R. v. Deonarine, 2016 ONCJ 809

ONTARIO COURT OF JUSTICE CITATION: R. v. Deonarine , 2016 ONCJ 809 DATE: December 12, 2016 COURT FILE No.: Brampton 000763 BETWEEN: HER MAJESTY THE QUEEN — AND — VISHAL DEONARINE Before Justice Alison R. Mackay Heard on November 4 th , 2016 Reasons for Judgment released on December 12 th , 2016 Amy Mountjoy...................................................................................... counsel for the Crown Karanpaul Randhawa.......................................... Counsel for the defendant Deonarine Mackay J.: Ruling on s. 11(

b) Charter Application [ 1 ] On December 12, 2015 Mr. Deonarine was charged with refuse to comply with a breath demand. His trial date is scheduled for January 15 and 16, 2017. [ 2 ] The total delay from the date of the swearing of the information to the anticipated completion of his trial will be 12 months and 4 days. Mr. Deonarine has brought an application for an order staying the proceedings against him on the grounds that his right to be tried within a reasonable time as guaranteed by s. 11(

b) of the Charter had been infringed. [ 3 ] The Supreme Court of Canada has established a new framework to be applied where a breach of

section 11(

b) has been alleged. R. v. Jordan, 2016 SCC 27 was released on July 8, 2016. The new framework applies to any case in the system on the day the decision was released. HISTORY OF PROCEEDINGS: [ 4 ] On January 29, 2016, the applicant’s first date counsel’s agent received disclosure and requested the matter be adjourned to February 19 to review disclosure. [ 5 ] Three weeks after the first appearance, on February 18 counsel sent a letter requesting various additional items of disclosure including all video-tapes, copies of calibration tests and the video of the breath room.

[6] On Feb 19, 2016 Mr. Randhawa, counsel for the applicant advised that he had not received the breath video. The Crownstated they did not have a copy and asked if the request was in writing. Counsel indicated he did make the request in writing. The faxreceipt in the applicant’s material shows that the request was sent at 5:51 p.m. the night before. The Crown asked for two weeks toobtain the video and the matter was adjourned to March 4, 2016. [7] On March 4, 2016 counsel’s agent advised that there is outstanding DVD disclosure.

The Crown indicated they did not see theletter from counsel requesting the disclosure on February 18. At the request of the agent the matter was adjourned to March 18. [8] On March 18, 2016 counsel asked to adjourn the matter because disclosure remained outstanding. The Crown advised therewas not a request from counsel, and asked that he fax another copy. At counsel’s request the matter was adjourned almost one month to April 22. Later that day counsel sent a letter by fax advising that “today was the 4th appearance” and they have not received additional disclosure which was requested on Feb 18.

He attached the first letter sent on Feb 18. [9] On April 22, 2016, Counsel indicated they have requested the breath video on a couple of occasions. The Crown advised thereis no DVD and that “this is perplexing”. The court acknowledged that this matter has gone over three times for further disclosure. Theset date Crown pointed out that the assigned Crown was actually the “R1 Crown”.[1] The court asked counsel to take the Crown’s fileand meet with the assigned Crown and explained that this would be the “best scenario” to look into the outstanding disclosure.

Counselagreed and adjourned the matter three weeks hence to May 13, 2016. [10] On May 13, 2016 counsel’s agent indicated that they were waiting for disclosure and asked that the matter be adjourned to June3. The Crown advised there was no additional disclosure and the court asked the agent to follow up with the Crown’s office. On thesame day counsel sent a fax advising that they are still waiting for the videotape statements and noted that it is important disclosure. [11] On May 24, 2016 the assigned Crown advised by letter that the outstanding items of disclosure were requested by the Crown.

The Crown also advised that the calibration, maintenance and repair records of the approved instruments were third party records andnot provided as part of disclosure. Counsel did not pursue these “third party records”. I note that the reply came eleven days after thedefence sent his last fax and a month after his first meeting with the assigned Crown. [12] On June 3, 2016 counsel appeared and indicated he was still waiting on the breath video. The Crown asked counsel to set aCrown pre-trial and indicated he will “put a note that the breath room video is still outstanding”.

