R. v. Little, 2010 ONCJ 581

COURT FILE No.: Central East 08-1620-90 DATE: 2010·11·22 Citation: R. v. Little , 2010 ONCJ 581 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — STEVEN W. LITTLE Before Justice C.M. Harpur Heard on October 19, 2010 Reasons for Decision – Defendant’s Application to Stay Pursuant to s. 11(

b) Charter of Rights and Freedoms released on November 22, 2010 James Vlasis, Esq. .................................................................................................. for the Crown Richard J. Aitken, Esq. ............................................................ for the accused Steven W. Little HARPUR J.: [ 1 ] By Notice of Application dated October 19, 2010, Mr. Little moved for a stay of this proceeding under s. 11(

b) of the Charter . The application was heard following Mr. Little’s arraignment on November 2, 2010 and a voir dire in which Mr. Little testified. I reserved my decision. For the reasons which follow, the application is dismissed. [ 2 ] In considering the chronology of this prosecution, I have borne in mind the following four factors identified in R. v. Morin 1992 CanLII 89 (SCC) , [1992] S.C.J. No. 25 (S.C.C.): 1) The length of delay; 2) Any waiver of time periods by Mr. Little; 3) The reasons for the delay, in particular

a) the inherent time requirements in the case;

b) delays attributable to Mr. Little;

c) delays attributable to the Crown;

d) institutional or systemic delay; and 4) Prejudice to Mr. Little. [ 3 ] The delay in this case from arrest to commencement of trial is almost two years. It is an apparently unexceptional charge of the serious offence under s. 253(1) (

b) of the Criminal Code . The delay to trial is sufficiently lengthy to merit review. There is no suggestion on the part of the Crown that Mr. Little waived any portion of the delay. [ 4 ] I would describe chronology of the prosecution as follows: Date Event November 14, 2008 Mr. Little is arrested and charged.

December 30, 2008 Mr. Little’s first appearance. Disclosure is provided to Mr. Little’s agent. A designation is filed by the agent for Mr. Little’s counsel. Together with disclosure, the agent receives a “Notice to Counsel re: Disclosure for Impaired/over 80 charges in Simcoe County”, specifying records, data and material (including calibration and maintenance records for the screening device and approved instrument) which the Crown will not disclose absent exceptional circumstances. At the defence request, the case is remanded to January 27, 2009. December 30, 2008 Counsel for Mr.

Little faxes a letter to the Crown requesting, inter alia , calibration and maintenance records for the screening device and approved instrument. January 27, 2009 Mr. Little’s second appearance. The appearance is by agent. Further disclosure is provided. One day following the appearance the agent advises Mr. Little’s counsel that, if the additional disclosure does not suffice, he should contact the Assistant Crown Attorney with carriage. At the defence request, the case is remanded to February 24, 2009. February 24, 2009 Mr. Little’s third appearance. The appearance is by agent.

At the defence request, the case is remanded to March 17, 2009. March 17, 2009 Mr. Little’s fourth appearance. The appearance is by agent. Mr. Little’s counsel has advised the agent that he is awaiting a return call from the Crown to arrange a Crown resolution meeting. At the defence request, the case is remanded to April 7, 2009. April 7, 2009 Mr. Little’s fifth appearance. The appearance is by agent. The defence request is a remand to April 21, 2009 in order for counsel to confer with Mr. Little. Remand to April 21, 2009 peremptory to the defence to set a date for trial. April 21, 2009 Mr.

Little’s sixth appearance. Appearance is by agent. Agent mistakenly advises court that “there was a pretrial done and Mr. Aitken needs to advise his client of the outcome”. The defence requests a remand to May 12, 2009. Remand to May 12, 2009, again peremptory to the defence to set a date. May 12, 2009 Mr. Little’s seventh appearance. Appearance is by agent. Defence requests a remand to June 9, 2009 to permit a Crown resolution meeting to take place. Crown asks for the setting of a trial date. No available trial dates have been provided by Mr. Little’s counsel.

No Crown resolution meeting is possible because of the absence of Mr. Little’s counsel. Remanded to June 9, 2009 peremptory to the defence to set a trial date and on the basis that either Mr. Little or his counsel is to be present with available dates.

June 9, 2009 Mr. Little’s eighth appearance. Appearance (despite the court’s requirement of May 12, 2009) is by agent. Mr. Little’s counsel has provided available dates to agent and indicated a four hour trial. The defence dates do not match available Crown and Court dates. Remand to June 16, 2009 to set a date on the basis either Mr. Little or his counsel must attend. June 16, 2009 Mr. Little’s ninth appearance. Mr. Little is present with an agent for his counsel. Trial date set for January 11, 2010 (subsequently changed on consent to January 7, 2010) for four hours. November 15, 2009 Counsel for Mr.

Little faxes the Crown requesting, inter alia , maintenance and test records for the approved instrument. December 16, 2009 Counsel for Mr. Little serves three applications, one of which is for additional Crown disclosure. January 7, 2010 Trial date. Crown proposes to give priority to another trial matter. Some trial time for Mr. Little’s charge appears to be available. Mr. Little’s retained toxicologist is not present. The Court indicates that, with the applications, the case will involve considerably more than the set four hours.

Defence and Crown agree that the case should begin with the disclosure application and be bifurcated, the second date to follow the Court’s disclosure decision and disclosure if ordered. Counsel agree on September 13, 2010 for disclosure and October 18, 2010 for trial, dates when the same judge is available. July 23, 2010 Crown provides additional disclosure to defence. September 9, 2010 Due to the illness of the judge scheduled to hear the case on September 13 and October 18, 2010, the September 13 date for the disclosure motion is vacated.

