ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
BEFORE HER HONOURABLE MADAM JUSTICE L. MARSHALL
on October 28, 2004, at TORONTO, Ontario
M. Brun Counsel for the Crown
T. Pain Counsel for the Accused
MR. PAIN: As your Honour is aware, the total delay is 13 months and 20 days in this case. I have broken down the delay as follows: The inherent time requirements I’ve attributed two months to that. The institutional delay is 10 months and 20 days, and that leaves one month, which I am calling Crown delay.
Mr. Milton was arrested on the 8th of September, 2003. He was released on a Promise to Appear. I was retained on the 1st of October, before his 1st Court date. That first Court date was October 16, 2003. On that date Mr. Milton attended Court and there was some initial disclosure provided. The matter was remanded to November 7th. In the interim I had reviewed the disclosure and requested some maintenance records and a video. On the 7th of November I attended Court, there was no further disclosure, it was adjourned to the 8th of December. On the 8th of December, still no disclosure, however, based on a conversation with Mr. Wright, despite the disclosure being outstanding, we set a trial date for todays date, some 10 months and 20 days later.
There were a couple of interim dates, one on January 8th, then one on February 5 until the remaining disclosure was provided, and that is basically the break down of all the dates and the delays.
Speaking to the issue of prejudice, Your Honour, I can advise Your Honour–obviously Your Honour has heard many of these applications. There can be prejudice inferred from the total delay itself. Your Honour can infer prejudice from the actions of the accused. This is a person who has retained Counsel before his first Court date. Disclosure is diligently pursued. A trial date is set without the benefit of full disclosure. So, certainly I would suggest to Your Honour that this is not a situation where Mr. Milton has created any of the delay himself. In addition to that there is an affidavit of prejudice which is in tab three of the Application Record. In that, Mr. Milton talks about not only the stress and anxiety from the delay itself, thinking about the possible consequences. He is basically a teacher. He says he’s a child, youth worker. He works with children with various disabilities, autism, A.D.H.D. Every year he is required to–he was required in, I believe, 2003, to have a police check done, and then subsequent to that, he is required on an annual basis to fill out declaration declaring any criminal convictions. So, a lot of this stress has been, over the past year, the thought of having to fill that out, and what is going to happen to his job at the end of all of this. In addition to that, he’s been tutoring for some time outside of school, children with these various challenges and handicaps. He has had to basically put that on hold because he lives in Toronto, he works in York Region, and basically, when he takes these students on it’s on the understanding that it’s a commitment for the school year, and he doesn’t want to be in a position where he starts with them, children that are otherwise challenged, to establish a relationship with, only to tell them after several months that, look, I can’t help your children anymore.
There are various other issues that he discusses, the fact that his mother–he lives with his mother who is 86. She’s a stroke survivor.
THE COURT: Well, some of those–and I’m not minimizing it, some of those concerns are those of anyone who is facing a possible loss of their licence if they’re convicted of this offence.
MR. PAIN: That’s true, Your Honour. I guess the point though is how long should one person have to face that? I mean, to face it for five, six, seven months is one thing. Everyone does face it, you’re right. But then it comes to a point where someone is living with that, they go to set a trial date and they are told, well, your trial is not going to be for 10 months and 20 days, and they’re put in a position where they basically have to live with all of that for close to a year. I would submit, Your Honour, it is exactly the type of prejudice that these applications are concerned with, the fact that this goes on and on for such a long period of time. And regarding what is to be considered an acceptable versus not acceptable delay, I have in my case book, Your Honour, starting at tab four, there are four decisions there out of this Courthouse, the first one, a decision by Justice Grossman of August 10, 2004. The name of the case is VanAdestine, for the benefit of the C0ourt Reporter, it’s V-A-N-A-D-E-S-T-I-N-E.
THE COURT: Excuse me just a second, would you, please?
REPORTER’S NOTE: Another matter is addressed.
THE COURT: Okay, sorry to interrupt, Mr. Pain. So, on Vandestine, yes, sir?
