R. v. Allison, 2016 NSSC 192

COURT OF Nova Scotia Citation: R. v. Allison, 2016 NSSC 192 Date: 2016-07-21 Docket: Hfx No. 407021A Registry: Halifax Between: Terry Thomas Allison Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Justice M. Heather Robertson Heard: January 15, 25 and May 19, 2016, in Halifax, Nova Scotia Decision: July 21, 2016 Counsel: Terry Thomas Allison, self-represented appellant J. Christopher Nicholson, for the respondent Robertson, J.: (Orally) [ 1 ] Mr. Terry Allison, self-represented, appeals his conviction pursuant to s. 253 (

b) of the Criminal Code (consuming alcohol exceeding 90 milligrams while in the care and control of a motor vehicle). The event leading to these convictions occurred on August 4, 2007. Mr. Allison was arrested and released. [ 2 ] The information charging Mr. Allison was sworn on August 30, 2007. [ 3 ] On August 13, 2012, his trial was finally completed, when a decision was rendered. Mr. Allison’s application to permit new evidence and a Charter challenge under s. 11(

b) is successful. His conviction is overturned. My reasons follow. [ 4 ] The timelines of this case and explanation for adjournments are agreed upon by the parties. [ 5 ] Following the charges being sworn, a plea of not guilty was entered on Mr. Allison’s behalf on September 27, 2007. The trial was to be set for June 3, 2008. [ 6 ] The Crown was not ready to proceed on June 3, 2008 due to the unavailability of a Crown witness. The Crown sought an adjournment.

The date of June 9, 2009 was offered and accepted by counsel. [ 7 ] On June 9, 2009, the Crown again sought an adjournment as one of six Crown witnesses was unavailable that day. As well, the Crown noted that a Korean witness might require a translator, then not arranged. Crown counsel also noted that as the breath sample was not taken within the two-hour time limit, the presumption under s. 258 would not apply and the Crown would have to call Ms. Elizabeth Dittmar as the alcohol expert.

Crown counsel noted that their estimate of required time for trial ought to have been a full day and that the matter could not be completed on June 9, 2009 even if all witnesses had been available. [ 8 ] Defence counsel noted that they did not want to split the trial and preferred a one-day trial. The date of June 26, 2009 was offered, but defence counsel was not available as he was to then appear in the Supreme Court on another matter.

[ 9 ] The date of December 4, 2009 was then selected as being convenient for all witnesses. [ 10 ] On June 16, 2009, the Crown sought an adjournment of the trial date from December 4, 2009 to June 15, 2010, due to the unavailability of the trial judge. [ 11 ] Again, the court had offered the date of June 26, 2009, but defence counsel was attending in the Supreme Court that day. The court noted that after December 4, 2009, the first full-day next available was April 19, 2010. Defence counsel was scheduled to be out of the country.

The court noted May 2010 was arraignment month, so the first next available day was June 15, 2010. Defence counsel agreed to the date noting he had spoken with his client, “I called him.” [ 12 ] In the fall of 2009 and spring of 2010, correspondence between the Crown and defence counsel raised the issue of the unavailability of the Crown’s expert witness Elizabeth Dittmar who was eventually replaced by another expert Ms. Josette Hackett. [ 13 ] On June 15, 2010, the Crown sought a brief adjournment to discuss the possibility of shortening evidence.

When the matter was recalled the trial did not proceed, as discussion ensued about whether the trial could then be completed in a day. Defence counsel expressed the view that he wanted the trial to be heard in one day. The court offered the date of July 29, 2010, but defence counsel was unavailable. The court offered August 26, 2010. The court observed that the matter has a long history and had been set for trial more than once. [ 14 ] The trial did commence on August 26, 2010, four days short of 36 months from the information being sworn. [ 15 ] The trial was not completed on August 29, 2010.

The matter was adjourned to 2:00 p.m. October 7, 2010. On that date the trial was adjourned to November 26, 2010, when the expert Josette Hackett was to appear to provide an opinion on the bolus drinking defence. On November 26, 2010, the trial resumed. It was not completed and continuation was set for February 10, 2011. [ 16 ] On February 10, 2011, the Crown indicates its wish to call rebuttal evidence of the expert witness Josette Hackett, in reply to Mr. Allison’s testimony.

Counsel agreed to put the matter over to March 30, 2011. [ 17 ] On March 30, 2011, defence counsel sought an adjournment as he had suffered an injury and was on painkillers. [ 18 ] Following an additional expert rebuttal report of Josette Hackett being secured by the Crown in May 2011, the trial resumed on July 21, 2011. The trial evidence was completed. Dates for counsel submissions were set: Defence – September 16, Crown – October 11 and return date October 27. [ 19 ] On October 27, 2011, the Crown requested an adjournment to prepare further written argument.