On consent, the disclosure motion date is rescheduled to October 14, 2010 and the trial date to November 2, 2010. October 14, 2010 Defence counsel withdraws disclosure motion. Defence requests that the trial proceed November 2, 2010. Defence estimates three hours. Remanded for trial November 2, 2010. October 19, 2010 Mr.

Little delivers application for stay for unreasonable delay returnable November 2, 2010. [ 5 ] The setting out of this chronology makes clear to me that the defence has not shown unreasonable delay attributable to the Crown. [ 6 ] The period from November 14, 2008 until February 24, 2009, at least, is neutral intake.

[ 7 ] Mr. Aitken proposes that the Crown is “half-responsible” for all delay between Mr. Little’s second appearance on January 27, 2009 and the June 16, 2009 setting of the trial date. His reasons are (

i) he had written the Crown on December 30, 2008 requesting comprehensive disclosure and had not received it by January 27, 2009; (ii) on January 27, 2009 he received some additional disclosure and needed time to consider it; and (iii) he wished to complete a Crown resolution meeting before setting a date but the Crown did not respond to his calls to arrange the meeting. [ 8 ] As to the disclosure issue, the Crown was clear in the Notice given to Mr. Little’s agent on December 30, 2008 as to what it would and would not disclose. If Mr.

Little disagreed with the Crown’s position in the Notice, it was open to him (indeed, incumbent upon Mr. Little if he seeks to rely on the post-December 30, 2008 period as delay by reason of Crown non-disclosure) to move to compel the production of the alleged lacuna. [ 9 ] As to the Crown resolution meeting, the delay from February 24, 2009 until June 16, 2009 resulted from the repeated remand requests of the defence so that the defence could, in the interim, participate in a Crown resolution conference. However, Mr.

Aitken very fairly acknowledges, in arguing this motion, that he was aware “fairly quickly” in the process that he could engage in a Crown resolution meeting for Mr. Little if he attended at the Orillia court on one of Mr. Little’s remand dates. Yet neither Mr. Little nor anyone on his behalf was present to participate in a Crown resolution meeting on any of the nine court appearances leading to the setting of the initial trial date. As Justice McCreary commented during Mr.

Little’s court appearance on May 12, 2009: “…the problem is we’re simply going in circles, aren’t we, if there’s a Crown pretrial meeting available today and counsel isn’t here and is asking for a Crown pretrial?” [ 10 ] It is apparent from the motion materials that Mr. Aitken was repeatedly asking the Crown to contact him to arrange the resolution meeting and was not getting a response. However, to the knowledge of the defence, the problem was one readily resolvable by it simply through ensuring that a representative of Mr.

Little capable of carrying out a resolution meeting was present for his next court appearance. The defence having refrained from sending such a representative, I would not attribute any of this delay to the Crown. [ 11 ] On June 16, 2009 a trial date was set for January 2010. This delay is institutional and attributable to the Crown but falls within the Morin guideline of eight to ten months. The defence indicated the need for four hours of trial time when the date was set. The defence did not then make any reference to any need for time for Charter or other applications. [ 12 ] Mr.

Aitken seeks to lay at the Crown’s door the period from January 7, 2010 until November 2, 2010, either as institutional or Crown delay. It may well be that these approximate nine months can properly be characterized as a phase or phases where the parties were ready to proceed to trial but could not be accommodated by the system.

However, even if this is so (and leaving aside the high probability that the need to secure one judge available to hear both the disclosure application and the trial would necessarily add significantly to this time requirement), this period only became an element of the chronology because the defence waited until three weeks before trial to launch applications bound to result in non-completion of the trial on the scheduled trial date. The defence had known since December 30, 2008 how far the Crown was willing to go by way of disclosure concerning the functionality of the approved instrument.

The silence of the defence until December 16, 2009 on this issue is not explained in the application materials. A timely disclosure application might well have been accommodated without disturbing the January 7, 2010 trial date or, at worst, have resulted in rearranged dates substantially earlier than those available in January 2010. Mr. Little was entitled unquestionably to bring such applications as he deemed advisable, even in December 2009.

He is not entitled, in my view, to benefit from the late decision to bring the applications in the context of his claim of unreasonable delay. [ 13 ] Since I would not count any of the period from January 2010 to November 2010 on the delay clock, the Crown remains answerable only in respect of the initial institutional delay of less than 7 months. I accept that even a delay falling within the Morin guideline could, in an extraordinary case, be unreasonable if its result were clear and extreme prejudice to an accused. Without minimizing the stress and financial burdens currently borne by Mr.

Little and to which he has testified on the voir dire , those burdens were candidly acknowledged by him to have as their source, either exclusively or primarily, the over 80 charge itself, as opposed to the interval awaiting trial. While no doubt the burden grows heavier with the passage of time, this is not a case where the period of delay, apart from delay resulting from the conduct of the defence, has extended so far as to convert charge prejudice to delay prejudice, a conversion acknowledged as possible in several appellate authorities, including R. v. Kovacs-Tatar 2004 CanLII 42923 (ON CA) , [2004] O.J.

No. 4756 (O.C.A.) at paras 32 and 33 . [ 14 ] Accordingly, Mr. Little’s s. 11(

b) application is dismissed. Released: November 22, 2010 Signed: Justice C. M. Harpur Justice C.M. Harpur, O.C.J.