MR. PAIN: Yes, that was a case that was basically an over 80 and a fail to appear. The total delay was 13 months, and 12 months on the fail to appear. In that case, His Honour found that the institutional delay of 10 months was beyond the acceptable range, I apologize, and a stay was granted in that case. His Honour, at paragraph 19, quoted from the Meisner (ph) decision, he says, ” The amount of constitutionally tolerable institutional delay for a trial in the Ontario Court of Justice should be about 8 months, with such delay generally not exceeding about nine months”. In terms of prejudice, His Honour goes on at paragraph 23, : As a result of this, I have had numerous sleepless nights and I am under a great deal of related stress, anxiety and pressure. In addition, I have had numerous bouts of depression”. In that case, His Honour found that prejudice was sufficient there. Ten months was beyond the acceptable range. A stay was granted in that case. The case following that, at tab five, R. v. Heenan, H-E-E-N-A-N, a decision of Justice Brown, dated May 12th, 2004. Again, an over 80 set for half a day. The institutional delay there was 10 months and 12 days. Again, the Court found there that it wasn’t a complex case. It was set for a half day, and once again, at paragraph 19, “There is some support for the argument that since there have been so many years to address the delay problem that came to a head in Askov, and in the absence of evidence as to new problems in a particular location, the lower end of the range should now be applied as a guideline for acceptable institutional delay in the Provincial Court”. Her Honour goes on to find that the delay in this case, at 10 months and 12 days, is beyond the acceptable range, and Her Honour enters a stay. Following that, another decision out of this Courthouse, Your Honour, R. v. Mattin, M-A-T-T-I-N, a decision of Justice Lane, who I understand doesn’t normally sit here. Again, institutional delay of 10 months and 2 days. A drinking and driving case. “There is no question that this was the earliest trial date provided by the Court when the trial date was set”, she comments. Again, same type of thing. Your Honour, at paragraph 16: “I would suggest there should be no delay exceeding nine months. I adopt the rationale of Mr. Justice Hill at paragraph 74. Given the government has had well over a decade of experience in dealing with delay in Peel, the amount of constitutionally tolerable institutional delay for a trial in the Onbtario Court of Justice should be about 8 months, with such delay generally not exceeding about nine months. Ten months in my view, is beyond an acceptable level, subject to the issue of prejudice”, and then she goes on, and the prejudice there is very similar to–some of it, like Your Honour has commented, she finds is just prejudice that anyone suffers, like the 90-day suspension and what not. Then she comments factors like forgoing the ability to buy a house somewhere because he’s concerned that he’s going to lose his licence and won’t be able to drive from Ajax to work. That’s the type of prejudice that she considers adequate, and a stay is granted in that case. There is–the last decision out of this Courthouse, Your Honour, a decision, R. v. Campagnaro, C-A-M-P-A-G-N-A-R-O, at tab seven, a decision of Justice Pringle. Now, this is a domestic assault case. The total delay was 12 months, and the institutional delay bwas nine and a half months. Interesting, the issue of prejudice. Within six weeks the accused had brought a bail review, and he was living back at home with his wife and children.
THE COURT: Well, domestic, the prejudice there is a little different. I mean, families are literally ripped apart, and it follows both the parties and their children, and, I think those matters should be brought on much more quickly than the ordinary matter.
MR. PAIN: I would agree, Your Honour, except in this case, the gentleman was back at home within six weeks, so that really wasn’t a factor. In any event, Her Honour found that, again, suggesting that the acceptable range at this time is between eight and nine months, and she found nine and a half months, although close, was still beyond the acceptable range, and she stayed those proceedings; And then finally last night, Your Honour , I have one other decision, and I apologize. Its just a couple of pages which Im handing to my friend. Its a decision of yours, Your Honour, from August 3, 2004.
THE COURT: Oh.
