Wednesday, July 6th, 2022

The Judge’s Decision

* Names changed to protect client privacy.

File no. 09-9022

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN

and

PETER.

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PROCEEDINGS

BEFORE THE HON. MR. JUSTICE H.L. FRASER, on Friday, September 24, 2010 in OTTAWA, Ontario.

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APPEARANCES:

Mr. M. Humphreys                                       Counsel for the Crown

Mr. Auger                                                         Counsel for the Accused

— Excerpts of proceedings

REASONS FOR DECISION

Fraser, J. (Orally) :

This application was brought before this Court on September 23rd, 2010, seeking a remedy pursuant to section 24 (1) of the Canadian Charter of Rights and Freedoms on the grounds that the delay occasioned in this matter is unreasonable in all of the circumstances and that it contravenes section 11 (b) of the Charter of Rights and Freedoms.

Dealing briefly then with the facts. On February 3rd, 2009 the applicant Andrew W. was charged with one count contrary to section 253 (1) (a) of the Criminal Code of Canada and one count contrary to section 253 (1) (b) of the Criminal Code of Canada. On February 19th, 2009 the applicant’s matter made its first appearance in these Courts, Court number five and was adjourned to March 5th, 2009. On March 5th, 2009, the matter was again brought in number five Court and at that time the Crown indicated that disclosure would be placed in Mr. Auger’s disclosure bin and the matter was then further adjourned to March 19th, 2009. From March 19th, 2009 the matter was adjourned to April 2nd, 2009. And on the 2nd of April, 2009 the matter was set for a one day trial on October 21st, 2009 at 10:00 a.m. in courtroom number 11.

It appears that an earlier trial date of August 28th, 2009 had been offered but defence counsel was not available on that date. There may have been an issue with the unavailability of a Crown witness as well. On October 2nd, 2009 the matter was brought before the Court in the certificate of readiness Court, and at that time the Crown indicated that the Crown witness, that Mr. M. had not yet been served. The Crown indicated that attempts to serve Mr. M had been made as late as July 27th and 28th of 2009 but had been unsuccessful and they had reason to believe that Mr. M. may have relocated to Vancouver, British-Columbia.

The Crown indicated that there was a response from the Ottawa Police Service stating that they had concluded their search for Mr. M as of September 23rd, 2009, as their efforts to locating either a phone number or address in Vancouver had failed. The Crown stated that they believed that there was still a reasonable prospect of conviction even if Mr. M did not testify but that they were prepared to arrange for the travel expenses of this witness to be covered in the event that he was located in Vancouver and was prepared to come to Ottawa to testify.

A decision was made by Justice Maisonneuve then to cancel the trial date of October 21st, 2009 and the matter was adjourned to October 15th, 2009, courtroom number five to set a new trial date.

On October 15th, 2009 the applicant’s matter was before the Court to set a new trial date out of courtroom number five. At that time the Crown could not confirm whether or not the missing witness had been served. Mr. Auger, counsel for the applicant, asserted that he would be asserting the 11 (b) Charter Rights of his client and the matter was adjourned a further week to October 22nd, 2009. On the 22nd of October, 2009 the matter was before the Court once again to set a new trial date. The Crown informed the Court that day that the missing witness had been located, following a request initiated from the Crown’s office, requesting police to make a further search for the witness in British Columbia. A new trial date was then offered of June 25th, 2010.

Then on April 15th, 2010 the Crown served notice of an application to adjourn the June 25th, 2010 trial date. The application was returnable on April 29th, 2010 courtroom number five. The matter was then transferred on April 19th, 2010 to courtroom number seven. And the Crown indicated at the time that – the matter was actually adjourned further to April 30th, 2010 in courtroom number seven. The Crown had requested the adjournment application – the adjournment, I should say, because two of the witnesses would be unavailable for the June 25th, 2010 trial date, so they would be involved with the – for the G20 summit. As a result a third trial date was set for one and a half days, commencing September 23rd, 2010 in courtroom number 12.

As of the trial commencement date of September 23rd, 2010, approximately 19 months and 21 days have passed since the charges were laid on February 3rd, 2009.

