MOTOR VEHICLE REPORTS Sixth Series/SixiÈme SÉrie Recueil De Jurisprudence En Droit Des VÉhicules A` Moteur

MOTOR VEHICLE REPORTS Sixth Series/Sixième série Recueil de jurisprudence en droit des véhicules a` moteur

VOLUME 49 (Cited 49 M.V.R. (6th))

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[Indexed as: Murray v. British Columbia (Superintendent of Motor Vehicles)] Colin Roy Murray, Respondent (Petitioner) and Superintendent of Motor Vehicles and Attorney General of British Columbia, Appellants (Respondents) British Columbia Court of Appeal Docket: Vancouver CA040437 2013 BCCA 363 Newbury, Levine, Garson JJ.A. Heard: June 17, 2013 Judgment: August 13, 2013 Motor vehicles –––– Offences and penalties — Suspension of licence — Practice and procedure — Judicial review — Evidence capable of supporting decision –––– Driver received notice of 90-day immediate roadside prohibition (“IRP”) pursuant to s. 215.41(3.1) of Motor Vehicle Act — Section 215.47(d) of Act required arresting officer to file sworn or affirmed report (“RTS”) to Superintendent of Motor Vehicles — Officer forwarded RTS to superintendent which was neither sworn nor affirmed — At hearing to review driver’s appeal of IRP, adjudicator admitted officer’s unsworn, unaffirmed RTS into evidence before confirming prohibition based on officer’s statements in RTS and screening device certificate, acknowledging that RTS was neither sworn nor solemnly affirmed but considering RTS relevant evidence under s. 215.49(1)(d) of Act — Driver successfully brought application for judicial review — Superintendent and attorney general appealed — Appeal dismissed — No error in chambers judge’s order allowing driver’s petition — Fact that s. 215.47 states that peace officer must forward to superintendent report sworn or solemnly affirmed by police officer, imports mandatory requirement, as does s. 215.49(1)(b) of Act — If intention of legislature had been as superintendent asserted, it would have been easy matter to delete words “sworn or solemnly affirmed by the peace officer” from s. 215.47(d) of Act — But having retained mandatory language, it would be illogical, if not absurd, for legislation to pro- 2 MOTOR VEHICLE REPORTS 49 M.V.R. (6th) vide that superintendent could make his or her determination without sworn or affirmed RTS. Motor vehicles –––– Evidence — Prosecutions — Documentary evidence — Miscellaneous –––– Report to Superintendent — Driver received notice of 90- day immediate roadside prohibition (“IRP”) pursuant to s. 215.41(3.1) of Motor Vehicle Act — Section 215.47(d) of Act required arresting officer to file sworn or affirmed report (“RTS”) to Superintendent of Motor Vehicles — Officer forwarded RTS to superintendent which was neither sworn nor affirmed — At hearing to review driver’s appeal of IRP, adjudicator admitted officer’s unsworn, unaffirmed RTS into evidence before confirming prohibition based on officer’s statements in RTS and screening device certificate, acknowledging that RTS was neither sworn nor solemnly affirmed but considering RTS relevant evidence under s. 215.49(1)(d) of Act — Driver successfully brought application for judicial review — Superintendent and attorney general appealed — Appeal dismissed — No error in chambers judge’s order allowing driver’s petition — Fact that s. 215.47 states that peace officer must forward to superintendent report sworn or solemnly affirmed by police officer, imports mandatory requirement, as does s. 215.49(1)(b) of Act — If intention of legislature had been as superintendent asserted, it would have been easy matter to delete words “sworn or solemnly affirmed by the peace officer” from s. 215.47(d) of Act — But having retained mandatory language, it would be illogical, if not absurd, for legislation to provide that superintendent could make his or her determination without sworn or affirmed RTS. Criminal law –––– Offences — Impaired driving/care or control — Sentenc- ing — Prohibition from driving –––– Driver received notice of 90-day immediate roadside prohibition (“IRP”) pursuant to s. 215.41(3.1) of Motor Vehicle Act — Section 215.47(d) of Act required arresting officer to file sworn or affirmed report (“RTS”) to Superintendent of Motor Vehicles — Officer forwarded RTS to superintendent which was neither sworn nor affirmed — At hearing to review driver’s appeal of IRP, adjudicator admitted officer’s unsworn, unaffirmed RTS into evidence before confirming prohibition based on officer’s statements in RTS and screening device certificate, acknowledging that RTS was neither sworn nor solemnly affirmed but considering RTS relevant evidence under s. 215.49(1)(d) of Act — Driver successfully brought application for judicial review — Superintendent and attorney general appealed — Appeal dismissed — No error in chambers judge’s order allowing driver’s petition — Fact that s. 215.47 states that peace officer must forward to superintendent report sworn or solemnly affirmed by police officer, imports mandatory requirement, as does s. 215.49(1)(b) of Act — If intention of legislature had been as superintendent asserted, it would have been easy matter to delete words “sworn or solemnly affirmed by the peace officer” from s. 215.47(d) of Act — But having retained mandatory language, it would be illogical, if not absurd, for legisla- Murray v. B.C. (Superintendent of Motor Vehicles) 3 tion to provide that superintendent could make his or her determination without sworn or affirmed RTS. Administrative law –––– Standard of review — Correctness –––– Driver received notice of 90-day immediate roadside prohibition (“IRP”) pursuant to s. 215.41(3.1) of Motor Vehicle Act — Section 215.47(d) of Act required arresting officer to file sworn or affirmed report (“RTS”) to Superintendent of Motor Ve- hicles — Officer forwarded RTS to superintendent which was neither sworn nor affirmed — At hearing to review driver’s appeal of IRP, adjudicator admitted officer’s unsworn, unaffirmed RTS into evidence before confirming prohibition based on officer’s statements in RTS and screening device certificate, acknowledging that RTS was neither sworn nor solemnly affirmed but considering RTS relevant evidence under s. 215.49(1)(d) of Act — Driver successfully brought application for judicial review — Superintendent and attorney general appealed — Appeal dismissed — No error in chambers judge’s order allowing driver’s petition — Fact that s. 215.47 states that peace officer must forward to superintendent report sworn or solemnly affirmed by police officer, imports mandatory requirement, as does s. 215.49(1)(b) of Act — If intention of legislature had been as Superintendent asserted, it would have been easy matter to delete words “sworn or solemnly affirmed by the peace officer” from s. 215.47(d) of Act — But having retained mandatory language, it would be illogical, if not absurd, for legislation to provide that superintendent could make his or her determination without sworn or affirmed RTS. Administrative law –––– Practice and procedure — On application for certiorari — Costs –––– Driver received notice of 90-day immediate roadside prohibition (“IRP”) pursuant to s. 215.41(3.1) of Motor Vehicle Act — Section 215.47(d) of Act required arresting officer to file sworn or affirmed report (“RTS”) to Superintendent of Motor Vehicles — Officer forwarded RTS to Su- perintendent which was neither sworn nor affirmed — At hearing to review driver’s appeal of IRP, adjudicator admitted officer’s unsworn, unaffirmed RTS into evidence before confirming prohibition based on officer’s statements in RTS and screening device certificate, acknowledging that RTS was neither sworn nor solemnly affirmed but considering RTS relevant evidence under s. 215.49(1)(d) of Act — Driver successfully brought application for judicial review — Superintendent and attorney general appealed — Appeal dismissed — No error in chambers judge’s order allowing driver’s petition — Fact that s. 215.47 states that peace officer must forward to superintendent report sworn or solemnly affirmed by police officer, imports mandatory requirement, as does s. 215.49(1)(b) of Act — If intention of legislature had been as superintendent asserted, it would have been easy matter to delete words “sworn or solemnly affirmed by the peace officer” from s. 215.47(d) of Act — But having retained mandatory language, it would be illogical, if not absurd, for legislation to pro- 4 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

vide that superintendent could make his or her determination without sworn or affirmed RTS. Cases considered by Newbury J.A.: Buhlers v. British Columbia (Superintendent of Motor Vehicles) (1999), 170 D.L.R. (4th) 344, 1999 CarswellBC 415, 132 C.C.C. (3d) 478, 60 C.R.R. (2d) 74, 1999 BCCA 114, 41 M.V.R. (3d) 165, 23 C.R. (5th) 1, 119 B.C.A.C. 207, 194 W.A.C. 207, 65 B.C.L.R. (3d) 119, [1999] B.C.J. No. 408 (B.C. C.A.) — referred to Hart v. British Columbia (Superintendent of Motor Vehicles) (2001), 2001 BCSC 1143, 2001 CarswellBC 2960, 23 M.V.R. (4th) 110, [2001] B.C.J. No. 2512 (B.C. S.C.) — considered Matous v. British Columbia (Superintendent of Motor Vehicles) (2005), 2005 CarswellBC 1899, 209 B.C.A.C. 279, 345 W.A.C. 279, 2005 BCCA 151, 19 M.V.R. (5th) 178 (B.C. C.A.) — referred to Mitchell v. British Columbia (Superintendent of Motor Vehicles) (2009), 2009 CarswellBC 1868, 2009 BCCA 272, 94 B.C.L.R. (4th) 194, 468 W.A.C. 1, 276 B.C.A.C. 1, 83 M.V.R. (5th) 67 (B.C. C.A.) — considered New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1, 69 Admin. L.R. (4th) 1, 69 Imm. L.R. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) [2008] 1 S.C.R. 190, 844 A.P.R. 1, (sub nom. Dunsmuir v. New Brunswick) 2008 C.L.L.C. 220-020, D.T.E. 2008T-223, 329 N.B.R. (2d) 1, (sub nom. Dunsmuir v. New Brunswick) 170 L.A.C. (4th) 1, (sub nom. Dunsmuir v. New Brunswick) 291 D.L.R. (4th) 577, 2008 CarswellNB 124, 2008 CarswellNB 125, 2008 SCC 9, 64 C.C.E.L. (3d) 1, (sub nom. Dunsmuir v. New Brunswick) 95 L.C.R. 65, [2008] S.C.J. No. 9, [2008] A.C.S. No. 9 (S.C.C.) — considered Rizzo & Rizzo Shoes Ltd., Re (1998), 1998 CarswellOnt 1, 1998 CarswellOnt 2, 50 C.B.R. (3d) 163, [1998] 1 S.C.R. 27, 33 C.C.E.L. (2d) 173, 154 D.L.R. (4th) 193, 36 O.R. (3d) 418 (headnote only), (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 221 N.R. 241, (sub nom. Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re) 106 O.A.C. 1, (sub nom. Adrien v. Ontario Ministry of La- bour) 98 C.L.L.C. 210-006, [1998] S.C.J. No. 2 (S.C.C.) — referred to Sivia v. British Columbia (Superintendent of Motor Vehicles) (2011), 2011 Car- swellBC 3225, 2011 BCSC 1639, 27 B.C.L.R. (5th) 229, 247 C.R.R. (2d) 226, 92 C.R. (6th) 122, 282 C.C.C. (3d) 145, [2012] 5 W.W.R. 297, 23 M.V.R. (6th) 185, [2011] B.C.J. No. 2282 (B.C. S.C. [In Chambers]) — considered Tanner v. British Columbia (Superintendent of Motor Vehicles) (2012), 2012 BCSC 2037, 2012 CarswellBC 4225, [2012] B.C.J. No. 2859 (B.C. S.C.) — referred to Murray v. B.C. (Superintendent of Motor Vehicles) 5

Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 8 — considered Criminal Code, R.S.C. 1985, c. C-46 s. 131 — referred to Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 s. 9 — referred to Motor Vehicle Act, R.S.B.C. 1996, c. 318 Generally — referred to s. 94.3 [en. R.S.B.C. 1996 (Supp.), c. 318, s. 23] — considered s. 94.5 [en. R.S.B.C. 1996 (Supp.), c. 318, s. 23] — considered s. 215.5(1)(b)(i) [en. 2004, c. 68, s. 19] — considered s. 215.41 [en. 2010, c. 14, s. 19] — referred to ss. 215.41-215.51 [en. 2010, c. 14, s. 19] — referred to s. 215.41(3)(a) [en. 2010, c. 14, s. 19] — considered s. 215.42(1) [en. 2010, c. 14, s. 19] — considered s. 215.43(2)(a) [en. 2010, c. 14, s. 19] — considered s. 215.47 [en. 2010, c. 14, s. 19] — considered s. 215.47(d) [en. 2010, c. 14, s. 19] — considered s. 215.47(e) [en. 2010, c. 14, s. 19] — considered s. 215.48(1) [en. 2010, c. 14, s. 19] — referred to s. 215.48(3) [en. 2010, c. 14, s. 19] — considered s. 215.48(4) [en. 2010, c. 14, s. 19] — considered s. 215.49 [en. 2010, c. 14, s. 19] — considered s. 215.49(1)(b) [en. 2010, c. 14, s. 19] — considered s. 215.49(1)(d) [en. 2010, c. 14, s. 19] — considered s. 215.49(3) [en. 2010, c. 14, s. 19] — considered s. 215.49(4) [en. 2010, c. 14, s. 19] — considered Motor Vehicle Amendment Act, 2010, S.B.C. 2010, c. 14 Generally — referred to Motor Vehicle Amendment Act, S.B.C. 2012, c. 26 Generally — referred to

APPEAL by superintendent and attorney general from judgment reported at Murray v. British Columbia (Superintendent of Motor Vehicles) (2012), 40 M.V.R. (6th) 128, 2012 CarswellBC 3665, 2012 BCSC 1730, [2012] B.C.J. No. 2430 (B.C. S.C.), which granted driver’s application for judicial review of notice of 90-day immediate roadside prohibition.

S. Bevan, J. Ingram, for Appellants M. Lefebure, for Respondent 6 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

Newbury J.A.:

1 This appeal requires us to consider the meaning — not the validity — of certain provisions of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 as amended, that relate to the review of roadside driving prohibitions issued under s. 215.41. The review process, which is carried out not by a court of law but by an adjudicator designated by the Superintendent of Motor Vehicles, is part of the so-called automatic roadside prohibition (“ARP”) regime that has been in force in its present form since June 15, 2012 when the Motor Vehicle Amendment Act, S.B.C. 2012, c. 26, came into force. However, the scheme has been amended a few times in the last decade, partly in response to constitutional challenges to the validity of provincial legislation aimed at reducing impaired driving. The history of “roadside and other suspensions” is helpfully described by Mr. Justice Sigurdson in Sivia v. British Columbia (Superintendent of Motor Vehi- cles), 2011 BCSC 1639 (B.C. S.C. [In Chambers]) at paras. 37-59. 2 In Sivia, the Court was considering the validity of ss. 215.41 to 215.51 of the Act, which sections had been introduced by amendments that came into force on September 20, 2010 by virtue of the Motor Vehi- cle Amendment Act, 2010, c. 14. (Sivia, para. 3.) One of the petitioners’ arguments was that “there is no longer a meaningful review process in place to challenge the ARP prohibition ... and the reviewer has almost no jurisdiction to review the automatic roadside prohibition.” (Para. 9.) The Court found that the ARP legislation as it then was infringed s. 8 of the Canadian Charter of Rights and Freedoms insofar as it dealt with prohibitions arising from a “failed” roadside breath test. Although Si- gurdson J. referred in passing to the fact that the Superintendent could rely on unsworn evidence in carrying out a review, he did not rely on any particular aspect of the ARP scheme as breaching s. 8, but ruled that the scheme was unreasonable because: ... there is no way under the impugned law for the driver to challenge the validity of the results [of a ‘failed’ test]. As evidenced by the review process already in place under the ADP regime, it is possible to allow for a more meaningful review to be put in place without in any material way affecting the government’s objective of removing impaired drivers promptly and effectively from the road. In my view, it is not reasonable to preclude a driver a more meaningful review of the grounds for a more lengthy suspension, penalty and costs in the “fail” (over 0.08) part of the ARP regime. [Para. 319.] Murray v. B.C. (Superintendent of Motor Vehicles) Newbury J.A. 7

(The “ADP” or “administrative driving prohibition” regime, which has passed constitutional muster (see Buhlers v. British Columbia (Superintendent of Motor Vehicles), 1999 BCCA 114 (B.C. C.A.)), provided only for a 90-day driving prohibition (that came into force 21 days after service) and a reinstatement fee, whereas at the time of Sivia, a driver who received an ARP for blowing a “fail” or refusing to blow on an “approved screening device” (“ASD”) was subject to an immediate 90-day prohibition and other penalties and costs. (Sivia, para. 56.)) 3 Sigurdson J. described the review processes under each scheme as follows: Finally, the ADP regime provides for a different and broader review than the ARP regime. Under s. 94.6, on the review of an ADP the Superintendent may consider whether, in fact, a driver was “over 0.08” while operating a motor vehicle. In contrast to the above review process, upon review of an ARP under s. 215.5, the Superinten- dent is required to uphold the suspension simply if satisfied that the person was a driver and that the approved screening device registered a “warn” or “fail”. The ARP arises after a test by an ASD which, according to the evidence, provides no physical record whatsoever and on review is confirmed by the unsworn evidence of the peace officer who administered the test. Conversely, when the ADP arises after an analysis by approved instrument (breathalyser) under the Criminal Code, which is the usual course, there is a certificate of analysis. For practical purposes the enactment of the ARP regime appears to have rendered the ADP regime superfluous; however, the law concerning the ADP regime remains in force. [At paras. 57-9.] He ultimately declared that ss. 215.41(3)(a), 215(42)(1), 215(43)(2)(a) and 215.5(1)(b)(i) of the Act as it then stood were invalid insofar as they applied to instances of “fail” readings. 4 The amendments that came into force on June 15, 2012 responded to Sivia in part by requiring in s. 215.47 that a peace officer who has served a notice of driving prohibition on a person under s. 215.41 promptly forward to the Superintendent: (d) a report, in the form established by the Superintendent, sworn or solemnly affirmed by the police officer, and (e) in the case of a driving prohibition resulting from the analysis of a sample of breath, information relating to the calibration of the approved screening device on the basis of which the notice of driving prohibition was served. 8 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

[Emphasis added.] Section 215.49(1) was also amended to provide that in carrying out a review, the Superintendent “must consider”: (d) any other relevant documents and information forwarded to the Superintendent by the peace officer who served the notice of driving prohibition or any other peace officer, including peace officers’ reports that have not been sworn or solemnly affirmed and the following subsection 4 was added: The Superintendent may determine the weight to be given to any document or other information referred to in subsection (1), including any document or information that is not sworn or solemnly affirmed. 5 Accordingly, ss. 215.47 and 215.49 as they now read, and which are the focus of this appeal, provide as follows: 215.47 A peace officer who serves a notice of driving prohibition on a person under section 215.41 must promptly forward to the superintendent (a) the person’s licence or permit or any document issued in another jurisdiction that allows the person to operate a motor vehicle, if the peace officer took the licence, permit or document into possession, (b) a copy of the notice of driving prohibition, (c) a certificate of service, in the form established by the superintendent, showing that the notice of driving prohibition was personally served on the person subject to the driving prohibition, (d) a report, in the form established by the superintendent, sworn or solemnly affirmed by the peace officer, and (e) in the case of a driving prohibition resulting from the analysis of a sample of breath, information relating to the calibration of the approved screening device on the basis of which the notice of driving prohibition was served. 215.49 (1) In a review of a driving prohibition under section 215.48, the superintendent must consider (a) any relevant written statements or evidence submitted by the applicant, (b) the report of the peace officer forwarded under section 215.47(d), (c) a copy of the notice of driving prohibition, Murray v. B.C. (Superintendent of Motor Vehicles) Newbury J.A. 9

(d) any other relevant documents and information forwarded to the superintendent by the peace officer who served the notice of driving prohibition or any other peace officer, including peace officers’ reports that have not been sworn or solemnly affirmed, (e) in the case of an oral hearing, any relevant evidence given or representations made at the hearing, and (f) in the case of a second or subsequent prohibition, as described in section 215.43 (4) and (5), the person’s driving record. (2) In a review under section 215.48, no person may be cross examined. (3) Despite subsection (1), the superintendent may, in the superintendent’s discretion, proceed with a hearing whether or not the superintendent has received, at the time of the hearing, all those documents required to be forwarded to the superintendent under section 215.47. (4) The superintendent may determine the weight to be given to any document or other information referred to in subsection (1), including any document or information that is not sworn or solemnly affirmed. [Emphasis added.]

Factual Background 6 The facts of this case are very simple. The respondent Mr. Murray was served with an automatic roadside prohibition on July 2, 2012, after being stopped by police at 2:45 a.m. on the Trans-Canada Highway in West Vancouver. He failed two tests on an ASD. He was given a notice of prohibition that prohibited him from driving for 90 days; his car was impounded for 30 days; and he was required to pay a penalty of $500. 7 The attending peace officer, Cst. Hunter, forwarded a “Report to Su- perintendent” (or “RTS”) in the form required by the Superintendent (it is not prescribed by regulation) together with a copy of a “narrative text” of the incident prepared by the officer. The RTS had not been sworn or affirmed in the presence of a commissioner or a notary — even though one of the statements in the form, which the officer signed, was to the effect that “The attached narrative report and other attachments consist of two pages and forms part of this sworn document.” 8 Mr. Murray applied to the Superintendent under s. 215.48(1) for a review of the prohibition. As his grounds of review, he stated that “I was 10 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

not driving or in care or control of the motor vehicle” and that “the result of the ASD is not reliable.” 9 An oral hearing was held on July 13, 2012. In preparation for it, the Superintendent disclosed the contents of his file to Mr. Murray, including copies of the certificate of service, notice of impoundment, two reports to the Superintendent, two “Certificates of Qualified ASD Calibrators” and the narrative text. Mr. Murray was represented at the review by counsel, Mr. Harris, and did not call any evidence of his own. As noted in the adjudicator’s decision, however, Mr. Harris directed the Superintendent’s attention to the requirement in s. 215.47(d) that a peace officer who has served a notice of prohibition on a driver must promptly forward same to the Superintendent, “sworn or solemnly affirmed.” The adjudicator noted the deficiency but stated: While I will give less weight to the RTS as a result of this deficiency, section 215.49(1)(d) states that I must consider: ... any other relevant documents and information forwarded to the Superintendent by the peace officer who served the notice of driving prohibition or any other peace officer, including peace officers’ reports that have not been sworn or solemnly affirmed. Based on the documents before him, the adjudicator affirmed the driving prohibition and other penalties.

Petition in Supreme Court 10 On August 1, 2012, Mr. Murray filed a petition in Supreme Court seeking an order in the nature of certiorari quashing the prohibition and setting aside the adjudicator’s decision. The legal bases stated in the petition were as follows: 4. The Petitioner submits that the Adjudicator committed an error of law by not allowing the appeal on the basis that the peace officer failed to submit a sworn or affirmed RTS. Section 215.47(d) of the MVA states: “A peace officer who serves a notice of driving prohibition on a person under section 215.41 must promptly forward to the superintendent (d) a report, in the form established by the superintendent, sworn of solemnly affirmed by the peace officer.” 5. The Petitioner submits that the Adjudicator committed an error of law by invoking section 215.49(1)(d) of the MVA to accept the unsworn RTS as evidence: “While I give less weight to the RTS as a Murray v. B.C. (Superintendent of Motor Vehicles) Newbury J.A. 11

result of the deficiency, section 215.49(1)(d) states that I must consider: any other relevant documents and information forwarded to the superintendent by the peace officer who served the notice of driving prohibition or any other peace officer, including peace officers’ reports that have not been sworn or solemnly affirmed. Section 215.49(1)(d) refers to “any other relevant documents”. The RTS is listed in the same section under subsection (1)(b). Therefore, an unsworn RTS cannot properly be considered “any other relevant document” when having regard to the entirety of that section. 6. In the alternative, the Petitioner submits that the Adjudicator committed an error of law by failing to properly explain what weight was given to the unsworn RTS and to provide the Petitioner with adequate reasons in his Review Decision. 11 The matter came before Mr. Justice Brown on October 9, 2012 and he issued reasons, indexed as 2012 BCSC 1730 (B.C. S.C.), on November 22. He began his analysis by noting that while the standard of review of reasonableness is presumptively applied when an adjudicator is interpreting his or her “home statute” on a matter falling within the tribunal’s area of specialization, questions of law that are “centrally important to the legal system and outside the Adjudicator’s specialized area of expertise”, attract a standard of correctness. (Para. 15.) The chambers judge decided that the issue before him fell into the latter category. In his analysis: I find the mandatory swearing or solemn affirmation of the RTS is a matter of central importance to the legal system. Assessing the significance of the matter falls outside the Adjudicator’s area of expertise. In making this finding, I have considered the quasi-criminal nature of the penalties imposed under the IRP and have noted concerns stated by Justice Sigurdson in Sivia v. British Columbia (Superinten- dent of Motor Vehicles), 2011 BCSC 1639 at para. 319 about the use of reports the officer has neither sworn nor affirmed. The statutory requirement that officers swear or solemnly affirm an RTS is not merely an administrative matter. It is fundamental and mandatory. I find, therefore, the standard of review is correctness. If I err in that conclusion, I would find, nonetheless, that the Adjudicator’s interpretation was unreasonable for the reasons discussed next. [At para. 17; emphasis added.] 12 Under the heading “Statutory Interpretation”, the chambers judge found the adjudicator’s interpretations of ss. 215.47 and 215.49(1)(d) to 12 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

be “unreasonable”, citing Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.) at para. 21. He noted, as I have above, some of the Court’s analysis in Sivia and continued: Given what Justice Sigurdson characterized as the “extremely limited grounds to challenge the accuracy of the results of the search” and the need for a “reasonable review regime” — which the June 15, 2012 amendments were partly intended to address — mandatory requirements such as a peace officer’s obligation to swear or solemnly affirm the contents of the RTS cannot be excused. In my view, without a sworn or solemnly affirmed RTS, the Adjudicator has no jurisdiction to proceed. [At para. 25.] 13 The chambers judge also rejected the Superintendent’s argument that the reference to “other relevant documents ... including peace officers’ reports that have not been sworn or solemnly affirmed” in s. 215.49(1)(d) must include a report in the form established for purposes of s. 215.47(d) that has not been sworn or affirmed. This interpretation, the chambers judge found, gave “short shrift” to the concerns raised in Sivia and indeed, he said, the requirement that the RTS be sworn or affirmed appeared to be the “only significant modification of the review process”. (Para. 27.) 14 The Superintendent relied on comments of the Attorney General in the Legislature concerning the purpose of s. 215.49(d). According to Hansard, the minister stated in the Legislature on May 30, 2012: The issue of having a sworn document relates only to the police officer’s report. Previously that was not the case. Judge Sigurdson [in Sivia] went to some length to point out and had concern about the fact that the police officer’s report was not sworn. What we have done is respond to that, so the police officer’s report must now be sworn. This section, section 6, is being amended so that if an unsworn police officer’s report appears, the superintendent will still look at that report but will need to weigh it in light of the fact that there has been an administrative error. Again, it isn’t inconsistent with the existing provisions in the administrative driving prohibition process. The key change is regarding police officers’ reports and the need now for them to be sworn. (British Columbia, Legislative Assembly, Official Report of the De- bates of the Legislative Assembly, 39th Part, 4th Sess., Vol. 40, No. 1 (30 May 2012) at 12546 (S. Bond); emphasis added.) 15 The chambers judge found that this excerpt offered no assistance in interpreting the pertinent sections in that the minister appeared to regard Murray v. B.C. (Superintendent of Motor Vehicles) Newbury J.A. 13

a failure to swear or solemnly affirm an RTS as an “administrative error” that can be overlooked in favour of possibly giving less weight to such unsworn material. Further, the Court said: While a Hansard report may shed some light on legislative intent in the face of ambiguous language, I find the legislative intent clearly expressed by the plain words of the statute, read according to their ordinary and grammatical meaning. Further, that reading is consistent with a legislative intent to respond to some of the concerns raised by Justice Sigurdson. [At para. 31.] 16 The Court also referred to two cases decided under previous statutory regimes, Mitchell v. British Columbia (Superintendent of Motor Vehi- cles), 2009 BCCA 272 (B.C. C.A.) and Hart v. British Columbia (Superintendent of Motor Vehicles), 2001 BCSC 1143 (B.C. S.C.). In each of these, the Court had rejected the Superintendent’s argument that deficiencies in observing the procedural requirements of the review process provided by the Act could be overlooked as mere technicalities. In Hart, the deficiency was the same as in the case at bar: the peace officer’s report was not sworn or affirmed as required by what was then s. 94.3 and the adjudicator, like the adjudicator in this case, said he would accord the report less weight than if it had been properly sworn. Mc- Cauley J. set aside his decision, stating in part: I conclude that the legislature imposed the requirement under s. 94.3(d) to ensure, in fairness to any person subject to prohibition, that the superintendent, on a review under ss. 94.4 - 94.6, would determine whether to confirm the prohibition based on the officer’s sworn rather than unsworn written report. In my opinion, the statute pre- cludes the superintendent from considering the report unless it is sworn. This interpretation flows from a holistic consideration of the overall scheme of the Act, the object of the Act to summarily remove drivers from the highway who have engaged in drinking and driving with its concomitant risk to the safety of themselves and others, and the intention of the legislature, all as required by Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at paras. 21 and 23. As the report was never properly before the adjudicator for consideration, neither was the narrative as it simply contained information to the same effect. I agree with counsel for Hart that the general provision entitling the adjudicator to rely on other relevant information cannot be relied on to derogate from the specific statutory requirement. [At paras. 18-9; emphasis added.] 14 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

(See also Tanner v. British Columbia (Superintendent of Motor Vehi- cles), 2012 BCSC 2037 (B.C. S.C.) at paras. 31-3, and Matous v. British Columbia (Superintendent of Motor Vehicles), 2005 BCCA 151 (B.C. C.A.) at para. 3.) 17 The chambers judge found that the reasoning in Mitchell and Hart was also “apt” in this case. In connection with the question of remedy, he observed that it is only in “exceptional” cases that a reviewing judge should quash a tribunal’s decision and replace it with the judge’s own. (Para. 37.) In the result, the Court quashed the adjudicator’s decision and remitted it to the Superintendent for rehearing.

On Appeal 18 On appeal, the Superintendent asserts that the chambers judge erred in law in three respects: 1. The chambers judge erred in law in determining that correctness, not reasonableness, was the appropriate standard of review of the adjudicator’s interpretation of ss. 215.47 and 215.49 of the Act. 2. The chambers judge erred in law in determining that the adjudicator’s interpretation of ss. 215.47 and 215.49 of the Act was incorrect or unreasonable. 3. The chambers judge erred in law in failing to consider the discretion under s. 9 of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, to refuse relief on an application for judicial review if the sole ground for relief established is a defect in form or a technical irregularity and no substantial wrong or miscarriage of justice has occurred.

Standard of Review 19 I do not intend to discuss the applicable standard of review at length, since in my view the particular context in which this case arises, including the various constitutional challenges that have been made to the review procedures under the Motor Vehicle Act, means that an error made by an adjudicator concerning what documents must be considered in a review would offend either standard. Having said this, it is my opinion that the questions raised are ones of law, as the Superintendent has suggested in his factum. I note that this court in Mitchell, supra, held that an adjudicator had acted outside his jurisdiction in proceeding with a review in the absence of a certificate of analysis, as required by what was then s. 94.5 of the Act. Groberman J.A. for the Court noted the following pas- Murray v. B.C. (Superintendent of Motor Vehicles) Newbury J.A. 15

sage from New Brunswick (Board of Management) v. Dunsmuir, 2008 SCC 9 (S.C.C.): Administrative bodies must ... be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE [Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227]. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction. [At para. 59.] 20 Although the Superintendent argued in Mitchell that the review procedure was intended to be a summary one that emphasizes the protection of the public rather than individual rights, the Court held that the statutory requirements could not be ignored. Groberman J.A. stated at para. 23: ... the absence of other procedural protections for the person who is given a notice of driving prohibition makes it even more important that the statutory protections that exist are respected. I agree with Quijano J.’s views that s. 94.5(1) is mandatory; the adjudicator cannot complete a review without considering the evidence that is described in the section. If the adjudicator does not have a copy of the certificate of analysis (in cases where one exists), he or she cannot fulfill the duties set out in s. 94.5(1). Quijano J. considered that in such circumstances, the adjudicator could conclude the review in favour of the applicant. I am not convinced that that is the case. The better view, in my opinion, is that the adjudicator cannot complete a review at all if a copy of an existing certificate of analysis is not before him or her. [At paras. 23-4; emphasis added.] 21 I appreciate that the deficiency complained of in Mitchell — the total absence of a certificate required by the statute — might be regarded as more serious than the deficiency complained of in this case; but by the same token, the language of the statute in both cases is mandatory and as seen above, the 2012 amendments to the Act represented a legislative 16 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

response to Sivia. The comments of the Attorney General from Hansard quoted above make this point very clearly. 22 Since Mitchell has already determined the “... degree of deference to be accorded with regard to a particular category of question” (see Dun- smuir at para. 62.), I intend to proceed on the basis that the question raised on this appeal is one of general law that is subject to review on a standard of correctness, even if the issue is not a truly jurisdictional one as discussed in Mitchell. If I were wrong in this and the question were one of mixed law and fact, then as previously indicated, I am of the view that an adjudicator’s decision based on an error as to whether a sworn or affirmed RTS was required, could not meet the standard of reasonableness.