MR. PAIN: A decision called R. v. Rekker, and basically, institutional delay of 10 months and 25 days, and Your Honours conclusion is that was outside the acceptable range, and a stay was granted in that case, and Im suggesting to Your Honour that this is a situation as well where 10 months and 20 days, the earliest acceptable trial date is taken. There was only three months before that. The accused has done everything he can to get this going on. This is also a case where the delay is unreasonable, and I would suggest to Your Honour that the appropriate remedy is a stay as well.
THE COURT: All right. Ms. Brun?
MS. BRUN: Your Honour, my submissions arent going to be too lengthy, but I think that, ultimately, what my position is going to be to Your Honour, is that this, what makes this distinct from some of the cases that my friend has provided to you is that its the Crowns position that the earliest trial date was not set. Certainly, Im going to be relying on the time frame analysis that was submitted to Your Honour in the Crowns factum. Namely, that the inherent time requirements in this case are reasonable. The one month and 30 days, at which point by the November 7th date its my understanding that all that was outstanding for Counsel was the videotape and, I believe, calibration records at that time. So certainly its going to be my submission to you that the one month and one day time frame between November 7th and December 8 are directly attributable to the actions of the Applicant. Its certainly going to be my position that this is a relatively simple case in terms of reading the file, assessing what disclosure is necessary strictly for the purpose of setting a trial date. It happens all the time, Your Honour, that Counsel sets trial dates in these types of charges in the absence of a video tape. We were setting dates well into the future. Counsel gets their video tape at a subsequent date and the matter proceeds to trial. So, certainly its my position that a trial date could have, in fact, been set on the November 7th date, and so that one month and one day delay is directly attributable to my friend, and, as well, the institutional delay and the 10 months and 20 days is reasonable under all of the circumstances, and Ill elaborate on that in a moment. But, I think whats particularly telling in this case with respect to the one month and one day being attributable to the accused, is that on the December 8th date, again there was, from my understanding, this issue of the outstanding video tape as well as alcohol standard solution logs. Now, this issue was canvassed at the pre-trial, and I know that Counsel set a date on the December 8th date, and at that point he still didnt have that disclosure. He still didnt have the information that he was requesting. So its very apparent from what actually transpired that he was fully able to set a trial date in the absence of that disclosure, and so
THE COURT: Well, in fairness, his position is that a Crown on that date stood up to the plate and agreed, basically, to accept personal responsibility for obtaining the disclosure, because in the past I guess the ball was being passed. So, he was not only being told it wasnt ready, nobody was prepared to tell him they would take some ownership and kind of guarantee it would be provided to him. Because I know Im always pushing people to set dates without full disclosure as long as theres somebody in the Crowns office they can look to for follow up on.
MS. BRUN: Well, I guess then from that point, Your Honour, my argument is going to be that certainly Counsel couldve on the November 7th date, have taken the time at that point to have met with a Crown and the same course of action could have occurred.
THE COURT: Its the Crowns responsibility. The Crown shouldve offered. When Counsel is asking and it comes up in Court and its not there, they shouldnt have to ask a Crown, it should be incumbent on the Crown. Now, I think under our new system, where theres going to be some really serious ownership in files, this wont happen anymore.
MS. BRUN: Well, I think .
THE COURT: There wasnt a system in that regard back in the fall.
MS. BRUN: Im just looking for the November ..
THE COURT: Seventh.
MS. BRUN: Because mine is actually out of order here.
THE COURT: November 7th.
MS. BRUN: So, my argument though, You Honour, still is with respect to this issue, that on the November 7th date it says, my friend indicates that hes requested a video tape and some maintenance records, that on that particular date at that particular time he had, within his hands, sufficient disclosure to set a trial date. Thats essentially my point, Your Honour, so that .
THE COURT: But the Crown didnt ask him to do that. They didnt say youve got sufficient to set the date. Im looking at November 7th was, Well, check upstairs, the video may be there.. No reference to the other materials, or what was being done. He then said, December 8th, and the Crown said, Fine. The Crown didntI mean, youre making a really sensible suggestion. Unfortunately, that sensible suggestion wasnt made back in November.