The applicant submits that from the time in which he retained counsel, it has always been his intention to have the charges dealt with as expeditiously as possible. So I’ll just briefly look at the applicable law.

There are four factors that the Court has to assess to determine whether there has been a violation of the applicant’s right to a trial within a reasonable period of time. Those factors are, a) the length of the delay, b) whether there’s been any waiver of time periods, c) the explanation for the delay including inherent time requirements of the case, actions of the accused, actions of the Crown, limits on institutional resources or other reasons for the delay as well as prejudice.

Of course the decisions that are often cited in reference to these four factors are R. v. Askov and R. v. Morin. In term of the length of the delay, those decisions have indicated that the longer the delay the more difficult it will be for the Court to excuse that delay because with each passing day there is growing impairment to the applicant’s rights to liberty and security. The Morin decision also confirmed that in assessing the overall delay the appropriate start point would be the date on which the information is sworn, and the termination point as the end of the trial which would include the sentencing. Obviously for our purposes the end point that the Court is considering is effectively today’s date.

With regard to the principle of waiver, in Morin Sopinka, J. confirmed that,

“A waiver by an accused must be clear, it must be unequivocal with full knowledge of the rights being laid and the effect of the waiver on those rights.”

It is also submitted by the applicant that mere agreement by counsel to a future date without more cannot constitute a lawful waiver. It doesn’t appear that a waiver is a significant matter before me.

In terms of the explanation for the delay, as stated moments ago, there are several sub-categories that the Court has to examine. I’ll begin with the inherent time requirements. Although the Court has some knowledge of the allegations involved in this case, it appears that it’s a result of a single car, motor vehicle accident which led to a charge of driving while impaired and driving while over the legal limit. It does not appear, at first blush, to be a particularly complex case. A determination was made on April 30th, 2010 that the one day time limit that was initially set would be insufficient and that perhaps one and a half days would be more reasonable, largely due to the number of witnesses, more than the complexity of the case. The one day initially set was amended to a day and a half, but in my view, that doesn’t make it a particularly complex matter and the fact that the time requirement was increased is not significant in my view.

In terms of the actions of the accused, it appears throughout that the accused has done everything in his power to move things along where there was acknowledgement or concessions with regard to the adjournments, counsel for the applicant did assert his 11 (b) concern and even where there may have been acquiescence, I think that was in the face of the realization that there wasn’t much else to be accomplished in light of the request being placed before the Court. I don’t see any actions that would amount to waiver and I don’t see any actions on behalf of the accused that would place any responsibility at his feet for the delay in this matter, reaching the stage that it has now reached.

The next factor would be actions of the Crown. Now, there have been submissions made by the applicant that this is the case that perhaps could have been managed more efficiently, and that’s submitted for two reasons, as I understand it, both deal with the question of the importance of Mr. M. as a witness before these proceedings. So it’s essentially a two-fold – or two pronged argument. Firstly, that if the Crown was of the view that Mr. M. was that important a witness then more concerted efforts could have been made to ensure his attendance in time for the first trial date. Secondly, that the Crown, had it properly assessed the prospects of conviction or success of prosecution, could have determined that the matter could have proceeded without Mr. M.’s testimony, but the Crown chose to proceed on the basis that his testimony would be significant and that they should request that the first trial date be adjourned in a continued effort to have him testify in this proceeding.

I am of the view that perhaps that aspect does require some further examination. I think it would be useful to take a look at some of the transcripts that have been provided. Perhaps I’ll begin with the October 2nd, 2009 proceeding. If you look at page six of that transcript – actually, going back to page five, Mr. Cavanaugh indicates that from his reading of the file over the recess, Mr. M. appears to be an essential witness. On page six, he notes that there were attempts to follow up with the summons server, but those efforts were unsuccessful and then he says,

“Again on September 23rd, 2009 the investigating officer indicates that they concluded their efforts to locate the witness. They have information he may be in B.C. They tried to locate a number, an address in Vancouver with negative results. That’s where they are now.”

