R. v. Kinsman, 2016 ONCJ 807

CITATION: R. v. Kinsman, 2016 ONCJ 807 COURT FILE NO.: Central East - Newmarket 4911-998-16-01645 DATE: December 7, 2016 O N T A R I O C O U R T O F J U S T I C E BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — AARON KINSMAN Applicant Before Justice P.N. Bourque REASONS FOR JUDGMENT Released on December 7, 2016 M. Ventola ................................................................................ for the Crown T.

Kaye ..................................................... for the defendant Aaron Kimsman BOURQUE J.: The Facts [ 1 ] The Defendant (Applicant) Aaron Kinsman is charged that on December 12, 2014 he did commit the offence of drive with excess alcohol and drive impaired. The information was sworn on December 30, 2014. Trial within a reasonable time 11(

b) Charter of Rights and Freedoms [ 2 ] The Defendant (Applicant) makes an application pursuant to

Section 11(

b) of the Charter of Rights and Freedoms and states that his right "to be tried within a reasonable time", has been infringed. He further asks that if I find that such an infringement has occurred, then pursuant to the provisions of Section 24 (1) of the Charter that the only remedy which is "just and appropriate under the circumstances" is a Judicial Stay of the charges against him. Onus [ 3 ] Previous to the decision in R. v Jordan, the onus in these applications was upon the applicant (defendant).

Under the new law, the onus is to be determined after determining whether the length of time (as calculated according to R. v. Jordan) is under or over 18 months. [ 4 ] Listed below are relevant time periods and actions by the parties which impact upon the issue of delay: Date Event Date of offence December 12, 2014 Date of charge December 30, 2014

1st court appearance January 9, 2015 Agent for retained counsel appears - disclosure provided –adjourned to January 30, 2015 – counsel sends letterrequesting further disclosure including booking, breathroom and in car camera videos and other disclosureincluding C1 and McNeil disclosure.(In car video hadactually been provided on Jan 9, 2015). 2nd court appearance: January 30, 2015 C1 disclosure provided – adjourned to February 20, 2015to have Crown pre-trial in the interim. 3rd court appearance: February 20, 2015 Defence has not conducted a Crown Pre-trial – furtherdisclosure provided – breath video still outstanding –adjourn to March 9, 2015 to have a Crown pre-trial.4th court appearance: March 9, 2015 Defence still has not done a Crown pre-trial nowscheduled for March 11, 2015 and defence seeksadjournment to March 20, 2015.5th court appearance: March 20, 2015 Defence seeking adjournment to April 1, 2015 – Crownpre-trial held – seeking breath tech video(does not exist). 6th court appearance: April 1, 2015 Trial date set for August 4, 2015 – no outstandingdisclosure issues noted on the record.

Counsel sends letteron July 13 2015 asking why no breath video taken inRIDE trucks.1st trial date: August 4, 2015 Defence requests adjournment because of clients workissues – defendant had not booked the day off work.

Newtrial date of February 4, 2016 selected.2nd trial date: February 4, 2016 Case did not proceed due to full docket – adjourned toOctober 12, 2016 - - Defence not available from June untilthe trial date.3rd trial date: October 12, 2016 Trial not reached – adjourned to January 16 2017 – Earlierdate in December not available to the defence. 4th trial date: January 16, 2017Total time from charge to trialcompletion December 30, 2014 to January 16, 2017 - 24 ½MONTHS [5] I am of the view that R. v. Coulter 2016 ONCA 704 has settled the law that it is the date of the laying of the charge that starts theclock running.

Legal Framework [6] Before the Supreme Court of Canada decision in R. v Jordan, 2016 SCC 237, the rubric to be followed was set out in the SCCdecision of R. v. Morin (1992) (SCC), 71 C.C.C. (3d) 1, and a plethora of decisions spanning the next 24 years. [7] In R. v. Jordan, the court laid out a new set of principles to be applied to the 11(

b) analysis. As I understand it the principals canbe summarized as follows: (

i) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, atpara. 47); (ii) Subtract defence delay from the total delay, which results in the “net delay” (Jordan, at para. 66); (iii) Compare the net delay to the presumptive ceiling (Jordan, at para. 66); (iv) If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, theCrown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow(Jordan, at para. 47).

In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases(Jordan, para. 71) (

v) Subtract delay caused by discrete events from the net delay (leaving the “remaining delay”) for the purpose ofdetermining whether the presumptive ceiling has been reached (Jordan, para. 75); (vi) If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularlycomplex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80); (vii) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay isunreasonable (Jordan, para. 48); (viii) The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was

released (the “transitional cases”) ( Jordan , para. 96). Transitional Provisions [ 8 ] For cases currently in the system, a contextual application of the new framework is required. [ 9 ] Therefore, for those cases, the new framework applies, subject to two qualifications. First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision.

This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. [ 10 ] The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling.

For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision.

Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision. [ 11 ] Further, if the delay was occasioned by an institutional delay that was, before this decision was released, reasonably acceptable in the relevant jurisdiction under the Morin framework, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system.

Given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system. [ 12 ] Two elements which had great importance in the Morin analysis have little or no relevance to the new rubric. As stated in R. v. Jordan “…although prejudice will no longer play and explicit role in the 11(

b) analysis, it informs the setting of the presumptive ceiling…once the ceiling is breached, an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one.”. Where the crown seeks to overcome the presumptive ceiling by showing exceptional circumstances, “the seriousness or gravity of the offence cannot be relied on...”. Calculating the net delay [ 13 ] For the purpose of determining whether the 18-month period has been exceeded, (or not) there must still be an assessment of the period up to the trial to determine if any of them were attributable to “defence delay”.