MS. BRUN: Well, I guess the only response I can have to that You Honour, is I dont see, and my friend will certainly correct me if Im wrong, any letter sent to the Crowns office with respect to these outstanding issues. I dont see them in my book of material here. So, essentially what Im suggesting is that in a busy Courtroom like 3-0-3 Counsel has to be prepared to a certain degree to make requests for this disclosure.
THE COURT: But there had been a request back in October.
MR. PAIN: Yes, October 16th.
THE COURT: Not on this date.
MS. BRUN: Was there a letter?
MR. PAIN: And then November 3rd again. At tab two, attached to the affidavit, re: history of the matter, the last two pages.
MS. BRUN: Well, with respect to that particular issue, Your Honour, those are my submissions. If Your Honour does, in fact, find that my friend has a more accurate break down of the time, and the fact that he doesnt have the video tape and the maintenance record logs as delay attributable to the Crown, its ultimately going to be my submission that the prejudice occasioned by this woman with respect to the nature of the charges is not to such a sufficient degree as to warrant a stay.
Now, I know that Your Honour is certainly aware that drawing on principles of Morin, the Supreme Court of Canada, they make it very clear that one of the factors consider is whether the accused has been prejudiced. Thats a crucial, crucial factor, and that the degree of prejudice or absence thereof is an important factor in determining the length of the institutional delay that would be tolerated, and its certainly my position that the nature of the prejudice that is outlined in the affidavit, a lot of it, in fact, seems to me to not be actual prejudice, but I dont want to, again, minimize this, but more or less, possible prejudice, or prejudice that might occur somewhere in the future with respect to a possible conviction. So, it has not actually been demonstrated by virtue of the affidavit that this is actual prejudice suffered by this woman, and its certainly my position to Your Honour that a lot of whats outlined is prejudice that anyone is, in fact, charged with this type of offence suffers. So, the other argument that Im not sure if Your Honour would even entertain, because this is directly related to the fact that its my position that the one month period with respect to the video tape and calibration logs is attributable to my friend. But thats certainly my suggestion to you, Your Honour, and, in terms of that time period, the Supreme Court of Canada also makes clear in Morin that while the accused isnt required to do anything to expedite their trial, their inaction can be taken into account in assessing the prejudice, and so it is my position that at the end of the day, the intake period amounted to a little more than a month, the corresponding month delay was attributable to my friend, and that the inaction in his part, and that is how Im going to categorize it, should be factored in in an assessment of prejudice. So, ultimately, its my position that the timeframe is not unreasonable in its totality, and that the breakdown can be a month for the inherent time requirements, which is a neutral factor, an additional month attributable to my friend, and that, in respect to the institutional delay, that the 10 months and 20 days time period is not reasonable under the circumstances viewed in conjunction with the prejudice suffered to this individual, which its my submission to you is not in effect actual prejudice, but really is more or less prejudice occasioned from the nature of the charge. If Your Honour has any other questions, those are my submissions.
THE COURT: All right, thank you. Reply?
MR. PAIN: Just very briefly, Your Honour, I think in a drinking and driving case, I dont think theres anything unreasonable about wanting at least the video before you decide youre going to set a trial date or not. You know, at the first stage Mr. Milton shows up, he got some disclosure, and basically, when someones setting a date on an impaired and they want to know, well, what are my chances?, it certainly helps for defence counsel to be able to see that video and say, well, let me see the video. You should set a trial date and spend money. No, you shouldnt, you should consider pleading guilty.
THE COURT: Well, I mean, with all due respect, because I read all this stuff, I know what the readings were alleged to be.
MR. PAIN: Yes.
THE COURT: So, you know, this isnt that close to the line where the video is going to be critical. Your main issue here might be, I mean, going after the logs and stuff might be appropriate.
MR. PAIN: Yes, and, I mean, I was holding out for that as well. Now, as it turns out, someone, Mr. Wright, did say, look, you just set a trial date .