Interpretation of the Statute 23 Turning to the substantive issue before us, the Superintendent’s basic argument is that the requirement that the RTS be sworn or affirmed is a matter of form only and that it would be “illogical” to permit the adjudicator to consider “other” kinds of unsworn reports under s. 215.49(d) while at the same time precluding him or her from considering the contents of an unsworn RTS. In the Superintendent’s submission, it is the substance of the information conveyed by the RTS that is important, not the form itself. 24 In advancing this argument, counsel for the Superintendent seemed to be unaware of the legal significance of a sworn or affirmed document, as opposed to one that is merely signed. A sworn or affirmed document can be the subject of a perjury charge if it is false (see Criminal Code, s. 131), so that a person swearing or affirming must take great care with respect to the contents of the statement. The making of an oath or affirmation is an important part of judicial and quasi-judicial proceedings, and lawyers or commissioners for taking oaths are required to ensure that a person swearing or affirming a document appreciates the solemnity of his or her act. In short, the requirement imposed by ss. 215.47(d) and 215.49(1)(b) is not one of form only. The Legislature recognized this fact when it enacted the requirement that the RTS be sworn or affirmed in response to the finding in Sivia that the review procedure then in force offended s. 8 of the Charter. 25 The Superintendent contends that the purpose of ss. 215.49(3) and (4) is to permit the review to proceed without a sworn report, with the possibility of giving less weight to an unsworn RTS. In support, counsel noted Murray v. B.C. (Superintendent of Motor Vehicles) Newbury J.A. 17

another passage from the comments of the Attorney General in Hansard on May 30, 2012: This [the new s. 215.49(4)] describes what happens or what the possibility is if a document arrives that is not sworn. It means that the superintendent of motor vehicles doesn’t necessarily reject the case because of the fact that it isn’t sworn, but the superintendent would now be in the position of weighing that evidence, weighing that particular factor that this is not a sworn statement in any consideration that he or she were to make about that decision. It is an administrative error when it is not sworn. The principle is that it ensures that driving prohibitions are not automatically revoked because of an administrative error, and this is consistent with existing provisions in the review process for administrative driving prohibitions. [At 122545-6; emphasis added.] The minister was not asked to reconcile these comments with her earlier statement to the effect that “Requiring sworn reports increases the reliability of the evidence ... and ensures that the superintendent of motor vehicles has reliable evidence from the police. This responds very directly to an issue outlined in the Sivia decision.” 26 Ultimately, the question is not what the minister understood the legislation to mean, but what the meaning of the legislation is, interpreted in its grammatical and ordinary sense and harmoniously with the scheme of the Act and the intention of the Legislature. In my respectful view, the fact that s. 215.47 states that a peace officer “must” forward to the Super- intendent a report sworn or solemnly affirmed by the police officer, imports a mandatory requirement, as does s. 215.49(1)(b). If the intention of the Legislature had been as the Superintendent now asserts, it would have been an easy matter to delete the words “sworn or solemnly affirmed by the peace officer” from s. 215.47(d). But having retained the mandatory language, it would be illogical, if not absurd, for the legislation to provide that the Superintendent could make his or her determination without a sworn or affirmed RTS. 27 Of course, it is true that ss. (3) starts with the phrase “Despite subsection (1)”, and allows the Superintendent to “proceed with a hearing” even though he or she may not have received the required documents. How- ever, it does not say that the Superintendent need not consider or require the documents required to be considered by s. 215.49(1) before reaching a decision. As for subsection (4), it merely confirms that it is for the 18 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

adjudicator to attach what weight he or she deems appropriate to the various documents being considered, but it does not affect or negate the mandatory nature of the words “the Superintendent must consider ... the report of the peace officer forwarded under section 215.47(d)”. Thus I do not accede to the submission that ss. (3) and (4) of s. 215.48 should be interpreted as if they read: (3) Despite subsection (1), the superintendent in a review of a driving prohibition under section 215.48, need consider only those documents the superintendent has received at the time of the hearing, whether sworn or affirmed or not. (4) The superintendent may determine the weight to be given to any document or other information that he has received at the time of the hearing without regard for s. (1) hereof. 28 It follows that I see no error in the chambers judge’s order allowing Mr. Murray’s petition. I see no point, however, in remitting this matter to the Superintendent. I would delete the reference in the chambers judge’s order to remitting the adjudicator’s decision, but otherwise dismiss the appeal. I would also order that each side bear its own costs.

Levine J.A.:

I Agree:

Garson J.A.:

I Agree: Appeal dismissed. R. v. Ignagni 19

[Indexed as: R. v. Ignagni] Her Majesty the Queen and John Richard Ignagni Ontario Superior Court of Justice Docket: 99/12 2013 ONSC 5030 Kenneth L. Campbell J. Heard: March 22, 2012 Judgment: July 30, 2013 Criminal law –––– Charter of Rights and Freedoms — Right to be tried within reasonable time [s. 11(b)] — Pre-trial delay –––– Accused, charged with impaired driving and refusing to provide breath sample, applied to stay proceedings due to pre-trial delay of just over 15 months — Trial judge concluded only six week period out of three months attributed to neutral intake period was justifiable, and attributed remaining six week intake period to Crown on basis that police could have expedited disclosure process — Trial judge attributed 15 days for trial preparation by counsel to inherent time requirements of case, and deducted that from 9.5 month period of institutional delay — Stay of proceedings was granted — Crown appealed — Appeal allowed — Stay set aside; new trial ordered — There was no breach of s. 11(b) of Canadian Charter of Rights and Freedoms — Three month intake period was not unreasonable — Seven week period spent to organize meeting between counsel should be attributed to inherent time requirements of case — Trial judge erred in characterizing month spent to conduct judicial pre-trial conference as institutional delay: month was properly attributed to inherent time requirements of case — Trial judge erred in deducting only 15 days for trial preparation by counsel: one month should be deducted — Deducting one month for trial preparation left 8.5 month period of systemic delay, which was well within established guidelines — Trial judge’s conclusion that accused suffered significant, actual prejudice or real risk of prejudice was palpable and overriding error — Accused suffered slight prejudice to security interests, and no discernible prejudice to liberty or fair trial interests — Society’s interest in seeing drinking and driving offences tried on merits outweighed interest of accused and society in prompt trial. Cases considered by Kenneth L. Campbell J.: R. v. Allen (1996), 1996 CarswellOnt 3384, 110 C.C.C. (3d) 331, 92 O.A.C. 345, 1 C.R. (5th) 347, [1996] O.J. No. 3175 (Ont. C.A.) — referred to 20 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

R. v. Allen (1997), 119 C.C.C. (3d) 1, 1997 CarswellOnt 4467, 1997 Carswell- Ont 4468, 220 N.R. 67, [1997] 3 S.C.R. 700, 104 O.A.C. 237, 11 C.R. (5th) 296, [1997] S.C.J. No. 91 (S.C.C.) — referred to R. v. Askov (1990), 79 C.R. (3d) 273, 59 C.C.C. (3d) 449, 49 C.R.R. 1, 74 D.L.R. (4th) 355, 75 O.R. (2d) 673, [1990] 2 S.C.R. 1199, 113 N.R. 241, 42 O.A.C. 81, 1990 CarswellOnt 111, 1990 CarswellOnt 1005, [1990] S.C.J. No. 106 (S.C.C.) — distinguished R. v. Bains (2010), 285 B.C.A.C. 227, 482 W.A.C. 227, 254 C.C.C. (3d) 170, 210 C.R.R. (2d) 287, 2010 BCCA 178, 2010 CarswellBC 841, [2010] B.C.J. No. 628 (B.C. C.A.) — referred to R. v. Batte (2000), 34 C.R. (5th) 263, 145 C.C.C. (3d) 498, 76 C.R.R. (2d) 189, (sub nom. R. v. W.B.) 133 O.A.C. 3, 2000 CarswellOnt 2114, (sub nom. R. v. W.B.) [2000] O.J. No. 2186 (Ont. C.A.) — referred to R. v. Bennett (1991), 3 O.R. (3d) 193, 6 C.R. (4th) 22, 7 C.R.R. (2d) 145, 64 C.C.C. (3d) 449, 46 O.A.C. 99, 1991 CarswellOnt 96, [1991] O.J. No. 884 (Ont. C.A.) — referred to R. v. Bennett (1992), 138 N.R. 388, 54 O.A.C. 350, 9 O.R. (3d) 276, 9 C.R.R. (2d) 195, [1992] 2 S.C.R. 168, 74 C.C.C. (3d) 384 (note), 1992 CarswellOnt 1460, 1992 CarswellOnt 993, EYB 1992-67534, [1992] S.C.J. No. 58 (S.C.C.) — referred to R. v. Chatwell (1998), 38 O.R. (3d) 32, 106 O.A.C. 226, 1998 CarswellOnt 467, 122 C.C.C. (3d) 162, [1998] O.J. No. 206 (Ont. C.A.) — referred to R. v. Conway (1989), [1989] 1 S.C.R. 1659, 96 N.R. 241, 34 O.A.C. 165, 49 C.C.C. (3d) 289, 70 C.R. (3d) 209, 40 C.R.R. 1, 1989 CarswellOnt 94, 1989 CarswellOnt 962, EYB 1989-67460, [1989] S.C.J. No. 70 (S.C.C.) — referred to R. v. Cranston (2008), 2008 ONCA 751, 2008 CarswellOnt 6659, 244 O.A.C. 328, [2008] O.J. No. 4414 (Ont. C.A.) — referred to R. v. Duhamel (2012), 2012 ONSC 6448, 2012 CarswellOnt 14687, [2012] O.J. No. 5392 (Ont. S.C.J.) — referred to R. v. Emanuel (2012), 2012 CarswellOnt 2093, 2012 ONSC 1132, 255 C.R.R. (2d) 180, [2012] O.J. No. 709 (Ont. S.C.J.) — referred to R. v. Faulkner (2013), 2013 ONSC 2373, 2013 CarswellOnt 6697, [2013] O.J. No. 2315 (Ont. S.C.J.) — referred to R. v. Geene (2009), 2009 CarswellOnt 2154, 2009 ONCA 329, (sub nom. R. v. Austin) 245 C.C.C. (3d) 284, (sub nom. R. v. Austin) 248 O.A.C. 189, [2009] O.J. No. 1669 (Ont. C.A.) — referred to R. v. Godin (2009), 192 C.R.R. (2d) 184, 67 C.R. (6th) 95, 389 N.R. 1, 245 C.C.C. (3d) 271, [2009] 2 S.C.R. 3, 2009 CarswellOnt 3100, 2009 Carswell- Ont 3101, 2009 SCC 26, 309 D.L.R. (4th) 149, 252 O.A.C. 377, [2009] S.C.J. No. 26 (S.C.C.) — referred to R. v. Ignagni 21

R. v. Khan (2011), 230 C.R.R. (2d) 62, 270 C.C.C. (3d) 1, 277 O.A.C. 165, 2011 CarswellOnt 1288, 2011 ONCA 173, [2011] O.J. No. 937 (Ont. C.A.) — referred to R. v. Kovacs-Tatar (2004), 2004 CarswellOnt 4805, 192 O.A.C. 268, 73 O.R. (3d) 161, 192 C.C.C. (3d) 91, 124 C.R.R. (2d) 164, [2004] O.J. No. 4756 (Ont. C.A.) — referred to R. v. Kporwodu (2005), 29 C.R. (6th) 60, 75 O.R. (3d) 190, 2005 CarswellOnt 1404, 196 O.A.C. 272, (sub nom. R. v. K.) 195 C.C.C. (3d) 501, 132 C.R.R. (2d) 324, [2005] O.J. No. 1405 (Ont. C.A.) — referred to R. v. Lahiry (2011), 2011 CarswellOnt 12516, 2011 ONSC 6780, 283 C.C.C. (3d) 525, 90 C.R. (6th) 90, 244 C.R.R. (2d) 248, 109 O.R. (3d) 187, 108 O.R. (3d) 187, [2011] O.J. No. 5071 (Ont. S.C.J.) — followed R. v. M. (G.C.) (1991), 3 O.R. (3d) 223, 46 O.A.C. 126, 65 C.C.C. (3d) 232, 7 C.R.R. (2d) 174, 6 C.R. (4th) 55, 1991 CarswellOnt 97, [1991] O.J. No. 885 (Ont. C.A.) — referred to R. v. M. (N.N.) (2006), 209 C.C.C. (3d) 436, 2006 CarswellOnt 2721, 141 C.R.R. (2d) 95, 209 O.A.C. 331, [2006] O.J. No. 1802 (Ont. C.A.) — referred to R. v. MacDougall (1998), 128 C.C.C. (3d) 483, 165 D.L.R. (4th) 193, [1998] 3 S.C.R. 45, 1998 CarswellPEI 88, 1998 CarswellPEI 87, 19 C.R. (5th) 275, 231 N.R. 147, 168 Nfld. & P.E.I.R. 83, 517 A.P.R. 83, 56 C.R.R. (2d) 189, [1998] S.C.J. No. 74 (S.C.C.) — referred to R. v. MacMunn (2008), 2008 ONCA 520, 2008 CarswellOnt 3779, 233 C.C.C. (3d) 454, 239 O.A.C. 249, 173 C.R.R. (2d) 242 (Ont. C.A.) — referred to R. v. Mahmood (2012), 271 C.R.R. (2d) 94, 2012 ONSC 6290, 2012 Carswell- Ont 13750, [2012] O.J. No. 5208 (Ont. S.C.J.) — considered R. v. Meisner (2003), 38 M.V.R. (4th) 271, [2003] O.T.C. 436, 2003 Carswell- Ont 1833, [2003] O.J. No. 1948 (Ont. S.C.J.) — referred to R. v. Meisner (2004), 2004 CarswellOnt 3791, 190 O.A.C. 24, 7 M.V.R. (5th) 1, [2004] O.J. No. 3812 (Ont. C.A.) — referred to R. v. Morin (1992), 12 C.R. (4th) 1, 71 C.C.C. (3d) 1, 134 N.R. 321, 8 C.R.R. (2d) 193, 53 O.A.C. 241, [1992] 1 S.C.R. 771, 1992 CarswellOnt 984, 1992 CarswellOnt 75, EYB 1992-67508, [1992] S.C.J. No. 25 (S.C.C.) — followed R. v. Nguyen (2013), 303 O.A.C. 29, 2 C.R. (7th) 70, 2013 CarswellOnt 3033, 2013 ONCA 169, [2013] O.J. No. 1243 (Ont. C.A.) — followed R. v. Pakjou (2013), 2013 ONSC 1419, 2013 CarswellOnt 2546, [2013] O.J. No. 1050 (Ont. S.C.J.) — referred to R. v. Philip (1993), 1993 CarswellOnt 796, 80 C.C.C. (3d) 167, 60 O.A.C. 391, [1993] O.J. No. 473 (Ont. C.A.) — referred to R. v. Qureshi (2004), 192 O.A.C. 50, 190 C.C.C. (3d) 453, 27 C.R. (6th) 142, 2004 CarswellOnt 4745, 123 C.R.R. (2d) 311, [2004] O.J. No. 4711, [2004] O.J. No. 2004 (Ont. C.A.) — referred to 22 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

R. v. R. (T.N.) (2005), (sub nom. R. v. R. (T.)) 197 C.C.C. (3d) 14, 2005 Cars- wellOnt 2126, (sub nom. R. v. T.R.) 197 O.A.C. 357, (sub nom. R. v. R. (T.)) 75 O.R. (3d) 645, (sub nom. R. v. R. (T.)) 132 C.R.R. (2d) 29, [2005] O.J. No. 2150 (Ont. C.A.) — referred to R. v. Ribic (2008), 2008 ONCA 790, 2008 CarswellOnt 6911, 63 C.R. (6th) 70, 238 C.C.C. (3d) 225, 181 C.R.R. (2d) 262, 242 O.A.C. 299, [2008] O.J. No. 4681 (Ont. C.A.) — referred to R. v. Richards (2012), 2012 ONSC 3479, 2012 CarswellOnt 7578, [2012] O.J. No. 2783 (Ont. S.C.J.) — referred to R. v. Rutherford (2012), 2012 CarswellOnt 6397, 2012 ONSC 2969, [2012] O.J. No. 2306 (Ont. S.C.J.) — referred to R. v. S. (L.) (1999), 1999 CarswellOnt 835, 125 O.A.C. 173, 133 C.C.C. (3d) 493, [1999] O.J. No. 877 (Ont. C.A.) — referred to R. v. Schertzer (2009), 200 C.R.R. (2d) 1, 255 O.A.C. 45, 248 C.C.C. (3d) 270, 70 C.R. (6th) 234, 2009 CarswellOnt 6499, 2009 ONCA 742, [2009] O.J. No. 4425 (Ont. C.A.) — referred to R. v. Schertzer (2010), 406 N.R. 396 (note), 2010 CarswellOnt 2239, 2010 Cars- wellOnt 2240, 271 O.A.C. 396 (note), [2010] S.C.R. xv (note), [2010] S.C.C.A. No. 3 (S.C.C.) — referred to R. v. Seegmiller (2004), 192 O.A.C. 320, 2004 CarswellOnt 5134, 191 C.C.C. (3d) 347, 125 C.R.R. (2d) 228, [2004] O.J. No. 5004 (Ont. C.A.) — referred to R. v. Sharma (1992), 134 N.R. 368, 71 C.C.C. (3d) 184, 8 C.R.R. (2d) 222, 53 O.A.C. 288, [1992] 1 S.C.R. 814, 12 C.R. (4th) 45, 1992 CarswellOnt 76, 1992 CarswellOnt 985, EYB 1992-67511, [1992] S.C.J. No. 26 (S.C.C.) — referred to R. v. Smith (1989), [1989] 2 S.C.R. 1120, 52 C.C.C. (3d) 97, 102 N.R. 205, 63 Man. R. (2d) 81, 45 C.R.R. 314, 73 C.R. (3d) 1, 1989 CarswellMan 334, 1989 CarswellMan 13, EYB 1989-67172, [1989] S.C.J. No. 119 (S.C.C.) — referred to R. v. Steele (2012), 2012 CarswellOnt 7063, 93 C.R. (6th) 348, 265 C.R.R. (2d) 239, 2012 ONCA 383, 291 O.A.C. 336, 288 C.C.C. (3d) 255, [2012] O.J. No. 2545 (Ont. C.A.) — referred to R. v. Stinchcombe (1991), 18 C.R.R. (2d) 210, 68 C.C.C. (3d) 1, 8 W.A.C. 161, 1991 CarswellAlta 559, 1991 CarswellAlta 192, [1992] 1 W.W.R. 97, [1991] 3 S.C.R. 326, 130 N.R. 277, 83 Alta. L.R. (2d) 193, 120 A.R. 161, 8 C.R. (4th) 277, EYB 1991-66887, [1991] S.C.J. No. 83 (S.C.C.) — followed R. v. Thomson (2009), 199 C.R.R. (2d) 282, 255 O.A.C. 268, 248 C.C.C. (3d) 477, 2009 ONCA 771, 2009 CarswellOnt 6746, [2009] O.J. No. 4586 (Ont. C.A.) — referred to R. v. Tran (2012), 2012 ONCA 18, 2012 CarswellOnt 509, 287 O.A.C. 94, 251 C.R.R. (2d) 201, 288 C.C.C. (3d) 177, [2012] O.J. No. 83 (Ont. C.A.) — followed R. v. Ignagni Kenneth L. Campbell J. 23

R. v. White (1997), 43 C.R.R. (2d) 1, 32 O.R. (3d) 722, 114 C.C.C. (3d) 225, 99 O.A.C. 1, 1997 CarswellOnt 1328, [1997] O.J. No. 961 (Ont. C.A.) — referred to Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 11(b) — considered s. 24(1) — referred to Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 482(2) — referred to s. 650.01(1) [en. 2002, c. 13, s. 61] — considered s. 813(b)(i) — considered Highway Traffic Act, R.S.O. 1990, c. H.8 Generally — referred to Rules considered: Criminal Rules of the Ontario Court of Justice, SI/2012-30 Generally — referred to

APPEAL by Crown from judgment granting stay of proceedings due to excessive pre-trial delay.

Lori Hamilton, for Crown / Appellant Joanne McLean, for Accused / Respondent

Kenneth L. Campbell J.: I Overview 1 On March 13, 2011, the respondent, John Richard Ignagni, was arrested on criminal charges of impaired driving and refusing to provide a breath sample. He was released on a promise to appear. On April 1, 2011, an information was sworn charging the respondent with those same offences. On the same date, in a separate information, the respondent was also charged with the provincial offence of failing to stop at a red light. On July 3, 2012, just over 15 months later, the Honourable Mr. Justice S. Ford Clements of the Ontario Court of Justice stayed all of the proceedings against the respondent on the basis that there had been a violation of the respondent’s right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms. 24 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

2 The Attorney General of Ontario appeals against this decision. The Crown contends that there was no violation of the respondent’s right to be tried within a reasonable time in the circumstances of this case, and that the trial judge erred in his analysis and in his conclusion to the contrary. The respondent, on the other hand, argues that Clements J. committed no error in staying the proceedings. For the reasons that follow, I agree with the Crown that the trial judge erred in staying the proceedings against the respondent. In my view, there has been no violation of the respondent’s rights under s. 11(b) of the Charter. Accordingly, the appeal is allowed and a new trial is ordered. 3 Before outlining the brief chronology of the appearances in this case, it will be useful to first outline the accepted analytical framework for the application of s. 11(b) of the Charter.

II Section 11(B) of the Charter of Rights the General Analytical Framework 4 The law is clear that where an accused claims that he or she has not been tried within a reasonable time, the accused has the burden of establishing the alleged violation of s. 11(b) of the Charter on a balance of probabilities. The leading decision of the Supreme Court of Canada in R. v. Morin, [1992] 1 S.C.R. 771 (S.C.C.), at pp. 787-803, dictates that, in considering whether or not there has been a violation of s. 11(b) of the Charter, the following factors must all be taken into account: (1) the length of the delay; (2) any waiver of time periods by the accused; (3) the reasons for the delay, including: a. the inherent time requirements of the case; b. the conduct of the accused or delays attributable to the accused; c. the conduct of the Crown or delays attributable to the Crown; d. systemic or institutional delays; e. any other reasons for delay; and (4) any prejudice to the accused. 5 After all of these factors have been considered, the final stage of the analysis requires a balancing of the individual and state interests that s. 11(b) of the Charter is designed to protect, against the factual back- R. v. Ignagni Kenneth L. Campbell J. 25

ground of these factors. In essence, the court must balance the societal interest in seeing that persons charged with criminal offences are brought to trial against the interest of both the accused and society in the prompt adjudication of criminal charges. Before staying the charges, the court must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial. See: R. v. Morin, at pp. 786-787, 809-811; R. v. Askov, [1990] 2 S.C.R. 1199 (S.C.C.), at pp. 1219-1223; R. v. MacDougall, [1998] 3 S.C.R. 45 (S.C.C.), at paras. 28-38; R. v. Qureshi (2004), 190 C.C.C. (3d) 453 (Ont. C.A.) at para. 9; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 (S.C.C.), at para. 30; R. v. Geene, 2009 ONCA 329, 245 C.C.C. (3d) 284 (Ont. C.A.), at paras. 42-43. R. v. Mahmood, 2012 ONSC 6290, 271 C.R.R. (2d) 94 (Ont. S.C.J.), at paras. 8-10, 104.

III The Chronology of the Case A. The Commencement of the Proceedings 6 The information that charged the respondent with the following Crim- inal Code, R.S.C. 1985, chap. C-46, offences was sworn on April 1, 2011: (1) operating a motor vehicle while his ability to do so was impaired by alcohol or a drug; and (2) refusing to comply with a demand to provide samples of his breath for analysis. Both of these offences were alleged to have been committed on March 13, 2011. At the same time, the accused was also charged, in a separate information, with the provincial offence of failing to stop at a red light, contrary to the Highway Traf- fic Act, R.S.O. 1990, chap. H-8. This offence was also alleged to have taken place on March 13, 2011.

B. The First Appearance — April 26, 2011 7 On April 26, 2011, the respondent briefly appeared in court. He was unrepresented by counsel, but was assisted by duty counsel. It was indicated on the record that the accused had “just received disclosure today.” Duty counsel indicated that the respondent “will be retaining counsel,” and requested that the matter be returned on May 31, 2011. The court so ordered.

C. The Second Appearance — May 31, 2001 8 On May 31, 2011, the respondent appeared briefly with an agent for the lawyer the respondent had retained just a few days earlier. The designation filed pursuant to s. 650.01(1) of the Criminal Code was dated May 26 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

26, 2011. The agent for defence counsel indicated that they had received the “initial disclosure,” but were still waiting for the remaining disclosure. Indeed, in a letter dated that same day (May 31, 2011), defence counsel wrote to the Crown requesting this further disclosure of the DVD evidence. In court, the Crown indicated that the “booking” and “breath” DVDs, as well as the “in-car camera” DVD, had already been ordered but had not yet been received. The Crown indicated that another request would be made, and suggested another month-long adjournment. The court set the next return date for June 28, 2011.

D. The Third Appearance — June 28, 2011 9 On June 28, 2011, the respondent and his counsel appeared briefly in court. The Crown indicated that the “further disclosure” of the DVDs was available and could be picked up in the Crown’s office. The Crown suggested that the matter be adjourned for a period of three weeks so that defence counsel and the Crown could have a pre-trial meeting in the interim period. The court set the next return date for July 19, 2011.

E. The Fourth Appearance — July 19, 2011 10 On July 19, 2011, the parties appeared in court. They had not yet met to discuss the case. On the record of this appearance, the following explanation emerged as to why the meeting had not been arranged: • Defence counsel called the Crown’s office on July 5, 2011 in an attempt to arrange a meeting with the Crown assigned to the case. There was some internal delay in the communication of this message. • On July 14, 2011, the assigned Crown contacted defence counsel to try to arrange the pre-trial meeting between them. That call was not immediately returned by defence counsel. • The assigned Crown was away at an educational program at “Crown School” the week of July 18, 2011, and had advised defence counsel of this scheduling problem, noting that she would be returning on July 25, 2011. 11 Defence counsel asked that the matter be adjourned for two weeks to permit the parties to arrange a meeting to discuss the case. In the result, the court adjourned the matter to August 2, 2011. R. v. Ignagni Kenneth L. Campbell J. 27

F. The Fifth Appearance — August 2, 2011 12 On August 2, 2011, neither the respondent nor his counsel appeared in court to address the matter. The Crown suggested that there might have been a “miscommunication” between the respondent and his lawyer, and suggested a short adjournment with the issuance of a discretion- ary bench warrant. Duty counsel agreed to try to contact retained counsel for the respondent. In the end, the matter was adjourned to August 9, 2011.

G. The Sixth Appearance — August 9, 2011 13 On August 9, 2011, the parties appeared in court. The meeting between the parties had been scheduled, albeit there was some confusion over precisely when. It was agreed that the case should be adjourned to August 16, 2011.

H. Scheduling the Judicial Pre-Trial Conference — August 16, 2011 14 On August 16, 2011, the parties appeared in court. Defence counsel indicated that the pre-trial meeting between the parties took place on Au- gust 10, 2011, and that “we are in a position to set a trial date today.” Counsel also indicated, however, that a judicial pre-trial conference was mandatory as this case was an “impaired driving/over 80 matter” that was estimated to take more than a day. Accordingly, the parties set the judicial pre-trial conference for September 19, 2011. This was not the earliest available date offered by the trial co-ordinator, nor was it the earliest available date for defence counsel. The matter was, accordingly, adjourned to September 19, 2011.

I. The September 19, 2011 Appearance — Setting the Trial Date 15 After the judicial pre-trial conference on September 19, 2011, the parties appeared in court to set the trial date. Defence counsel indicated that the earliest available court date for the trial was July 3, 2012, so the trial was scheduled for that date. Defence counsel indicated that he had available dates “every month leading up to July.”

J. The Application to Stay the Proceedings — July 3, 2012 16 On July 3, 2011, the parties argued the application by the respondent to stay the proceedings as a result of an alleged violation of s. 11(b) of the Charter. At the conclusion of oral argument, the trial judge stayed the 28 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

proceedings, promising subsequent written reasons for that decision. Those written reasons were released on September 10, 2012.

IV The Standard of Appellate Review 17 At trial, the Crown elected to proceed by way of summary conviction. Section 813(b)(i) of the Criminal Code provides that the Attorney Gen- eral may appeal from an order that stays proceedings on an information or dismisses an information. This confers a broad jurisdiction on the appeal court to review the trial court record and determine for itself whether or not the trial judge reached the right conclusion in staying the proceedings. While this broad appellate jurisdiction includes considering whether the trial court made any specific legal errors or erroneously disregarded or misapprehended the evidence bearing upon the relevant issues, the ultimate responsibility cast upon the appeal court by s. 813(b)(i) is to determine whether the trial court reached the correct conclusion in staying the proceedings. 18 The jurisprudence supports this view as to the scope of appellate review in relation to trial court decisions which stay criminal proceedings. More specifically, the authorities collectively hold that trial court assess- ments of the individual periods of delay in any given case, including how the trial judge characterized them under the recognized categories, are not akin to the exercise of any discretion. Therefore, the appeal court owes no deference to the trial court on such issues. Rather, applying a standard of correctness, the appeal court is obliged to substitute its own views for that of the trial judge if it disagrees with the legal analysis or the legal conclusions of the trial judge. At the same time, the authorities also hold that any findings of fact that are made by the trial judge during the course of his or her s. 11(b) analysis are only reviewable on the standard of “palpable and overriding error.” See: R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270 (Ont. C.A.), at paras. 71-72; Leave denied: R. v. Schertzer, [2010] S.C.R. xv (note); R. v. Khan, 2011 ONCA 173, 270 C.C.C. (3d) 1 (Ont. C.A.), at para. 18; R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177 (Ont. C.A.), at para. 19; R. v. Cranston, 2008 ONCA 751, 244 O.A.C. 328 (Ont. C.A.), at para. 35; R. v. M. (N.N.) (2006), 209 C.C.C. (3d) 436 (Ont. C.A.) at paras. 5-6; R. v. Qureshi, at para. 27; R. v. Chatwell (1998), 122 C.C.C. (3d) 162 (Ont. C.A.) at para. 10. 19 Most recently, in R. v. Nguyen, 2013 ONCA 169, 303 O.A.C. 29 (Ont. C.A.), Watt J.A., delivering the judgment of the Court of Appeal R. v. Ignagni Kenneth L. Campbell J. 29

for Ontario, articulated the governing standard of appellate review as follows, at para. 47: It is common ground between the parties that on appeal, the trial judge’s characterization of the various periods of delay on s. 11(b) applications, as well as the ultimate decision concerning whether the delay is unreasonable, is reviewable on a correctness standard ... The underlying findings of fact are subject to review on a standard of palpable and overriding error ... [citations omitted]

V Analysis A. The Length of the Delay 20 The overall length of the delay is one of the important factors that must be weighed together with all of the other constitutionally relevant factors under s. 11(b) of the Charter. The length of delay which must be assessed is the total period of time from the date a person is charged with an offence until the date that his or her trial is finally completed. See: R. v. Allen (1996), 110 C.C.C. (3d) 331 (Ont. C.A.) at p. 345; Affirmed: R. v. Allen, [1997] 3 S.C.R. 700 (S.C.C.). 21 The determination as to when the overall delay in a case becomes “unreasonable” within the meaning of s. 11(b) of the Charter is not, however, simply a function of the passage of a specified period of time. There is no effective limitation period or sliding scale of constitutionally permissible time periods. The assessment of any s. 11(b) Charter claim requires the court to undertake a flexible and functional approach, balancing many constitutionally relevant factors. See: R. v. Smith, [1989] 2 S.C.R. 1120 (S.C.C.), at pp. 1131-1132; R. v. Bennett (1991), 64 C.C.C. (3d) 449 (Ont. C.A.), at p. 464; Affirmed: R. v. Bennett, [1992] 2 S.C.R. 168 (S.C.C.); R. v. Morin, at p. 789; R. v. Qureshi, at para. 11; R. v. G. (C.R.) (2005), 206 C.C.C. (3d) 262 (Ont. C.A.) at paras. 15-20; R. v. MacMunn, 2008 ONCA 520, 233 C.C.C. (3d) 454 (Ont. C.A.), at paras. 26, 45; R. v. Allen, at p. 345; R. v. Batte (2000), 145 C.C.C. (3d) 498 (Ont. C.A.) at para. 86; R. v. Kporwodu (2005), 195 C.C.C. (3d) 501 (Ont. C.A.) at paras. 184-188. 22 The parties agree that the total length of the delay that must be considered in the present case is the time period from the date the information was sworn (April 1, 2011) to the date that the accused would have been tried were it not for his s. 11(b) Charter application (July 3, 2012) — a total period of just over 15 months. The parties also agree that 30 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

this is a sufficiently lengthy period of time so as to justify a detailed analysis of the relevant considerations under s. 11(b) of the Charter. It was this period of time that the trial judge initially found “warranted an enquiry” and which he ultimately found “unreasonable” in all of the circumstances. See: R. v. Ignagni, September 10, 2012, Toronto docket number 4817-998-1170018613 (hereafter referred to as Trial Reasons), at paras. 53, 67.

