R. v. Vella, 2012 ONCJ 248

COURT FILE No.: 12003604 - Toronto DATE: 2010·08·12 Citation: R. v. Vella , 2012 ONCJ 248 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DARREN D. VELLA Before Justice Sheila Ray Heard on February 15, 2012 Reasons for Judgment released on April 24, 2012 Old City Hall, Toronto Region Fred Bartley ..................................................................... Crown Counsel for the Attorney General Stephen Price .............................................................. Counsel for the Defendant, Darren D. Vella RAY, J.: INTRODUCTION [ 1 ] Darren D.

Vella has been charged with driving while the quantity of alcohol in his blood was over the legal limit. The Defendant has filed a Charter [1] application pursuant to sections 7, 11(b), and 24(1) for an order staying the charge on account of unreasonable delay in bringing the matter to trial. But for the s. 11(

b) application, this is a relatively uncomplicated drinking and driving case that includes a fairly routine s. 8 and s. 10(

b) Charter application. CHRONOLOGY OF EVENTS [ 2 ] Mr. Vella was arrested and charged on August 12, 2010. The Information was sworn on August 16, 2010. Counsel, who was retained prior to the first appearance date, wrote a letter dated September 29, 2010, to the Crown Attorney’s Office at Old City Hall requesting all disclosure relevant to the charge. A copy of the letter is attached to the affidavit of Alan Potts filed in these proceedings. Disclosure including a DVD was provided to an agent appearing for counsel on the first appearance date of October 1, 2010.

Counsel appeared on the second appearance date of October 15, 2010, and asked for an adjournment to get instructions from his client and arrange a pre-trial with the Crown. On the next appearance date of November 4, 2010, an agent appeared for counsel. He advised that, “We’re just receiving some additional disclosure,” and that counsel wished to be present in person on the return date in order to conduct a resolution meeting. The Crown in court that day advised that an appointment should be booked with the assigned Crown.

The record shows that the agent was told, “She won’t be here just for the day doing pre-trials on the spot.” The agent appeared to understand and the matter was remanded to November 18, 2010. [ 3 ] Counsel appeared on November 18, 2010, and according to the record, he asked for a two week adjournment in order to conduct a resolution meeting with the assigned Crown. The record shows that he was advised to go to the Crown’s office, so he could make an appointment with her, to which he responded, “That is fine.” According the Mr. Potts’s affidavit, this resolution meeting was held on November 24, 2010.

The matter was remanded to December 2, 2010, when the matter was set for a six hour trial on May 6, 2011, which was the earliest available trial date. Counsel indicated that he had many earlier availability dates and that he was not waiving his client’s s. 11(

b) rights. In answer to a question on the record, counsel stated that there were no disclosure or retainer issues except a toxicology report. He was referring to an updated toxicology report, because he already had a previous version of it. Counsel undertook to advise long in advance of the trial if he required the toxicologist for the purposes of cross-examination. Mr. Robbie Levita states in an affidavit filed with the court that on December 2, 2010, Mr. Vella’s counsel had availability dates each and every month from December 2010 until the trial date. In an affidavit filed with the court, Mr.

Vella’s former counsel states that on December 2, he was available to do the trial on December 3, 6, 8, 13, and 14. [ 4 ] Mr. Vella’s former counsel clarified later in his affidavit that in the normal course of his practice, he is not in court everyday of the week but instead has a number of dates every month that are available for him to prepare his trials. He also has a great

deal of experience in doing drinking and driving trials, so he is familiar with most issues. As such when this matter was initially up to set a trial date on December 2, 2010, he would have required very little preparation time and would have been in a position to do the trial whenever court time was available. [ 5 ] On May 6, 2011, the trial could not be reached, and no courts could be found to assist. The unavailability of the court in which the matter was scheduled or any other court to hear the matter was aggravated because one court was down that day due to the illness of a judge.