Counsel stated he has made three prior request for this video and that on the last occasion he had a resolution meeting. Counsel requested that the matter go over to June 24 andundertook to

schedule a pre-trial if the video was not available on the next date. [13] On June 24, 2016 counsel finally received the DVD in court and requested the matter come back three weeks later on July 15to review the additional disclosure. [14] On July 15 Mr. Randhawa advised that he had obtained trial dates of Jan 18 and 19; in addition he scheduled a date for an 11(b)motion on Oct 3, 2016. [15] The trial sheet reveals that dates of Aug 9, 10 and Nov 2 and 3 were offered but were not available to either the defence or theCrown. Dec 5 and 6 was available to the defence but not to the Crown.

Jan 17 and 18, was not available to the Crown but was availableto the defence. Finally Jan 18 and 19 were available to both. ANALYSIS My analysis will follow the new 11(

b) framework with its transitional features as set out by the Supreme court in R . v. Jordan. [16] The approach required by the new framework was recently summarized in R. v. Coulter, 2016 ONCA 704 , [2016] O.J. No.5005 (C.A.) at paras. 34-40: Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66). Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66). If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establishthe presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). Ingeneral, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whetherthe presumptive ceiling has been reached (Jordan, para. 75). If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such thatthe time the case has taken is justified and the delay is reasonable (Jordan, at para. 80). If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan,para. 48).

Delay for cases going to trial in the Ontario court becomes presumptively unreasonable at 18 months. Given the delay in question isapproximately 12 months the onus is on the defence to establish an 11(

b) breach. The defence must show that they have taken“meaningful steps that demonstrate a sustained effort to expedite the case” and secondly, that the case took “markedly longer than itreasonable should have” ( Jordan, at para 82). Calculating net delay (

i) Defence delay [16] Defence delay must be deducted from the total delay. The defence is not permitted to benefit from its own “delay-causingconduct.” (Jordan, at para. 60). I do not find in this case that the defence caused any of the delay. Given that this case falls within thetransitional period, there is no requirement for the defence to show meaningful and sustained efforts to expedite the case as this formedno part of their obligation prior to the Supreme court’s decision.

However in close cases any defence initiative during that time wouldassist the defence in showing that the delay markedly exceeds what was reasonably required.

Morin required trial judge’s to consideraction or inaction by the defence that may be inconsistent with a desire for a timely trial. ( Jordan, at para 90) [17] While defence counsel was diligent in requesting the outstanding disclosure both in writing and at set date appearances, Mr.Randhawa chose not to have a pre-trial until he was requested to do so by the court, approximately three months after the first set date.He also chose not to have a judicial pre-trial. Either of these procedural tools would have likely expedited the obtaining of the disclosureand the time to trial.

Full disclosure is not required to conduct a Crown or judicial pre-trial. [18] Courts have consistently encouraged counsel to set target dates even though some items of disclosure are outstanding (R. v.Kaczmarzyk [2005] O.J. No. 2136, at para 12, R. v. Ghandi, [2016] ONSC 5612). The Court of Appeal has held that outstandingdisclosure cannot be used to hold up the setting of dates for trial ( R. v. Kovacs-Tatar (ON CA), [2004] O.J. No.4756 at para. 47). [19] I find that counsel’s approach was not always consistent with a desire for a timely trial. [20] The net delay is 12 months and 4 days.

