.

Morin , I have determined that it is not. Released: January 14, 2011 Signed: “Justice B. Knazan”