Furthermore, the court in which the matter was initially scheduled also went down early due to a family emergency of the judge. It appears to me from reading the transcript that the matter would not have been reached in that court in any event, so the family emergency of the initial trial judge should not factor into this analysis. Two further factors are relevant.

First, the Crown anticipated on the day before the trial was scheduled to be heard that the matter might not be reached, given that the other matter scheduled for the same court had priority, and there would likely not be time for one court to complete both. She tried to case manage the matter from the day before in order to find court space somewhere for the trial. Second, the initial trial judge was alive to the time constraints difficulty from the outset, inquiring as to whether the Vella matter might be given priority, and giving helpful direction to the court with respect to how the list should be managed.

The Crown was mindful of the need to accommodate Mr. Vella’s matter, and the trial judge conscientiously vetted and managed her list in order to ensure the optimal use of court time. [ 6 ] On May 6 th , counsel for Mr. Vella made it clear on the record that s. 11(

b) would not be waived. The trial judge reviewed with counsel the number of witnesses that would be required and potential Charter motions reminding both counsel that there would also need to be time for judgment on the Charter motion. The trial judge directed that the matter be set aside for a full judicial day, and that the trial coordinator be made aware that they should not be “in a court again fighting for a spot with a number of other trials.” A new date was set for August 2, 2012. The record shows that the date of July 28 was offered, but police witnesses were not available.

The affidavit of Robbie Levita states that the date of July 29 was also offered, but police witnesses were also not available on that date. The affidavit of Mr. Vella’s former counsel confirms that both the July 28 th and 29 th dates were offered, but police witnesses were not available on those dates. The trial verification form confirms that both dates were offered. The Crown requested that counsel put his first available date on record, and the date of May 9 was indicated.

The affidavit of Robbie Levita states that counsel also had other dates available in each and every month from May 2011 until the trial date. The affidavit of Mr. Vella’s former counsel confirms this. The affidavit of Mr. Vella’s former counsel also states that as the trial was already prepared for the May 6 th date, he would not have required further time to prepare. [ 7 ] On Tuesday August 2, 2012, counsel appeared and indicated that he had been discharged by Mr. Vella at 4 p.m. the previous Thursday July 28th, because Mr. Vella had lost confidence in him. He was accompanied by the articling student of Mr.

Vella’s new counsel, who indicated that the new counsel was prepared to go on the record. The affidavit of the new counsel’s articled clerk explains that Mr. Vella had contacted his new counsel a few days prior to the scheduled trial date. The new counsel was prepared to take over the trial, if an adjournment was granted, as he was not available on August 2, 2011. Mr. Vella’s previous counsel notified the Crown and the trial coordinator’s office of the situation on Friday 29th. He was released as solicitor of record, and an adjournment was requested by the defence.

The Crown indicated that it was ready to proceed having made strenuous efforts to prepare and file materials in response to the last minute Charter application of the defence. Furthermore, all Crown witnesses were present. Mr. Vella’s previous counsel indicated that he had to make zealous efforts to obtain the transcripts required for his Charter application apparently requiring the intervention of the manager of the court reporter’s office and another supervisor.

This is what appears to have accounted for the delay in filing the Charter application. [ 8 ] It was the Crown’s position that if the matter were adjourned that this would clearly be delay that was occasioned by the defence request for an adjournment and that the defence should waive all delay until the next trial date. The articled clerk present on behalf of Mr. Vella was only willing to waive delay until the following week, when it was expected that the new trial date would be set, if an adjournment were granted. The articled clerk was reluctant to waive all delay until the next trial date.