The court offered January 11, 2012. [ 20 ] On January 11, 2012, both counsel requested further adjournment. March 20, 2012 was set. [ 21 ] Defence counsel suffered a ski accident and subsequent adjournments were sought. [ 22 ] On August 13, 2012, the decision was rendered – almost five years after the charges had been laid on August 30, 2007. [ 23 ] The grounds of the appeal are outlined in Mr. Allison’s brief dated November 17, 2015: I would like the Court to proceed with this new evidence request because of the length of time and the actions my defense [sic] council [sic] took at trail [sic].

The reason I started this appeal, is to clear my name of this conviction. I was not drinking and driving on the day I was charged. The car I was driving prior to parking it and locking the starting device that was in stalled [sic] on this car, disabling anyone’s ability to drive this vehicle; other than my wife who had the starting code and who was coming to pick it up shortly after I parked the vehicle. However, I did start to drink inside the laundry mat where I was washing my clothes and was convicted of impaired driving after I consumed alcohol in this laundry mat.

I argue that my right to a trial within a reasonable period of time has been violated. I have a general understanding that a trial shouldn’t take more than a period of 2 years. On June 3, 2008 I asked Mr. Scaravelli to bring this matter to the attention of the judge as the case was just put over until June 2009. Mr. Scaravelli at that point made excuses for not doing this “He didn’t want to piss off the judge” as he put it. I had no understanding of what took place in court so I put my trust in his hands a fact I would later regret.

I brought this to his attention at every adjournment and he always had excuses not to. While trying to discuss this in court with him I was scolded by the judge for talking and didn’t think I could go directly to her with any situation. I continued blindly to trust Mr. Scaravelli. [ 24 ] Mr. Allison’s motion was supported by his affidavit sworn July 31, 2015. In his affidavit, Mr. Allison stated his issue with defence counsel: 3. THAT Mr. L. Scaravelli failed to provide effective assistance during my trial. 4. THAT I asked my lawyer (Mr.

L.Scaravelli), at different times, to ask the court to have my case dismissed because it was taking so long. He replied “we don’t want to get the judge angry” or “we delayed at one time.” [ 25 ] This matter was originally set down for a

summary conviction appeal in the Supreme Court of Nova Scotia on December 20, 2013. However, the Crown counsel became aware that the amended notice of appeal filed October 4, 2012 by the self-represented applicant set out a number of grounds of appeal including the competence of counsel. [ 26 ] Following procedures set by the Nova Scotia Court of Appeal, “Protocol for Appeal Proceeding Involving Allegation of

Ineffective Counsel” the appeal was adjourned to allow trial defence counsel to file an affidavit with the court respecting his representation of the accused. That affidavit was sworn and filed September 29, 2015. [ 27 ] In paras. 5 and 6, defence counsel addresses Mr. Allison’s complaint: 5. With respect to paragraph 3 of Allison’s affidavit: I exercised my professional judgment when determining the appellant’s position. We discussed and reviewed the evidence and his position at length.

I communicated with him in a timely and effective manner at all times so that he could provide informed instruction on how he would like to proceed. 5. With respect to paragraph 4 of Allison’s affidavit: we did discuss the Crown’s requests for adjournments for which we provided consented. He attended court with me and was present when the Crown sought the adjournments and at no time instructed me to object. [ 28 ] The appeal was heard by me on January 15, 2016. [ 29 ] In cross examination by the applicant, Mr. Scaraveill’s recollection was different: MR. ALLISON : Okay. So, Mr.

Scaravelli, can you tell me how many times I requested this matter to you to be thrown out of court, to bring it up to the Court's attention? A. You asked me a few times. Q. Every time they had a delay I think I asked so ... A. No, I don't think so, no. It seems to me it would have 1 started the first day we had the trial, August 26th, 2010. Q. No. No. A. ...(inaudible) Q. Well, anyway. A. My recollection could be wrong. But the reason why I didn't request the delay ... you were trying to interrupt me during the proceedings, do you recall that? Q. I was trying ... at what point? A.

At ... mostly all the points when you wanted me to tell the judge that, Your Honour, we should ... you should drop this ... these charges because it's taking too long. [ 30 ] Mr. Scaravelli went on to testify that he afforded Mr. Allison a good defence by introducing the evidence of Mr. Dong to discredit the evidence of the ticketing officer, Ms. Shea, and by addressing the toxicology report “that would help you mount an appropriate defence.” [ 31 ] With respect to delay and all of the Crown’s requests for adjournments, Crown counsel, Mr.