B. No Waiver by the Accused 23 In the present case there is no suggestion that the respondent waived any individual periods of time. Accordingly, nothing more needs to be said about the issue of waiver.

C. The Reasons for Delay 1. The Inherent Time Requirements of the Case a. The Neutral Intake Period (April 1-June 28, 2011) — Three Months 24 The first period of time that requires consideration is the three month period between the commencement of the proceedings against the respondent (April 1, 2011) and the completion of the disclosure process (June 28, 2011). 25 Of course, whenever criminal proceedings are initiated, regardless of the specific nature of the allegations against the accused, there are invariably a number of preliminary matters that the parties must attend to. These “intake” functions typically include matters such as judicial interim release hearings, applications for legal aid, the retention of defence counsel by the accused, and disclosure by the Crown. These preliminary intake matters consume time. Accordingly, the courts have recognized that these preliminary matters are part and parcel of the inherent time requirements of any criminal case and, for purposes of any s. 11(b) Char- ter analysis, should be viewed as neutral, in that they are attributed to neither party. See: R. v. Morin, at pp. 792-793. 26 While the governing appellate court authorities have not yet articulated any nationally applicable administrative guideline for the permissible duration of this neutral intake period, they have, flexibly endorsed intake periods varying between as little as two months and as long as eleven months, depending upon the nature of the case and the degree and nature of the intake functions to be completed. See: R. v. Mahmood, at R. v. Ignagni Kenneth L. Campbell J. 31

para. 38; R. v. Duhamel, 2012 ONSC 6448, [2012] O.J. No. 5392 (Ont. S.C.J.), at para. 35. 27 As the trial judge accurately noted, in “routine drinking and driving” cases, an intake period of approximately two months in duration is normal and reasonable. See: Trial Reasons, at para. 56; R. v. Morin, at pp. 804-805; R. v. Meisner (2003), 38 M.V.R. (4th) 271, [2003] O.J. No. 1948 (Ont. S.C.J.) at paras. 29-32; Affirmed: R. v. Meisner (2004), 190 O.A.C. 24, [2004] O.J. No. 3812 (Ont. C.A.); R. v. Lahiry, 2011 ONSC 6780, 283 C.C.C. (3d) 525 (Ont. S.C.J.), at para. 19. That is not to say, however, that periods of time greater than two months are necessarily unacceptable or unreasonable. It will depend upon the circumstances of the particular case, the particular intake functions that were necessary, the time taken to complete them, and the explanations provided for the delay. 28 In the present case, the trial judge concluded that the only justifiable neutral intake period was six weeks. He attributed the remaining six weeks of this three month time period to the Crown. The trial judge reached this conclusion on the basis that the police could have expedited the disclosure process immediately after the arrest and release of the respondent, and they could have had all of the potential disclosure, including all of the DVDs, in the hands of the respondent by May 15, 2011. Indeed, according to the trial judge, there was “no basis to justify a delay in disclosure beyond May 15, 2011.” The apparent “communication break-down” between the Crown and the police, caused by some “internal administrative problems” in the Crown’s office, which prevented the disclosure process from being completed until June 28, 2011, was simply “unacceptable.” See: Trial Reasons, at paras. 6-9, 56-57. 29 With respect, I disagree with this analysis. First, the mere fact that it might have been possible for the Crown and the police to expedite the preparation of disclosure and provide it on an earlier date provides no justification for imposing a shorter permissible intake period on the parties than has been judicially recognized as appropriate and acceptable even in “routine” drinking and driving cases. As Code J. aptly observed in R. v. Lahiry, at para. 22, to focus on the fact that it might have been possible for the police to produce all of the potentially necessary disclosure materials more quickly “is an over-simplification of the function of an intake period.” 30 In this regard, it is important to recall that the disclosure process is not the only function that must be completed during the intake phase of 32 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

the proceedings. In the present case, for example, the respondent had not even retained defence counsel by the expedited May 15, 2011 deadline imposed by the trial judge. In fact, the respondent did not have his lawyer in place until toward the end of May, and it was not until May 31, 2011 that his lawyer expressly sought the additional DVD disclosure from the Crown. Accordingly, any realistic neutral intake period in the present case could not reasonably be viewed as having concluded until at least the court appearance on May 31, 2011, when the respondent first appeared with counsel. 31 Second, in my view the judicial assessment of the reasonableness of any individual intake period must be undertaken with some flexibility and sensitivity to common practical realities. It will be the rare case where, viewed in isolation and employing the perfect 20:20 vision of hindsight, it will not be possible to conclude that the necessary intake functions could have been performed more quickly and efficiently. How- ever, the criminal justice system must simultaneously accommodate a great many cases, especially in the busy Ontario Court of Justice centres, and human error and inefficiency will undoubtedly be evident on occasion. What is required by s. 11(b) of the Charter, however, especially at the intake phase of the process, is not perfect systemic efficiency, but reasonably prompt and forward progress in all of the necessary intake functions. That is not to say that courts should simply accede to government resource allocations and common systemic problems, and then tai- lor the permissible periods of intake or systemic delay accordingly. See: R. v. Morin, at p. 795. It is only to caution that a healthy degree of common sense must be employed in the after-the-fact analysis of the speed of criminal proceedings, especially at their very outset. 32 Third, it is important to recall that the Crown’s disclosure obligations, as dictated by the Supreme Court of Canada decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326 (S.C.C.), are only triggered by a request by defence counsel. Given that the request for the additional DVD disclosure in this case was not made by counsel for the respondent until May 31, 2011, it seems only appropriate that the Crown have some reasonable time period within which to respond to such a disclosure request. The implicit assumption of the trial judge, that such additional DVD disclosure must invariably be part of the initial package of disclosure materials, and be delivered even before any request on behalf of the accused, is contrary to R. v. Stinchcombe and inconsistent with wise public policy considerations. This type of DVD disclosure is not inexpensive, and may R. v. Ignagni Kenneth L. Campbell J. 33

not be necessary in all cases. For example, if the evidence against the accused is overwhelming and the accused is remorseful and wishes to enter an early guilty plea, it may well be unnecessary for the Crown to produce this additional DVD disclosure. Accordingly, to avoid need- lessly wasting scarce resources, such additional disclosure can, in accordance with R. v. Stinchcombe, await the accused’s retention of defence counsel and the making of a request for this additional disclosure. 33 In my view, the neutral intake period in the present case should be viewed as spanning the entire three month period from the swearing of the informations on April 1, 2011 until the court appearance on June 28, 2011 when disclosure was complete. The initial package of disclosure materials was made available to the accused at the first appearance on April 26, 2011. Thereafter, it took the respondent approximately another month to retain counsel to act on his behalf. He had done this by the May 31, 2011 appearance. While the Crown had tried, in advance, to secure the production of the additional DVD disclosure that was requested by defence counsel on May 31, 2011, it ultimately took nearly another month for the Crown to obtain and disclose the various DVDs. 34 While this intake phase of the case could certainly have been completed with greater dispatch, I am not prepared to say that this three month intake period exceeded the bounds of reasonableness in all of the circumstances. In any event, by concluding that a period of only half this duration was appropriate for the intake functions in the circumstances of this case, I am satisfied that the trial judge erred.

b. Pre-Trial Meeting Between the Parties (June 28 to August 16, 2011) — Seven Weeks 35 The second period of time that requires consideration is the nearly seven week period between the court appearances on June 28, 2011, when the disclosure process was completed, and August 16, 2011, after the parties met to discuss the case together. Once the disclosure was complete, both parties wanted the opportunity to discuss the case amongst themselves before taking the next step and scheduling the trial proceedings. This was a reasonable and professionally responsible step in this case. From one perspective, this delay might properly be viewed as a preliminary matter that falls within the intake period. In any event, however, it is generally time that is well and productively spent discussing the case. 34 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

36 When the case was adjourned from June 28 to July 19, 2011 the parties had three weeks to schedule a meeting together. Defence counsel did not contact the Crown’s office for a week, and it took the Crown more than a week to return the call. Defence counsel did not immediately return the Crown’s call, and the Crown was out of the city at an educational conference the following week. At the court appearance on July 19, 2011, it was suggested that another two weeks would permit the parties to meet. The matter was, accordingly, adjourned to August 2, 2011. However, since neither the respondent nor his lawyer appeared in court on August 2, 2011, the matter had to be adjourned for another week. By the August 9, 2011 court appearance, the parties had finally scheduled their meeting and agreed that the case should be adjourned to August 16, 2011. 37 In his examination of this time period, the trial judge observed that some of this time was properly “attributable to inherent time requirements of scheduling and conducting the pre-trial” meeting. The trial judge concluded, however, that such meetings ought to be scheduled and completed within a relatively short period of time in a routine case and, in the absence of unusual circumstances, “no more than two to three weeks is reasonable.” After examining the circumstances surrounding this period of time, the trial judge concluded that “at least one week of this delay period was attributable to the [respondent],” and nearly three weeks (20 days) was attributable to “Crown delay.” See: Trial Reasons, at para. 58. 38 With respect, I disagree with this analysis. In my view the entire seven week period of time is properly attributed to the inherent time requirements of the case. While the scheduling of this meeting certainly took longer than either of the parties had hoped, neither party should be held solely responsible for causing this entire period of delay, and it is not realistically possible to parse out the days and weeks in a way that fairly divides responsibility for the purposes of s. 11(b) of the Charter. In other words, while it should not have taken seven weeks to organize and conduct a meeting between the parties, it is difficult to break down this time period and accurately attribute responsibility for numerous, short individual periods of delay. In addition, given that the parties were trying to schedule this meeting during the summer months, when people are often on vacations, have reduced work schedules, or are engaged in continuing education programs, in my view it makes the most practical sense R. v. Ignagni Kenneth L. Campbell J. 35

to attribute this entire time period to the inherent time requirements of the case.

c. The Judicial Pre-Trial Conference 39 The third period of time that requires consideration is the period of just over one month between the court appearances on August 16 and September 19, 2011. This delay was required to accommodate the mandatory judicial pre-trial conference before the trial date was set. 40 The law now appears to be settled that where a reasonable period of time is spent by the parties in relation to judicial pretrial conferences, this time is properly viewed as part of the inherent time requirements of the case. See: R. v. Tran, at para. 34; R. v. Khan, at paras. 44-45, 53-55; R. v. Lahiry, at para. 116; R. v. Richards, 2012 ONSC 3479, [2012] O.J. No. 2783 (Ont. S.C.J.), at paras. 9-10; R. v. Emanuel, 2012 ONSC 1132, 255 C.R.R. (2d) 180 (Ont. S.C.J.), at paras. 13-15; R. v. Rutherford, 2012 ONSC 2969, [2012] O.J. No. 2306 (Ont. S.C.J.), at paras. 41-42; Scott Latimer, “Defining JPT Time for s. 11(b) Purposes” (2011), 84 C.R. (6th) 244; R. v. Mahmood, at paras. 54-61; R. v. Duhamel, at paras. 40- 42; R. v. Pakjou, 2013 ONSC 1419, [2013] O.J. No. 1050 (Ont. S.C.J.), at paras. 30-31. 41 For example, in R. v. Tran the accused were charged with drug-related offences. The trial judge stayed the proceedings upon concluding that a 19 month delay violated s. 11(b) of the Charter. One of the individual periods of delay in that case was some 46 days that were consumed for the pre-trial conference that was required by court policy. The trial judge viewed that delay as systemic or institutional delay. The Court of Appeal for Ontario disagreed. Simmons J.A., delivering the judgment of the court, stated, at para. 34: ... it seems to me that requiring a judicial pre-trial to set a trial date(s) is a reasonable and necessary case management tool in busy judicial centres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in presentation of their cases. Accordingly, some reasonable period of delay in arrang- ing a judicial pre-trial should be treated as part of the inherent time requirements of the case. 42 More recently, in R. v. Nguyen, at para. 54, Watt J.A. stressed the importance of judicial pre-hearing conferences as “an essential feature of our criminal procedure” as they are “an invaluable ally in the struggle to promote a fair and efficient criminal trial process.” In relation to the 36 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

characterization of such pre-trial conferences in any analysis under s. 11(b) of the Charter, Watt J.A. stated: The time required to schedule, prepare for, and conduct pre-hearing conferences should be considered an inherent time requirement of the case, both generally and specifically for the purposes of a s. 11(b) analysis ... [citations omitted] 43 Significantly, in R. v. Nguyen, at paras. 59-60, Watt J.A. concluded his discussion of pre-trial conferences by stating that they were “justified and necessary tools in busy judicial centres” that were “designed to ensure effective and efficient use of available court resources” and were necessary to “protect not only the Charter rights of the persons charged, but also society’s interest in determining allegations of serious criminal- ity and their merits.” Watt J.A. emphasized that in the absence of just cause, courts deciding whether an accused’s rights under s. 11(b) of the Charter have been infringed “should be slow to second-guess the need for or number of such conferences.” 44 These decisions are directly applicable to the circumstances of the present case. Downtown Toronto is clearly a “busy judicial centre,” and the College Park court policy then in place, requiring mandatory judicial pre-trial conferences in certain cases, was clearly “designed to ensure the overall timeliness of the system,” thus protecting the Charter rights of all accused persons being tried in that jurisdiction. Moreover, the one month that was necessary to allow that pre-trial conference to take place was clearly reasonable. 45 As indicated in R. v. Mahmood, at para. 59, pre-trial conferences serve many useful purposes: They require the parties to wrestle with the real issues in the case before setting the matter down for trial. Admissions can be made. Issues can be narrowed and focused. Pre-trial motions can be discussed and efficiently planned. Potential problems can be addressed, if not resolved. Practical issues regarding the trial can be anticipated. Such conferences not only permit the parties to better prepare themselves for trial, they invariably reduce the court time necessary to try the matter, and ensure that the trial proceedings move as efficiently as justice permits. It is hardly surprising, therefore, that busy judicial centers require, as a matter of court policy, that before valuable court time and resources are scheduled and committed for the trial of particular kinds of cases, such pre-trial conferences must be held. R. v. Ignagni Kenneth L. Campbell J. 37

46 Without the benefit of R. v. Nguyen, but in the face of R. v. Tran, the trial judge concluded that this period of time should be characterized as institutional delay. In the course of his analysis of this issue, the trial judge also concluded that the judicial pre-trial conference in this case “did not serve any useful trial management function” as this was a “routine and uncomplicated” case and defence counsel for the accused was “experienced and well-versed” in the issues presented by such a case. See: Trial Reasons, at paras. 13, 20, 28, 41-42, 59-61. 47 With respect, I disagree with this analysis. First, given the decisions of the Court of Appeal in R. v. Tran and R. v. Nguyen, not to mention the other decisions now consistently following this line of authority, I am bound to conclude that the trial judge erred in characterizing the time spent to conduct the judicial pre-trial conference as institutional delay. It is accurately viewed as one of the inherent time requirements of the case. 48 Second, where the court has itself created a mandatory policy requiring particular kinds of cases to have a judicial pre-trial conference before a trial date is set, as was the case in the College Park location of the Ontario Court of Justice in August of 2011, it matters not whether the individual trial judge ultimately hearing the case subsequently considers the time spent on that judicial pre-trial conference wise or wasted. This is because neither party had any choice in the matter. Their participation was mandatory. The court would not set a date for the trial until the required judicial pre-trial conference had been conducted. In such circumstances, it is hardly fair to retroactively review the usefulness of such mandatory conferences for the purposes of s. 11(b) of the Charter and, if they seemed unproductive, call the delay caused by the conference “institutional” and attribute it to the Crown. In such circumstances, the Crown is no more responsible for the brief delay required for the pre-trial conference than the accused. The fact that the Ontario Court of Justice in the College Park location has subsequently changed its policy regarding mandatory judicial pre-trial conferences in such cases does not impact the above analysis, as this case was governed by the previously operative court policy. 49 Third, it is important to appreciate that judicial pre-trial conferences are not conducted solely for the benefit of the accused or his or her counsel. Such conferences may well have a productive usefulness even in cases where the accused has retained experienced counsel with an expertise in defending the charges facing the accused. Court time and resources are limited and valuable. Courts must take responsibility for the 38 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

wise and efficient allocation of their precious resources. There may well be certain types of cases — even cases seen as more “routine” — where courts will not be content to simply take the word of counsel (even senior and experienced counsel) as to how long a trial may take, without carefully examining the matter, with the assistance of both parties, by means of a constructive judicial pre-trial conference. See: R. v. Nguyen, at para. 59-60. 50 Moreover, a drinking and driving case with Charter applications and requiring more than a day of court time to try is difficult to accurately describe as “routine.” These kinds of cases are no longer short, summary trials that can be simply tried with great dispatch. The mere fact that there are many of these kinds of cases does not mean that they should be viewed as “routine.” 51 In summary, the period of just over one month between August 16 and September 19, 2011, to permit the mandatory judicial pre-trial conference, must be viewed as reasonable and part of the inherent time requirements of this case.

2. Delays Specifically Attributable to the Parties 52 In assessing the actions of the accused and the Crown under s. 11(b) of the Charter, the court is not attempting to assign blame to one of the parties for any period of delay. Instead, the court is trying to accurately assess the factual causes for the delays in the particular case. In this analysis, the court takes into account all of the actions voluntarily undertaken by the accused or the Crown which, in fact, caused delay in the proceedings. If the conduct of a particular party has caused a particular delay, that delay is attributed to, or counted against, that party. See: R. v. Morin, at pp. 793-794; R. v. Philip (1993), 80 C.C.C. (3d) 167 (Ont. C.A.) at p. 173; R. v. Kporwodu, at para. 94-97; R. v. Ribic, 2008 ONCA 790, 238 C.C.C. (3d) 225 (Ont. C.A.), at para. 138. 53 While the trial judge attributed some periods of delay to both the actions of the Crown and the accused, in my view, he erred in so doing. I would not attribute any individual delays to either party.

3. Systemic or Institutional Delay 54 The fourth and final period of time that requires consideration is the period of nine and one-half months between the set date appearance on September 19, 2011 and the scheduled trial date of July 3, 2012. R. v. Ignagni Kenneth L. Campbell J. 39

55 Systemic or institutional delay is properly defined as the period of delay which commences when the parties are ready for trial but the system cannot accommodate them. In an attempt to articulate the approxi- mate permissible scope of systemic delay the Supreme Court of Canada has set the following “administrative guidelines:” (1) in the range of eight to ten months in the Ontario Court of Justice; and (2) in the range of six to eight months in the Superior Court of Justice. See: R. v. Morin, at pp. 794-800; R. v. MacDougall, at paras. 53-55; R. v. Chatwell, at pp. 165-167; R. v. S. (L.) (1999), 133 C.C.C. (3d) 493 (Ont. C.A.) at para. 11. Therefore, even if this entire nine and one-half month period of time was viewed as systemic or institutional delay, it would still be within the eight to ten month administrative guideline set by the Supreme Court of Canada. 56 However, institutional delay is not calculated by simply counting the time between the set date appearance and the trial date, even in cases like the present one where the parties have taken the “first available” date offered by the court. Rather, a proper calculation of institutional delay must allow for the reality that parties and their respective counsel require time to prepare for the case and clear their calendars of other professional responsibilities so they can conduct the litigation. Parties are not automatically deemed ready to proceed with the hearing immediately upon the date being set. See: R. v. Lahiry, at paras. 2, 25-37; R. v. Tran, at para. 32; R. v. M. (N.N.), at paras. 28-29. 57 At the set-date appearance on September 19, 2011, defence counsel indicated that he had available dates in “every month leading up to July” of 2012. Based on this submission, the trial judge was prepared to accept that defence counsel was fully “ready for trial on the set date” appearance (if not earlier) and would have been able to immediately “conduct a competent defence” for the respondent. The trial judge indicated that he would have held that this entire nine and one-half month period was institutional delay, expect for the court rule that required Charter notices to be filed with 15 days advance notice to the Crown. For this reason, the trial judge concluded that it was reasonable to deduct, from this period of institutional delay, a period of 15 days “for preparation,” attributable to the inherent time requirements of the case. See: Trial Reasons, at paras. 62-63. 58 I agree with the trial judge that a period of time must be deducted from this nine and one-half month period of delay to properly account for the time counsel (for both parties) would need to prepare for the case and 40 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

clear their calendars of their other professional obligations. However, I disagree that 15 days is sufficient for these purposes. In my view, a period of one month should be allocated for these purposes. 59 First, all competent and professional defence counsel require some out-of-court time to prepare their case in advance of trial. Invariably they must review and analyze the file, arrive at a theory and determine a strategy for the case, interview potential witnesses, draft an outline of their cross-examinations, draft and file any potential pre-trial motions (including those brought pursuant to the Charter of Rights), anticipate and re- search any points of law that may arise during the course of the trial, and prepare an outline of their legal and factual arguments. The more complex the case, the more preparation time will be required. However, even for short matters that are not especially complicated, at least some period of time must be devoted and allocated to such preparatory work. 60 Second, as a matter of practical reality, in busy judicial centres like those within the Toronto region, counsel in criminal cases do not arrive at set date appearances entirely ready for trial. Every counsel knows full well that trial dates are not immediately available. As there is no risk that the trial will take place immediately, counsel wisely do not prepare for the case as if they were immediately going to trial on the set date appearance. They are confident in their quite accurate belief that there will be another time for them to focus on their trial preparations, closer in time to the scheduled trial proceedings. 61 Accordingly, it is very difficult to accept that on the September 19, 2011 set date appearance, defence counsel for the respondent, knowing that the trial in this case would be scheduled to take place months in the future, arrived in court fully “ready for trial,” with all of his important preparation work already completed, as the trial judge appears to have concluded. Indeed, in my view the trial judge erred in reaching this conclusion. Realistically, it would take virtually any busy defence counsel at least 15 days to find a convenient opening in his or her professional calendar and fully prepare for a trial in a drinking and driving case that the parties agree will consume more than a day of court time. This 15 day period is the minimum period of time that ought to have been set aside for purposes of defence counsel’s preparation. 62 It is important to keep in mind that Crown counsel must also have an opportunity to prepare for trial. Under the governing Rules of the Ontario Court of Justice in Criminal Proceedings, enacted under s. 482(2) of the Criminal Code, the Crown was entitled to a 15 day notice period to pre- R. v. Ignagni Kenneth L. Campbell J. 41

pare to respond to the Charter motion that was to be brought by the respondent. Accordingly, as the trial judge accurately noted, a period of at least 15 days had to be allocated for the purposes of the Crown’s preparation. 63 Therefore, in my opinion, adding these two 15 day preparation periods together suggests that a period of at least one month must be attributed to the inherent time requirements of this case. This month-long period of time was required to permit counsel for both parties to clear their respective professional schedules and prepare for the litigation in this case. In the result, no more than eight and one-half months of this nine and one-half month time period can properly be viewed as systemic delay. This eight and one-half month period, of course, falls easily within the well-established administrative guideline of eight to ten months of permissible systemic delay in the Ontario Court of Justice. 64 I hasten to add that these administrative guidelines are not fixed and inflexible limitation periods or arbitrary ceilings on the time within which an accused must be brought to trial. Even in cases where the period of systemic delay exceeds the recognized guidelines, such a circumstance does not automatically result in a violation of s. 11(b) of the Char- ter and a staying of the criminal charges against the accused. Rather, an unduly lengthy period of systemic delay will weigh against the Crown in the overall assessment of the reasonableness of the total delay. See: R. v. Morin, at pp. 794-800; R. v. Kovacs-Tatar (2004), 192 C.C.C. (3d) 91 (Ont. C.A.) at paras. 19, 27-30, 51-52; R. v. R. (T.N.) (2005), 197 C.C.C. (3d) 14 (Ont. C.A.) at para. 34.

4. Confusion Over the Scope of the Administrative Guidelines for Systemic Delay 65 In establishing the “administrative guidelines” of eight to ten months in the Ontario Court of Justice and six to eight months in the Superior Court of Justice, the Supreme Court of Canada was articulating the ap- proximate permissible range of systemic delay in those courts. In establishing these guidelines the Supreme Court of Canada was not suggesting that these ranges were the total time periods within which criminal cases should be tried — from start to finish — in those courts. See: R. v. Mo- rin, at pp. 798-800; R. v. MacDougall, at paras. 53-55; R. v. Chatwell, at paras. 11-15; R. v. S. (L.), at para. 11. 66 For example, time periods consumed by intake matters must be distinguished from time periods properly viewed as systemic or institutional 42 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

delay. Reasonable intake periods are essentially excluded from consideration under s. 11(b) of the Charter as they are viewed as justifiable and neutral. Institutional delay, however, is delay that counts against the Crown in the analysis under s. 11(b) of the Charter. Distinguishing these two different types of delay shows that reasonable intake periods are properly viewed as periods of time in addition to the permissible periods of systemic delay. See: R. v. M. (G.C.) (1991), 65 C.C.C. (3d) 232 (Ont. C.A.), at pp. 241-242; R. v. Meisener, at paras. 30-32; R. v. G. (C.R.), at paras. 15-19; R. v. Mahmood, at paras. 65-66; R. v. Duhamel, at para. 46. 67 In his analysis of this case, the trial judge appears to have misunder- stood the more limited purpose of the “administrative guidelines” adopted by the Supreme Court of Canada in relation to permissible systemic delay. More particularly, the trial judge appears to have mistakenly viewed the eight to ten month range of permissible systemic delay in the Ontario Court of Justice as the desirable range for the total delay in the Ontario Court of Justice from the commencement of the proceedings against the accused to the conclusion of the trial. 68 This misunderstanding by the trial judge was evident from the outset of the s. 11(b) application. At the very commencement of the proceedings, before the accused was even arraigned, the trial judge indicated that he had read the materials, and he turned to the Crown first and stated: It appears fairly clear that even on the Crown analysis the admitted delay of both Crown and institutional delay is just shy of ten months. Why should it not be stayed? 69 The Crown responded that the delay was “still within the guidelines.” At that point, the respondent was arraigned, the Crown elected to proceed summarily on the criminal charges, and the respondent pled not guilty to all of the charges. Returning to the argument of the application under s. 11(b) of the Charter, the trial judge again posed his inquiry of the Crown as to why the proceedings should not be stayed: ... [In your Factum] you indicate that the total institutional delay and Crown delay is nine months two weeks and two days. And my question to you is, why should it not be stayed? And secondly, if I do not agree with your assessment of the combined Crown and institutional delay, and I find it to be outside of the ten month period, does the same argument not apply? 70 When the Crown began to answer this question by observing that neither s. 11(b) of the Charter nor the judicial “guidelines” operate as a R. v. Ignagni Kenneth L. Campbell J. 43

“limitation period,” the trial judge stated: “But where it is a straight forward case and it is not complex there is a sliding scale, is there not?” 71 Notwithstanding the Crown’s submissions in response, this misunderstanding on the part of the trial judge continued through to his reasons for staying the proceedings. More particularly: • In outlining the position of the accused, the trial judge mentioned that “[t]he notion that a simple straightforward case ought to be tried within a period of eight to ten months” was “established many years ago and the intervening years have seen little or no success in reducing those guidelines.” See: Trial Reasons, at para. 21. • In discussing the law regarding the limits on institutional resources, the trial judge commented that the Supreme Court of Canada in R. v. Morin, at pp. 798-799, had established as a guideline that eight to ten months was a reasonable period of time to trial in the Provincial Court for an uncomplicated matter. While acknowledging that this guideline was “never meant to be a limitation period,” the trial judge said that it was important to consider that, in R. v. Morin, the Supreme Court of Canada said that “eight months is a reasonable goal, not that missing the goal by eight months is reasonable.” See: Trial Reasons, at para. 38. • In discussing the decision of the Supreme Court of Canada in R. v. Askov, the trial judge stated that “in the 22 years since that judgment, little has been accomplished to reduce the timeline between charge and the completion of trials in routine matters.” The trial judge noted that, in R. v. Morin, at p. 798, the court acknowledged that “the Crown sought, as a goal, a delay of no more than six to eight months in the Provincial Court,” but commented that this goal had “proven to be entirely illusory.” See: Trial Reasons, at para. 47. • In the final paragraphs of his reasons, the trial judge concluded that once the Crown delay of three months was factored together with the institutional delay of nine months, the overall delay in the case was “in the range of 12 months.” He noted that while this delay was “beyond the guidelines,” it was not more than double, as was the case in R. v. Godin. Then, citing R. v. Tran, at para. 64, the trial judge concluded that the prejudice experienced by the respondent supported a “deviation toward the lower end of the eight to ten month guideline” in this case. The trial judge stated that 44 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

even without any Crown delay, “the delay in this case due to actual prejudice and the risk of prejudice required that this trial be heard in a range closer to eight months than ten months.” See: Trial Reasons, at paras. 64-66. 72 As I have already indicated, in assessing the correctness of these re- marks by the trial judge it is critical to appreciate that in R. v. Morin, when the Supreme Court of Canada was announcing the permissible constitutional limits of institutional delay, the court was not suggesting that the eight to ten month period mentioned in relation to the Provincial Court was the total time period within which criminal charges had to be tried in the Provincial Court. As the following passage from the judgment of Sopinka J., at pp. 798-799, makes clear, the eight to ten month period is provided only as the permissible limit of institutional delay, and nothing else: In this case we are dealing with the Provincial Court. The suggested period of institutional delay ranges from 6 to 10 months. The respondent [Crown] suggests that 8 to 10 months of purely systemic delay would not be unreasonable in the Provincial Court. It admits, however, that it is aiming at institutional delay of no more than 6 to 8 months in Provincial Court. Arbour J.A. in Bennett, supra, suggests 1 “a delay of 8 /2 to 9 months in getting a case to trial in the Provincial Court, although not a model of brevity, is not outside the range of reasonableness” (p. 41). In Askov, Cory J., after reviewing comparative statistics, suggested that a period in the range of 6 to 8 months between committal and trial would not be unreasonable. Based on the foregoing, it is appropriate for this Court to suggest a period of institutional delay of between 8 and 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of 6 to 8 months that was suggested in Askov. In such a case this institutional delay would be in addition to the delay prior to committal. This reflects the fact that after committal the system must cope with a different court with its special resource problems. It is therefore essential to take into account the inevitability of this additional institutional delay. [emphasis added] 73 Accordingly, to the extent that the trial judge proceeded on the basis that the total period of permissible delay in the Ontario Court of Justice was eight to ten months, he erred. R. v. Ignagni Kenneth L. Campbell J. 45

D. Prejudice to the Accused 1. The Governing Legal Principles 74 As a matter of law, prejudice is not automatically presumed to have been suffered by an accused in every case. Normally, prejudice must be established by evidence. Prejudice may be inferred, however, in appropriate circumstances, where there has been a “very long and unreasonable delay,” or a delay that is “substantially longer than can be justified on any reasonable basis.” The potential inference of prejudice, in other words, must flow from long periods of delay that are unreasonable and unjustified. Of course, the longer these periods of delay, the more likely it is that an inference of prejudice will be drawn. Accordingly, any prejudice resulting from the inherent time requirements of the case, or caused by the accused, or which is otherwise inevitable and necessary, is entitled to no weight. See: R. v. Morin, at pp. 801-803; R. v. Sharma, [1992] 1 S.C.R. 814 (S.C.C.), at pp. 817-818, 828-829; R. v. White (1997), 114 C.C.C. (3d) 225 (Ont. C.A.), at pp. 238-245; R. v. Godin, at paras. 31, 37; R. v. Faulkner, 2013 ONSC 2373, [2013] O.J. No. 2315 (Ont. S.C.J.), at paras. 115-128. 75 It is also important to keep in mind that the focus of the constitutional protection provided by s. 11(b) of the Charter is in relation to the prejudice that may arise from the delay in disposing of the matter, not the prejudice the accused may suffer as a result of having been charged with the commission of an offence. See: R. v. Conway, [1989] 1 S.C.R. 1659 (S.C.C.), at p. 1672; R. v. Kovacs-Tatar, at paras. 32-34.

2. The Interests that s. 11(b) of the Charter is Designed to Protect 76 There is a recognized societal interest underlying the operation of s. 11(b) of the Charter. However, the primary purpose of s. 11(b) of the Charter is the protection of the individual rights of accused persons, namely: (1) the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings; (2) the right to liberty, which is protected by trying to minimize exposure to restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions; and (3) the right to a fair trial, which is protected by attempting to ensure that proceedings take place while evidence is available and fresh. See: R. v. Morin, at pp. 786- 787; R. v. Askov, at pp. 1219-1223; R. v. Mahmood, at para. 9. 46 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

3. The Prejudice in the Present Case 77 There is some evidence that these pending charges have had an adverse impact on the security interests of the respondent. More particularly, in his affidavit, the respondent explained that since his arrest, he has worried about these charges and their potential impact upon his future employment. The respondent drives for a living, and he complained of increasing stress over whether he will be able to continue with his current employment if he is ultimately convicted of these offences. 78 The respondent did not suggest that he has suffered any prejudice to his liberty interests. As I have indicated, following his arrest, the respondent was immediately released on a promise to appear. 79 Similarly, the respondent has suffered no discernible prejudice to his fair trial interests. In his affidavit, the respondent indicated that his memory of the relevant events was better at the time of the alleged offences than it was at the time of the scheduled trial proceedings. That is, however, little more than a statement of the obvious — memories get worse, not better, over time. Moreover, the parties agreed that as soon as the respondent retained counsel, relatively close to the time of the events in question, detailed notes were made about what happened, and these notes could be used to assist the respondent in refreshing his memory.