She explained that Mr. Vella had only contacted their office the previous Friday, and they had only had a short conversation on the phone. There had not yet been a chance for him to meet his new counsel. A one week adjournment was being sought to allow for his new counsel to meet him for the first time, and then to set a new trial date the following week. She conceded that it was clearly a defence request, but her instructions were to waive 11(

b) until the next time it would be up. At that point, the

article clerk indicated, “chances are we are going to say 11(

b) is waived until the next trial date, but as the next trial date is unknown as of now, that is why I am not waiving 11(b).” [ 9 ] The court was reluctant to grant the adjournment unless 11(

b) was waived until the next trial date, whereupon the articling student representing Mr. Vella’s new counsel stated that, “I do have instruction that if Your Honour doesn’t allow me to just waive 11(

b) until the next week, then I would be prepared to waive 11(

b) until the next trial date that would be set next week.” The trial judge accepted this “undertaking” and instructed the court clerk to note on the information that s. 11(

b) had been waived until the next trial date. Based upon her review of the record, she believed that the matter would take more than one day, and given the new developments, it would require a short telephone JPT with her before the return date in order to keep the matter on the rails. She also directed that the 11(

b) motion be scheduled on a separate date prior to the trial as it appeared to her that it would be a relatively complicated motion requiring perhaps one and a half days. She noted there was another Charter motion involving s. 8 and s. 10(b). The trial judge scolded Mr. Vella for deciding at the last minute to discharge his counsel and wasting a whole day of court time. The matter was remanded to August 9, 2011 to set a date for trial. [ 10 ] On August 9, 2012, Mr. Vella’s new counsel appeared and confirmed that s. 11(

b) had been waived until the next trial date. He clarified that: Even though there has been a waiver from the last trial date to the next trial date, we’re still anxious to have the earliest date. There were a number of earlier dates offered reflected on the form that I was not available and this is the earliest mutually convenient date for the trial. The Crown added that a trial date was offered as early as October 6th and a number of dates right through December, which were not available to counsel. The affidavit of Mr. Vella’s new counsel’s articled clerk states that on August 9, it was indicated by counsel that s. 11(

b) was still in issue and Mr. Vella was anxious to have the earliest mutually available date, although the period from August 2

through to the new trial date was waived. The affidavit also states that there were other earlier dates offered of October 6, November 24, December 1, 2, 14, 19, 21, 22, and 23 for which counsel was not available. December 20, 2011 was also offered, but neither counsel nor the Crown was available. Counsel had other earlier trial dates available in each and every month starting in August, 2011. The learned Justice of the Peace then set four hours on Dec 6, 2011 for the 11(

b) motion, and one day on February 24, 2012 for a one day trial. [ 11 ] It is both an agreed and notorious fact in these proceedings that both Mr. Vella’s former and present counsel are respected, capable, experienced, specialized in drinking and driving cases, and well known to the criminal courts. There is no dispute that in the normal course of their practices, they are both not in court everyday of the week, but instead have a number of dates every month that are available for them to prepare their trials.

They both have a great deal of experience conducting drinking and driving trials, so they are familiar with most issues. As such, they would both require very little preparation time and would have been in a position to do the trial whenever court time was available. [ 12 ] The 11(

b) motion was not commenced on December 6, 2011. It was rescheduled for February 15, 2012. Had the motion been heard on December 6, there would have been sufficient time for a judge to review the voluminous materials that were filed and reach a decision before the trial date of February 24, 2012. On February 15, 2012, I was the assigned judge on the matter. Due to a comedy of administrative errors, I had only received the nine large volumes of materials that had been filed with the court around the close of court business the previous day.

One of the problems was that I was assigned to hear the matter on February 15 after another judge, who was expected to hear the matter, was sent the materials. It seems that when the matter was re-assigned to me, the materials went astray. They were supposed to be delivered to me, but as fate would have it, someone in the system was misled by the sight of so large a volume of material, and thought that it could not possibly relate to a simple drinking and driving case. They thought the material related to a very long a complex unrelated matter that is being heard in this courthouse called Project Corral.

Upon receiving the material, the Project Corral Judge immediately realized it had nothing to do with that case, and wrote “wrong” on the cover of one of the volumes, crossed his name and that of the project out, and redirected the volumes of material to the attention of the correct judge. The correct judge turned out to be me, but I did not get the material until the eleventh hour. [ 13 ] On February 15 th I came into court not having read the material.