Nicholson, accepted as accurate the explanation of the timelines; attached as Exhibit “A” to Mr. Allison’s affidavit. [ 32 ] However on appeal he was not prepared to address the timelines in detail or comment on the delay by attributing the delay to Crown’s requests, defence requests, inherent delay or institutional delay. [ 33 ] Mr. Nicholson’s position was that on the appeal of this conviction, the issue of delay could not properly be raised before this court, as defence counsel had failed to address the issue of delay at trial. Crown counsel relied on R. v. Tran [2004] B.C.J. 2217 (B.C.C.A.) and R v.

Phillips , 2006 NSCA 135 (N.S.C.A.). The Crown submitted: An application for unreasonable delay must be done at trial so the issues can be fully canvassed and the trail [sic] judge can make an informed decision on the facts and timing of the issue being raised. The Respondent respectfully submits that the fresh evidence requested by the Appellant on delay should not be permitted in these circumstances. [ 34 ] Crown counsel noted that he could find no cases “where a failure to raise delay resulted in a claim of ineffective counsel.” [ 35 ] On July 8, 2016, the Supreme Court of Canada released its decision in R. v.

Jordan , 2016 SCC 27 . The Supreme Court has chosen to revisit the issue of unreasonable delay and the former s. 11(

b) analysis under Morin . 1 Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance.

Section 11(

b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons "to be tried within a reasonable time". 2 Moreover, the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives.

And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs. 3 An efficient criminal justice system is therefore of utmost importance. The ability to provide fair trials within a reasonable time is an

indicator of the health and proper functioning of the system itself. The stakes are indisputably high. 4 Our system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative. Notwithstanding adelay of over four years in bringing a drug case of modest complexity to trial, both the trial judge and the Court of Appeal were of theview that the appellant was tried within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing thecurrent analytical framework governing s. 11(b).

These difficulties have fostered a culture of complacency within the system towardsdelay. 5 A change of direction is therefore required. Below, we set out a new framework for applying s. 11(b). At the centre of this newframework is a presumptive ceiling on the time it should take to bring an accused person to trial: 18 months for cases going to trial in theprovincial court, and 30 months for cases going to trial in the superior court. Of course, given the contextual nature of reasonableness,the framework accounts for case-specific factors both above and below the presumptive ceiling.

This framework is intended to focus thes. 11(

b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achievingreasonably prompt justice, with a view to fulfilling s. 11(b)'s important objectives. [36] The court examined the Morin framework in paras. 30-37 and “observed culture of complacency toward delay has emerged inthe criminal justice system.” (para. 40) [37] The new framework for s. 11(

b) analysis is described in paras. 46-48: 46 At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going totrial in the provincial court after a preliminary inquiry). 47 If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delayis presumptively unreasonable.

To rebut this presumption, the Crown must establish the presence of exceptional circumstances.

If itcannot, the delay is unreasonable and a stay will follow. 48 If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable toexceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable.To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and(2) the case took markedly longer than it reasonably should have.

We expect stays beneath the ceiling to be rare, and limited to clearcases. [38] In accounting for delay, the court instructed at paras. 60-67: 60 Application of this framework, as under the Morin framework, begins with calculating the total delay from the charge to the actualor anticipated end of trial. Once that is determined, delay attributable to the defence must be subtracted. The defence should not beallowed to benefit from its own delay-causing conduct. As Sopinka J. wrote in Morin: "The purpose of s. 11(

b) is to expedite trials andminimize prejudice and not to avoid trials on the merits" (p. 802). 61 Defence delay has two components. The first is delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp. 790-91). Waivercan be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights,as well as the effect waiver will have on those rights.

However, as in the past, "[i]n considering the issue of 'waiver' in the context of s.11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in theoverall assessment of reasonableness" (R. v. Conway, (SCC), [1989] 1 S.C.R. 1659, per L'Heureux-Dubé J., at p. 1686). 62 Accused persons sometimes, either before or during their preliminary hearing, wish to re-elect from a superior court trial to aprovincial court trial for legitimate reasons. To do so, the Crown's consent must be obtained (Criminal Code, R.S.C. 1985, c. C-46, s.561).

Of course, it would generally be open to the Crown to ask the accused to waive the delay stemming from the re-election as acondition of its consent. 63 The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises"those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate andcalculated tactic employed to delay the trial" (Askov, at pp. 1227-28).