4. The Conclusions of the Trial Judge 80 Based upon this evidence, the trial judge found that the respondent was “anxious to have his trial completed as soon as reasonable given his job security concerns,” and thus “experienced some actual prejudice to his security interests” that was “not insignificant.” Citing R. v. Tran, at para. 64, the trial judge concluded that this “significant, actual prejudice” to the respondent supported a “deviation toward the lower end of the eight to ten month guideline” in the present case. The trial judge concluded that even in the absence of any Crown delay, “the delay in this case due to actual prejudice and the risk of prejudice required that this trial be heard in a range closer to eight months than ten months.” See: Trial Reasons, at paras. 4-6, 22, 34, 48-52, 64-66. I disagree with this analysis.

5. The Accused Suffered No Significant Prejudice to His Charter Interests 81 In my view, on the evidence in this case, the factual conclusion that the accused suffered “significant, actual prejudice” or the real risk of R. v. Ignagni Kenneth L. Campbell J. 47

prejudice to any of his s. 11(b) Charter interests is a palpable and overriding error on the part of the trial judge. This conclusion simply does not enjoy the support of the evidence. In my opinion, the only reasonable factual conclusion that can be drawn on the evidence is that the respondent suffered slight prejudice to his security interests, and no discernible prejudice to either his liberty or his fair trial interests. 82 As Cory J. stated in R. v. Askov, at p. 1219, it must be “exquisite agony” for an accused awaiting trial to be denied the opportunity of dem- onstrating their innocence for an “unconscionable time as a result of unreasonable delays.” Accordingly, one of the purposes of s. 11(b) of the Charter is to provide protection against “overlong subjection to the vexations and vicissitudes of a pending criminal accusation,” and minimize the “stigmatization, loss of privacy, and stress and anxiety created by criminal proceedings.” See: R. v. Kporwodu, at para. 172; R. v. Morin, at pp. 778, 786, 802-803. In the circumstances of the present case, the worry and stress over the potential outcome of the pending criminal charges is the only discernible prejudice that the respondent has suffered. Moreover, unlike R. v. Askov, where the total delay was close to three years in duration, in the present case, the respondent has only experienced this anxiety for a total period of 15 months.

E. The Final Balancing Assessment 1. Introduction — The Important Balancing Process 83 Finally, the constitutional analysis under s. 11(b) of the Charter requires a balancing of both the individual and societal interests sought to be protected by s. 11(b) of the Charter, together with an understanding of the total length of the delay and the causes of that delay. See: R. v. Mo- rin, at p. 787; R. v. Batte, at paras. 86-87; R. v. Qureshi, at paras. 10, 41; R. v. Seegmiller (2004), 191 C.C.C. (3d) 347 (Ont. C.A.) at paras. 21-25; R. v. Kporwodu, at paras. 184-197; R. v. Kovacs-Tatar, at paras. 57-58; R. v. Bains, 2010 BCCA 178, 254 C.C.C. (3d) 170 (B.C. C.A.), at paras. 40-41, 66; R. v. Thomson, 2009 ONCA 771, 248 C.C.C. (3d) 477 (Ont. C.A.), at para. 25; R. v. Steele, 2012 ONCA 383, 288 C.C.C. (3d) 255 (Ont. C.A.), at para. 31. As McLachlin J., as she then was, stated, in her concurring judgment in R. v. Morin, at pp. 809-810: It is easy, in considering the factors which can bear on that determination, to lose sight of the true issue at stake — the determination of where the line should be drawn between conflicting interests. On the one hand stands the interest of society in bringing those accused of 48 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

crimes to trial, of calling them to account before the law for their conduct. It is an understatement to say that this is a fundamental and important interest. Even the earliest and most primitive of societies insisted that the law bring to justice those accused of crimes. When those charged with criminal conduct are not called to account before the law, the administration of justice suffers. Victims conclude that justice has not been done and the public feels apprehension that the law may not be adequately discharging the most fundamental of its tasks. On the other side of the balance stands the right of a person charged with an offence to be tried within a reasonable time. When trials are delayed, justice may be denied. Witnesses forget, witnesses disap- pear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice. The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused’s interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial. [emphasis added]

2. The Balancing Assessment in the Present Case 84 With respect, in my opinion the trial judge erred in failing to properly evaluate and balance the various competing interests inherent in this application under s. 11(b) of the Charter of Rights. In his Reasons, the trial judge mentioned, in his outline of the positions advanced by the parties, that the Crown had argued that the accused has suffered “minimal” prejudice and that the “societal interest in prosecuting this case on its merits outweighed any prejudice experienced” by the respondent. The trial judge also mentioned, in his recitation of the law, that the determination of whether s. 11(b) of the Charter has been infringed requires the court to balance society’s interest in law enforcement and the fair treatment of accused persons against the length of the delay and the reasons for it. See: Trial Reasons, at paras. 34-35, 37. However, in his final anal- R. v. Ignagni Kenneth L. Campbell J. 49

ysis of this case, in the last paragraph of his reasons, at para. 67, the trial judge said only this in relation to this critical balancing assessment. Having considered all the constituent elements of the delay in this case, the cause of the delay, the interest that s. 11(b) is designed to protect, the prejudice and the societal interest in having this matter proceed to trial, I find that, on balance, that the delay was unreasonable in all the circumstances. Accordingly, I stayed the proceeding pursuant to s. 24(1) of the Charter for a breach of s. 11(b). 85 I reach the opposite conclusion. Indeed, I have no doubt that the very substantial interest that society has in seeing alleged drinking and driving offences tried on their merits substantially outweighs the interest of the respondent and society in a prompt trial in the circumstances of this particular case. 86 The respondent is charged criminally with impaired driving and refusing to provide samples of his breath, and with the provincial offence of failing to stop at a red light. There is a significant public interest in a trial on the merits in this case. There is no gainsaying the clear and often tragic consequences caused by drinking and driving, which continues to be one of Ontario’s most significant road safety issues. Indeed, according to the Ontario Ministry of Transportation (See: http://www.mto.gov.on.ca/english/safety/impaired/fact-sheet.shtml): • During the past decade, more than 2,000 lives have been lost and more than 50,000 people have sustained injuries in collisions involving a drinking driver. Drunk driving accounts for almost 25% of all fatalities on Ontario’s roads. • The financial cost to society of drinking and driving is estimated to be at least $3 billion annually through added costs for health care, emergency response and property damage. • About 17,000 drivers are convicted each year of Criminal Code offences including impaired driving, driving with a blood alcohol level greater than .08, criminal negligence causing bodily harm or death, manslaughter, dangerous driving and failing to remain at the scene of an accident. It is estimated that approximately three quarters of those convictions are related to drinking and driving. 87 The overall delay in this case has not been lengthy, and the respondent has suffered only slight prejudice as a result of this delay. For a total of only 15 months, the respondent has been worried and anxious about the pending charges and the potential impact of a conviction on his future employment. Although the respondent’s memory of the relevant events is 50 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

not as good now as it was at the time of his arrest, he has timely notes to help him refresh his memory. It is difficult to imagine many cases with a delay as short as that experienced in this case, and an accused who suffered less prejudice as a result of the delay.

F. The Supporting Authorities 88 It is important to recall that in R. v. Morin, the Supreme Court of Canada not only clarified and settled the legal analysis that governed applications under s. 11(b) of the Charter, but the court also resolved the application of that analysis in a factual scenario remarkably similar to the circumstances of the present in case. Darlene Morin had been similarly arrested and charged with the drinking and driving offences of impaired driving and operating a motor vehicle with an excessive blood-alcohol level. Ms. Morin had similarly been released on a promise to appear prior to trial. The main delay in the trial was caused by a significant period of institutional delay. In the result, the majority of the Supreme Court of 1 Canada held that the total delay of 14 /2 months (just two weeks shy of the total delay in the present case) was not an unreasonable delay in violation of s. 11(b) of the Charter. In the absence of some clearly distinguishing factual circumstance, this leading and binding Supreme Court of Canada precedent virtually controls the outcome of this appeal. 89 This is especially so when one recalls, as Code J. accurately noted in R. v. Lahiry, at para. 158, that the drinking and driving charges in R. v. Morin were truly “routine,” in that on her trial date in 1989, after the s. 11(b) Charter application was dismissed, the Crown called the arresting officer and the breathalyzer technician and filed only one exhibit (ie. the certificate of analysis). The accused called no defence evidence. The trial evidence was “brief” and extended over only 38 pages of transcript. As Code J. noted in Lahiry, the entire case, including the s. 11(b) application, “must have taken no more than an hour, or two hours at the most.” See also: R. v. Morin (1990), 55 C.C.C. (3d) 209 (Ont. C.A.), at pp. 217 - 218. In contrast, in the present case the judicial pre-trial conference was mandatory because it was estimated that, even without the s. 11(b) Char- ter application that was ultimately launched by the respondent, the trial would consume more than a full day of court time. 90 More recently, in R. v. Lahiry, Code J. dealt with four summary conviction appeals by the Crown in drinking and driving cases where four different judges of the Ontario Court of Justice had stayed the proceedings due to perceived violations of s. 11(b) of the Charter of Rights. In R. v. Ignagni Kenneth L. Campbell J. 51

those cases the total periods of delay extended from 13 months (Lahiry and Shelson) to over 18 months (Davidson), to some two and one-half years (Carreira). In all four of these cases Code J. concluded that there had been no violation of s. 11(b) of the Charter, set aside the stay of proceedings and ordered a new trial. Without reviewing each of the four cases in detail, it is fair to observe that some of them had important factual features in common with the present case. 91 For example, in R. v. Lahiry, the accused suffered similar prejudice, in that he did not suggest any prejudice to his liberty or fair trial interests, but his affidavit claimed substantial prejudice to his security of the person interest. More particularly, he claimed that he wanted his charges resolved quickly, and that he was worried, anxious, depressed, and had difficulty sleeping, and that the charges caused stress in his common law relationship and negatively affected his ability to accept employment opportunities abroad. Nevertheless, Code J. held that the 13 months of total delay, which included over nine months of systemic delay, did not result in a violation of s. 11(b) of the Charter. I view the conclusions reached by Code J. in each of those cases as generally supporting the conclusion that I have reached in this case. 92 Importantly, in R. v. Lahiry, in the context of his consideration of the R. v. Carreira case, Code J. dealt with the failure of the trial judge to properly balance the societal interests in a trial on the merits in these types of cases. His comments, at para. 89, are equally apt in the present case: It must be remembered that, for over twenty-five years now, drinking and driving has been regarded as a very serious offence. Indeed, it has been authoritatively stated that “it has a far greater impact on Canadian society than any other crime”, that it is “clearly the crime which causes the most significant social loss to the country”, and that “every drinking driver is a potential killer”. See: R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 at para. 16 (S.C.C.); R. v. McVeigh (1985), 22 C.C.C. (3d) 145 at 150 (Ont.C.A.); R. v. Biancofiore (1997), 119 C.C.C. (3d) 344 at paras. 19-23 (Ont.C.A.). Given these pronouncements, balancing the societal interest in a trial on the merits is particularly important in drinking and driving cases.

VI Conclusion 93 In my view, in the circumstances of the present case, there has been no violation of s. 11(b) of the Charter. The trial judge, with respect, erred in reaching the contrary conclusion. 52 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

94 The total delay in this case was just over 15 months. The three month neutral intake phase of the case did not exceed the bounds of reasonableness. The seven week period which followed, to permit the parties to meet to discuss the case, is properly attributed to the inherent time requirements of the case. The further month that was necessary to accommodate the mandatory judicial pre-trial conference is also properly attributed to the inherent time requirements of the case. After allowing a further month for counsel to clear their respective professional calendars and prepare for trial, there was an eight and one-half month period of systemic delay. This period of systemic delay falls well within the established administrative guidelines for such delay in the Ontario Court of Justice. The respondent suffered slight prejudice to his security interests, and no discernible prejudice to either his liberty or his fair trial interests. Finally, the very substantial interest that society has in seeing alleged drinking and driving offences tried on their merits substantially outweighs the interest of the respondent and society in a prompt trial in this case. 95 In the result, the Crown appeal is allowed, the stay of proceedings entered by the trial judge is set aside, and a new trial is ordered before a different judge of the Ontario Court of Justice. An order shall issue accordingly. Appeal allowed. R. v. White 53

[Indexed as: R. v. White] Regina v. Mathew William White British Columbia Supreme Court Docket: Port Alberni 35034-2 2013 BCSC 1553 Smart J. Heard: July 30, 2013 Judgment: July 31, 2013 Evidence –––– Proof — Proof of specific issues — Identity — Miscellane- ous –––– Driver sped away from police officer and went through two stop signs without slowing down or stopping — Driver then continued at excessive rate of speed and successfully evaded officer’s pursuit — Accused’s identification as driver of vehicle in question was dependent on officer’s evidence — Accused was charged with dangerous driving and with failing to stop his vehicle while being pursued by officer — Trial was held — Accused convicted — Accused was driver beyond reasonable doubt — Officer had dealt with accused face-to- face on numerous occasions, had constantly seen accused’s photograph in course of carrying out his police duties, and could readily recognize accused if and when he had sufficient opportunity to do so — While time for observing driver’s face may have been relatively brief, officer had opportunity to clearly see who driver was — Reaction of driver to eye contact suggested that driver either recognized officer or at least recognized that officer had recognized him. Cases considered by Smart J.: R. v. Aburto (2008), 2008 CarswellBC 315, 2008 BCCA 78, [2008] B.C.J. No. 284 (B.C. C.A.) — referred to R. v. Ba (2009), 2009 CarswellBC 2554, 2009 BCCA 400, [2009] B.C.J. No. 1922 (B.C. C.A.) — referred to R. v. Bob (2008), 63 C.R. (6th) 108, 2008 BCCA 485, 2008 CarswellBC 2793, 443 W.A.C. 42, 263 B.C.A.C. 42, [2008] B.C.J. No. 2551 (B.C. C.A.) — referred to R. v. Chester (May 29, 2013), Doc. 38110 (B.C. Prov. Ct.) — referred to R. v. Muncey (2013), 2013 BCSC 689, 2013 CarswellBC 1010, [2013] B.C.J. No. 793 (B.C. S.C.) — referred to R. v. Nicholls (2012), 2012 CarswellBC 4135, 2012 BCSC 1982, [2012] B.C.J. No. 2772 (B.C. S.C.) — referred to R. v. Pierce (2011), 2011 CarswellBC 3142, 2011 BCCA 485, 313 B.C.A.C. 181, 533 W.A.C. 181, [2011] B.C.J. No. 2252 (B.C. C.A.) — considered 54 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

Statutes considered: Criminal Code, R.S.C. 1985, c. C-46 s. 249(1)(a) — pursuant to s. 249.1(1) [en. 2000, c. 2, s. 1] — pursuant to

TRIAL of accused on charges of dangerous driving and failing to stop his vehicle while being pursued by police officer.

Todd G. Patola, for Crown Dale M. Melville, for Accused

Smart J. (orally): I. Introduction 1 Mr. White is charged with dangerous driving, contrary to s. 249(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, and with failing to stop his vehicle while being pursued by a police officer, contrary to s. 249.1(1). 2 The central issue is identification. Was the accused, Mathew William White, the driver of the motor vehicle pursued by Cst. Fracassi on Sep- tember 7, 2012? 3 Mr. White is presumed innocent, and the Crown has the burden of proving his guilt beyond a reasonable doubt, a standard of proof much closer to absolute certainty than a balance of probabilities. 4 It is not challenged by the defence, and I am satisfied beyond a reasonable doubt, that whoever was driving the vehicle pursued by Cst. Fra- cassi committed both offences. The driver sped away from the constable, went through two stop signs at four-way intersections without slowing down or stopping, despite no stop signs for traffic on the intersecting streets. The driver then continued at an excessive rate of speed, including through a school zone, and successfully evaded Cst. Fracassi’s pursuit. 5 Mr. White’s identification as the driver of the vehicle in question is dependent on the evidence of Cst. Fracassi. There is no other evidence linking him to the vehicle Cst. Fracassi was pursuing.

II. Recognition Evidence 6 The frailties of eyewitness identification are well-known. Mistaken identification has been one of, if not the leading cause of wrongful convictions in Canada, the United States, and many other countries. The reasons for mistaken identification were reviewed by the Honourable Peter Cory in his report into the wrongful conviction of Thomas Sophonow. R. v. White Smart J. 55

7 In this case, Cst. Fracassi had seen and dealt with the accused prior to September 7, 2012. As such, his identification of Mr. White is more properly described as recognition evidence. 8 Mr. Melville, counsel for Mr. White, refers me to a number of case authorities that consider the frailties of eyewitness identification evidence and the care judges must take when scrutinizing such evidence, even when the purported identification is from a witness who knew and could recognize the suspect prior to the incident in question. In particular, he refers me to: R. v. Nicholls, 2012 BCSC 1982 (B.C. S.C.); R. v. Muncey, 2013 BCSC 689 (B.C. S.C.); R. v. Chester (May 29, 2013), Doc. 38110 (B.C. Prov. Ct.); and R. v. Pierce, 2011 BCCA 485 (B.C. C.A.). 9 In Pierce, Smith, J.A., provided caution with respect to recognition evidence at paragraph 39 of her decision: While recognition evidence may be more reliable than eyewitness identification of a stranger, special caution must still be taken when using it to identify an offender, as it is still merely a statement of a witness’s opinion about what he or she saw. Like all identification evidence its weight or reliability will depend on such circumstances as the nature, length and memorable features of the witness’s previous contact with the accused. In R. v. Bardales ... Mr. Justice Wood, albeit dissenting in the result, described the character and role of recognition evidence in this helpful manner: With respect, I am of the view that there is no legal dis- tinction between eye-witness identification cases on the one hand, and so-called “recognition” cases on the other. In both, the identification of the accused is based on the evidence of one or more witnesses who offer the opinion: “That is the person who I saw.” Where it is a factor, recognition is a circumstance which does no more than en- hance the weight to be attributed to that opinion by the trier of fact. 10 While special care must be taken when assessing eyewitness identification evidence, even one based on recognition evidence, the reliability of an identification can be significantly enhanced when it is made by a witness who knew and could readily recognize the suspect prior to the event in question. This is a matter of common sense and is consistent with the cases provided to me by Mr. Patola on behalf of the Crown. These cases include: R. v. Bob, 2008 BCCA 485 (B.C. C.A.); R. v. 56 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

Aburto, 2008 BCCA 78 (B.C. C.A.); and R. v. Ba, 2009 BCCA 400 (B.C. C.A.). 11 In the circumstances of this case, I must assess Cst. Fracassi’s ability to accurately recognize Mr. White prior to September 7, as well as his ability and opportunity to identify the driver of the vehicle on September 7. 12 I will first review some of Cst. Fracassi’s evidence that is relevant to his purported recognition of the accused on September 7. As is usually the case with identification or recognition evidence, it is the reliability of his evidence that is at issue, not his honesty as a witness.

III. Cst. Fracassi’s Ability to Recognize the Accused 13 Cst. Fracassi testified that he was first posted to the RCMP detachment in Port Alberni in 2009 and that between then and September 7, 2012, he saw and spoke at length with the accused on numerous occasions. He said the first occasion he can now recall was in 2010, when he and another officer arrested a person who was with the accused and the accused intervened and attempted to fight the other officer and ended up also being arrested. The officer described another incident in 2011 when the accused was involved in a fight with someone else. 14 Cst. Fracassi said there were also many occasions when he attended a residence at which the accused was staying. He attended because of com- plaints of loud noise and partying. He also recalled a particular investigation concerning an assault complaint between the accused and his girlfriend and he participated in the arrest of the accused. He also “booked” him into police cells, a process that took approximately a half an hour and required Cst. Fracassi to ask the accused a number of standard questions usually asked when a person is arrested and lodged in cells. 15 Cst. Fracassi said he testified at the accused’s trial on March 27, 2012, and because of the position of the witness box in the courtroom, he stood across from Mr. White and looking directly at him for approximately 20 to 25 minutes while he gave his evidence. 16 In addition to the many occasions when the officer saw and spoke with the accused prior to September 7, 2012, he also saw photographs of Mr. White. He said Mr. White had been identified by the Port Alberni RCMP as one of the eight most prolific offenders in the community and photographs of him were regularly posted on the police bulletin board that he reviewed at the start of each shift. Copies of some of these photo- R. v. White Smart J. 57

graphs were entered as an exhibit. They are consistent with Mr. White’s present appearance in court. I note that Mr. White is a person with dis- tinctive facial features. 17 Cst. Fracassi’s knowledge of and involvement with Mr. White prior to September 7, 2012, was admitted solely for the purpose of proving the officer’s ability to recognize Mr. White. It is discreditable conduct that would not otherwise be admissible and must not be used by me for any other purpose; in particular, not as evidence of bad character or propensity. 18 Cst. Fracassi’s evidence concerning his ability to recognize Mr. White prior to September 7 was not challenged. In fact, counsel suggested that the accused was so well-known to the officer that he may have misidentified the driver of the vehicle because he was looking for and expecting to see the accused. 19 I accept Cst. Fracassi’s evidence and find that he: had dealt with the accused face-to-face on numerous occasions; had constantly seen his photograph in the course of carrying out his police duties; and prior to September 7, 2012, could readily recognize him if and when he had sufficient opportunity to do so.

IV. Cst. Fracassi’s Evidence About the Driver 20 Cst. Fracassi testified that at approximately 10:00 a.m. on September 7, 2012, he made a right turn on to Redford Street shortly after leaving the RCMP detachment. He said it was a bright sunny day and he was driving a marked police vehicle. Redford Street runs east and west, and has four lanes of traffic: two lanes for eastbound traffic and two lanes for westbound traffic. Cst. Fracassi was proceeding west in the curb lane, when he noticed a vehicle to his right slowly moving out of the intersecting alley between 6th and 7th Avenues. 6th and 7th Avenues, and the alley between them, run in a north/south direction, and the vehicle he saw moving out of the alley on his right side was facing south. 21 The officer said he was in the process of accelerating his vehicle when he noticed the vehicle. He described it as a beige or gold older model Oldsmobile. Cst. Fracassi was travelling at approximately 40 kilometres per hour as he drove past the vehicle and looked to his right through the windshield of the Oldsmobile. He said he recognized the driver as the accused, Mathew White. In cross-examination, he said that he looked at the accused for approximately one to two seconds. 58 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

22 He agreed in cross-examination that there was a passenger in the vehicle but he could give no description of that person other than he or she was Caucasian. He said he knew that the accused had no valid driver’s licence and knew there were warrants outstanding for his arrest. He testified he could not believe what he had just seen and immediately changed lanes to the center line lane and then made a left turn southbound on 5th Avenue, with the intention of driving around the block in an effort to meet up with and pull over the Oldsmobile. 23 He traced his route on a map of the City of Port Alberni, testifying that he turned left off 5th Avenue and on to Bute Street, travelled east on Bute Street and then turned left onto 6th Avenue and proceeded north. He said as he turned on to 6th Avenue he saw the Oldsmobile coming towards him southbound. 6th Avenue has only two lanes for traffic, one for northbound traffic and one for southbound traffic, and the Oldsmo- bile was in the southbound lane. 24 Cst. Fracassi said the Oldsmobile was roughly a block away from him when he first saw it. He said it was travelling at a slow rate of speed, approximately 20 kilometres per hour. Cst. Fracassi said he was travelling at approximately 40 kilometres per hour an hour as the two vehicles approached each other. He said there were no other vehicles on 6th Ave- nue at that location at the time, and he slowed down and attempted to position his vehicle as close to the centre of the road as possible to get the best view of the driver. 25 He said when the two vehicles were about 10 feet apart he was able to look into the driver’s seat area of the Oldsmobile through the windshield and make eye contact with the driver. He said he again recognized the driver as Mr. White. He said at that point the accused saw him, grabbed a cigarette from his mouth and threw it out of the window, and accelerated away in his vehicle south on 6th Avenue at a high rate of speed. 26 Cst. Fracassi said as the accused drove past him, his view of the driver only got better and the driver was only about five feet away from him as the vehicles passed on the street. The officer said that he saw the accused’s face for about two seconds as they passed each other in their vehicles on 6th Avenue. He said he was positive the driver was the accused. He said it was after they made eye contact that the accused accelerated the Oldsmobile and sped away, and that he then activated his emergency lights, did a U-turn, and gave chase. He described the Olds- mobile speeding through the two stop signs at the next two intersections and how he eventually abandoned his pursuit as he entered into a school R. v. White Smart J. 59

zone on Argyle Street, out of concern that an innocent third person might be seriously injured or killed. 27 Mr. White was not located and not arrested until some months later.

V. Positions of Counsel 28 Mr. Melville argues that the officer’s opportunity to recognize the driver was too brief to provide a reliable identification that proves Mr. White’s guilt beyond a reasonable doubt. He stresses the inherent frailties of eyewitness identification evidence, even when based on evidence from someone who knew a suspect and says that here the officer only saw the driver for approximately three seconds in total. He submits that because of the officer’s past involvement with the accused and his knowledge that there were warrants out for his arrest, he was looking for and expecting to see Mr. White and this fact undermines the reliability of the officer’s identification of the driver. 29 Mr. Melville submits that the reliability of the officer’s identification is further undermined by the officer’s failure to obtain the vehicle licence number or any description of the passenger. 30 He also emphasizes the absence of any confirmatory evidence and the high burden of proof and the presumption of innocence. 31 Mr. Patola emphasizes the fact that this is recognition evidence and that the officer had two opportunities to identify and recognize Mr. White as the driver.

VI. Analysis 32 I accept the officer’s description of what occurred during his two opportunities to see the driver of the Oldsmobile. The officer estimates he was looking at the face of the driver for one to two seconds as he drove past the Oldsmobile on Redford Street and looked at the face of the driver for approximately two seconds as he drove towards the Oldsmo- bile on 6th Avenue. 33 While the length of time available to identify someone or recognize them is important, so is the quality of that opportunity. Further, time estimates concerning events that occur quickly are often inaccurate. 34 I accept the officer’s evidence that as he drove past the Oldsmobile on Redford Street he was a matter of feet from the vehicle and had a clear, unobstructed view of the driver’s face through the windshield. The driver was facing Redford Street and his face was not disguised in any 60 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

way. The fact the officer cannot provide a licence plate number or a description of the passenger does not detract from his identification of the driver. It is consistent with the focus of his attention being on the driver. 35 Cst. Fracassi testified he recognized the accused as the driver and could not believe what he had just seen. However, his opportunity to observe the driver was brief, as he drove past him at approximately 40 kilometres per hour. 36 What significantly enhances the reliability of Cst. Fracassi’s evidence that it was accused who was driving the Oldsmobile, is that he had a second and better opportunity to see the driver again on 6th Avenue. While both vehicles were moving on 6th Avenue and moving in opposite directions, they were travelling at relatively slow rates of speed. Further, Cst. Fracassi deliberately positioned his vehicle to pass as close to the Oldsmobile as he safely could, and the driver’s side of each vehicle passed within a few feet of each other. 37 I accept the officer’s evidence that when the vehicles were approximately 10 feet apart, he again looked directly at the driver through the windshield and had a clear, unobstructed view of the driver, who was again facing forward. There was no other traffic to obstruct or distract the officer, and the driver’s face was not disguised in any way. 38 I accept the officer’s evidence that from a distance of approximately 10 feet, he and the driver of the Oldsmobile made eye contact and he saw the driver remove a cigarette from his mouth and toss it out the window. 39 While the time for observing the driver’s face may have been relatively brief, the officer had the opportunity to clearly see who the driver was. He was even able to observe the driver remove the cigarette from his mouth. 40 The reaction of the driver to the eye contact suggests that the driver either recognized the officer or at least recognized that the officer had recognized him. 41 It was after the eye contact was made that the driver reacted by attempting to flee in his vehicle and the officer activated his emergency equipment and gave chase R. v. White Smart J. 61

VII. Conclusion 42 For the reasons stated, I am satisfied beyond a reasonable doubt that the driver was the accused and I accordingly find him guilty on both counts. Accused convicted. 62 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

[Indexed as: R. v. McDonald] Her Majesty the Queen and Blane Owen McDonald Saskatchewan Provincial Court Docket: Saskatoon 37292074 2013 SKPC 132 D.A. Lavoie Prov. J. Judgment: July 30, 2013 Criminal law –––– Offences — Driving/care and control with excessive alcohol — Presumption of alcoholic content at time of offence — Demand by police officer –––– Police officer arrived on scene of accident in which vehicle driven by accused had rear-ended second vehicle — Officer spoke to accused and others on scene, and she formed suspicion that accused was driving with excessive blood alcohol — Officer made breath demand pursuant to s. 254(3) of Criminal Code — Section 254(3) authorizes breath demand where peace officer believes that relevant offence has been committed within preceding three hours — Accused brought application to exclude evidence pursuant to Canadian Charter of Rights and Freedoms — Application dismissed — Accused did not establish that his rights under ss. 8 or 9 of Charter were violated — Officer had reasonable grounds to make breath demand — Officer had belief that accused had driven while impaired in preceding three hours — Officer’s inferences, conclusions and belief were objectively reasonable — While evidence did not establish officer asked about time that accident occurred, reasonable inference was that accident had just occurred — There had not yet been dispatch from 911 operators when officer happened upon scene — Driver of second vehicle advised officer that accused’s vehicle had just rear-ended him — Accused was on his way home from known bar less than five minutes away. Criminal law –––– Charter of Rights and Freedoms — Arrest or detention [s. 10] — Right to counsel [s. 10(b)] — Arrest –––– Accused was arrested on suspicion of driving with excessive blood alcohol — At time of arrest, arresting officer asked accused whether he wished to contact lawyer, and he answered “no” — At police station, when officer suggested that accused be examined by ambulance personnel, accused responded, “I want to speak to a lawyer before he touches me” — Officer explained to accused that he had right to phone lawyer and asked him if he wished to do so, to which accused answered, “no” — Ac- cused provided breath samples indicating excessive blood alcohol — Accused brought application to exclude evidence pursuant to Canadian Charter of Rights and Freedoms — Application dismissed — Officer met both informational and implementational duties under s. 10(b) of Charter — Officer properly inter- R. v. McDonald 63 preted accused’s words to mean he had twice given up his opportunity to contact lawyer — Accused’s words at police station were that he wanted to speak to lawyer “before he touches me,” not “before I provide samples of my breath” — Even with that ambiguity on accused’s part, officer again offered to allow accused to speak to lawyer — Officer’s clear interpretation of accused’s words remained unchallenged or contradicted by any other evidence — Accused did not take any positive, purposeful steps to carry out opportunities officer was prepared to give him to contact lawyer. Criminal law –––– Offences — Impaired driving/care or control — Proof of impairment — Miscellaneous –––– Evidence from witnesses not proving impairment. Criminal law –––– Offences — Driving/care and control with excessive alcohol — Proof by certificate of analysis of bodily substances — Reasonable notice — Service of copy of certificate. Cases considered by D.A. Lavoie Prov. J.: R. v. Arevalo (2001), 205 Sask. R. 315, 2001 CarswellSask 222, [2001] S.J. No. 218 (Sask. Prov. Ct.) — considered R. v. Bernshaw (1994), 8 M.V.R. (3d) 75, 53 B.C.A.C. 1, 87 W.A.C. 1, 26 C.R.R. (2d) 132, 35 C.R. (4th) 201, 176 N.R. 81, [1995] 3 W.W.R. 457, 1994 CarswellBC 3038, 1994 CarswellBC 3039, 95 C.C.C. (3d) 193, [1995] 1 S.C.R. 254, EYB 1995-66965, [1994] S.C.J. No. 87, [1994] A.C.S. No. 87 (S.C.C.) — referred to R. v. Bush (2010), 97 M.V.R. (5th) 165, 101 O.R. (3d) 641, 259 C.C.C. (3d) 127, 2010 CarswellOnt 5897, 2010 ONCA 554, 216 C.R.R. (2d) 121, 80 C.R. (6th) 29, 268 O.A.C. 175, [2010] O.J. No. 3453 (Ont. C.A.) — considered R. v. Edgington (2010), 2010 CarswellSask 672, 2010 SKQB 381, 367 Sask. R. 44, [2010] S.J. No. 599 (Sask. Q.B.) — considered R. v. Flasch (2003), 2003 SKPC 121, 2003 CarswellSask 609, 236 Sask. R. 203, [2003] S.J. No. 585 (Sask. Prov. Ct.) — followed R. v. Gunn (2012), [2013] 1 W.W.R. 495, 265 C.R.R. (2d) 110, 2012 Carswell- Sask 534, 2012 SKCA 80, 35 M.V.R. (6th) 181, 552 W.A.C. 170, 399 Sask. R. 170, 291 C.C.C. (3d) 265, [2012] S.J. No. 503 (Sask. C.A.) — considered R. v. Luong (2000), 2000 ABCA 301, 2000 CarswellAlta 1238, 234 W.A.C. 368, 85 Alta. L.R. (3d) 217, 271 A.R. 368, 6 M.V.R. (4th) 183, 149 C.C.C. (3d) 571, [2000] A.J. No. 1310 (Alta. C.A.) — considered R. v. McCrimmon (2010), 406 N.R. 152, 324 D.L.R. (4th) 458, 2010 SCC 36, 2010 CarswellBC 2665, 2010 CarswellBC 2666, [2010] 2 S.C.R. 402, 77 C.R. (6th) 266, [2010] 12 W.W.R. 1, 259 C.C.C. (3d) 515, 10 B.C.L.R. (5th) 199, 496 W.A.C. 144, 218 C.R.R. (2d) 81, 293 B.C.A.C. 144, [2010] S.C.J. No. 36 (S.C.C.) — referred to 64 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