THE COURT: And he got them for you. It did take awhile.
MR. PAIN: He did, yes. I dont have anything further, Your Honour.
THE COURT: Thank you. These are very difficult cases. It used to be that the only thing defence was asking for was the video. Now they want maintenance logs for intoxylizers for, you know, breath machines, and all the rest of it. Im hoping under the new system that there wont be some of these inherent delays. He did ask for it, and in November when it wasnt available, there was a suggestion he look upstairs. Nobody suggested, neither the Court nor a Crown, nor defence, that a date be set without that disclosure. Such a suggestion was made a month later, and Mr. Wright did agree to accept responsibility for providing the disclosure. Defence has to ask for disclosure, but beyond that the responsibility is entirely upon the Crown to provide it, and if it cant be provided immediately, to take some ownership and responsibility, including giving some personal undertakings to get it, and I do agree, the date should be set as soon as everyones in a reasonable position to do so, quite bluntly, thats going to be often without full disclosure. It has to be. We cant wait for every little bit of a disclosure to set all the dates or were going to be into undue delay. And there is prejudice to people with these charges hanging over their head. What steps they can take in the future, and how the consequences of a conviction can affect them are factors that weigh heavily upon people, and I did comment earlier that a lot of that, in fact, is the natural consequences that come from conviction, but surely justice determines, or justice dictates that we deal with these matters in a reasonable period of time.
Ms. Brun has argued that of the 10 months and 20 days from the set date, could have been reduced by a month if Counsel had set a date November 7th instead of December 8th. Even if that were correct, 10 months and 20 days sounds better than just less than 11 months, which is what 10 months and 20 days is. So, even if a month were taken off that, then the date would have been set a nine months and 20 days, which is close to ten months from November 7th. That would leave an intake between date of arrest and set date of two months, which is completely appropriate. Its not at all unreasonable to expect that type of a neutral delay before the setting of a date.
In this case, Counsel was retained immediately, gave notice after one month of what they needed. It was two months later before the date was set. Counsel did set it in December without full disclosure on the undertaking of the Crown to provide it. Prior to that, the Crowns office did not seem particularly concerned that he kept coming back to Court and asking for things, and its that lack of concern and ownership on the side of the Crown that has been a major contributing factor to a lot of the redundant adjournments which have been taking place, and I believe it was partly in recognition of this that the Crown has devised a new system of case management which is going to have, from day one, Crown ownership and responsibility for these briefs, and hopefully its going to mean that in the future were not going to have these unnecessary adjournments and this unnecessary delay.
When the Courts are talking about nine months or 10 months, its always difficult to make those assessments when the cases youre dealing with on the cusp are of those time periods. If you start saying, well, a few days here, one way or the other doesnt make any difference, pretty soon they become meaningless, because if you really met nine or nine and a half, you can get up to 10 or 11, is that beyond the pail from what should be approximately nine month delay? I guess there has to be a cut off point.
Some of the prejudice here, as I say, is not really prejudice, its more just what a lot of people go through when they realize what their consequences of their actions would be. But there is the added unpleasantness of an unnecessarily long length of time the matter is hanging over their head.
In the circumstances, although in theory the date couldve been set in November, the Crown didnt even make that suggestion. It wasnt until December that Mr. Wright did take, the bit in his teeth, make the suggestion of setting a date, and assumed responsibility, and, therefore, Im assessing the delay here as back at the 10 month and 20 day range, which does put it outside a timely provision for a trial date in this Court, and, very reluctantly and unhappily, Im staying this charge for delay.
MR. PAIN: Thank you, your Honour.
THE COURT: And I thank any witnesses who came here today, and, Mr. Pain, you can explain to your client that we hope we never see him back here again.
MR. PAIN: I will, Your Honour.
THE COURT: I hope hes done something about what those readings reflected.
MR. PAIN: He has, You Honour.
MR. MILTON: I have, Your Honour.
THE COURT: Good luck, then. Thank you.
MR. PAIN: I thank my friend.