The Crown is then asked the question about the likelihood of the Crown finding this witness for another trial date. Mr. Cavanaugh says,

“Unless the person is a master mind, it will difficult for him to absolutely disappear. I’m not sure why they have been unsuccessful in finding him so far, but there has to be a way to find the person, just because they happen to move from Ontario to B.C. shouldn’t put them beyond the availability of the police to find.”

Then Justice – I think it’s Justice Maisonneuve I believe says,

“But it appear to me from what you’ve read in the file and what you’ve put on the record is that the police seem to have indicated to you that they have exhausted all of their means to try to serve that person.”

And I think that’s an important point to just pause on there, because my reading of that is that the judge’s impression at that point is that police have exhausted all of their means to try to serve that person. To some extent Mr. Cavanaugh confirms that by stating,

“Well, that’s what the officer’s writing “I’ve concluded my efforts” but we would write back to the police and say “Listen, are you telling us you can’t find the man just because he’s moved to a different province? Go find him.” They can put some more effort into it.”

So that’s from October 2nd, 2009.

The next reference I want to turn to would be the October 22nd, 2009 proceeding before Justice of the Peace Swords. On page one – and we have the exchange between the Crown at that time, Ms. Cote, and Mr. Auger, on that date Mr. Auger is advised by Ms. Cote that Mr. Cavanaugh had on October 5th sent the police officer request to canvass the search of the witnesses, that are now – he says witnesses, plural, but obviously it’s a reference to Mr. M who now appears to be located in British Columbia.

“In fact, this memo was brought to the attention of the supervisor in the police office and last week I asked the Court officer on the 15th – on the 15th I asked the Court officer to get us an answer from the supervisor and it has not been done.”

Then she corrects herself and says,

“It appears now that the witness has been located.”

So she confirms for the Court, October 22nd, 2009 that the witness has in fact now been located. Unfortunately it comes shortly after the first trial date of October 21st, 2009, but in any event, the witness has been located and presumably will be available for the next trial date set for June 25th, 2010.

The next reference I want to make is the transcript of April 30th, 2010, page four in which – maybe go back to actually page three, Mr. Auger’s comments were, he’s expressing some frustration before Justice Wright stating,

“Well, if we are…”

It’s in the middle of the page,

“Well, if we are now back to the same discussion that Justice Maisonneuve heard, we’re going backwards, not forward. So if the Crown is telling the Court that this application is only for the purpose of selecting a new trial date because of these two paramedic witnesses, I think quite frankly I’d have a hard time using Your Honour’s Court time to try to convince you that you ought not to vacate the trial date. Having said that, I think I have an obligation to assert 11 (b). This allegation goes back to February of ’09. And not consent to the application.”

So much of the discussion on April 30th focusses on the two paramedic witnesses who would need to be excused. And it only later on, which appears on page four of the transcript, that there’s mention made again of Mr. M. I think that Mr. M.’s name only comes up because there’s a discussion regarding the appropriate amount of time that should be set and the number of witnesses now required and when they’re adding up the witnesses, someone recalls that Mr. M. hasn’t been accounted for. At the bottom of page four then, Mr. Bocking makes a somewhat surprising statement,

“We can’t locate him. We’re not going to bring him from where ever he is.”

The Court,

“So he may be off the…”

Mr. Bocking,

“He’s gone in the wind.”

So the same Mr. M. who appears to have been located in the fall of 2009 now in April 30th, 2010 is apparently gone in the wind.

Now, the Court had commented – I think earlier perhaps during the Crown submissions that – with regard to the efforts that the police expended initially to locate the witness, that it might have been more useful had – for the contact particulars been obtained and I recognize, to some extent, that may be properly categorized as a Monday morning quarter-backing with the advance of hindsight, we can see that the benefit of having that additional information, as far as Mr. M. is concerned – but in assessing the reasonableness of this approach, it is obviously up to the police to determine how much information they require and what they choose to do with it but I do not think it’s a great surprise that individuals in Mr. M.’s – may move or relocate from time to time. I think I may have read at one point somewhere that the average Canadian moves every five years. I don’t know if we have Mr. M.’s age, but I would imagine that someone in his age bracket might even move more frequently than that, so the fact that he relocated obviously caused some great inconvenience and that statement is not meant to criticise the fact that other information, which in hindsight, would have assisted in locating him in a much more timely fashion, could have been obtained, as Mr. Humphreys has submitted, perhaps at that particular time at the roadside the officer felt that wasn’t practical. In any event, the point I’m making is that that was not done and yet the main reason for the adjournment of the October 21st, 2009 trial date was that all efforts to locate this individual had been exhausted.