R. v. McCullagh (1990), 19 M.V.R. (2d) 1, 1990 CarswellOnt 2, 53 C.C.C. (3d) 130, 38 O.A.C. 54, [1990] O.J. No. 105 (Ont. C.A.) — considered R. v. Nahorniak (2010), 256 C.C.C. (3d) 147, 2010 SKCA 68, 2010 Carswell- Sask 324, [2010] 11 W.W.R. 210, 95 M.V.R. (5th) 53, 494 W.A.C. 15, 359 Sask. R. 15, [2010] S.J. No. 300 (Sask. C.A.) — referred to R. v. Sherstobitoff (2013), 2013 CarswellSask 256, 2013 SKPC 16, [2013] S.J. No. 236 (Sask. Prov. Ct.) — considered R. v. Sperle (2004), 253 Sask. R. 200, 2004 SKQB 382, 2004 CarswellSask 652, 7 M.V.R. (5th) 138, [2004] S.J. No. 611 (Sask. Q.B.) — referred to R. v. Vandal (2009), 2009 CarswellSask 177, 2009 SKQB 32, 330 Sask. R. 84, [2009] S.J. No. 153 (Sask. Q.B.) — referred to R. v. Ward (2012), 2012 CarswellSask 801, 2012 SKPC 176, [2012] S.J. No. 719 (Sask. Prov. Ct.) — referred to R. v. Willier (2010), 406 N.R. 218, 324 D.L.R. (4th) 479, 2010 SCC 37, 2010 CarswellAlta 1974, 2010 CarswellAlta 1975, [2010] 2 S.C.R. 429, 490 A.R. 1, 497 W.A.C. 1, 37 Alta. L.R. (5th) 1, 77 C.R. (6th) 283, 259 C.C.C. (3d) 536, [2010] 12 W.W.R. 385, 218 C.R.R. (2d) 64, [2010] S.C.J. No. 37, [2010] A.C.S. No. 37 (S.C.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 8 — considered s. 9 — considered s. 10(b) — considered s. 24(2) — considered Criminal Code, R.S.C. 1985, c. C-46 Generally — referred to s. 253 — referred to s. 253(1)(a) — referred to s. 253(1)(b) — pursuant to s. 254(2)(b) — considered s. 254(3) — considered s. 254(3)(a)(i) — considered s. 255(1) — pursuant to s. 255(2) — referred to s. 258 — considered s. 258(1)(c)(ii) — referred to s. 258(7) — considered

TRIAL of accused charged with impaired driving and driving with excessive blood alcohol. R. v. McDonald D.A. Lavoie Prov. J. 65

Mr. Gary Parker, for Crown Mr. Michael Owens, for Accused

D.A. Lavoie Prov. J.:

1 The accused stands charged as follows: (1) on or about the 25th day of July, A.D. 2012 at or near Saska- toon, Saskatchewan did while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to s. 255(1) and s. 253(1)(a) of the Criminal Code; and (2) on or about the 25th day of July, A.D. 2012 at or near Saska- toon, Saskatchewan did having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, operate a motor vehicle, contrary to s. 255(2) and s. 253(1)(b) of the Criminal Code. 2 Defence had given notice of Charter issues and at the commencement of trial the Court and counsel discussed technical procedural matters. It was agreed that we would first proceed by entering into a voir dire in relation to Charter issues. The final process unfolded as follows: 1st the Crown called all its evidence on the voir dire; 2nd Defence elected to call no evidence on the voir dire; 3rd all the evidence on the voir dire was applied by consent to the trial proper; and 4th Defence elected to call no evidence on the trial proper. 3 Given this procedure the Court in this decision will make rulings in the following sequence: 1st were there any violations of the accused’s Charter rights? 2nd if yes, what is the proper remedy pursuant to s. 24(2) of the Charter? 3rd The Court will then rule on the issues from the trial proper and give a final determination. 4 Defence raised a number of issues: 1st was whether the accused’s s. 10(b) Charter rights to counsel had been violated. 2nd Did the investigating police officer address her mind to the time of driving, (i.e. the time of the motor vehicle accident) prior to making the s. 254(3) Intoxilyzer demand. If not, did she have the requi- 66 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

site objective information and subjective belief that “within the preceding three hours” the accused had committed an offence under s. 253, in order to have “reasonable grounds” to make the demand? Defence did not frame this issue in the context of a Charter violation, however out of abundant caution the Court will deal with it in that context. 5 The above matters will be dealt with in the voir dire, Charter issues ruling. 6 Next in relation to the trial proper the following issues need to be addressed: 1st does the evidence prove impaired driving, Count #1, beyond a reasonable doubt; 2nd has the Crown proven the service of the Notice of Intention to tender the Intoxilyzer Certificate of Analyses as required by s. 258(7) of the Criminal Code; and 3rd does the evidence actually prove the time of driving such that the Court is satisfied the first sample was taken not later than two hours after the time the offence was alleged to have been committed as required by s. 258(1)(c)(ii) of the Code? If not, then the Crown may not rely on the “presumption of identity” as provided for in the Code. 7 The following is a summary of the evidence forthcoming from the witnesses during the voir dire and the trial proper. 8 Mr. Igor Aladzic testified that he was driving a semi-trailer in a northerly direction on Idylwyld Drive in the City of Saskatoon. He was in the left lane of a three lane highway when at a point between 51st Street and the turn off where the highway proceeds to North Battleford his trailerunit was struck violently from behind. He immediately stopped, engaged the emergency flashing lights on his unit, exited the cab and walked to the back of the semi-trailer. There he discovered a black half- ton truck had driven into the back of his trailer until bending the large back bumper of the trailer unit. The black pick-up truck was extensively damaged such that it could no longer be driven. The accused was standing outside of his half-ton truck and acknowledged he was the driver. Mr. Aladzic identified the accused in the courtroom with no hesitation. He indicated he had immediately phoned his dispatcher to report the accident and asked him to immediately contact the police. It should be noted that Mr. Aladzic was a recent immigrant and struggled somewhat with his English vocabulary however, he was able to communicate satisfacto- rily for the Court to understand him. Immediately the accused suggested R. v. McDonald D.A. Lavoie Prov. J. 67

to Mr. Aladzic not to call the police and he would pay for the damages. Mr. Aladzic did not go along with the suggestion. Mr. Aladzic noted a smell of liquor from the accused’s breath and coupled with other observations, formed the opinion the accused was drunk. 9 Mr. Michael Ottenbreit, was a crucial, independent witness to the accident. He was driving his vehicle in the left lane in a northerly direction on Idylwyld Drive between 51st Street and the North Battleford highway off-ramp. He had his cruise control set at 90 kph. He explained how a dark half-ton drove by him very fast in the right lane, got past him and then swerved erratically back into the left lane. Then he observed the half-ton basically just drive right into the back of the semi-trailer driven by Mr. Aladzic. He did not observe any brake lights illuminate on the half-ton prior to impact. It was dark out however Mr. Ottenbreit indicated he was around 300 metres behind the semi and could clearly see the semi’s night time driving lights. He indicated this was around 1:30 a.m., and the police arrived on the scene within 15 to 20 minutes. His recollection of time is supported by the police officers who indicated they arrived on the scene at approximately 1:45 a.m., thus the evidence establishes the accident at approximately 1:30 a.m. He estimated the speed of the semi to be similar to his at 90 kph and the speed of the half ton to be at least 110 to 120 kph. The speed limit in that area was 90 kph. 10 Mr. Ottenbreit immediately stopped his vehicle and walked to the scene where he, Mr. Aladzic and Mr. McDonald stood between the semi and the half-ton. He confirmed overhearing the conversation of Mr. Mc- Donald suggesting not to phone the police. As a result of Mr. Otten- breit’s questions, Mr. McDonald indicated there was no one else in the truck. It is clear the uncontradicted evidence establishes Mr. McDonald was the sole occupant and driver of the half-ton at the time of the accident. 11 Mr. Ottenbreit indicated a tow truck driver happened upon the scene as well. Then a few minutes later two police officers arrived. 12 Officer Kassie Block testified how she and her partner were driving north on Idylwyld and just came upon the accident scene at approximately 1:45 a.m. She immediately observed the half-ton being undrive- able due to damage and the driver’s air bag having deployed. Three men were standing between the vehicles. She entered a general conversation with the three of them, and gathered the following information: 1. The two officers happened upon an accident, to which they had not yet received any information or dispatch from 911 operators; 68 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

2. She determined who the drivers were of the respective vehicles and that Mr. Ottenbreit had witnessed the accident; 3. She then detained Mr. McDonald and had her partner deal with Messrs. Aladzic and Ottenbreit. 13 Certain extracts from the transcript somewhat explain the information Officer Block gather immediately at the scene: Page 64, Lines 10 - 26 Q I’m asking did you learn from the witnesses present at the scene, who — that Mr. McDonald was the driver of the half ton truck? A At that time I don’t recall exactly what had happened there but my partner said — the one guy identified himself as the witness of — who saw the accident, the other man identified himself as the driver of the semi who said he made contact right away with the accused, and they stood right there. Any they remained at the scene between the two trucks and then that’s when my partner and I — so there was five of us, total, and we just kind of talked like this and I said to Lisa, my partner, I said, you can go deal with the drivers and I’ll deal with Blane, because he said that he drove that truck. I’m not sure if I’ve answered correctly. Page 66, Lines 25 and 26, Page 67, Line 1 Q So what did the driver of the semi truck say? The Court: Yeah. Witness: That this vehicle just rear-ended me. Page 68, Lines 6 - 26, Page 69, Lines 1 - 26 Q So after speaking with the semi truck driver, what did you think that Blane McDonald was in relation to this accident? A I thought he was the driver of the black truck. Q Okay. And so you did what? A So I spoke to him and I asked him questions. Q Okay. And what were your observations of him? A And at that time I noted that he had red eyes. When I was speaking with him I could smell alcohol coming from his breath, from his — from his breath when he spoke to me and I asked him if he could tell me what happened. And he told me that he was coming — Mr. Owens: Well there again, the witness doesn’t seem to grasp — R. v. McDonald D.A. Lavoie Prov. J. 69

The Court: Well no, she can — she can say it for the purposes of establishing reasonable and probable grounds. Mr. Owens: All right. The Court: But not for the purpose of proving anything. Mr. Owens: Thank you very much. The Court: Okay. Continue. Mr. Parker (continuing): Q: Go ahead. Now you can tell us what the accused said. A Okay. So I asked him to tell me what happened. When we were walking up to the truck I was able to see that the air bags had deployed. Knowing in an accident your eyes can get red from the air bag, with the powder that comes out of it. So I wasn’t sure at that time if his eyes were red because of the air bag that just recently deployed or if he had been drinking because he smelled like alcohol as I spoke to him. He — when I asked him what had happened, he said he was coming from the Shark Club, Circle Drive. The accident was on 60th Street and Idylwyld just as the cloverleaf kind of turns going northbound. He said he was on his way home to Martensville and he stated that he had had four drinks at the Shark Club. Q Is the Shark Club on or about 42nd Street? A Yeah, Circle Drive and — by Denny’s Restaurant Q Is Circle Drive 42nd Street? A Yes, 42nd Street. Q Okay. So about 18 blocks away is where you — A Mm hmm. 14 At 1:58 a.m. from the information she had gathered and the observations she made of the accused, Officer Block read a s. 254(2)(b) approved screening device (ASD) demand to the accused. It should be noted all demands and warnings verbalized to the accused by Officer Block were read verbatim from the scripted cards she had in her police notebook. 15 The accused registered a fail on the ASD. At 2:02 a.m. she read the accused his rights and warning: Page 76, Lines 15 - 26, Page 77, Lines 1 - 15 Q Just — these are complicated and sometimes we don’t need all of specificity but because of the issue that counsel have 70 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

discussed in front of the judge we do. So with respect to rights to counsel, you gave them at what time? A 0202 hours. Q Okay. And — and you did it how? A I read it from my police issued notebook that’s on the top here — Q Okay. A — and I read them 0202 hours. I said, “I am arresting your for impaired driving, you have the right to retain and instruct counsel without delay. You may call any lawyer you wish. Legal Aid duty counsel is available to provide you with immediate legal advice free of charge and can explain the Legal Aid plan to you. I can provide you with a number you can call free of charge. Do you understand? Do you wish to call a lawyer?” To understanding he replied, “Yes”, to a lawyer he replied, “No”. I then went into the police warning. I read, “You need not say anything. You have nothing to hope for from any promise of favour and nothing to fear from any threat whether or not you say anything. Anything you do say may be used as evidence. Do you understand?” He replied. Q He replied what? A Yes. 16 Then at 2:04 a.m. she read a s. 254(3)(a)(i) Intoxilyzer demand as follows: Page 74, Lines 1 - 12 Q You can tell us what - A Okay. What I read him here was, “I have reasonable grounds to believe that your ability to operate a motor vehicle is impaired by alcohol. In accordance with the Criminal Code I demand that you provide samples of your breath for analyses and that you accompany me for the purpose of providing such samples. These samples will be analysed on an approved instrument. Do you understand?” And then he replied, “Yes”. Q And that was at what time? A 0204 hours. 17 The police officer called for a tow truck which arrived at 2:15 a.m. and at 2:18 a.m. they left the scene with the accused in the back of the marked police vehicle. R. v. McDonald D.A. Lavoie Prov. J. 71

18 At 2:23 a.m. they arrived at the detention area of the police station. At 2:28 a.m. Officer Block noted Mr. McDonald had a slight cut and some bruising which she inferred was from the accident. The officer somewhat suggested and offered to Mr. McDonald that the M.D. Ambulance EMT who was on duty should look at him for medical reasons. 19 A transcript of the evidence in that regard best sets out what happened: Page 78, Lines 12 - 26, Page 79, Lines 1 - 26, Page 80, Lines 1 - 26, Page 81, Lines 1 - 26, Page 82, Lines 1 - 13 Mr. Parker (Continuing): Q So at 0223 when you are at detention, what observations did you make of the accused? A I noted the clothing that he was wearing. I noted that he was wearing beige shoes, gray shorts, a yellow t-shirt and I also observed that he had a cut on is forehead, on his right forearm and that it was a little bit bruised. And now with detention where you booked in we have an M.D. medic on site so they — especially if people have consumed any alcohol, we just get them to look over them and if there’s any injuries or whatever we can get them assess there. Q Okay. So did you ask the M.D. attendant to check on Mr. McDonald? A Yes, I did. It looked like he had a cut and I remember it was quite red on is forehead so I just asked the medic if he could just take a quick look at him. Q Okay. And that was at what time? A That time was at 0228 hours. Q Okay. And what did Mr. McDonald say, or how did he react? Mr. Owens: Is the witness required to look at her notes to answer these because I see she’s paging through and answering from her notes directly. The Court: Well just — yeah, just close the notebook and then if you — if you need it for the purposes of times then you can then refer to it again. Mr. Owens: Thank you, Your Honour. The Court: So at 0228 hours you asked the medic to look at him. Witness: Yeah. And Blane said no. Sorry, can I refer to my notes to say exactly. I wrote down what he wrote — or said. The Court: Okay. 72 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

Mr. Owens: If it’s for an exact quote, Your Honour, I don’t object to that. The Court: Yes Witness: Okay. I don’t want to speak to — or sorry, I want to speak to a lawyer before he touches me. So at that time I explained at the booking counter, I said, Blane, do you want to speak to a lawyer. You can call one if you want to speak to a lawyer, because he said he didn’t want to before. At 029 and then I just read him his — or confirmed with him that you can call a lawyer if you would like to call one. Mr. Parker (Continuing): Q Okay. A And he stated that he did not. Q What time did you confirm that he can call a lawyer? A It was at 02 — here, I’ll just double check. Can I look at my notes? The Court: Yes Witness: It was 0229 I asked if he wished to speak to a lawyer. Mr. Parker (Continuing): Q Okay. And then what happened? What did he say? A I asked if he understood if he could — he said no, and to wanting a lawyer. That he understood and that he did not want a lawyer. Q Okay. The Court: Okay, what words did you express to him? Witness: I can read it again. You know, at that time I just said to him, do you want to speak to a lawyer. You can speak to a lawyer if you want. He said no. Mr. Parker (Continuing): Q Okay. And then what did you do? A We proceeded with the paperwork, so we went into — once he was booked in. Q Okay. Was there any other — you said — what was done at 2:30? A Sorry, can I refer to my notes? Q Sure. A I — I just have in my notes here do you wish to speak to a lawyer, and to understanding he replied yes, and I’m sorry, I R. v. McDonald D.A. Lavoie Prov. J. 73

don’t recall. I don’t recall what I read to him. I must have read something to him because it says understanding a lawyer. I don’t — I wouldn’t have read him his rights and warnings again. So I’m sorry, I don’t recall what I would have read to him at that time. I believe it was just verbal say, are you sure you understand you can contact a lawyer, do you want to contact one. No. Q Okay. So were you satisfied with his response that he didn’t want to contact a lawyer? A Yes. And there was just a bit of confusion because when he — the paramedic had touched him he said I’m not talking to him before he talks to a lawyer, so I just wanted to confirm before we proceeded with anything. Are you sure you do not want to talk to a — speak to a lawyer. And both times he said no, at the car and no at the detention counter. So at that time, no, I did not believe that he wanted to speak to one. Q Okay. So then what occurred? A So then we went into the phone room, or, sorry, into the interview room number three and we sat down and we started fill- ing out paperwork waiting for the Breathalyzer. And Consta- ble Calvin (unintelligible). Q Okay. And what time is this at that you’re in that room? 20 At 2:56 a.m. Mr. McDonald provided a first sample. At 3:05 a.m. the police officer contacted Mr. McDonald’s friend by phone to arrange for him to come to the police station to pick up Mr. McDonald. At 3:22 a.m. the accused provided a second sample. At 4:05 a.m. Officer Block served a copy of the Certificate of Analyses and Notice of Intention to produce the Certificate of Analyses on Mr. McDonald. At 4:15 a.m. Mr. McDon- ald was released to his friend who had attended to pick him up. 21 At this point Officer Block then pointed out an issue with the Notice of Intention to produce the Certificate of Analyses. Her evidence was to the effect that she had forgotten to sign the “Notice of Intention” to produce the Certificate of Analyses on the line provided for in the printed form. Subsequent to July 25, 2012 she noticed this omission. She then signed the original Notice of Intention which is incorporated into the same page as the original Certificate of a Qualified Technician, signed by Officer Keleman badge #678, the qualified technician. She then photocopied that page containing both documents and served that photocopy on a Ms. Laura Crawford who was at the front desk of the business premises of Mr. Owens, counsel on record for Mr. McDonald at 300 — 74 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

135—21st Street East. Ms. Crawford had verbally acknowledged she was Mr. Owens’ assistant. 22 In cross-examination the transcript sets forth a significant exchange about the time of the accident between defence counsel and Officer Block as follows: Page 95, Lines 2 - 26, Page 96, Lines 1 - 2 Q So you didn’t get a — you didn’t get a call out to this accident, correct? A No, I did not. Q All right. So there’s no dispatch time or anything like that, correct? A I can’t — a dispatch call was created by the time we got into our car and I believe that was because the driver of the semi had called it in to a police communications when we were on the street. Q All right. But you know nothing about when he called it in. A That’s correct. Q You don’t know how much time had elapsed since he had called it in, fair? A Fair. Q All right. So this accident, as I understand it, took place sometime between 12 and one o’clock a.m., is that correct? Is that what you learned? A Well we came up on it at 1:45. Q Yeah, I appreciate that, you came up on it but you don’t know what time the accident happened, correct? A I would say it was within a couple of minutes of us coming on it, only because the witness stayed. Most people in accident like that do contact the police. Page 97, Lines 20 - 26, Page 98, Lines 1 - 26, Page 99, Lines 1 - 26, Page 100, Lines 1 - 3 Q All right. Just so we’re clear on this, nobody told you what time the accident occurred, fair? A No. Q So you don’t know the last time that Mr. McDonald was in care and control of that vehicle or behind the wheel driving, fair? A No. R. v. McDonald D.A. Lavoie Prov. J. 75

Q Am I correct? A I wouldn’t say that’s fair. Q I’m correct? A No, I wouldn’t say that. Q No. So what information did you have to say when he was last behind the wheel of that vehicle? A We got — my partner had got a witness statement saying that he had gotten out of the vehicle and had rear-ended him. Q Okay. Your partner did. You weren’t there for that conversation, were you? A No. Q No. A But her and I — Q We’re only interested in what you have information on. A We are a partnership though and we — Q Yeah, but you’re not identical twins — A — talk. Q — and you’re not — okay. I appreciate you talk but before you made the demand. You talked after the fact about when she got a statement from this gentleman, correct? Is that — A I would have established it first before he was driving that vehicle — Q Right. A — based on that he admitted to driving his vehicle. Q All right. A And we in that brief discussion with the five of us, I guess the three men were standing between those vehicle when we arrived at scene. Q Right. A So we have a brief conversation of what took place and I had heard at that time that there was an accident and that he had been rear-ended and that’s — Q Fair enough. You have not mentioned anything about the time of that accident, correct? A No. Q So you didn’t know when the accident occurred, correct? A It would have been within the last several minutes. 76 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

Q You’re guessing, aren’t you. A No. Q No. So who told you that then? Mr. Parker: Well objection. The Court: Continue please. Mr. Owens (Continuing) Q Who told you that the accident happened within a few minutes of that conversation, or when you arrived? A I would have established that when the five of us were standing —

Analysis Did Officer Block fail to address the issue of the time of driving prior to making the s. 254(3) Intoxilyzer demand, thus lacking the requisite reasonable grounds to make the demand thereby breaching his s. 8 and/or 9 Charter rights? 23 The relevant portion of s. 254(3) of the Criminal Code states: 254(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (a) to provide, as soon as practicable, (i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood 24 If a police officer does not comply with this section it is a violation of an accused’s section 8 Charter right to be free from unreasonable search and seizure and/or their section 9 Charter right to be free from arbitrary detention. See R. v. Bernshaw (1994), [1995] 1 S.C.R. 254 (S.C.C.), R. v. Sperle, 2004 SKQB 382 (Sask. Q.B.) and R. v. Ward, 2012 SKPC 176 (Sask. Prov. Ct.). 25 In this case defence strenuously put forth that Officer Block did not properly address the time of the accident prior to making the demand. By implication he suggests she did not have the requisite subjective belief that the accused had committed an offence within the preceding three hours and even if she did she did not have sufficient objective criteria R. v. McDonald D.A. Lavoie Prov. J. 77

upon which to form that belief. Thus she would not have the requisite grounds upon which to make the demand. 26 In R. v. Bush, [2010] O.J. No. 3453 (Ont. C.A.) the Ontario Court of Appeal gave some direction to trial judges dealing with this concept of reasonable and probable grounds. Durno, J (ad hoc) speaking for the court said: [36] Drinking and driving prosecutions involve a continuum of findings, beginning with a reasonable suspicion the driver has alcohol in his or her body, the standard for an Approved Screening Device (roadside) demand pursuant to s. 254(2) of the Criminal Code. At the other end of the continuum, is the standard for conviction, proof beyond a reasonable doubt that the operator’s ability to operate a motor vehicle was impaired by the consumption of alcohol or that the driver’s blood alcohol concentration was over the legal limit. [37] Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer “has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed” the offence of impaired operation or driving ‘over 80.’ (emphasis added) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima facie case: see Censoni at para. 31 and R. v. Shepherd, 2009 SCC 35 at para. 23. [38] Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51. The officer’s belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at p. 250...... [54] Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered: see Shepherd at para. 21; R. v. Rhyason, 2007 SCC 39; R. v. Elvikis, [1997] O.J. No. 234 at para. 26; Censoni at para. 47. That an accident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along with the other evi- 78 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

dence in determining whether there are reasonable and probable grounds to arrest for impaired driving. Consumption plus an unex- plained accident may generate reasonable and probable grounds although that may not always be the case: Rhyason, supra at para. 19. [55] In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer’s grounds looking at each in isolation, opinions that were developed at the scene “without the luxury of judicial reflection”: Jacques at para. 23; also Censoni at para. 43. However, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer’s belief was reasonable: R. v. McClelland, [1995] A.J. No. 539 (C.A.). [56] An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; Wang, at para. 21. [57] Consideration of the totality of the circumstances includes the existence of an accident. However, that the accident could have caused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officer has to totally eliminate those indicia from consideration: R. v. Duris, 2009 ONCA 740 at para. 2. They have to be considered along with all the other indicia in light of the fact there may be another explanation. To the extent that Uppal determines otherwise, with respect, it was wrongly decided...... [61] A trained police officer is entitled to draw inferences and make deductions drawing on experience. Here, the investigating officer had 18 years’ experience. The trial judge was entitled to take into consideration that experience and training in assessing whether he objectively had reasonable and probable grounds: Censoni at paras. 36 and 37. In addition, in determining whether reasonable and probable grounds exist, the officer is entitled to rely on hearsay: R. v. Debot, [1989] 2 S.C.R. 1140 at p. 1167 and 1168, Costello; R. v. Lewis R. v. McDonald D.A. Lavoie Prov. J. 79

(1998), 38 O.R. (3d) 540 (C.A.) at paras. 15 and 16; Censoni, at para. 57...... [66] In making his or her determination, the officer is not required to accept every explanation or statement provided by the suspect: Shep- herd at para. 23. That the officer turned out to be under a misappre- hension is not determinative: Censoni at para. 35. The important fact is not whether the officer’s belief was accurate. It is whether it was reasonable at the time of the arrest. That the conclusion was drawn from hearsay, incomplete sources, or contained assumptions will not result in its rejection based on facts that emerge later. What must be assessed are the facts as understood by the peace officer when the belief was formed: R. v. Musurichan, [1990] A.J. No. 418 (C.A.). [67] An officer is required to assess the situation and competently conduct the investigation he or she feels appropriate to determine if reasonable and probable grounds exist. In some cases, that might include interviewing witnesses and/or the suspect if necessary: Golub at para. 19. In others, the officer’s observations and information known at the time may readily establish the requisite grounds...... [70] The issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so. That the belief was formed in less than one minute is not determinative. That an opinion of impairment of the ability to operate a motor vehicle can be made in under a minute is neither surprising nor unusual. 27 In R. v. Gunn, [2012] S.J. No. 503 (Sask. C.A.) the Saskatchewan Court of Appeal waded in on the issue of how a court is to approach this question of whether an officer has reasonable grounds to demand a breath sample. Mr. Justice Caldwell, speaking for the panel said: [7] A police officer may not demand a breath sample of an individual unless the officer has “reasonable grounds to believe” the individual has, within the preceding three hours, driven while impaired or while over the proscribed limit. This means the officer must subjectively (or honestly) believe the individual has driven while impaired or “over .08” within the preceding three hours and that belief must be rationally sustainable on an objective basis (see: R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 48). This does not mean that the Crown has to demonstrate a prima facie case for conviction (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 23), let alone prove its 80 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

case beyond a reasonable doubt (R. v. Bush, 2010 ONCA 554, 259 C.C.C. (3d) 127); rather, the standard of “reasonable grounds to believe” is one of lesser probability which simply requires the reviewing court to determine whether the factors articulated by the officer who made the breath-demand were reliable and were capable of supporting the officer’s belief that the individual had driven while impaired or “over .08” within the preceding three hours. [8] Where an individual challenges the validity of a breath demand on the basis that the police officer’s belief was not reasonable, the question for the trial judge is whether, on the whole of the evidence adduced, a reasonable person standing in the shoes of the officer would have believed the individual’s ability to operate a motor vehicle was impaired (see: R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250; and R. v. Restau, 2008 SKCA 147, 314 Sask. R. 224 at para.17)...... [15] In a voir dire held to determine the reasonableness of the police officer’s belief, the trial court must consider whether the observations and circumstances articulated by the officer are rationally capable of supporting the inference of impairment which was drawn by the officer; however, the Crown does not have to prove the inferences drawn were true or even accurate. In other words, the factors articulated by the arresting officer need not prove the accused was actually impaired. This is so because that is the standard of proof reserved for a trial on the merits (i.e., proof beyond a reasonable doubt)...... [18] As both the trial judge and appeal court judge noted in this case, the accused bears the evidentiary and persuasive burden of proving a Charter violation on the standard of a balance of probabilities (see: R. v. Collins, [1987] 1 S.C.R. 265, at p. 277). However, what is at issue in the instant Charter inquiry is the objective reasonableness of the investigating officer’s belief. Logically then, the assessment of the reasonableness of this belief must be centred around the factors which actually led the officer to conclude there were reasonable grounds to believe Mr. Gunn’s ability to operate a vehicle was impaired thereby satisfying the standard imposed under s. 254(3) of the Criminal Code. 28 The time for determining whether a police officer had the requisite reasonable grounds to make a breath demand is at the time the demand is made. That is “the moment of truth — the point at which the officer’s belief falls to be tested against the legal standard.” See R. v. Vandal, R. v. McDonald D.A. Lavoie Prov. J. 81

[2009] S.J. No. 153 (Sask. Q.B.) at paragraphs 11 and 12; also R. v. Nahorniak, [2010] S.J. No. 300 (Sask. C.A.) at paragraph 23. 29 In the present case Officer Block arrived at the scene of what was a major motor vehicle accident, at very busy thoroughfare in the City of Saskatoon. It was in the middle of the night when such a scene could become a clear hazard for other motor vehicle traffic. It was a valid inference on her part that they had happened upon the accident as there had not yet been a dispatch from 911 operators about the same. Three indi- viduals were still standing in the middle of the damaged vehicles. There was a group conversation amongst the five of them to get basic information about what happened so she could commence a proper investigation. She had received information to the effect: 1. The semi driver advised that this vehicle just rear-ended me”; 2. Mr. McDonald was on his way home from a known bar establish- ment less than five minutes away where he had at least four drinks; 3. Mr. Ottenbreit had witnessed the collision and remained at the scene to assist. 30 From the nature and location of the accident scene, from the information she had from the group conversation and from the totality of the circumstances, she indicated she believed the accident had just occurred a few minutes before she and her partner arrived on the scene. 31 Similar accident timing issues were extensively canvassed by Labach, J in the decision of R. v. Sherstobitoff, 2013 SKPC 16 (Sask. Prov. Ct.). 32 Officer Block may not have had much experience by July 25, 2012, in relation to investigating drinking and driving cases and could have done more investigation or articulated what she had addressed her mind to with a bit more precision. However, the Court is cognizant of the comments in both Bush and Gunn, that the Court’s function is to determine whether the factors articulated by the investigating officer were reliable and capable of supporting her belief that the accused had driven while impaired and within the preceding three hours. 33 Looking at Officer Block’s evidence I am satisfied she had an honest belief that the accused had driven while impaired in the preceding three hours. The Court is also satisfied on the totality of the evidence that the police officer’s inferences, conclusions and belief were objectively reasonable. 82 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

34 While the evidence does not establish the officer asked about the specific time that the accident had just occurred, the reasonable inference from all the evidence was that the accident had just occurred and certainly within the preceding three hours. There is nothing in the evidence to lead one to any other conclusion, and certainly one cannot speculate. 35 The accused has not satisfied the Court on a balance of probabilities that his s. 8 and/or 9 Charter rights were violated. Officer Block had reasonable grounds and as such Mr. McDonald’s detention for the purpose of providing breath samples and subsequent seizure of his breath was lawful. 36 Defence also argued the evidence did not prove the first sample was taken within two hours of driving as required by s. 258 thus negating the “presumption of identity”. As discussed earlier, the evidence about times as given by Mr. Ottenbreit, Mr. Aladzic and the police officer arriving at the scene clearly establishes beyond a reasonable doubt the time of the accident to be around 1:30 a.m. The first sample was obtained at 2:56 a.m., clearly within two hours of the accident. The defence argument in that regard is not supported by the evidence and clearly must fail.