I sought the assistance of both Crown and defence with identifying what material was relevant to which issue, and I handed them all nine large volumes and asked them to ensure that I had received everything that had been filed. I was advised that all the material was there. It appears that two of the volumes were duplicitous. A previous judge had asked counsel for Mr. Vella to file two duplicate volumes of material with the relevant portions underlined, because he only wanted to read what was relevant. I kept the underlined volumes and returned the duplicate volumes. This reduced the number of volumes to seven.

The Crown identified one volume as the one it had filed on the 11(

b) motion. Defence identified four of the remaining six as relevant to the 11(

b) motion. The other two related to a s. 8 and s. 10(

b) motion. I set the two volumes in relation to the s. 8 and 10(

b) aside, and directed that we would deal with the 11(

b) first, as we usually do. Mr. Vella was arraigned and I heard evidence and submissions on the 11(

b) and took the matter under advisement, hoping to complete judgment before the trial date on February 24 th . I was unable to complete the matter and give judgment prior to or on February 24 th , and in order to prevent further court time from being lost, the trial proper was commenced on that day. It was agreed that the

section 8 and 10(

b) application would be blended with the trial proper. I also accepted service on that date of a third volume of material that related to the s. 10(

b) application. [ 14 ] The trial continuation was set for June 13 th . June 5, 6, and 11 were offered, but the officers were not available on those dates. Mr. Vella’s counsel was available on February 27, 28, March 5, 6, 21, 30, April 2, 17, 23, 25, 26, May 11, 15, 16, 18, 22, 29, 30, June 1, 5, 6, 11, and 12. My Vella’s counsel made it clear that his client’s s. 11(

b) rights from February 24 th to June 13 th were expressly not waived. I indicated that I would notify Crown when my decision on the 11(

b) motion was ready, and the matter could be brought forward and the trial continuation date vacated if appropriate. [ 15 ] Mr. Vella says in his affidavit that he is divorced and solely responsible for the care of his two children aged 6 and 8. He has no criminal record. He is president and director of a consulting firm and has four employees. He requires his driver’s licence to drive to and from work and during the course of his employment to meet with his clients. He also needs his licence to drive his children to their various activities, day care, and school.

In his affidavit, he also says that he has experienced a great deal of stress and anxiety with respect to the matter, and it has increased significantly as each court date approaches. He has had a great deal of difficulty sleeping and concentrating on his day-to-day tasks. The stress and anxiety has caused some physical symptoms including major headaches and sharp pains in his left shoulder and chest, which he has never experienced before. He testified in court that as time goes on, the symptoms are getting worse. There is a tingling sensation in his shoulders. He is becoming less patient with his children.

He consulted his family doctor, who advised him that medication was an option. He decided not to pursue this option due to fear of the side effects. He has also suffered considerable financial prejudice. He has had to incur expense and miss work for the additional days of court appearances. He testified in court that he has been less aggressive in looking for new jobs based upon the uncertainty over the ultimate disposition of the charges. When he discharged his previous counsel, he didn’t think this would cause as much additional expense as it did.

He was charged and released on an undertaking that did not contain onerous conditions. GOVERNING PRINCIPLES [ 16 ] As always, it is the Morin [2] factors that guide the analysis of s. 11(b). Recently, in R. v. Tran et al. , [3] Simmons J.A., who wrote the judgment for the Court of Appeal, re-affirmed that, “The framework for analyzing an application for a stay under s. 11(

b) of the Charter is well established,” [4] and with reference to the Morin factors summarized the governing principles as follows: “The court must consider:

i) the overall length of the delay between the laying of the charges and the end of the trial; ii) whether the accused has waived any of the delay; iii) the reasons for the delay; and iv) prejudice to the accused. The first factor, overall length of the delay, is a screening mechanism to determine whether an inquiry into the reasonableness of the delay is warranted. If the overall length of the delay, when considered in the context of all the circumstances (such as whether the accused is in custody), is unexceptional, no inquiry is required. Where an inquiry is warranted, time periods waived by the accused