When one looks at those statements and places them against the information that’s now before the Court, including Mr. M.’s own testimony as to his activities and his willingness to stay involved with this matter, it really causes the Court to question whether in fact all efforts to locate this individual prior to October 21st were exhausted. In fact, the evidence would indicate that it was Mr. Cavanaugh who was able to light a fire, if I might put it that way, and his communique of October 5th, 2009 resulted in fairly quick action. I think the point made by Mr. Auger in his submission is a valid one, that it seems that when the efforts were stepped up, Mr. M. was located within a three week period. The impression that was left with the Court that all efforts were exhausted, the impression that would have been left with the Court dealing with the adjournment in October of 2009, in my view, would not have been entirely accurate.

I think it’s also worthy of comment, as far as the other category of limits on institutional resources, to note that even after the first trial date was cancelled, the next available trial date was June 25th, 2010, some eight months after the October date. That in itself speaks to the – obviously the lack of institutional resources, and in my view, where a matter that could not be dealt with on the first trial date and was adjourned – again could not be reached until another eight months had passed.

With regard to the further adjournment from June 25th to today’s date, I don’t think it was unreasonable for the Court to excuse the two paramedics who were involved with the matter of the summit this past summer, but again that occasioned a further delay through no fault of the applicant. And so we find ourselves now at September 24th, almost 20 months after the date that Mr. W. was charged.

There were a number of other points raised by counsel in submissions, but in my view, those would be the most significant considerations for the Court.

On the issue of prejudice, the applicant submits that the concept of prejudice underlies the right to be tried within a reasonable time and the prejudice can be inferred from the length of the delay; the longer the delay, the more likely the inference that the inference will be drawn. This is not a situation where the applicant had to endure pre-trial incarceration or any restrictive bail conditions. But I believe this is a situation where the Court can infer prejudice both from the length of the delay itself and the fact that he has had counsel throughout who has had to make a number of appearances on his behalf.

There was a time in these proceedings when counsel would provide an affidavit with statements attached with the billing information or accounts. I must say I was not very comfortable with that particular approach, I think that’s something that the Court doesn’t need to get involved in. The Court can infer that experienced counsel in matters of this nature is likely not working for free and that each Court appearance is going to come with a cost and the more appearances, the greater that cost, regardless of whatever – with a particular client, and also the very fact that the – as the length of the delay increases, as I’ve stated, in other decisions, in a situation where an accused may have to testify, then the Court would have a concern about the ability to recall, in addition to the obvious stress of having the matter hanging over them for that length of time.

In terms of society considerations, we are dealing with a serious matter. We don’t have to look very far to get an appreciation for the type of carnage that impaired driving can cause. Society obviously has an interest in these matters being prosecuted, that is an interest that has to be balanced against the applicant’s right under the Charter to have his trial within a reasonable amount of time. I agree with Mr. Humphreys’ submission as well that it’s not simply a case of the Court saying “X number of months, crosses that line and anything outside of that, you go one way or the other” there are, I would say, many factors that the Court has been asked to consider in matters of this nature. Every case does turn on its own factors, the information before me in this matter is that there was an accident and that the readings taken were in fact quite high. But coming back to the analysis, it’s my finding, in all of the circumstances that I have considered in this matter, that the Charter rights of Mr. W., the 11 (b) rights to a trial within a reasonable time have in fact been breached in these circumstances and I find that even at it’s highest, taking the Crown’s assessment of time and what should be considered a neutral factor, I come away with a period of 16 months, just under 16 months if I subtract some of those time periods that ought not to be counted against the Crown. It is my view that a delay of that period of time, particularly when we’re also considering the factor of this being a third trial date, is unreasonable in all the circumstances. For those reasons then, I will grant a stay pursuant to section 24 of the Charter, the counts will be stayed at this time.
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