Was there a violation of the accused’s s. 10(b) Charter Rights to Counsel? 37 In R. v. Willier, [2010] 2 S.C.R. 429 (S.C.C.) the Supreme Court of Canada dealt with an appeal by an accused from a finding that the police did not deprive him of his right to counsel as guaranteed to him by section 10(b) of the Charter. In dismissing the appeal, the Court summarized the principles they had set forth in a litany of cases preceding Wil- lier. For the purposes of the present case, the comments of Chief Justice MacLachlan and Madam Justice Charron at paragraphs 33 and 35 are most instructive: 33 Detainees who choose to exercise their section 10(b) right by con- tacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee’s reasonable diligence in attempting to contact counsel: R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Black, [1989] 2 S.C.R. 138; R. v. Smith, [1989] 2 S.C.R. 368. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particu- R. v. McDonald D.A. Lavoie Prov. J. 83

lar circumstances as a whole. As Wilson, J stated in Black (pp. 154- 55): A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if he wishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain from questioning the accused are suspended: See R. v. Tremblay, [1987] 2 S.C.R. 435...... 35 Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, section 10(b) entitles them a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, it may include factors such as the seriousness of the charge and the urgency of the investigation: Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise the right to counsel by calling another lawyer or the police duty to hold off will be suspended. R. v. Ross, [1989] 1 S.C.R. 3; and Black. As Lamer, J. emphasized in Ross, diligence must also accompany a detainee’s exercise of the right to counsel of choice .... 38 In R. v. Luong, [2000] A.J. No. 1310 (Alta. C.A.), The Alberta Court of Appeal set forth a useful framework for determining if a person’s s. 10(b) Charter rights have been violated. The following portion of the framework appears in paragraph 12 of the judgment and is pertinent to the present case: ..... 2. Section 10(b) imposes both informational and implementational duties on state authorities who arrest or detain a person. 3. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. 4. The implementational duties are twofold and arise upon the detainee indicating a desire to exercise his or her right to counsel. 5. The first implementational duty is “to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and 84 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

dangerous circumstances)”. R. v. Bartle (1994) 92 C.C.C. (3d) 289 at 301. 6. The second implementational duty is “to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger)”. R. v. Bartle, supra at 301 7. A trial judge must first determine whether or not, in all of the circumstances, the police provided the detainee with a reasonable opportunity to exercise the right to counsel; the Crown has the burden of establishing that the detainee who invoked the right to counsel was provided with a reasonable opportunity to exercise the right. 8. If the trial judge concludes that the first implementational duty was breached, an infringement is made out...... 39 The following statement of Meekma, J in R. v. Flasch [2003 Car- swellSask 609 (Sask. Prov. Ct.)], supra, fairly sets forth the position of the defence and how the Court must analyze and apply the evidence of this case in relation to the same: [31] The Supreme Court of Canada in R. v. Prosper (1995), 92 C.C.C. (3d) 353, held that once a detainee who has asserted his right to counsel indicates that he has changed his mind, the police have an additional informational obligation. They are required to tell him of his right to a reasonable opportunity to contact the lawyer, and of the obligation on their part during this time not to require the detainee to participate in any potentially incriminating process. [32] The burden of establishing an unequivocal waiver is on the Crown. Prosper says the standard of proof is high. In Prosper, the Court found that as the accused was never properly informed of his right to have the police hold off in order to provide him with a reasonable opportunity to contact a lawyer, it could not be said that he was in a position to know what he was giving up when he submitted to the breathalyzer test. [33] Lamer, C.J.C. wrote at page 385: To conclude, I find that the appellant neither explicitly nor implicity waived his right to counsel. His s. 10(b) rights were infringed by the police in two ways: first, when he was not properly informed of the obligation on the part of the police to hold off upon his changing his mind about speaking to a lawyer; and secondly, when, after asserting his right to counsel and exercising it with due R. v. McDonald D.A. Lavoie Prov. J. 85

diligence, the police did not provide him with a reasonable opportunity to contact counsel and refrain from having him participate in a potentially incriminating procedure until he had had this opportunity. [34] Mr. Flasch was never informed by the police that they had an obligation to refrain from obtaining the breath sample until he had a reasonable opportunity to contact a lawyer. Despite the difficulty the accused had demonstrated to Constable Davies in understanding the rights he had previously been read, there was no further information or explanation offered to him after he said “no” when asked at the police station if he “would like to call a lawyer now.” [35] Propser holds there is further obligation on the police at that point and in the case of Mr. Flasch, who had already shown difficulty understanding his rights, in my opinion that obligation is even greater. 40 In the decision of R. v. Edgington, 2010 SKQB 381, 367 Sask. R. 44 (Sask. Q.B.), the Court stated at para. 15: [15] Absent extraordinary circumstances, in facilitating a detainee’s right to choose and communicate with a lawyer the police are entitled to give the detainee credit for being able to think and to decide. The police are entitled to give normal interpretation to the detainee’s words and actions. Thus if a detainee indicates that he or she chooses a particular lawyer, it is appropriate for the police to accept that decision at face value and to conclude that the detainee’s right to choose a lawyer has been provided and exercised. In that event, the police are not obliged to suggest that the detainee may want to consider other choices. Indeed, the police may be wrong in so doing, since the suggestion to consider other choices could be interpreted as an attempt to steer the detainee away from the choice that he or she has just communicated. 41 The Court reviewed numerous decisions submitted by defence including: R. v. McCrimmon, [2010] S.C.J. No. 36 (S.C.C.) R. v. Willier, [2010] S.C.J. No. 37 (S.C.C.) R. v. Curtis Coleman, 2010 PCU 31, decision of Labach, J R. v. Lozinski, 2010 PCU 035, decision of Lavoie, J 42 Defence forcefully put forth that at 2:28 a.m. when the accused stated “I want to speak to a lawyer before he touches me” that this was a clear indication that Mr. McDonald had now changed his mind and now wanted to speak to a lawyer. Defence suggested this now clearly trig- 86 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

gered a secondary implementational duty on Officer Block to now take him to a phone room to give him a “Prosper warning” and allow him to phone a lawyer. Defence states the evidentiary onus now shifts to the Crown to prove Mr. McDonald made a clear unequivocal waiver of his rights to counsel. 43 The statement made by Mr. McDonald must be placed in context. 44 At the scene, having been given a clear informational component of his s. 10(b) Charter rights to counsel and being asked if he wished to contact a lawyer he gave a clear unequivocal response of “no”. 45 At the police station the police officer being very attuned to the accused’s medical needs suggested he be examined by M.D. Ambulance personnel. His response was “I want to speak to a lawyer before he touches me”. 46 The officer was again attuned to the accused’s rights and took the time to explain he had a right to phone a lawyer. Upon being asked if he wanted to speak to a lawyer he answered “no”. 47 It must be remembered the onus rests with the accused to prove a breach of his rights to counsel on a balance of probabilities. 48 His words were “I want to speak to a lawyer before he touches me:. Not “I want to speak to a lawyer before I provide samples of my breath”. Even with that ambiguity on his part, the police officer again offered to allow him to speak to a lawyer to which he answered “no”. 49 It should be noted the officer’s clear interpretation of the accused’s words remain unchallenged or contradicted by any other evidence during the voir dire. The police are entitled to give normal interpretation to the detainee’s words and actions. There is no evidence that Mr. McDonald was ever confused or that his clear answer of “no” was ever misinter- preted by Officer Block. 50 He did not take any positive, purposeful steps to carry out the opportunities Officer Block was prepared to give him to contact a lawyer. Of- ficer Block met both the informational duty and implementational duties required of her in the circumstances. Given the circumstance Officer Block properly interpreted Mr. McDonald’s words to mean he had twice given up his opportunity to contact a lawyer. The fact remains he made an informed choice not to call anyone and he communicated that. In the Court’s view he was not reasonably diligent in attempting to contact counsel. R. v. McDonald D.A. Lavoie Prov. J. 87

51 From the above it follows the Court is not satisfied that accused’s s. 10(b) rights were violated. 52 Given the above findings that there was no breach of the accused’s ss. 8, 9 or 10(b) Charter rights there is no need for the Court to address the s. 24(2) issue of exclusion of evidence and the Court decline’s to do so. 53 Having ruled on the voir dire Charter issues, the Court must now address the remaining issues within the trial proper. 54 In regard to the issue of impaired driving, count #1 in the decision of R. v. Arevalo (2001), 205 Sask. R. 315 (Sask. Prov. Ct.) starting at para. 8 Kolenick, J wrote: [8] Therefore, the evidence of impairment which is alleged by the Crown must be considered in the context of the principles contained in R v. Stellato (1994) 31 CR (4th) 60, in which the Supreme Court of Canada approved the following, from the Ontario Court of Appeal reasons, 18 CR (4th) 127, at paragraph 14: In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convict- ing an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [9] In the process of making this analysis, the Ontario Court of Ap- peal judgment made reference to the so-called “classic” signs of impairment, namely: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness on one’s feet. Obviously this was not intended to be an all-encompassing list, and also, its application will very much depend on the circumstances in the case. Further, in R. v. Landes (1997), 161 Sask. R. 305 (Sask. Q.B., Klebuc, J.), the Court referred to Stellato (supra) and made te following observations, commencing at para. 16: [16] An opinion as to impairment, be it by the trial judge or a nonexpert, must meet an objective standard of “an ordinary citizen” or a “reasonable person” in order to avoid the uncertainties associated with subjective stan- 88 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

dards, particularly when based inferences. To that end a list of tests and observations has been developed for use by peace officers and courts in determining whether an accused’s mental faculties and physical motor skills were impaired by alcohol to the degree of impairing the accused’s ability to drive a motor vehicle. Those observations and tests include: (1) evidence of improper or abnor- mal driving by the accused; (2) presence of bloodshot or watery eyes; (3) presence of a flushed face; (4) odour of alcohol beverage; (5) slurred speech; (6) lack of coordina- tion and inability to perform physical tests; (7) lack of comprehension; and (8) inappropriate behaviour. [17] In my view, a trial judge must carefully review all of the reported tests and observations which inferentially support or negate any impairment of the accused’s mental and physical capabilities, and then be satisfied beyond a reasonable doubt that the reasonable inferences to be drawn therefrom establish that the accused’s ability was impaired to the degree prescribed by ss. 253 and 255 of the Criminal Code. A piecemeal approach supporting or negating impairment is not permissible. See: R. v. Hall at p. 66 (R. v. Hall (1994), 125 Sask. R. 62) See also: R. v. Schurman (2003), SK. PCJ 168 (White, PCJ) R. v. Huot (No. 3) (2001), 209 Sask. R. 171 (Kolenick, PCJ) R. v. Hopkie (1994), 126 Sask. R. 44 (Sask. Q.B.) (MacPherson, CJQB) R. v. Holman (1998), S.J. No. 711 (Sask. Q.B.) (Smith, J as she then was) R. v. Edwards (2006), Sask. P.C. 23 (Kolenick, PCJ) R. v. Debusshere (2003), Sask. P.C. 53 (Kolenick, PCJ) 55 The Crown in argument admitted the evidence in relation to indicia of impairment was thin. Clearly the evidence from the witnesses falls short of proving Count #1 beyond a reasonable doubt. The Court finds the accused not guilty of count #1. 56 Lastly, Defence argued that the evidence fails to establish the requirements of notice set forth in s. 258(7) which reads as follows: s. 258(7) No certificate shall be received in evidence pursuant to paragraph (1)(e),(f),(g),(h) or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate. R.S.C. 1985, C. 27 (1st Supp.), s. 36; c. 32 (4th Supp.), s. 61; 1994, c. 44, s. 14; 1997, c. 18, s. 10;2008, c. 6, s. 24. R. v. McDonald D.A. Lavoie Prov. J. 89

57 A summary of the evidence in relation to service of the Notice of Intention in this case reveals the following: 1) Just prior to Mr. McDonald being released from custody the investigating officer served him with a true copy of the Certificate of a Qualified Technician and Notice of Intention to Produce Cer- tificate as they were completed at the time. 2) For whatever reason the officer failed to place her signature on the Notice of Intention on the line providing for the same. Sometime later she noticed this omission. 3) To somewhat rectify the same she subsequently placed her signature on the original Certificate and Notice of Intention. She made a photocopy of the same now bearing her signature. She then attended at the law offices of Mr. Owens who was counsel on record for Mr. McDonald. She gave the photocopy to a person at the front desk of the law office who verbally confirmed she was an assistant, employed by Mr. Owens. 58 The Code requires “reasonable notice” and case law has confirmed such notice may be verbal and need not necessarily be in writing. In R. v. McCullagh (1990), 53 C.C.C. (3d) 130 (Ont. C.A.) the Ontario Court of Appeal held that it is not enough for an accused to point to an error in a notice and then allege that, by reason of the error alone, there is ambiguity or confusion which results in the notice not being reasonable. The bold generalization of ambiguity or confusion must be brought down to concrete terms, based on the facts of the case, to show a particular ambiguity or confusion which detracts from the reasonableness of the notice. Defence has chosen to call no evidence on the voir dire or the trial. 59 In this case there is nothing ambiguous of the intention of the Crown in relation to both notices served directly on the accused or Mr. Owens law office. They were identical except the first one did not bear the signature of the police officer. That was remedied with the second service. In addition, given this set of facts, the Court is satisfied leaving a copy with a front desk assistant, which was being held out to the public as being the business premises and business representative of Mr. Owens was reasonable notice to the accused through his legal representative. Given the combined effect of both written notices the Court finds beyond a reasonable doubt that this was reasonable notice within the requirements of s. 258(7). 90 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

60 Given the above findings the Court is satisfied the Certificate of a Qualified Technician may be made a full exhibit within the trial proper. 61 That Certificate sets forth two readings as follows: 1) 02:56 hours — 120 milligrams percent 2) 03:22 hours — 100 milligrams percent. 62 Accordingly the Court finds the accused guilty of count #2, contrary to s. 255(1) and s. 253(1)(b) of the Criminal Code. Order accordingly. R. v. Vetsch 91

[Indexed as: R. v. Vetsch] Her Majesty the Queen, Crown and Joseph Anthony Vetsch, Accused Alberta Provincial Court Docket: Red Deer 121186837P1 2013 ABPC 194 J.D. Holmes Prov. J. Heard: March 20, 2013 Judgment: July 25, 2013 Criminal law –––– Offences — Driving/care and control with excessive alcohol — Presumption of alcoholic content at time of offence — Evidence to contrary –––– Accused was charged with driving with excessive alcohol — Af- ter his arrival at police station, prior to first breath sample, accused was in telephone room and washroom — Accused blew 250 mg percent and 240 mg percent — Accused submitted that there was evidence to contrary which raised reasonable doubt that Intoxilyzer malfunctioned or was improperly operated — Accused convicted — Ultimate concern is with accuracy of breath results — Ev- idence that operating procedure was not followed must be linked to reliability of breath results in order to be logically probative and to constitute evidence to contrary under s. 258(1)(c) of Criminal Code — Qualified breath technician agreed that if burping or regurgitation is observed, time for first sample should be delayed or instrument will not work properly — Only three-minute observation period passed between time accused left telephone room and time he provided first sample, but some degree of observation of accused was continuous from time he arrived at police station — Any procedural or operational deficiency must be connected by evidence to reliability of breath results in order to raise reasonable doubt and constitute evidence to contrary — Pure speculation that accused “m[ight] have” burped or belched or regurgitated was not evidence — There could be no logical connection with issue of reliability of breath results in this case — There was no evidence that accused burped, regurgitated or consumed alcohol during 15 minutes prior to providing first sample — There was no factual foundation which could lead to finding of reasonable doubt about accuracy of breath results — Crown had proven elements of offence to requisite criminal standard and that there was no evidence to contrary. Cases considered by J.D. Holmes Prov. J.: R. v. Blanchett (2004), 2004 CarswellAlta 1710, 2004 ABCA 411, [2004] A.J. No. 1469 (Alta. C.A.) — considered 92 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

R. v. Dezman (1977), 8 A.R. 331, 1977 CarswellAlta 424, [1977] A.J. No. 689 (Alta. Dist. Ct.) — considered R. v. So (2013), 2013 ABPC 93, 2013 CarswellAlta 546, [2013] A.J. No. 426 (Alta. Prov. Ct.) — followed R. c. St-Onge Lamoureux (2012), 294 C.C.C. (3d) 42, [2012] 3 S.C.R. 187, 269 C.R.R. (2d) 276, 2012 SCC 57, 2012 CarswellQue 10777, 2012 Carswell- Que 10778, 351 D.L.R. (4th) 381, 96 C.R. (6th) 221, 37 M.V.R. (6th) 1, (sub nom. R. v. St-Onge Lamoureux) 436 N.R. 199, [2012] S.C.J. No. 57 (S.C.C.) — considered R. v. Whyte (1988), 1988 CarswellBC 761, 1988 CarswellBC 290, 6 M.V.R. (2d) 138, [1988] 2 S.C.R. 3, [1988] 5 W.W.R. 26, 51 D.L.R. (4th) 481, 86 N.R. 328, 29 B.C.L.R. (2d) 273, 42 C.C.C. (3d) 97, 64 C.R. (3d) 123, 35 C.R.R. 1, EYB 1988-67019, [1988] S.C.J. No. 63 (S.C.C.) — referred to Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to Criminal Code, R.S.C. 1985, c. C-46 s. 253(1)(a) — pursuant to s. 253(1)(b) — pursuant to s. 258 — considered s. 258(1)(c) — considered Words and phrases considered: evidence to the contrary Evidence that an operating procedure was not followed, such as an inadequate observation period, must be linked to the reliability of the breath results in the case being tried in order to be logically probative and to constitute evidence to the contrary under s. 258(1)(c) [of the Criminal Code, R.S.C. 1985, c. C-46].

TRIAL of accused charged with driving with excessive alcohol.

A. Pearse, for Accused J. Brown, for Crown

J.D. Holmes Prov. J.:

1 Mr. Vetsch was charged under sections 253(1)(a) and (b) of the Crim- inal Code (“impaired driving” / “over 80”) following his arrest on Sep- tember 21, 2012. R. v. Vetsch J.D. Holmes Prov. J. 93

2 At trial, Charter arguments advanced by the accused were dismissed. He was found not guilty on the impaired driving count, and guilty of over 80. Written reasons for the guilty verdict follow.

Issue 3 The question in this case is whether there is “evidence to the contrary” under s. 258(1)(c) which raises a reasonable doubt that the Intox- ilyzer 5000C (“the instrument”) either malfunctioned or was improperly operated.

Facts 4 The investigating officer testified that after arrival at the police station, prior to the first breath sample, the accused was in the phone room and a washroom. The accused provided the first sample approximately 3 minutes after exiting the phone room. 5 The officer, who is also a qualified breath technician, confirmed on cross-examination that his training directed a 15-20 minute observation period before the first sample and that if burping or regurgitation was observed, the time for the first sample should be delayed. He also agreed that the instrument “doesn’t work properly if the guy is burping or belch- ing”. He further agreed that the accused could have burped or belched, unnoticed, during the time that he was not under close observation. 6 While the officer agreed with the defence counsel’s suggestion that only a “three minute observation period” had passed between the time that the accused left the telephone room and the time that he provided the first sample, it is clear from his evidence that some degree of observation of the accused was continuous from the time they arrived at the police station (17:09). When the accused exercised his right to obtain legal advice, he entered the phone room (17:10). To ensure privacy during the time he spoke with counsel, he was observed through the window of the phone room until he was finished. While the accused was in the phone room he made a request to use the washroom, where he attended and then returned to the phone room. The accused indicated he was ready to proceed at 18:07. Samples were taken at 18:10 and 18:29, approximately 19 minutes apart. 7 The Certificate of Analysis was entered as an exhibit. It establishes that the first sample was 250mg% and the second was 240mg%. 8 The accused chose not to testify. 94 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

9 The accused argues that the evidence shows that the approved instrument was malfunctioning or was used improperly, and this alone constitutes evidence to the contrary under s.258(c), and must lead to an acquittal. The Crown argues that there must be an evidentiary link between any operational deficiency and the accuracy and reliability of the testing results.

Analysis 10 The accused relies on the decision of R. c. St-Onge Lamoureux, 2012 SCC 57 (S.C.C.). 11 In R. v. So, 2013 ABPC 93 (Alta. Prov. Ct.), Tyndale PCJ was concerned with the same issue, that being whether, post-St-Onge, any irregularity in recommended operating procedures for the instrument was sufficient to constitute evidence to the contrary. He determined that St-Onge did not stand for that proposition (paras. 20-21) and that the testing results could be challenged only by raising problems that could be objectively identified and relate to possible deficiencies in the instrument itself or in the procedure followed in operating it (para 38, St-Onge, cited at para 25 So). He further went on to find that in order to constitute evidence to the contrary, the accused must meet the evidentiary standard of proof of a balance of probabilities (para. 28). 12 I agree with the analysis of Tyndale PCJ in So, with the exception of his finding concerning the evidentiary standard of proof. To preserve the presumption of innocence, the accused, at all times, has only to satisfy the court of a reasonable doubt: If an accused is required to prove some fact on the balance of probabilities to avoid conviction, the provision violates the presumption of innocence because it permits a conviction in spite of a reasonable doubt in the mind of the trier of fact as to the guilt of the accused (St-Onge, para 24, citing R. v. Whyte [1988] 2 SCR 3 at 18). 13 The Supreme Court of Canada has understood the concept “evidence to the contrary” with a reasonable degree of consistency: It is well established that the standard of proof required to rebut the statutory presumptions is reasonable doubt. The expressions “evidence to the contrary” in s. 258(1)(c), “any evidence to the contrary” implicit in s. 258(1)(g) and “evidence tending to show” in s. 258(1)(d.1) reflect this same standard. In Boucher, the Court emphasized that the burden of proof never shifts to the accused. Rather, “it will be sufficient if, at the conclusion of the case on both sides, the R. v. Vetsch J.D. Holmes Prov. J. 95

trier of fact has a reasonable doubt” ... (R. v. Gibson, [2008] 1 SCR 397 at para 17, citing R. v. Boucher, [2005] 2 SCR 499 at para 15). 14 There is a difference between the ultimate burden of proof on the Crown, and the presumption which arises after entry of the certificate. The presumption that accused must meet is discussed in Sopinka, Leder- man and Bryant, The Law of Evidence in Canada (3rd ed., 2009), at p 96: These presumptions may be rebutted by “evidence to the contrary.” An accused has an evidential burden if he or she wishes to challenge any of these presumptions. Where an accused is able to point to evidence on the record or adduce evidence which may raise a reasonable doubt concerning the presumed facts, the Crown has the legal burden of proof as to the concentration of alcohol in the accused’s blood at the time of the offence and the accuracy of the analysis without the benefit of the statutory provision. It is a question of law whether the evidence satisfies a particular evidentiary burden and there may be conflicting opinions whether the accused has done so in a particular factual scenario. 15 In the post-St-Onge period, it still remains for the trier of fact to weigh the relevance and credibility of the evidence adduced by the accused and determine whether, in any particular scenario, the accused has rebutted the presumptions in s. 258. The accused need only point to evidence that constitutes a reasonable doubt as to the accuracy of the breath test results in order to rebut the statutory presumption. However, a reasonable doubt must be based on the evidence: A reasonable doubt is not a far fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the lack of evidence (Astley v. Verdun, 2013 ONSC 2998 at para 25, citing R v. Lifchus, [1997] 3 S.C.R. 320 per Cory J). 16 The accused in this case asks the court to find a reasonable doubt can arise logically from the evidence without a causal link between a procedural deficit or malfunction of the instrument and the reliability of the breath testing results in the case at bar. 17 In R. v. Dezman, [1977] A.J. No. 689 (Alta. Dist. Ct.), the summary conviction appeal court determined that non-compliance with the observation period, in and of itself, does not constitute evidence to the contrary. The court’s reasoning is largely based on the need to connect the operational deficiency with an inaccurate breath reading. 96 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

18 In R. v. Blanchett, 2004 ABCA 411 (Alta. C.A.), a leave to appeal decision involving non-compliance with observation period requirements, the Court of Appeal found that the reliability of testing results is a factual issue the trial judge must weigh when considering whether the accused has raised evidence to the contrary (para 4). 19 As the Crown pointed out in argument, if the ultimate inquiry is not whether or not the test results are reliable but instead whether all recommended procedures were strictly followed by the police, cases involving charges of driving over the allowable blood alcohol limit will become trials about testing procedures rather than about the guilt of the accused. 20 The court in St-Onge did not say that evidence of any alleged deficiency in an operational procedure is sufficient to constitute evidence to the contrary, in and of itself. It specifically refers to the ultimate concern being reliability of the breath results: The prosecution gains a clear, albeit limited, advantage from the requirement, since evidence to the contrary is limited to the real issue: whether the breath tests are reliable (italics added, para 48). 21 I am persuaded that any procedural or operational deficiency must be connected by evidence to the reliability of the breath results in the case before the court in order to raise a reasonable doubt and constitute evidence to the contrary. Otherwise, there will be no logical connection with what the court in St-Onge has said is the “real issue.” While expert evidence may not be necessary in all cases, pure speculation that the accused “may have” burped or belched or regurgitated is not evidence, and there can be no logical connection with the issue of the reliability of the breath results in this case. 22 Additionally, when assessing whether the accused has raised a reasonable doubt, I must consider the results of the two samples, truncated down, being 250 mg% and 240mg%. It is clear these two samples were separated by a 19 minute observation period. The fact that both readings are consistent lends weight to the conclusion that nothing of significance effected the first sample and that accordingly, both are reliable.

Conclusion 23 The ultimate concern is with the accuracy of the breath results. Evi- dence that an operating procedure was not followed, such as an inadequate observation period, must be linked to the reliability of the breath results in the case being tried in order to be logically probative and to constitute evidence to the contrary under s. 258(1)(c). R. v. Vetsch J.D. Holmes Prov. J. 97

24 In the present case, there is no evidence that the accused burped or regurgitated or consumed alcohol during the 15 minutes prior to the provision of the first sample. There is no factual foundation which could lead to a finding of reasonable doubt about the accuracy of the breath results. 25 I am satisfied that the Crown has proven the elements of the offence to the requisite criminal standard and that there is no evidence to the contrary. The accused is guilty of the over 80 count. Accused convicted. 98 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

[Indexed as: R. v. Rhyno] Her Majesty the Queen v. Duane Alan Rhyno Nova Scotia Provincial Court Docket: 2358517, 2358518 2013 NSPC 53 Jamie S. Campbell Prov. J. Heard: June 28, 2013 Judgment: July 23, 2013 Criminal law –––– Charter of Rights and Freedoms — Right to be tried within reasonable time [s. 11(b)] — Pre-trial delay –––– Matter was set to go to trial 27 months after accused was charged with driving while impaired — Accused claimed that he had been denied his right to trial within reasonable time as provided in s. 11(b) of Canadian Charter of Rights and Freedoms — Accused brought application for stay of proceedings — Application granted — Interests of accused, along with principles of individual liberty which those interests represented, had to be balanced against societal interests — Reason for delay related in some respects to court scheduling, which did not excuse it or mitigate it — Some of delay related to legitimate disagreements regarding disclosure — Some further delay related to failure of police to have process in place to identify existence of recordings that were requested — While accused had not been subject to serious restrictions on his liberty pending trial and his ability to mount defence had not been compromised in significant way, he had right to trial within reasonable time. Cases considered by Jamie S. Campbell Prov. J.: R. v. Askov (1990), 79 C.R. (3d) 273, 59 C.C.C. (3d) 449, 49 C.R.R. 1, 74 D.L.R. (4th) 355, 75 O.R. (2d) 673, [1990] 2 S.C.R. 1199, 113 N.R. 241, 42 O.A.C. 81, 1990 CarswellOnt 111, 1990 CarswellOnt 1005, [1990] S.C.J. No. 106 (S.C.C.) — followed R. v. Godin (2009), 192 C.R.R. (2d) 184, 67 C.R. (6th) 95, 389 N.R. 1, 245 C.C.C. (3d) 271, [2009] 2 S.C.R. 3, 2009 CarswellOnt 3100, 2009 Carswell- Ont 3101, 2009 SCC 26, 309 D.L.R. (4th) 149, 252 O.A.C. 377, [2009] S.C.J. No. 26 (S.C.C.) — considered R. v. MacIntosh (2011), 2011 CarswellNS 843, 2011 NSCA 111, 983 A.P.R. 274, 310 N.S.R. (2d) 274, 281 C.C.C. (3d) 291, 250 C.R.R. (2d) 239, [2011] N.S.J. No. 660 (N.S. C.A.) — followed R. v. Morin (1992), 12 C.R. (4th) 1, 71 C.C.C. (3d) 1, 134 N.R. 321, 8 C.R.R. (2d) 193, 53 O.A.C. 241, [1992] 1 S.C.R. 771, 1992 CarswellOnt 984, 1992 R. v. Rhyno Jamie S. Campbell Prov. J. 99

CarswellOnt 75, EYB 1992-67508, [1992] S.C.J. No. 25 (S.C.C.) — followed R. v. Rahey (1987), 75 N.R. 81, [1987] 1 S.C.R. 588, 39 D.L.R. (4th) 481, 78 N.S.R. (2d) 183, 33 C.C.C. (3d) 289, 57 C.R. (3d) 289, 33 C.R.R. 275, 1987 CarswellNS 340, 1987 CarswellNS 38, 193 A.P.R. 183, EYB 1987-67384, [1987] S.C.J. No. 23 (S.C.C.) — referred to R. c. St-Onge Lamoureux (2012), 294 C.C.C. (3d) 42, [2012] 3 S.C.R. 187, 269 C.R.R. (2d) 276, 2012 SCC 57, 2012 CarswellQue 10777, 2012 Carswell- Que 10778, 351 D.L.R. (4th) 381, 96 C.R. (6th) 221, 37 M.V.R. (6th) 1, (sub nom. R. v. St-Onge Lamoureux) 436 N.R. 199, [2012] S.C.J. No. 57 (S.C.C.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 11(b) — considered

APPLICATION by accused for stay of proceedings.