should be deducted from the overall length of the delay before considering the reasons for any remaining delay. Five considerations come into play when considering the reasons for the delay:

a) the 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 the delay. One of the two main purposes of s. 11(

b) of the Charter is the protection of an accused's rights under the Charter to security of the person, liberty and a fair trial. An accused will suffer actual prejudice where the accused can demonstrate that the delay in bringing a case to trial has impaired one of those rights. Prejudice may be inferred where the delay between arrest and trial is simply too long. Once the four factors have been assessed, the court must determine whether the length of the delay is unreasonable having regard to the interests of the accused and the societal interests s. 11(

b) seeks to protect, the explanation for the delay, and the prejudice to the accused.” [5] [ 17 ] Simmons J.A. also commented in R. v. Tran et al that the recent decision of Code J. in R. v. Lahiry, [6] “serves as a reminder of some important principles concerning how to address the third factor in the analytical framework.” [7] With reference to numerous authorities including Morin and Lahiry, trial judges are reminded 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. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them.” [8] LENGTH OF THE DELAY [ 18 ] The overall length of the delay in this case from the charge date to the date the trial was commenced is 18 months and 8 days. An additional delay of 3 months and 20 days from the date the trial commenced until the continuation date is also relevant the court’s analysis of prejudice.

This overall length of delay merits an inquiry by the court into the reasonableness of the delay. WAIVER [ 19 ] Time periods waived by the accused should be deducted from the overall length of the delay before considering the reasons for any remaining delay. The period August 2, 2011, until February 24, 2012, was expressed waived by Mr. Vella’s counsel. This is a period of 6 months and 22 days. Subtracted from 18 months and 8 days, this leaves 11 months and 16 days for which the court must analyze the reasons for the delay.

CHARGE DATE TO SET DATE [ 20 ] Counsel was not ready to set a date for trial until December 2, 2010. He had been retained and requested disclosure before the first appearance date, which was on October 1, 2010. He was given initial disclosure on the first appearance date. He needed time to review the disclosure with his client and seek instructions. On October 15, 2010, agent for counsel was given additional disclosure, a toxicology report. The agent was reminded that unless an appointment was made, the assigned Crown may not be available for a pre-trial on the return date of November 18.

Time was still needed to review the additional disclosure with Mr. Vella. Counsel attended on November 18 and was unable to speak to the assigned Crown, so an appointment was made. He had a resolution meeting with the Crown on November 24 and the date for trial was set on December 2, 2010. [ 21 ] It was suggested in submissions that the initial disclosure should have included the toxicology report, and that the delay from October 1 to October 15 in providing the toxicology report was attributable to the Crown. It was also suggested that Mr.

Vella’s counsel could have made an appointment sooner for a resolution meeting. Ideally, the Crown should have had the toxicology report ready for the first appearance. And ideally, Mr. Vella’s counsel could have had his resolution meeting with the Crown between October 15 and November 18, rather than waiting until November 18 to arrange it. The delay between October 1 to October 15 is only two weeks, and I do not find that two weeks is an unreasonable amount of time for the Crown to provide the additional disclosure.

Furthermore, I do not find it unreasonable for defence counsel to have tried to have a resolution meeting on November 18, if the assigned Crown was available, and simply make an appointment, if she was not. It is my view that the period from October 1, 2010, until December 2, 2010, a period of two months, was necessary intake, it was reasonable, and it should be characterized as inherent time requirements. It is trite law that two months is generally considered to be an acceptable amount of time for in-take. SET DATE UNTIL FIRST TRIAL DATE [ 22 ] It was the evidence in Mr. Robbie Levita’s affidavit that Mr.

Vella’s previous counsel was available for trial on December 3, 2010, the day following the set date. I do not find it difficult to believe that Mr. Vella’s previous counsel could have been ready by that time. He was already familiar with the file, had already reviewed it with Mr. Vella, and already had instructions. He would already know the issues and he would know what his defence would be. He already had the toxicology report, although he was waiting for an updated version of it.