Did the case take markedly longer? [21] The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, localconsiderations, and whether the Crown took reasonable steps to expedite the proceedings (Jordan, para.87) [22] The applicant is charged with refuse breath sample and his trial has been scheduled for two days. There is nothing to suggestthat it is a complicated matter. The normal time to trial for this type of case from the laying of an information to trial date isapproximately 10 to 12 months. (

i) Actions of the Crown [23] The Crown in this case did not appear to have taken reasonable steps to expedite the proceedings. Although I am not to hold theCrown to a standard of perfection, I find that the Crown should have made a greater effort to ensure the applicant received timelydisclosure. The breath video in a drinking and driving case should be made available on the first or second set date. It is a simple matter

of copying a video. Individuals charged with these offences should be in a position to know whether their case has merit within a shortperiod following their first appearance. This is particularly crucial as they must decide within 90 days of the offence date if they want totake advantage of a reduced suspension. Without the breath video defendants cannot make an informed decision with respect to theirplea.

Counsel cannot be expected to provide an opinion with respect to the merits of the case without reviewing the breath video. (ii) Contextual analysis [24] Given that this matter falls in the transitional period I must apply the Jordan framework contextually and flexibly, sensitive tothe parties’ reliance on the previous state of the law (Jordan, at para. 94). In other words I should be mindful that the parties wereoperating under the belief that the Morin framework applied.

Reviewing the delay in this context I would find that this case would beclose to the line of what is constitutionally tolerable under the former framework. [25] Under R. v. Morin (1992), (SCC), 12 C.R. (4th) 1, 2 to 3 months would be considered part of the intake period. 8 to 10 months from set date to trial date would be considered reasonable with 10 months approaching the outer range (R. v. Meisener[2003] O.J. No. 1948). A month would be deducted for defence counsel to prepare for trial ( R. v. Lahiry 2011 ONSC 6780 ,[2011] O.J.

No.5071). [26] Under the former guidelines I would look at the prejudice suffered by the applicant. The degree of prejudice would informwhether the period of tolerable institutional delay should be shortened or lengthened. I have reviewed Mr. Deonarine’s affidavit. He hasdescribed prejudice commonly experienced by many accused person’s waiting for trial.

There was no exceptional prejudice. [27] Prejudice has now been factored into the presumptive ceilings set by the Supreme Court in Jordan. [28] If the delay in this case had fallen outside the Morin guidelines and still below the presumptive ceiling, I would have stayed Mr.Deonarine’s charge as a result of the breath video not being made available in a timely fashion. As I have stated earlier, delay of thisimportant piece of disclosure is patently unfair to an accused person. The Big Picture [29] In determining whether there has been an 11(

b) breach, the Supreme Court has instructed judges to step back from the“minutiae and adopt a bird’s eye view of the case,”(Jordan, para.91). [30] The applicant had to wait almost 5 months after his set date for a copy of his breath room video in a refuse breath sample case. In this regard the Crown clearly did not take reasonable steps. I was never advised as to why it took so long to disclose the breath roomvideo.

Nor was it clear what efforts the Crown took to obtain the video. [31] However, defence counsel did not take the initiative of scheduling an early pre-trial and or a judicial pre-trial. [32] While there was significant delay at the outset, the trial coordinator was able to offer a date within 6 months from the set datewhich was agreeable to both the Crown and the defence.

In looking at the actual time to trial in this case and the approach taken by theparties, a trial date was set within a reasonable time. [33] I must be mindful that stays for cases in which the delay falls below the presumptive ceiling are rare and limited to clear cases (Jordan, para. 48). Conclusion [34] The delay to trial from the laying of the information falls well below the presumptive ceiling of 18 months for a provincialcourt trial.

While the applicant in a transitional period is not required to take meaningful steps to demonstrate a sustained effort toexpedite the case, I find that the defence’s approach did not reveal a desire for an early trial. Without much effort an earlier pre-trial orjudicial pre-trial could have been used to obtain the outstanding disclosure. The Crown also did not take reasonable steps to expedite thematter. However, in the end early dates were offered by the trial coordinator. As a result the defence did not establish that the case took“markedly longer than it reasonably should have”.

The defence has not met their onus in establishing an 11(

b) Charter breach. [35] Accordingly, the s.11 (

b) Charter Application is dismissed and the case will proceed to trial on January 18th and 19th, 2017. Released: December 12th, 2016

Signed: Justice Alison R. Mackay