Roland Levesque, for Crown Stanley MacDonald, Q.C., for Defence

Jamie S. Campbell Prov. J.:

1 This case involves a series of applications under the Canadian Charter of Rights and Freedoms, (the “Charter”). The first of those is for a stay based on the assertion that Mr. Rhyno has been denied the right to a trial within a reasonable time as provided in section 11(b) of the Charter. If that application is successful the other matters would become moot. Those applications each relate to the manner in which a demand for a breath sample for analysis using an approved screening device is made. 2 Mr. Rhyno was charged with these offences on 4 August, 2011. His first court appearance was on 14 September 2011. The matter is now tentatively set to conclude on 13 December, 2013, some 27 months later. The first request for disclosure was made on 12 September two days before that first court appearance. At that time, his counsel, Mr. Stan MacDonald Q.C., requested audio/video footage of Mr. Rhyno while he was at the police station, RCMP call history/dispatch records, handwrit- ten notes made by the arresting officer, and maintenance records for the screening device and the approved instrument for the 6 months preceding the date of the incident. On 14 September there were some additional 100 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

requests for disclosure made. Those involved footage from any camera equipment in the police vehicles, details of video surveillance in the police station and computers from the police computer in the vehicle operated by the officer at the scene. 3 On 14 September 2011 the matter was adjourned until 22 November 2011, while the defence waited for that disclosure. 4 In the meantime however, the matter did not simply go quiet. Mr. Roland Levesque, Senior Crown Attorney responded in a letter to Mr. MacDonald dated 3 October 2011. He addressed each of the requests. Mr. Levesque indicated that there were no audio or visual recording capabilities at the police station on 4 August 2011. He said that with respect to the maintenance records for the approved screening device and the DataMaster, those machines undergo routine maintenance on an an- nual basis. During the time period in question there had been no maintenance performed on the DataMaster and the ASD was newly issued and had not undergone maintenance. Mr. MacDonald promptly answered three days later. He clarified that he was looking for both the maintenance records from the last maintenance carried out and the results of all tests performed on the instrument in the 6 months before Mr. Rhyno’s test. He said that it was “difficult to believe” that there were no audio or visual recording capabilities in the police station at the time. He said that Mr. Rhyno had observed surveillance cameras in the area. Mr. MacDon- ald asked for some follow up specifically on that request. 5 Once again, Mr. Levesque promptly responded on 24 October. He said that he would request the records of the last maintenance performed but would not request or provide records of the results of all tests performed in the previous 6 month period. He confirmed his understanding that at the time of the incident cameras and recording equipment were in the process of being installed but were not active until 6 September 2011. That at least was what the RCMP had told him. Mr. MacDonald replied on November 4th. He noted that no disclosure had been provided regarding the requirement to have an ASD brought to the scene. He asked for that information. He noted that he had still not received the notes of the officer at the scene, despite the passage of three months. With regard to the request for records of tests performed in the previous 6 months he noted that the information would be relevant to the issue of the function- ality of the instrument. There was a clear disagreement about that specific issue. Mr. MacDonald didn’t give up on the recording issue either. R. v. Rhyno Jamie S. Campbell Prov. J. 101

He asked for “any and all documentation in the possession of the Royal Canadian Mounted Police pertaining to the installation of those devices.” 6 Without delay Mr. Levesque got back to him on 8 November. He disagreed with the assertion that the records for the previous 6 months would be relevant in the absence of a factual foundation. He also confirmed that as of the date of the incident the video equipment was being installed but actual recording did not take place until 6 September. If further information was still being sought he noted that an application to court would have to be made. 7 Mr. MacDonald, once again, very promptly, got back to him on 16 November. He noted that the police notes were photocopied in a way that cut off time notations. As Mr. MacDonald asked rhetorically in this application, one might ask just how difficult it can be for the police to make photocopies of notes. Mr. MacDonald in that letter alluded to making a court application to get the records of the tests he had requested. On the video recording issue, on 14 November 2011 Mr. Rhyno made an application to Public Works Canada under the Access to Information Act. That request was for information about the cameras that had ben installed and operational at the RCMP detachment in Sackville. 8 When the parties were in court on 22 November 2011, plea was again set over until 2 February 2012. The dispute with regard to disclosure issues particularly with regard to what information was relevant was still ongoing. 9 That dispute continued actively. On 4 January 2012, Mr. Rhyno got an answer from Public Works. The document they provided told him that cameras had been installed in 2003/2004. The cameras were upgraded in September 2011 with the addition of some cameras and the switch to a digital format. A note from Terry Holland, with Finance Administration of the RCMP indicated that prior to the system upgrade in the first week of September 2011, the system recorded to hard disk drive with a retention period of about 40 days. The old system was operational until the first week of September 2011. On 16 January 2012, Mr. MacDonald emailed Mr. Levesque. He once again mentioned the need to have a copy of the police notes with the time notations included. His frustration is understandable at this point. It just shouldn’t take that long to get someone three properly photocopied pages. 10 Mr. Levesque responded on 26 January 2012. At that time the complete police notes were provided. Mr. MacDonald again replied quickly. On 7 February 2012 he clarified the request for information pertaining to 102 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

an “offline search” for all CPIC queries conducted on a particular license plate. Once again, Mr. Levesque was right back to him. Some information was provided with regard to the “offline” computer logs. 11 At this point it is quite apparent that neither lawyer is inclined to waste time. When a letter is received the response is both timely and relevant. There is very little by way of “churn” or letters intended to get the ball back in the other person’s court with a curt acknowledgement of receipt. They are both attentive to the issues. There was, once again, a clear and rather precisely defined disagreement about what should be disclosed. 12 The parties were in court again on 5 March 2012. A trial date was set for 28 January 2013. 13 On 16 November 2012 Mr. MacDonald wrote to Mr. Levesque setting out a list of 11 outstanding items for disclosure. He drew Mr. Le- vesque’s attention to the Supreme Court of Canada decision in R. c. St- Onge Lamoureux1 which had been decided only that month. He reiter- ated his request for disclosure of the records of other tests performed using the instrument in light of the Supreme Court judgment. That decision confirmed that the so called “Carter defence” was no longer available and that the functioning of the instrument was of increased significance. 14 Once again, Mr. Levesque responded on 4 December 2012 and noted that his interpretation of the R. c. St-Onge Lamoureux decision did not support the disclosure of those additional items. He noted that he believed it was important to have the court rule on the disclosure request. On 12 December Mr. MacDonald emailed him and asked whether this meant that the 28 January 2013 trial date would now be used for a disclosure application. Mr. Levesque replied the same day and confirmed that understanding. 15 That trial date was then used for the disclosure application which resulted in an order being made requiring the Crown to disclose six of the 11 items that the Crown had argued it should not be required to disclose. Two of the remaining five had been abandoned. There was no requirement to disclose three of those items. Those required to be disclosed largely involved documents pertaining to the operation of the approved

1[2012] S.C.J. No. 57 (S.C.C.) R. v. Rhyno Jamie S. Campbell Prov. J. 103

instrument, including maintenance records and records of its functioning over a period of time. 16 The matter was set for trial on 28 June, and 5 July, 2013. The first date was used for this application. On 5 July when the parties appeared to hear the decision on the application things started to unravel again. Mr. MacDonald noted that he had recently been provided with a copy of a video of Mr. Rhyno at the police station in Sackville. The video that the police had firmly and in no uncertain terms told him through Crown counsel did not exist, not only existed but had been retained over all these months. Mr. MacDonald quite properly requested an adjournment to review the recording because it was relevant to both the Charter applications and the trial itself. The next court date available for the trial, when both counsel and I would be available was 13 December 2013, just about 2 and a half years after Mr. Rhyno was first charged. 17 The onus with respect to the stay application is on Mr. Rhyno. He must show, on the balance of probabilities that his rights under s. 11(b) of the Charter have been breached and that a stay is the appropriate remedy. A stay of proceedings should be ordered in only the clearest of cases. 18 The Nova Scotia Court of Appeal has provided a summary of the law as it relates to post-charge delay in R. v. MacIntosh2. The court affirmed the principles set out in the Supreme Court of Canada decisions in R. v. Morin3 and R. v. Askov4. 19 As Justice Cromwell in R. v. Godin5 said, it is important not to lose sight of the forest for the trees. He referred to Justice Sopinka’s comments in R. v. Morin, that the general approach is not by the “application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which s. 11(b) is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.”

2[2011] N.S.J. No. 660, 2011 NSCA 111, 250 C.R.R. (2d) 239, 310 N.S.R. (2d) 274, 281 C.C.C. (3d) 291, 100 W.C.B. (2d) 143 (N.S. C.A.) 3[1992] 1 S.C.R. 771, [1992] S.C.J. No. 25 (S.C.C.) 4[1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106 (S.C.C.) 5[2009] 2 S.C.R. 3, [2009] S.C.J. No. 26, 2009 SCC 26 (S.C.C.) 104 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

20 That would not appear to mandate the simple application of judicial intuition based on a “big picture” sense of the situation. There is a process for deliberation and factors to be considered. The focus however should not be on the precise calculation of the number of days but on a balancing of the interests involved. 21 The s. 11(b) interests to be balanced include the right to liberty and security of the person, and the ability to make full answer and defence. They are considered along with the factors that caused the delay and the societal interests of having a trial on the merits. 22 A court should consider the length of the delay and whether there has been a waiver of any time periods. The reasons for the delay should be examined. That should include a consideration of the inherent time requirements of the case, the actions of the accused person as they relate to the delay, the actions of the Crown as they relate to the delay, limitations on institutional resources and other reasons for the delay. The reasons for a delay can be complex and in many respects interrelated. 23 It can be difficult to unravel the reasons why a case has taken as long as it has to get to court. Focusing only on the chronology and gaps of time is, to use Justice Cromwell’s metaphor, to see the trees but miss the forest. It is not a simple matter of assigning “fault” for each period of delay and tallying them up. 24 The court should consider the prejudice to the accused caused by the delay. That prejudice may either be inferred or actual. 25 The nature of the case is also a consideration. The value to society of taking a matter to trial must be weighed against the rights of the individual. That is not to say that some matters are just so important that a long and otherwise unreasonable delay which compromises individual rights should be acceptable. Rights are not traded off against practical considerations but their scope and meaning may be in part informed or defined by how they apply in the real world. 26 The remedy for a violation of an accused person’s right to be tried within a reasonable time is the issuing of a stay of proceedings. “After the passage of an unreasonable period of time, no trial, not even the fair- est trial possible is permissible.”6

6R. v. Rahey, [1987] 1 S.C.R. 588 (S.C.C.) R. v. Rhyno Jamie S. Campbell Prov. J. 105

27 The length of time in this case from charge to trial is about 27 months. That period of time is sufficient to warrant an inquiry. 28 There is no suggestion that Mr. Rhyno or his counsel waived any time periods in this matter. Mr. MacDonald, to the contrary, noted in correspondence to Mr. Levesque that he was not waiving any time periods. He was conscious of the delay, and commented on it. This is not a situation where the issue of delay is an afterthought thrown into the mix before a trial. 29 In this case, there are really two main reasons why it has taken two years to get the matter to trial. The first is an institutional delay arising from court dockets that result in trials being scheduled months in the future. On 5 March 2012 a full day trial was set for 28 January 2013. That delay of about 11 months is an institutional delay that is not in any way the responsibility of Mr. Rhyno or his counsel. Institutional delay of that kind is the responsibility of the Crown. That period is three months beyond the 8 to 10 month guideline for Provincial Courts as set out in R. v. Morin. 30 The trial however did not go ahead as planned. The trial date was instead used to deal with disclosure issues. Trial dates were set for June and July 2013. The delay from January 2013 until late June and early July 2013 is not unreasonable. A further delay was caused when the matter was again set over on 5 July 2013. The institutional delay from July until December 2013 is a further 5 months. Once again, that is not unreasonable. 31 The other main cause for delay in this matter was the issue of disclosure. That can be divided again into two categories. One is a dispute regarding disclosure and the other is a failure to disclose. The dispute resulted in some of the delay from the first appearance in September 2011 until 5 March 2012 the date on which the parties appeared to set the first trial date. That also gave rise to the use of that eventual trial date, in January 2013, for the disclosure application. That application was resolved substantially though not entirely in favour of Mr. Rhyno. 32 The Crown has the right to dispute claims for disclosure. It cannot be expected to accede to any request or take the risk that the delay resulting from that dispute will be in every case counted as a delay “caused” by the Crown. Neither the position taken by the Crown in this case, nor the manner in which that position was advanced was unreasonable. The position taken by the Crown with respect to disclosure issues was not accommodating to the defence. The Crown doesn’t have to be accommodating. 106 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

The argument put forward by Crown counsel at the time of the application was based on an interpretation of case law that was considered and not unreasonable. There was no sense at all that the Crown position had been taken as a thoughtless or lazy default to the negative. 33 The decision in St-Onge Lamoureux provided some guidance on the matter but it was hardly a firm and explicit statement of the law as it relates to disclosure in these kinds of matters. While I did not ultimately adopt the position advocated by the Crown the arguments advanced by Crown counsel were based on a reasonable interpretation of the Supreme Court of Canada decision. 34 The disclosure issue took up a considerable period of time. That time would be more fairly described as part of the inherent time requirements of the case than as delay caused by the Crown. Some cases are more complex than others. Impaired driving cases are not usually counted among those that are at the higher end of complexity. Some do require more time than others to resolve reasonable disagreements regarding things such as disclosure. That appears to have been the case here. 35 The second category of disclosure delay relates to the disclosure of surveillance materials immediately before the already long scheduled trial date of 5 July 2013. The Crown action in that case was not based on a reasonable interpretation of case law but on a failure to realize that the police had information that they positively denied having. Mr. Le- vesque’s carriage of the matter was at all times focused and diligent. He could only respond based on what the police were telling him with regard to the internal operations of the detachment. Here he was told there was no recording. There wasn’t much else that he could do, other than continue to make inquiries. People make mistakes. That truism is proven every day in courts across the country. The matter here is not about bad faith but here the RCMP continued to deny the existence of the recordings in the face of Mr. MacDonald’s continued questioning. He asked more than once. He just didn’t take “no” for an answer. Rather than dig- ging deeper, the RCMP it seems just repeated the response assuming they had been right the first time. They would not have to have dug very deep at all. Mr. Holland, with RCMP Management and Administrative Services had the information all along. As he said, it was “common knowledge” that he was the “go to” person for this kind of thing. The only person it seems who went to the go to person was Stan MacDonald who had him served with a subpoena for court. R. v. Rhyno Jamie S. Campbell Prov. J. 107

36 With regard to the actions of the accused and his counsel, Mr. Mac- Donald was faultlessly diligent in dealing with the matter. It could not be fairly said that his actions caused any of the delay. 37 There is nothing to suggest that Crown counsel was anything other than diligent in responding to requests and demands for disclosure even though the response may have been in the negative. There were no delays caused by any failure on the part of the Crown to be ready at each court appearance. This was not a case that was caught up in a pattern of repeated and unfruitful court appearances. Crown counsel was clear in taking the position with respect to disclosure. There was no delay occa- sioned by the Crown’s failure to address disclosure or by vague assur- ances that the disclosure matters would be resolved. Mr. Levesque stated his position clearly at an early stage of the process. 38 Crown counsel did not fumble the ball on the disclosure issue in this case. There was no failure to understand the nature of what was being sought. Mr. Levesque turned his mind to both the practical and legal issues. The circumstances of the delay here however were such that they were not the responsibility of Mr. Rhyno or his counsel but to the extent that they arose from the position taken by the Crown the reasonableness of the Crown’s position and the diligence with which it was pursued and advanced has to be taken into account. The first disclosure issue was not a “failure or delay in disclosure”7 but a legitimate disagreement about disclosure. With respect, those are different things. The second disclosure issue was clearly a failure to disclose. It is not a matter of bad faith or lack of competence, but it is a delay for which the Crown is ultimately, fully and entirely responsible. Despite the issue being flagged more than once by Mr. MacDonald no one it seems was prepared to go beyond the initial statement that the recording equipment had not been operational. 39 The nature of the charge should also be considered. In this case, Mr. Rhyno is facing charges of driving while impaired by alcohol. There is a high societal interest in having matters of this kind resolved by a trial of their merits. At the same time, it must be acknowledged that impaired driving charges have been among the more common of the subject matters in respect of which stays based on the infringement of the right to a trial within a reasonable time have been issued.

7R. v. Morin supra. Para 46 108 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

40 The prejudice to Mr. Rhyno must be considered as well. Prejudice can be presumed when a person is awaiting trial on criminal charges. The stress, both personal and professional is considerable. Mr. Rhyno is a lawyer. Facing these charges and being required to appear in court as an accused person, over a period of time has undoubtedly taken its toll. He has given evidence about that stress. There have been a few newspaper articles and the matter has been reported in an online news provider. He has been under scrutiny of the Bar Society and is aware of what Mr. MacDonald described as its “ominous presence”. His former law firm has asked him to leave. 41 In order to instruct counsel for cross examination of Crown witnesses he would also be required to recall the details of what happened more than two years ago. 42 At the same time, this is not a matter in which the delay has resulted in witnesses being unavailable or evidence being lost or misplaced or deteriorating in quality. It is a matter in which the Crown case depends largely on an officer’s observations with recorded police notes available to refresh his memory when required. Those notes have been disclosed at a relatively early stage to Mr. Rhyno and his counsel. 43 Furthermore this is not a case in which Mr. Rhyno’s liberty has been seriously restricted pending trial. He has not been on house arrest, on curfew conditions or subject to other limitations on his ability to go about his own life. The scrutiny of the Bar Society relates to this matter but as Mr. Rhyno has acknowledged the Society is aware of other charges that he has faced. He has also been subject to previous disciplinary action by the Society. 44 It is important to distinguish between stress arising from the charges and stress arising from the delay. Mr. Rhyno’s departure from his law firm was a more complicated matter than simply saying it was because of the delay in getting this matter to trial. As he noted, the charges against him were only part of the reason and at that, it would be very hard to separate the impact of the delay from that of the charges themselves. 45 Mr. Rhyno gave evidence about his insurance being cancelled as of 9 July 2013 if he could not prove that the matter had been resolved by that date. Once again, this may relate to the delay but also relates to the fact of the charge. 46 Mr. Rhyno is concerned about the media attention. To the person charged any media attention probably seems pretty intense. This matter R. v. Rhyno Jamie S. Campbell Prov. J. 109

has not been a high profile one. It has been the subject of perhaps a couple of articles in a daily paper and a couple of articles in an online news subscription service. It has not captured the public imagination. 47 The interests of Mr. Rhyno, along with the principles of individual liberty which those interests represent, have to be balanced against societal interests. The original delay here is significant but not ponderous. The matter has not moved along through numerous meaningless court appearances caught in the churn of the system. The reason for the delay relates in some respects to court scheduling, which does not excuse it, or mitigate it. Some of the delay relates to legitimate disagreements reasonably argued, regarding disclosure. Some further delay relates to the failure of the police to have a process in place to identify the existence of the recordings that were requested. It was in a sense a failure to take the defence request with sufficient seriousness. When Mr. MacDonald insisted that there must be a recording the answer was simply to repeat what had already been said rather than considering that he might just have a point. There were cameras and they had been operating. The new system didn’t interrupt that. It merited another inquiry, which it didn’t get. The practical result was that on top of the institutional delay has been thrown a further thoroughly unnecessary delay. 48 While Mr. Rhyno has not been subject to serious restrictions on his liberty pending trial and his ability to mount a defence has not been compromised in a significant way he has a right to a trial within a reasonable time. Neither he nor his counsel has contributed to the delay. The Crown’s position on disclosure of some information resulted in a delay but not a delay that was unreasonable given the reasonableness of the position and the promptness with which it was put forward. The failure of the police to disclose information until the last minute was another thing, especially in the context of a matter that had already been ongoing for some considerable time. That has had the effect of stretching the delay out to 27 months. The reason for the delay was to some extent an oversight on the part of the RCMP officers involved, but it was an oversight they were given opportunities to correct by Mr. MacDonald’s repeated inquiries. For whatever reasons those inquiries weren’t treated with the level of seriousness they properly merited. Both the reason for that most recent delay and the context of that delay, which involves a matter that has already been going on for some considerable time, have to be considered. 110 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

49 When the interpretation of the Charter is involved principles matter. Those principles can be overwhelmed in the parsing of the causes underlying specific periods of delay and precise degrees of prejudice. In this case, society’s interest in having Mr. Rhyno tried on these charges must give way to the protection of the Charter right to a trial within a reasonable time. 50 The application for a stay is granted. Application granted. R. v. Boyes 111

[Indexed as: R. v. Boyes] Regina v. Conrad William Boyes British Columbia Provincial Court Docket: Campbell River 38588 2013 BCPC 204 T. Gouge Prov. J. Heard: June 6, 2013; July 5, 2013 Judgment: July 25, 2013 Criminal law –––– Offences — Dangerous driving — Evidence –––– Accused charged with dangerous driving, failing to stop when pursued by police officer and failing to comply with breath demand — Trial held for accused — Accused convicted of dangerous driving — Deciding factor on issue of identification was inherent improbability that accused had obtained possession of suspect vehicle from someone else in 20 minutes which elapsed between end of pursuit and moment when arresting officer first saw suspect vehicle — To run stop signs and red lights at 70-80 km/hr was marked departure from standard of care that reasonable person would observe in any circumstance. Constitutional law –––– Charter of Rights and Freedoms — Miscellane- ous –––– Right to counsel — Accused, charged with dangerous driving, failure to stop when pursued by police and failing to comply with breath demand, applied for exclusion of evidence — Accused alleged his rights to counsel were infringed: arresting officer had arrested accused, on charge of dangerous driving, before he made his ASD demand — Application dismissed; accused convicted of failing to comply with breath demand — Court assumed without deciding that officer’s omission to provide accused with Charter warning was breach — If accused’s submission were accepted, result would be that citizen who had not committed any other offence would not be entitled to Charter warning or to consult counsel before being required to provide breath sample, but citizen like accused who had been arrested for another offence would be entitled to those rights; it seemed anomalous to suggest that citizen who had not committed crime should have fewer rights than one who had — Officer deferred Charter warning for six minutes; delay had no effect on any of accused’s potential defences. Motor vehicles –––– Offences and penalties — Offences — Driving offences — Failure to stop for police –––– Accused charged with dangerous driving, failing to stop when pursued by police officer and failing to comply with breath demand — Trial held for accused — Accused convicted — It was dark throughout relevant period — Accused could not have failed to see emergency 112 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

lights on police cruisers which were pursuing him — Officer activated siren at inception of pursuit — Accused must have heard it — It necessarily followed that he deliberately failed to stop in response to lights and siren. Motor vehicles –––– Evidence — Prosecutions — Admissibility — Statement to police. Cases considered by T. Gouge Prov. J.: R. v. Beatty (2008), 76 B.C.L.R. (4th) 201, 371 N.R. 119, [2008] 1 S.C.R. 49, 420 W.A.C. 7, 251 B.C.A.C. 7, 54 C.R. (6th) 1, 57 M.V.R. (5th) 1, 2008 CarswellBC 307, 2008 CarswellBC 308, 2008 SCC 5, 228 C.C.C. (3d) 225, 289 D.L.R. (4th) 577, [2008] 5 W.W.R. 1, 179 C.R.R. (2d) 247, [2008] A.C.S. No. 5, [2008] S.C.J. No. 5 (S.C.C.) — followed R. c. Côté (2011), 87 C.R. (6th) 1, 421 N.R. 112, 2011 CarswellQue 10407, 2011 CarswellQue 10408, 2011 SCC 46, (sub nom. R. v. Côté) [2011] 3 S.C.R. 215, (sub nom. R. v. Côté) 276 C.C.C. (3d) 42, (sub nom. R. v. Côté) 342 D.L.R. (4th) 77, (sub nom. R. v. Côté) 246 C.R.R. (2d) 213, [2011] S.C.J. No. 46 (S.C.C.) — followed R. v. Kuczko (2008), 2008 CarswellBC 3308, 2008 BCSC 1908, [2008] B.C.J. No. 2841 (B.C. S.C.) — followed R. v. Suberu (2009), 193 C.R.R. (2d) 96, 2009 SCC 33, 2009 CarswellOnt 4106, 2009 CarswellOnt 4107, 390 N.R. 303, 66 C.R. (6th) 127, 245 C.C.C. (3d) 112, 97 O.R. (3d) 480 (note), [2009] 2 S.C.R. 460, 309 D.L.R. (4th) 114, 252 O.A.C. 340, [2009] S.C.J. No. 33 (S.C.C.) — considered R. v. Thomsen (1988), 1988 CarswellOnt 53, 1988 CarswellOnt 957, 4 M.V.R. (2d) 185, 84 N.R. 347, 27 O.A.C. 85, 40 C.C.C. (3d) 411, 63 C.R. (3d) 1, 32 C.R.R. 257, [1988] 1 S.C.R. 640, EYB 1988-67450, [1988] S.C.J. No. 31 (S.C.C.) — referred to R. v. Wild (1970), 72 W.W.R. 603, 12 C.R.N.S. 306, 11 D.L.R. (3d) 58, [1970] 4 C.C.C. 40, 1970 CarswellAlta 145, [1971] S.C.R. 101, 1970 CarswellAlta 70, [1970] S.C.J. No. 69, [1970] A.C.S. No. 69 (S.C.C.) — followed Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 10 — considered Criminal Code, R.S.C. 1985, c. C-46 s. 249(1)(a) — pursuant to s. 249.1 [en. 2000, c. 2, s. 1] — referred to s. 249.1(1) [en. 2000, c. 2, s. 1] — pursuant to R. v. Boyes T. Gouge Prov. J. 113

s. 254 — referred to

TRIAL of accused charged with dangerous driving, failure to stop when pursued by police and failing to comply with breath demand, and accused’s application for exclusion of evidence.

D.L. Fitzsimmons, for Crown D.J. Marion, for Defendant

T. Gouge Prov. J.: The Charges 1 Mr. Boyes is charged with three offences, alleged to have been committed in the early morning hours of September 22, 2012: (i) dangerous driving, contrary to section 249(1)(a) of the Criminal Code; (ii) failing to stop when pursued by police officer, contrary to section 249.1(1) of the Criminal Code; and (iii) failing to comply with demand for a breath sample which was made to him under section 254 of the Criminal Code.

The Facts 2 At 00:54 hours on September 22, 2012, Constable Schwager was on duty in a marked police cruiser in Campbell River. It was spitting rain intermittently and the roads were wet. She heard over her police radio a report of a vehicle proceeding at a high rate of speed down Peterson Road. She drove her police cruiser to the intersection of Peterson Road and 14th Street, where she observed a vehicle approaching on Peterson Road which matched the broadcast description. The two vehicles reached the intersection simultaneously. The suspect vehicle stopped for a stop sign. Constable Schwager activated her emergency lights and shouted at the driver of the suspect vehicle to pull over. She observed two males in the suspect vehicle, the driver and one other, engaged in animated conversation. She turned left onto Peterson Road, passed the suspect vehicle and made a u-turn, bringing her police cruiser to a stop behind the suspect vehicle, with her emergency lights flashing. As she passed the suspect vehicle, she observed the driver of that vehicle, through the driver’s side windows, at a distance of about 4 feet. She gave a description of the driver of the suspect vehicle, which is consistent with the appearance of Mr. Boyes, and identified Mr. Boyes at trial as the person she saw in the driver’s seat of the suspect vehicle at the intersection of Peterson Road and 14th Street. 114 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

3 Constable Schwager made a note of the license number of the suspect vehicle and radioed that information to her dispatcher. She was preparing to leave her cruiser to speak with the driver of the suspect vehicle when the suspect vehicle accelerated across 14th Street and proceeded north on Peterson Road. She pursued the suspect vehicle in her police cruiser. The speed limit on Peterson Road is 50 km/hr. The suspect vehicle accelerated to 80 km per hour, crossed the centre line, corrected its course to the right lane of Peterson Road, entered the intersection of Peterson Road and 16th Street without stopping at the stop sign there, and turned left onto 16th Street. Constable Schwager followed, but at a lesser speed because the pavement was wet and slippery and Constable Schwager considered it to be unsafe to follow at 80 km/hr. She observed the suspect vehicle pass through red lights at the intersections of Tamarack Street and Willow Street without stopping. 4 16th Street is a dead end on the far side of Willow Street. The lighting in the cul-de-sac is poor. The suspect vehicle stopped in the cul-de-sac and turned off its headlights. Constable Schwager stopped her police cruiser, with the emergency lights on, about 150 metres from the suspect vehicle. She observed one of the occupants leave the suspect vehicle through the passenger side door. The suspect vehicle accelerated sud- denly, headed straight at Constable Schwager’s vehicle. She believed that it was the driver’s attention to ram her police cruiser, and radioed to her dispatcher for help. At the last moment, the suspect vehicle swerved to avoid a collision and passed the police cruiser at a distance of about a foot. Constable Schwager saw the driver though the windshields as the vehicle approached and through the driver’s side windows as the vehicle passed the cruiser. She said that the driver was the same man whom she had seen in the driver’s seat at the intersection of Peterson Road and 14th Street. 5 Constable Schwager turned her police cruiser around and gave chase. She observed the suspect vehicle go through red lights, without stopping, at the intersections of 16th Street and Willow Street and 16th Street and Tamarack Street. It made a left turn onto Tamarack Street, where a second police cruiser, driven by Constable Weihs, joined the pursuit. Con- stable Schwager followed Constable Weihs in pursuit of the suspect vehicle. She lost sight of the two vehicles ahead of her. 6 Constable Weihs said that the suspect vehicle proceeded at about 70 km/hr, went through a red light at the intersection of Willow Street and Highway 19A without stopping, and eventually proceeded up the Duncan R. v. Boyes T. Gouge Prov. J. 115

Bay Forest Service Road. He described the roads as “... pretty slick - it was like being on ice...”. Both the suspect vehicle and Constable Weihs’ police cruiser lost traction when making turns during the pursuit. The suspect vehicle stalled on the Duncan Bay Forest Service Road. Consta- ble Weihs stopped his police cruiser in front of the suspect vehicle and got of the cruiser to speak with the driver. He observed that there was only one person in the vehicle, in the driver’s seat, and gave a description of that person consistent with Mr. Boyes’ appearance. He also identified Mr. Boyes at trial as that person. He said that he saw the driver, through the driver-side window of the suspect vehicle, for an interval of 2 - 3 seconds. When Constable Weihs was a few feet from the suspect vehicle, the driver managed to re-start its engine and drove off. At that moment, Constable Schwager arrived on the scene. Constables Schwager and Weihs gave chase, but lost sight of the suspect vehicle and abandoned the pursuit at 01:10 hours. 7 Constable Weihs’ emergency lights and siren were activated throughout his pursuit of the suspect vehicle. 8 Constable McLean was on duty at the detachment when Constable Schwager first reported the license number of the suspect vehicle. He listened to the radio traffic as the chase evolved. Having determined that the address of the owner of the vehicle was in Sayward, Constable Mc- Lean proceeded to a likely point of interception if the driver were going to that address. His acumen was rewarded when he found the suspect vehicle, driving slowly up Duncan Bay Forest Service Road, at 01:30 hours. 9 Constable McLean caught up to the suspect vehicle, which turned on to a logging road and came to a stop. Constable McLean then activated his emergency lights. Mr. Boyes stepped out of the suspect vehicle, but appeared to be curiously oblivious to Constable McLean or to the emergency lights of the police cruiser. He staggered toward the constable. Constable McLean instructed him to lie, face-down, on the ground and place his hands behind his back. Mr. Boyes complied. Constable McLean handcuffed him. As he did so, he noticed a strong odour of liquor ema- nating from Mr. Boyes. At 01:33 hours, Constable McLean told Mr. Boyes that he was under arrest for dangerous driving. Constable McLean assisted Mr. Boyes to his feet and instructed him to sit in the rear seat of the police cruiser. Mr. Boyes complied. Constable McLean stood outside the police cruiser, with the rear door open, so that he could speak with Mr. Boyes. Constable McLean removed from his notebook the card car- 116 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

ried by police officers, on which are printed the common forms of breath demands and Charter warnings. It was his intention to read Mr. Boyes the Charter warnings. However, he decided to make an ASD demand instead, and read Mr. Boyes the printed ASD demand in the usual form. Constable McLean placed the mouthpiece from an approved screening device in Mr. Boyes’ mouth and instructed Mr. Boyes to blow into the device. Instead of doing that, Mr. Boyes placed his tongue over the aper- ture of the mouthpiece so that no air could enter. Constable McLean re- monstrated with Mr. Boyes and replaced the mouthpiece. He then repeated the procedure, with the same result. Constable McLean then informed Mr. Boyes that he was under arrest for refusing to provide a breath sample. At 01:39 hours, Constable McLean read Mr. Boyes the usual Charter warnings, which clearly informed him of his rights to si- lence and to counsel. In response to Constable McLean’s questions, Mr. Boyes stated that he understood the Charter warnings and that he wished to speak with counsel. Constable McLean asked Mr. Boyes no further questions. However, as Constable McLean was closing the rear door of the police cruiser, Mr. Boyes said: I’m smart - that’s why I didn’t blow. 10 Constables Schwager and Weihs were informed of Mr. Boyes’ arrest by police radio, and attended at the scene of the arrest, arriving at the same time. Each of them looked at Mr. Boyes in the rear seat of Consta- ble McLean’s cruiser and identified him as the person whom they had seen earlier driving the suspect vehicle.