If the trial were scheduled on December, 3, 2010, the Crown would have been required to proceed with the toxicology report that it had, not the updated one, and Mr. Vella’s previous counsel would have been ready and prepared to represent him. It is common ground and not contested that Mr. Vella’s previous counsel has a great deal of experience in handling drinking and driving trials, is familiar with most issues, and requires very little preparation time in routine cases. It is entirely reasonable that he could complete any preparation for trial in this matter in less than one day.

The preparation was practically all done during the intake period. So only one day of the time between set date and the first date of trial is attributable the inherent time requirements necessary for the defence to be ready and available for trial. The rest of the time, five months and three days, is institutional delay. FIRST TRIAL DATE UNTIL SECOND TRIAL DATE [ 23 ] On May 6 th , 2011, the trial could not be reached, and no court was available to assist. One court was down due to the illness of a judge. Had that judge not been ill, the matter may or may not have been reached. Mr.

Vella’s counsel’s first availability date

was May 11th, so the period from May 6th to May 11th would be inherent time requirements, because the time runs from when counsel is ready and available. But the period of delay of two months and twenty-two days from May 11th to August 2nd, the second trial date, isnot completely attributable to the illness of a judge, which is generally characterized at neutral time. Institutional delay is at least equallyresponsible. So the fairest thing to do would be to attribute half of the time to institutional causes and to characterize the other half of thetime as neutral.

So half of two months and twenty-two days is one month and eleven days of institutional delay. The neutral or inherent time would be one month and sixteen days, because the period between May 6th and May 11th during which counsel was not availablehas to be added to the neutral time. SECOND TRIAL DATE UNTIL THIRD TRIAL DATE [24] This period is covered by the waiver, and as such, is excluded from this part of the analysis. On the third trial date,the trial began. PREJUDICE [25] The entire period from August 16, 2010 until June 13, 2012, a period of 22 months, is relevant to my assessment ofprejudice.

Clearly prejudice can be inferred from this period of time. Mr. Vella also attested to the actual financial prejudice caused bymultiple trial dates, its impact of his employment and business, all of which evidence I accept. I find that there has been both actual andinferred prejudice caused by the delay in getting this matter to trial. It has had a minimal impact on his security of the person or libertybecause his terms of release are not onerous. Delay in bringing this case to trial has moderately impaired Mr. Vella’s right to a fair trial.

Even though the officers have notes and can be cross-examined, his own recollection of events is bound to have been effected by thepassage of time coupled with the acute anxiety he has suffered. CONCLUSION [26] The total institutional delay in this matter after subtracting the neutral period of inherent time requirements is 6 monthsand 14 days. The neutral and inherent time requirements of the case add up the 3 months and 17 days. The rest of the delay is coveredby the waiver.

While I accept that there has been actual and inherent prejudice in this case, the amount of institutional delay falls wellunder the Morin guideline of 8 to 10 months, which I accept is not a limitation period. Even factoring prejudice into the analysis, theprejudice is not so severe as to reduce the minimum end of the guideline from 8 months all the way down to 6 months and 14 days.

Thesocietal interest in a trial on the merits in this very serious drinking and driving matter clearly outweigh the moderate prejudice that Mr.Vella has suffered, particularly given an institutional delay that falls far short of the Morin guideline. [27] For all of these reasons, this s. 11(

b) Charter application is dismissed. Justice Sheila Ray [1] Canadian Charter of Rights and Freedoms, R.S.C. 1985, App. 11, no. 44,

schedule B. [2] R. v. Moran, (SCC), [1992] 1 S.C.R. 771, paragraphs 31-33. [3] 2012 ONCA 18 , [2012] O.J. No. 83 (quicklaw). [4] Ibid, paragraph 20. [5] Ibid, paragraphs 20-24. [6] 2011 ONSC 6780 , [2011] O.J. No. 5071 (quicklaw). [7] R.v. Tran et al, note 3, para 30. [8] Ibid, para 32.