Deliberate and calculated defence tactics aimed at causing delay,which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generallydismiss such applications and requests the moment it becomes apparent they are frivolous. 64 As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but thedefence is not. The period of delay resulting from that unavailability will be attributed to the defence.

However, periods of time duringwhich the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This shoulddiscourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course beopen to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), (ON CA), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82). 65 To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay.

For example, thedefence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applicationsand requests that are not frivolous will also generally not count against the defence. We have already accounted for proceduralrequirements in setting the ceiling.

And such a deduction would run contrary to the accused's right to make full answer and defence.While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions. 66 To summarize, as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delayswaived by the defence, and delays caused solely or directly by the defence's conduct. Defence actions legitimately taken to respond tothe charges do not constitute defence delay.

67 The next step of the analysis depends upon whether the remaining delay -- that is, the delay which was not caused by the defence -- is above or below the presumptive ceiling. [ 39 ] In the circumstance of this case, the Crown did agree in its submissions that “the length of the delay is sufficient, almost five years to call for an inquiry into reasonableness. However this should have been done at trial.” [ 40 ] In considering the R. v.

Jordan , supra , framework applied to this case, the trial commenced on August 26, 2010 – 35 months and 26 days after the charges were laid, almost twice the presumptive ceiling for matters before the Provincial Court.

This was a very straight forward breathalyzer trial, without complexity the trial ought to have been completed within a year, most certainly within 14-18 months as per the Morin guidelines. [ 41 ] The calculation of any delay to be attributed to the defence must now be considered in light of the motion before me to introduce new evidence relating to the issue of delay and competency of counsel. [ 42 ] Initially defence counsel stated that his client was consulted about and agreed to every adjournment. But that is not correct.

Why was there such a delay in this trial? [ 43 ] For the first 36 months of this trial proceeding, I deem the delay to be Crown delay. They requested adjournments, due to the unavailability of witnesses, the unavailability of a trial judge, the need to replace a Crown expert on alcohol levels, and poor planning as it ought to have been obvious from the outset that six Crown witnesses, one of whom as an expert, could not have completed their evidence in even one day. Even when aware of the bolus defence that the applicant’s counsel wished to pursue, the trial evidence was not completed for another year.

Delay occasioned by defence counsel’s requests did not occur before 2011 well outside the presumptive ceiling that the Crown is unable rebut. There were no exceptional circumstances in this trial. [ 44 ] Even under the old Morin framework, this Provincial Court trial exceeded Morin’s 18-month tolerance for institutional delay in Provincial Court. [ 45 ] It is clear from the evidence before me that Mr. Allison had a sense of his own jeopardy, as years went by and the trial continued to be adjourned. [ 46 ] His defence counsel agreed to new dates at the various appearance I have outlined.

However in my view he did not turn his mind to the Charter right of his client “to be tried within a reasonable time” despite his client’s efforts to ask him to raise the delay issue before the trial commenced in 2010. Crown counsel for its part seemed content to allow three years to pass before commencement of the trial so long as they believed defence counsel agreed to new dates. [ 47 ] By agreeing to the new dates, I do not accept that defence counsel effected a waiver of his client’s s. 11 (

b) right, i.e. “the inclusion of special periods in the overall assessment of reasonableness” Jordan , supra , para. 61 . This is particularly so on the occasions when his client directly asked him to raise the issue with the court. [ 48 ] The waiver was not clear and unequivocal with the accused having full knowledge of his rights. It was an issue that deserved discussion before the court, discussion between counsel and discussion between defence counsel with his client. [ 49 ] Counsel aware of the s. 11 (

b) issue will often specifically state “I agree that the matter will be adjourned to x date, but my acquiescence to the adjournment is not meant to be a waiver of my client’s 11(

b) right.” No such acknowledgement was made in this case, despite the client’s many attempts to address delay. [ 50 ] I do not view the circumstance of this case as meriting transitional tolerance because of a previously understood state of the law, or some exceptional circumstance arising from any of the acknowledged timelines. [ 51 ] In this case, five years is simply beyond any reasonable tolerable limit for the completion of the trial. [ 52 ] Mr. Allison’s motion to admit new evidence for the purpose of arguing unreasonable delay must succeed in the light of R. v.

Jordan , supra . [ 53 ] It is not necessary to address the second ground of appeal, that of a reversible error of the trial judge. [ 54 ] The appeal is upheld on the s. 11(

b) grounds and the conviction is set aside. Justice M. Heather Robertson