Paragraphs 60 to 67 of the R. v. Jordan judgment set out what constitutes “defence delay”. [ 14 ] Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence’s conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay. [ 15 ] As stated in R. v.

Coulter , [2016] ONCA 704, (at par 73) “In accordance with para. 64 of Jordan , the defence directly caused the delay as the court and Crown were ready to proceed, but the defence was not”. [ 16 ] The first possible period of defence delay was the delay in setting up a Crown pre-trial and indeed setting a trial date. The vast majority of the disclosure was provided on the first appearance date. There was no breath room video as in this jurisdiction, the York Regional Police do not have a video in their RIDE truck.

The only other item of disclosure not provided on the first date was the C-1 disclosure and perhaps some car communications. That was provided on February 20, 2015. In any event, the defendant did not do a Crown pre-trial until March 11, 2015. In the pre- Jordan world, the delay of 2 months and a week to get all the disclosure organized and then be ready to set the matter down for trial was accepted. IN any event the trial date was not set until April 1, 2015.

That is 3 months and was an acceptable amount of time under the Morin guidelines. [ 17 ] For the purpose of determining the net delay I believe that the trial date should have been set on February 20, 2015. The defendant could have had a Crown pre-trial on any day that they attended in court. They need not wait for a telephone pre-trial at a later date. The defendant says that they did not do the pre-trial because they were still waiting the breath room video.

I do not think that the total record reflects that as on two previous occasions the defendant indicated that the adjournment requested was for a Crown pre-trial which was not subsequently held. I do not think that the delay in the video (there actually was no delay as no video existed) should have held that up. [ 18 ] I deduct 1 month and 10 days from the net delay calculation. [ 19 ] The second period to consider is the delay from August 4, 2015 to February 4, 2016.

That was clearly a defence request for and adjournment of the trial and I deduct 6 months from the net delay calculation. [ 20 ] The third period to consider is from February 4, 2016 to October 12, 2016. The defence indicated they were not available between June to October, 2016. Dates of May 18th 2016 and June 7, 2016 were offered. As per Jordan , a delay for the purpose of calculating the net delay occurs when the Crown and court are available to proceed and the defence is not.

Even under the previous Morin guidelines, while the defence did not have to be agreeable to the first date offered by the court, the dates that counsel are definitely not available would also be deducted. Therefore, I deduct 4 months from the net delay calculation [ 21 ] The 4th period to consider is from October 12, 2016 to January 16, 2017. There was an earlier date of December 6, 2016 offered which the defence was not available. This was after the Jordan decision. I deduct 1 month and 1 week from the net delay calculation. [ 22 ] The total time deducted for the purpose of assessing net delay is 12 ½ months.

[ 23 ] The net delay is therefore (24 1/2 – 12 ½ months) 12 months. [ 24 ] This period of delay is under the presumptive ceiling of 18 months. Therefore, the defence has the onus of showing that there was defence initiative to move the matter along (at least after July 2016) and whether the time the case has taken markedly exceeds what was reasonably required.

As we are in a partial transitional period, the times and delays before July 2016, must be assessed contextually, bearing in mind the parties were relying upon the previous state of the law, that is the “ Morin Guidelines”. [ 25 ] Under the previous guidelines, I would have assessed the entire period up to the setting of the trial date (April 1, 2015) as intake or defence delay (3 months) .

With regard to the setting of the first trial date I would have assessed a period to time for counsel to be prepared for trial as one month. [ 26 ] I would have assessed the period from the first to the second trial dates as defence delay (6 months). I would have divided the time between the second and third trial dates as combined institutional and defence delay and assess 4 months to the defence.

With regard to the delay between the third and fourth trial dates, I would have assessed one month as defence delay. [ 27 ] Therefore the total Crown and institutional delay for the Morin analysis would be (24 ½ months – 15 months) = 9 1/2 months. Prejudice to the Accused [ 28 ] The defendant has filed an affidavit which sets out the prejudice that he has suffered as a result of the delay.

In addition to the expected additional emotional pressures, costs of counsel, and the preparation for trial, he relates that in this particular matter he has suffered the additional prejudice, in that while the charges are outstanding, he cannot apply for further positions with his company. That is certainly more than the usual prejudice caused by delay. However, I note that he declined to proceed to trial on August 4, 2015 at his own request.

Clearly the prejudice was not so great that he was prepared to wait a further 6 months for his trial. [ 29 ] For the purpose of the Morin analysis, I would still rate the total prejudice as real and not insignificant. In the pre- Jordan world the seriousness of the offence was also a consideration. All drinking and driving offences are serious. [ 30 ] In any event the impact of prejudice, and seriousness of the offence, while important in the pre- Jordan analysis, have been subsumed into the presumptive guidelines.

Conclusion [ 31 ] An overall delay of some 24 ½ months would, on its face, lead to the strong presumption that this delay would such as to offend the 11(

b) rights of the defendant. [ 32 ] On a further analysis, under the previous Morin guidelines, the delay falls within the acceptable period of delay. I would not have stayed the charges under the previous guidelines. [ 33 ] Under the new Jordan rules, and taking into account the transition rules, I feel that a net delay of some 12 months would not be excessive Crown and institutional delay. I have previously said that a delay of some 12 to 15 months was the norm in this jurisdiction and I am still of that view. I therefore find that the net period of delay in this matter does not markedly exceed what was reasonably required. [ 34 ] I do not find that the defendant’s 11(

b) rights have been infringed and I dismiss this application. Signed: “Justice P.N. Bourque” Released: December 7, 2016