Dangerous Driving & Failing to Stop for a Police Officer 11 Mr. Marion submits that the evidence fails to establish, beyond a reasonable doubt, that Mr. Boyes was the driver of the suspect vehicle during the pursuit by Constables Schwager and Weihs. He submits that I should test the evidence by reference to the factors (sometimes called “the Powell guidelines”), approved in R. v. Kuczko, 2008 BCSC 1908 (B.C. S.C.) @ paragraph 166; i.e.: 1. How much time has elapsed between the identification and the events being described by the witness? Did the witness do anything to secure the memory, such as taking contemporane- ous notes? 2. How familiar is the witness with the person they are identifying? Is the individual known to the witness or a stranger? R. v. Boyes T. Gouge Prov. J. 117

3. What were the physical circumstances of the sighting, such as lighting, distance, and the view of the witness? 4. How long did the observation last? 5. What was the emotional state of the witness at the time of sighting? Was the witness surprised, in fear, or distracted? 6. What is the quality of the witness description? Is it rich and specific or merely generic and thus less probative? Has the description remained consistent of important details? 7. How does the witness description compare to those provided by other witnesses in the same case? Are there significant inconsistencies? 8. Has the witness been exposed to other images of the person being identified? Is there a danger that the witness is identifying the person in the image and not the person they originally saw at the scene of the crime? 9. What sort of pre-trial identification process did the eyewitness participate in? Was the process free, fair, and unbiased, without suggestion, assistance, or bias created directly or indirectly? 10. Has the witness’s identification been influenced by that of other witnesses? What is the possibility of collusion amongst eyewitnesses, intentional or unintentional? 11. How does the eyewitness’s description of the person compare with their appearance at the time of the incident? 12. It is important to be alive to the potential difficulties in cross- racial identification and to view particular identification evidence with caution where appropriate. 13. Is there other reliable circumstantial evidence capable of cor- roborating the identification evidence that would assist in lowering the inherent danger in eyewitness identification? 12 With those matters in mind, there is reason to doubt the identification by Constables Schwager and Weihs. Each saw the driver of the suspect vehicle through rain-streaked automobile windows, for a matter of a few seconds, under very poor lighting conditions. Each may have been influenced by the fact that Mr. Boyes, who matches the description of the driver they saw, was found in sole possession of the suspect vehicle by Constable McLean some 20 minutes after they abandoned the pursuit. Constable Schwager saw him twice, but was in severe emotional distress on the second occasion because she believed that the suspect vehicle was about to ram her police cruiser. On each occasion when she saw the 118 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

driver, she was looking through two rain-streaked panes of glass, one in her police cruiser and one in the suspect vehicle. On each occasion, one of the vehicles was moving. Constable Weihs had the better opportunity to see the driver because he was walking toward the suspect vehicle, which was stationary, and because there was only one pane of glass between him and the driver. 13 If the issue of identification fell to be decided by the evidence of one of the constables, alone, it would be difficult to be satisfied beyond a reasonable doubt that the constable could positively identify the driver. The fact that two constables, each with separate opportunities to see the driver, identify Mr. Boyes as the driver, renders the identification somewhat more certain. However, it may be that they were led to an erroneous conclusion by the fact that Mr. Boyes was found in possession of the suspect vehicle by Constable McLean. 14 In my view, the deciding factor on the issue of identification is the inherent improbability that Mr. Boyes had obtained possession of the suspect vehicle from someone else in the 20 minutes which elapsed between the end of the pursuit by Constables Schwager and Weihs and the moment when Constable McLean first saw the suspect vehicle. The area in which Constables Schwager and Weihs abandoned their pursuit, and in which Constable McLean arrested Mr. Boyes, is a forest. The roads are remote country roads. The defence theory would require me to consider, as a real possibility, the idea that the driver of the suspect vehicle, who physically resembled Mr. Boyes, having eluded the pursuit by Con- stables Schwager and Weihs, managed to contact Mr. Boyes at 1:10 a.m. and to persuade him to come to this rural location to take over possession of the suspect vehicle and allow the driver to make his escape, and that they were able to meet and exchange vehicles in the 20-minute interval available to them. I do not say that it is impossible, but there is nothing in the evidence to support the defence theory. That being so, I am guided by the following admonition, articulated in R. v. Wild (1970), [1971] S.C.R. 101 (S.C.C.): ... it is my opinion that the learned trial judge failed properly to apply the rule in Hodge’s case to the facts before him in that he acquitted the appellant, not because he found that there was a rational conclusion on the facts inconsistent with his guilt, but because there was, in his opinion, a conjectural conclusion which he considered might be inconsistent with his guilt. R. v. Boyes T. Gouge Prov. J. 119

15 The evidence of Constable Schwager, or of Constable Weihs, if it stood alone, would not convince me beyond a reasonable doubt that Mr. Boyes was the driver of the suspect vehicle during the pursuit by Consta- bles Schwager and Weihs, nor would the matters discussed in paragraph 14. However, when I consider all three elements of the evidence together, and I am so convinced, and I conclude that Mr. Boyes was the driver during the pursuit. 16 The elements of the offence of dangerous driving were stated in the following terms in R. v. Beatty, [2008] 1 S.C.R. 49 (S.C.C.) at paragraph 43: The Actus Reus The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”. The Mens Rea The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. I refer also to paragraph 49 of the same judgment: If the conduct does not constitute a marked departure from the standard expected of a reasonably prudent driver, there is no need to pur- sue the analysis. The offence will not have been made out. If, on the other hand, the trier of fact is convinced beyond a reasonable doubt that the objectively dangerous conduct constitutes a marked departure from the norm, the trier of fact must consider evidence about the actual state of mind of the accused, if any, to determine whether it raises a reasonable doubt about whether a reasonable person in the accused’s position would have been aware of the risk created by this 120 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

conduct. If there is no such evidence, the court may convict the accused. 17 Mr. Boyes ran a stop sign and five red lights at speeds of 70 - 80 km/hr. Such driving must necessarily be a danger to the public unless the driver knew, to a certainty, that there were no other vehicles on the roads. That is not this case. Mr. Marion submits that it cannot have been dangerous in this case because Constable Schwager followed Mr. Boyes through the stop sign and the red lights, and she agreed that she would not have done so if she had considered it to be dangerous. I do not accept the submission because: a. Constable Schwager was following Mr. Boyes. Any other motorist who saw Mr. Boyes run the stop sign or a red light would be put on alert by such extraordinary behaviour, and so would be likely to see any pursuing vehicle in time to avoid a collision with the latter. b. It was dark, and Constable Schwager’s emergency lights were on. Any other motorist would see Constable Schwager’s police cruiser in ample time to avoid a collision. The same was not true of the suspect vehicle. c. RCMP officers are intensively trained in driving skills, and are better able to avoid collisions in emergencies than most drivers. Because Mr. Boyes’ driving created a real danger to the public, the actus reus is proven. 18 To run stop signs and red lights at 70 - 80 km/hr is a marked departure from the standard of care that a reasonable person would observe in any circumstances. Put another way, no rational person would consider it safe to drive in that way. There was no evidence of Mr. Boyes’ actual state of mind. Accordingly, the requisite mens rea is proven. 19 I convict Mr. Boyes of dangerous driving. 20 It was dark throughout the relevant period. Mr. Boyes cannot have failed to see the emergency lights on the police cruisers which were pursuing him. Constable Weihs activated his siren at the inception of his pursuit. Mr. Boyes must have heard it. It necessarily follows that he deliberately failed to stop in response to the lights and siren, and that he is guilty of an offence under section 249.1 of the Criminal Code. R. v. Boyes T. Gouge Prov. J. 121

Failure to Provide a Breath Sample 21 Mr. Marion submits that I should exclude the evidence that Mr. Boyes refused to provide a breath sample because: a. Constable McLean had arrested Mr. Boyes, on a charge of dangerous driving, before Constable McLean made his ASD demand. b. Mr. Boyes was entitled to be informed of his Charter rights, and to consult legal counsel, immediately upon his arrest. c. Because Constable McLean did not read the Charter warning immediately, but rather deferred it until after he made his ASD demand, Constable McLean infringed Mr. Boyes’ Charter rights. d. The appropriate remedy for that infringement, under section 24 of the Charter, is to exclude the evidence of the events which occurred immediately after the infringement; i.e. Mr. Boyes’ failure to provide a breath sample. 22 In R. v. Suberu, [2009] 2 S.C.R. 460 (S.C.C.), McLachlin, CJ said at paragraph 42 (underlining added): Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. 23 At the time that Constable McLean made his ASD demand, Mr. Boyes was seated, in handcuffs, in the rear of the police cruiser. There were no issues of officer or public safety. There was no reason why Con- stable McLean could not have given him a Charter warning before making the ASD demand. They were less than 15 minutes’ drive from the RCMP detachment. Constable McLean could have deferred his ASD demand until he had transported Mr. Boyes to the detachment and allowed him to speak by telephone with Legal Aid duty counsel. 24 Constable McLean arrested Mr. Boyes at 01:33 hours and read him a Charter warning at 01:39 hours. I am not sure that a 6-minute delay before providing a Charter warning constitutes a failure to provide such a warning “immediately”, but will assume that it does for the purposes of this judgment. I proceed to analyze the case on the premise that, by failing to provide a Charter warning to Mr. Boyes at 01:33 hours, Constable McLean infringed Mr. Boyes’ Charter rights. 25 I am of the opinion that Constable McLean was under no obligation to make it possible for Mr. Boyes to consult counsel from the back seat 122 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

of Constable McLean’s police cruiser. It was entirely appropriate for Constable McLean to defer access to counsel until he had transported Mr. Boyes back to the detachment and had him safely lodged in cells. 26 The question is whether Constable McLean’s omission to provide Mr. Boyes with a Charter warning at 01:33 hours (which I assume, without deciding, to have been a breach of Mr. Boyes’ Charter rights) should lead to the exclusion of evidence to show that Mr. Boyes twice refused to provide a breath sample during the interval between 01:33 hours and 01:39 hours. I have concluded that I should answer the question in the negative for the following reasons: a. An infringement of a Charter right does not confer on the person whose rights were infringed a license to commit further crimes. If Mr. Boyes had assaulted Constable McLean during the interval between 01:33 and 01:39 hours, he would not be entitled to an acquittal on the assault charge because Constable McLean omitted to read him a Charter warning, or to allow him to speak with counsel, at 01:33. Refusal to provide a breath sample is as much a crime as an assault. b. A peace officer is not required to provide a Charter warning, or to allow a suspect to speak with counsel, before making an ASD demand. While the obligation to provide a breath sample is an infringement of the rights guaranteed by section 10 of the Charter, it is a justified infringement: R. v. Thomsen, [1988] 1 S.C.R. 640 (S.C.C.). If Mr. Marion’s submission were accepted, the result would be that a citizen who had not committed any other offence would not be entitled to a Charter warning or to consult counsel before being required to provide a breath sample, but a citizen like Mr. Boyes who had been arrested for another offence would be entitled to those rights. It seems anomalous to suggest that a citizen who has not committed a crime should have fewer rights than one who has. c. I must consider the three factors discussed in R. c. Cˆot´e, [2011] 3 S.C.R. 215 (S.C.C.) at paragraphs 45 - 47, as follows. The first factor is the seriousness of the state conduct in issue. In this case, Constable McLean deferred a Charter warning for 6 minutes. As- suming that to be a breach of section 10, it was not a very serious one. The second factor is the impact on Mr. Boyes’ rights. As noted above, Mr. Boyes did not have a right to a Charter warning or to the advice of counsel before being confronted with an ASD R. v. Boyes T. Gouge Prov. J. 123

demand. The delay in providing the Charter warning and access to counsel had no impact on his defence to the dangerous driving charge, which was the charge which gave rise to the right infringed. The third factor is society’s interest in procuring an adjudication of guilt or innocence on the merits, and the question is whether that interest would be best served by receiving or exclud- ing the evidence. The answer to that question is manifest. Balanc- ing the factors identified in Cˆot´e, I conclude that, assuming there to have been a Charter breach, the appropriate remedy is not to exclude the evidence of Mr. Boyes’ refusal to provide a breath sample. 27 Having ruled to be admissible Constable McLean’s evidence of Mr. Boyes’ refusal to provide a breath sample, his guilt on that charge is clearly proven. I convict Mr. Boyes of that offence. Accused convicted. 124 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

[Indexed as: R. v. Decker] Her Majesty the Queen v. John Decker Newfoundland and Labrador Provincial Court Docket: Corner Brook 1312A00888 Wayne Gorman Prov. J. Heard: August 14, 2013 Judgment: September 16, 2013 Natural resources –––– Fish and wildlife — Miscellaneous –––– In certain photographs, accused was seen operating all-terrain vehicle and pick-up truck within certain national park while not on road — Photographs also showed accused having taken driftwood from beach in park — At time, accused did not have permission of Superintendent to do so — Accused later received written permission from Superintendent to operate all-terrain vehicle or “personal vehicle” within park for purposes of retrieving fishing gear — Accused was charged with four violations of s. 24(2) of Canada National Parks Act — Accused convicted — Evidence established that accused operated motor vehicle and all-terrain vehicle in park, off of highway, and without having permit to do so — Evi- dence also established that he removed natural object without permit — Permission later provided by Superintendent did not provide excuse or justification for accused’s earlier actions — Crown had proven that accused committed actus reus of four charges laid against him — Accused had not presented any evidence of having acted pursuant to mistake of fact or having exercised all due diligence. Motor vehicles –––– Offences and penalties — Offences — Miscellane- ous –––– In certain photographs, accused was seen operating all-terrain vehicle and pick-up truck within certain national park while not on road — Photographs also showed accused having taken driftwood from beach in park — At time, accused did not have permission of Superintendent to do so — Accused later received written permission from Superintendent to operate all-terrain vehicle or “personal vehicle” within park for purposes of retrieving fishing gear — Ac- cused was charged with four violations of s. 24(2) of Canada National Parks Act — Accused convicted — Evidence established that accused operated motor vehicle and all-terrain vehicle in park, off of highway, and without having permit to do so — Evidence also established that he removed natural object without permit — Permission later provided by Superintendent did not provide excuse or justification for accused’s earlier actions — Crown had proven that accused committed actus reus of four charges laid against him — Accused had not pre- R. v. Decker Wayne Gorman Prov. J. 125

sented any evidence of having acted pursuant to mistake of fact or having exercised all due diligence. Cases considered by Wayne Gorman Prov. J.: R. v. Keough (2006), 2006 NLTD 142, 2006 CarswellNfld 261, 260 Nfld. & P.E.I.R. 278, 786 A.P.R. 278, 25 C.E.L.R. (3d) 107, [2006] N.J. No. 261 (N.L. T.D.) — referred to R. v. Murphy (1994), 114 Nfld. & P.E.I.R. 148, 356 A.P.R. 148, 1994 Car- swellNfld 49, [1994] N.J. No. 23 (Nfld. C.A.) — referred to Statutes considered: Canada National Parks Act, S.C. 2000, c. 32 s. 24(2) — considered Regulations considered: Canada National Parks Act, S.C. 2000, c. 32 National Parks General Regulations, SOR/78-213 s. 2 “flora” — considered s. 2 “natural object” — considered s. 10 — considered National Parks Highway Traffic Regulations, C.R.C., c. 1126 s. 2 “all terrain vehicle” — considered s. 2 “highway” — considered s. 2 “motor vehicle” — considered s. 3 — considered s. 3(1) — considered s. 41(1) — referred to s. 41(2) — considered

TRIAL of accused who was charged with four violations of s. 24(2) of Canada National Parks Act.

Mr. D. Singleton, for Her Majesty the Queen Mr. Decker, for himself

Wayne Gorman Prov. J.: Introduction: 1 Gros Morne National Park (the Park) is situated on the west coast of the island of Newfoundland. It is a UNESCO World Heritage Site. The boundaries of the Park include a number of communities and thus the Park must co-exist with the people who live within its boundaries. Mr. 126 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

Decker has resided in the area now encompassed by Gros Morne Na- tional Park for fifty years. His family has resided there longer. 2 Mr. Decker has been charged with four violations of section 24(2) of the Canada National Parks Act, SC 2000. It is alleged that on July 27 and August 29, 2012, Mr. Decker operated an all-terrain vehicle and a motor vehicle (a pick-up truck) within the boundaries of the Park while not on a road and without a permit or the Superintendant’s approval and that he removed flora (driftwood) from the Park, contrary to sections 3(1) and 41(2) of the National Parks Highway Traffic Regulations, CRC 1126 and section 10 of the National Parks General Regulations, SOR 78-213, thereby committing offences, contrary to section 24(2) of the Canada National Parks Act. 3 Interestingly, Mr. Decker received written permission from the Superintendant of the Park on May 3, 2013, to operate an all-terrain vehicle or a “personal vehicle” within the Park for the purposes of retrieving fishing gear. This letter appears to Mr. Decker to be inconsistent with the decision to proceed with these charges. Of course, it is the Crown’s decision to proceed or not to proceed with charges. 4 For the reasons that will follow, I have concluded that the Crown has proven beyond a reasonable doubt that Mr. Decker committed the actus reus of the offences with which he is charged. Mr. Decker has failed to establish that he acted with all due diligence or pursuant to a mistake of fact. Accordingly, convictions are entered in relation to the charges laid against him. Let me explain my reasons for this conclusion by commencing with a review of the evidence presented at the trial.

The Evidence Presented at the Trial 5 The Park’s wardens set up a motion detecting camera near the beach at Bakers Brook. This camera took photographs of Mr. Decker on July 27 and August 29, 2012. In these photographs, Mr. Decker is seen operating an all-terrain vehicle and a pick-up truck within the park. He is not on a road. The photographs also show Mr. Decker having taken driftwood from a beach in the Park. At the time, Mr. Decker did not have the permission of the Superintendant to do so. The evidence establishing this latter element of the offence was provided by a Crown witness who was in the courtroom while another Crown witness testified and after the Crown had indicated its intention to present a single witness at the trial. Though witnesses should not be present when another witness testifies, R. v. Decker Wayne Gorman Prov. J. 127

their presence does not automatically prohibit them from testifying (see R. v. Murphy (1994), 114 Nfld. & P.E.I.R. 148 (Nfld. C.A.)). 6 Mr. Decker testified on his own behalf. He conceded that he committed the actus reus of the offences with which he is charged, i.e. that he is the person shown in the photographs committing the prohibited activity. Mr. Decker did not attempt to present evidence that he acted with all due diligence to avoid having done so or that he acted pursuant to a mistake of act. Mr. Decker’s position was that the charges were unfair based upon his long standing residence within the Park; his otherwise exem- plary conduct; and the Superintendant’s later permission to do what he is now charged with having done. 7 The letter Mr. Decker received from the Superintendant of the Park is dated May 3, 2013 and states as follows: Pursuant to section 41(2) of the National Parks Highway Traffic Reg- ulations John Decker is authorized to use an ATV and/or other personal vehicle to retrieve fishing related gear that has washed ashore and into the beaches of Gros Morne National Park. Retrieval of gear should as much as possible be carried out on existing roads and trails and be carried out in a manner that does not cause damage to flora or fauna within the national park. This authorization is valid for the 2013 fishing season. 8 Mr. Decker raised issues concerning the Park’s boundaries, but in his own evidence he conceded this point. Whether or not these charges should or should not have been pursued is not an issue that is within this Court’s discretion to determine. 9 Having set out the evidence presented at the trial, let us consider the legislation and the applicable onus and standard of proof.

The Onus and Standard of Proof 10 The Crown properly concedes that the offences with which Mr. Decker is charged are strict liability offences. Thus, the Crown must prove beyond a reasonable doubt that Mr. Decker committed the actus reus of each of the offences. If the Crown can do so, Mr. Decker will be convicted of these offences unless he can establish that he acted with all due diligence or pursuant to a mistake of fact (see R. v. Keough (2006), 260 Nfld. & P.E.I.R. 278 (N.L. T.D.)). 11 Let us then consider the applicable legislation and the elements of the actus reus of the offences with which Mr. Decker is charged. 128 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

The Legislation (1) Section 3 of the National Parks Highway Traffic Regulations: 12 Section 3 of the National Parks Highway Traffic Regulations prohib- its the operation of a motor vehicle within a national park except on a highway or with a permit. It states as follows: 3(1) Subject to subsection (2), no person shall operate a motor vehicle within a park except on a highway. (2) The superintendent may issue a permit for a specified period authorizing a person to operate the motor vehicle described in the permit on a specified trail or in a specified place or area in a park. 13 A “motor vehicle” is defined in the National Parks Highway Traffic Regulations as follows: “motor vehicle” means any vehicle that is designed to be driven by any means other than by muscular power but does not include any vehicle designed to run upon rails, or to be drawn by another motor vehicle or an over-snow vehicle; (v´ehicule automobile). 14 The word “highway” is defined in section 2 of the National Parks Highway Traffic Regulations in the following manner: “highway” includes a road, street, avenue, parkway, driveway, lane, square, bridge, viaduct, trestle or other place within a park intended for use by the public for the passage or parking of vehicles; (route). 15 Thus, in order to obtain a conviction pursuant to section 3 of the Na- tional Parks Highway Traffic Regulations the Crown must prove that the accused: 1. operated a motor vehicle; 2. within a park; 3. outside of a highway; and 4. without a permit to do so. 16 In this case, the Crown has proven that Mr. Decker operated a motor vehicle within the Park. The photographs establish that Mr. Decker did so off of a highway. Mr. Decker concedes that he did not have a permit to do so at the time. Thus, the Crown has proven that Mr. Decker committed the actus reus of the offence charged pursuant to section 3 of the National Parks Highway Traffic Regulations. R. v. Decker Wayne Gorman Prov. J. 129

(2) Section 41(2) of the National Parks Highway Traffic Regulations: 17 Section 41(2) of the National Parks Highway Traffic Regulations pro- hibits the use of an all-terrain vehicle in a national park. It states: 41(2) No person shall operate an all-terrain vehicle in a park except for purposes of administration of the park and with the permission of the superintendent. 18 An “all terrain vehicle” is defined in the National Parks Highway Traffic Regulations in the following manner: “all terrain vehicle” means a tracked, wheeled or air-cushioned motor vehicle designed for travel over trails, marshlands, muskeg, sand, snow or trackless terrain; (v´ehicule tout terrain). 19 Thus, in order to obtain a conviction pursuant to section 41(2) of the National Parks Highway Traffic Regulations the Crown must prove that the accused: 1. operated an all terrain vehicle within a park; 2. other than for the purposes of the administration of the park; and 3. without the permission of the park superintendant. 20 In this case, the Crown has proven that Mr. Decker operated an all terrain vehicle within the Park. Mr. Decker concedes that he was not acting for the purposes of the administration of the Park and that he did not have the permission of the Superintendant to do so at the time. Thus, the Crown has proven that Mr. Decker committed the actus reus of the two offences charged pursuant to section 41(1) of the National Parks High- way Traffic Regulations.

(3) Section 10 of the National Parks General Regulations: 21 Section 10 of the National Parks General Regulations makes it an offence to remove, deface, damage or destroy any flora or natural object within a national park, except with a permit. It states as follows: No person shall remove, deface, damage or destroy any flora or natural objects in a Park except in accordance with a permit issued under subsection 11(1) or 12(1). 22 “Flora” is defined in section 2 of the National Parks General Regula- tions as meaning “any plant matter, living or dead, and includes fungi and moulds.” 130 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

23 “Natural object” is defined in the National Parks General Regula- tions as follows: “natural object” means any natural material, soil, sand, gravel, rock, mineral, fossil or other object of natural phenomenon not included within the terms flora and fauna that is located within a Park; (ma- ti`eres naturelles). 24 Thus, in order to obtain a conviction pursuant to section 10 of the National Parks General Regulations the Crown must prove that the accused: 1. removed, defaced, damaged or destroyed any flora or natural objects in a park; and 2. without having a permit issued under subsection 11(1) or 12(1) of the National Parks General Regulations. 25 In this case, the Crown has proven that Mr. Decker removed a natural object from the Park and he concedes that he did not have a permit to do so. Thus, the Crown has proven that Mr. Decker committed the actus reus of the offence created by section 10 of the National Parks General Regulations.

(4) Section 24(2) of the Canada National Parks Act: 26 Section 24(2) of the Canada National Parks Act states that a contra- vention of a regulation constitutes an offence: Every person who contravenes any provision of the regulations, other than a provision designated by regulations made under paragraph 16(1)(y), any condition of a permit, licence or other authorizing instrument issued under the regulations or under subsection 41.1(3) and (4), or any order or direction given by a superintendent, park warden or enforcement officer under subsection 41.1(3) or (4), is guilty of an offence...

Analysis 27 The evidence establishes that on July 27 and August 29, 2012, Mr. Decker operated a motor vehicle and an all-terrain vehicle in Gros Morne National Park, off of a highway, and without having a permit to do so. The evidence also establishes that he removed a natural object without a permit. The permission provided in May of 2013, does not provide an excuse or justification for Mr. Decker’s earlier actions. Thus, the Crown has proven that Mr. Decker committed the actus reus of the four charges laid against him. Mr. Decker has not presented any evidence of having R. v. Decker Wayne Gorman Prov. J. 131

acted pursuant to a mistake of fact or having exercised all due diligence. The latter permission of the Superintendent to commit these acts does not provide retroactive justification. Thus, convictions must be entered.

Conclusion 28 For the reasons provided, Mr. Decker is convicted of the four charges laid against him. 29 Judgment accordingly. Accused convicted. 132 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

[Indexed as: R. v. Douale] Her Majesty the Queen, Respondent and Warsame Douale, Applicant Ontario Court of Justice Docket: 12-01084 2013 ONCJ 436 Susan C. MacLean J. Heard: July 3, 2013 Judgment: July 18, 2013 Criminal law –––– Charter of Rights and Freedoms — Right to be tried within reasonable time [s. 11(b)] — Pre-trial delay –––– Accused was charged with impaired driving and driving “over 80” — Matter was not reached on first trial date of April 24, 2013, so trial dates were rescheduled to September 3 and 27, 2013 — Total delay from offence date until scheduled end of trial was 15 months and 25 days — Accused applied for stay of proceedings — Application dismissed — There was no breach of s. 11(b) of Canadian Charter of Rights and Freedoms — Delay did not compromise trial fairness or materially affect accused’s liberty or security of person — Eight months allocated to institutional/systemic delay; if additional seven weeks of preparation time were deducted, total systemic delay would be only six months and one week, well within guidelines — Trial date was capable of being and was in fact set with final disclosure issue relating to Approved Screening Device remaining outstanding — If defence was concerned about delay, trial date should have been set and any disagreement about disclosure should have been subject of application before trial judge in advance of trial; resulting delays for acting otherwise were attributable to defence — Delay from June 28 to September 3, 2013 attributed to defence, because matter would have proceeded on June 28 but for accused’s misstatement that he had exam that day — Prejudice to accused was due to charges, not delay itself. Cases considered by Susan C. MacLean J.: R. v. Askov (1990), 79 C.R. (3d) 273, 59 C.C.C. (3d) 449, 49 C.R.R. 1, 74 D.L.R. (4th) 355, 75 O.R. (2d) 673, [1990] 2 S.C.R. 1199, 113 N.R. 241, 42 O.A.C. 81, 1990 CarswellOnt 111, 1990 CarswellOnt 1005, [1990] S.C.J. No. 106 (S.C.C.) — referred to R. v. Barnes (2003), 2003 CarswellOnt 2861, [2003] O.J. No. 3217 (Ont. C.J.) — considered R. v. Douale 133

R. v. Batte (2000), 34 C.R. (5th) 263, 145 C.C.C. (3d) 498, 76 C.R.R. (2d) 189, (sub nom. R. v. W.B.) 133 O.A.C. 3, 2000 CarswellOnt 2114, (sub nom. R. v. W.B.) [2000] O.J. No. 2186 (Ont. C.A.) — considered R. v. Bennett (1991), 3 O.R. (3d) 193, 6 C.R. (4th) 22, 7 C.R.R. (2d) 145, 64 C.C.C. (3d) 449, 46 O.A.C. 99, 1991 CarswellOnt 96, [1991] O.J. No. 884 (Ont. C.A.) — considered R. v. G. (K.) (2009), 2009 ONCA 131, 247 O.A.C. 4, 243 C.C.C. (3d) 186, 2009 CarswellOnt 673, [2009] O.J. No. 540 (Ont. C.A.) — considered R. v. Godin (2009), 192 C.R.R. (2d) 184, 67 C.R. (6th) 95, 389 N.R. 1, 245 C.C.C. (3d) 271, [2009] 2 S.C.R. 3, 2009 CarswellOnt 3100, 2009 Carswell- Ont 3101, 2009 SCC 26, 309 D.L.R. (4th) 149, 252 O.A.C. 377, [2009] S.C.J. No. 26 (S.C.C.) — considered R. v. Kovacs-Tatar (2004), 2004 CarswellOnt 4805, 192 O.A.C. 268, 73 O.R. (3d) 161, 192 C.C.C. (3d) 91, 124 C.R.R. (2d) 164, [2004] O.J. No. 4756 (Ont. C.A.) — considered R. v. Lahiry (2011), 2011 CarswellOnt 12516, 2011 ONSC 6780, 283 C.C.C. (3d) 525, 90 C.R. (6th) 90, 244 C.R.R. (2d) 248, 109 O.R. (3d) 187, 108 O.R. (3d) 187, [2011] O.J. No. 5071 (Ont. S.C.J.) — considered R. v. Malcolm (2008), 2008 CarswellOnt 6946, 181 C.R.R. (2d) 61, 240 C.C.C. (3d) 213, [2008] O.J. No. 4665 (Ont. S.C.J.) — followed R. v. Mills (1986), (sub nom. Mills v. R.) 29 D.L.R. (4th) 161, (sub nom. Mills v. R.) 67 N.R. 241, 16 O.A.C. 81, 52 C.R. (3d) 1, (sub nom. Mills v. R.) 21 C.R.R. 76, (sub nom. Mills v. R.) [1986] 1 S.C.R. 863, (sub nom. Mills v. R.) 26 C.C.C. (3d) 481, (sub nom. Mills v. R.) 58 O.R. (2d) 544 (note), 1986 CarswellOnt 1716, 1986 CarswellOnt 116, EYB 1986-67691, [1986] S.C.J. No. 39 (S.C.C.) — referred to R. v. Morin (1992), 12 C.R. (4th) 1, 71 C.C.C. (3d) 1, 134 N.R. 321, 8 C.R.R. (2d) 193, 53 O.A.C. 241, [1992] 1 S.C.R. 771, 1992 CarswellOnt 984, 1992 CarswellOnt 75, EYB 1992-67508, [1992] S.C.J. No. 25 (S.C.C.) — followed R. v. Nadarajah (2009), 245 O.A.C. 243, 242 C.C.C. (3d) 215, 2009 ONCA 118, 185 C.R.R. (2d) 172, 2009 CarswellOnt 629, [2009] O.J. No. 493 (Ont. C.A.) — considered R. v. Qureshi (2004), 192 O.A.C. 50, 190 C.C.C. (3d) 453, 27 C.R. (6th) 142, 2004 CarswellOnt 4745, 123 C.R.R. (2d) 311, [2004] O.J. No. 4711, [2004] O.J. No. 2004 (Ont. C.A.) — considered R. v. Singh (2013), 2013 ONCJ 312, 2013 CarswellOnt 7615, [2013] O.J. No. 2640 (Ont. C.J.) — considered R. v. Sychterz (2005), 2005 CarswellOnt 2732, [2005] O.J. No. 2722 (Ont. S.C.J.) — considered R. v. Tran (2012), 2012 ONCA 18, 2012 CarswellOnt 509, 287 O.A.C. 94, 251 C.R.R. (2d) 201, 288 C.C.C. (3d) 177, [2012] O.J. No. 83 (Ont. C.A.) — considered 134 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Generally — referred to s. 7 — considered s. 8 — considered s. 10(b) — considered s. 11(b) — considered s. 24(1) — referred to s. 24(2) — considered

APPLICATION by accused for stay of proceedings.

Mr. Michael Malleson, for Crown / Respondent Mr. Michael Engel, for Defendant / Applicant

Susan C. MacLean J.:

1 The Defendant/Applicant, Warsame Douale, submits that his rights pursuant to section 11(b) of the Canadian Charter of Rights and Free- doms have been infringed and he has applied for a stay of proceedings pursuant to section 24(1). The Application was heard two months prior to trial on July 3, 2013. On July 18, 2013 the parties were advised that this Charter Application is dismissed, and that my Reasons for doing so would be released within a few weeks. For the following reasons, I dismiss this Application and direct that the trial proceed as scheduled.

Overview of the Case and Complexity of Issues 2 Warsame Douale was arrested by the Ontario Provincial Police on June 2, 2012 and charged with two offences: 1) impaired care or control and 2) having the care or control of a motor vehicle while he was over 80 mgms. The matter could not be reached on the first trial date of April 24, 2013 and it is now scheduled to be heard on September 3 and 27, 2013. The total delay from the offence date until the trial is to be completed is 15 months and 25 days, and this length of time warrants an inquiry by the Court. A chart summarizing the history of the dates and how the delay in this case is attributed can be found in Appendix A at the conclusion of these Reasons. A detailed analysis of these issues appears below under the sub-heading “History of Dates in the Proceedings and How the Delay in this Case is Attributed”. The prejudice suffered by Mr. Douale is considered under a separate heading. R. v. Douale Susan C. MacLean J. 135

3 According to the materials filed in support of applications being brought at trial as well as discussions with Counsel during submissions, the following information is known about the trial issues. Mr. Douale was involved in a serious, single motor vehicle accident on Highway 401 when he claims that he fell asleep at the wheel. The vehicle rolled several times, eventually coming to rest on its roof. After extricating himself from the wreckage, he remained at the scene and awaited the arrival of the police. It is the Crown’s position that this accident was caused because Mr. Douale was impaired by alcohol. At the roadside Mr. Douale admitted he was the driver of the vehicle. Based on the officer’s observations he administered an Approved Screening Device which Mr. Douale failed, providing grounds for the breath demand for the Intoxilyzer. Mr. Douale was read his Rights to Counsel at the scene and believed that his lawyer was in bed, so he said he did not want to call him. Once he got back to the police station he spoke with Duty Counsel before providing the breath samples. After providing those samples he was charged with Over 80 mgms. I do not know yet what the breath readings were. He was also charged with Impaired Care or Control. 4 For the trial, the Defence has filed a significant amount of material in support of three Applications to exclude evidence for alleged violations of Mr. Douale’s rights under the Canadian Charter of Rights and Free- doms. Firstly, it is argued that s. 7 was breached when he made statements at the roadside admitting that he was the driver, which he claims he felt compelled by statute to provide to the arresting officer. It is argued that without this admission that the officer would not have had grounds to make the breath demand. Secondly, is argued that his s. 8 rights were violated since the breath samples were obtained without a warrant and without reasonable grounds for the demand. There is a third Application alleging that Mr. Douale’s s. 10(b) rights to counsel were infringed with respect to his right to counsel of choice, and that the provision of Duty Counsel was not sufficient to constitute a waiver of this right. If any of these rights are found to have been breached, there will be the additional issue of determining whether pursuant to s. 24(2) the evidence should be excluded. 5 I do not know how many police witnesses will testify. Given the nature of the Charter applications, the Defendant may testify on the Char- ter Applications. If they are dismissed, the accused may also testify on the trial with respect to the impairment issue. 136 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

6 Up until July 3, 2013 when this s. 11(b) Application was argued, both the Crown and Defence had estimated that the trial would take one day. On July 3rd, after I reviewed the issues to be litigated at trial, including the three Charter Applications, the Crown and Defence agreed that they had underestimated the time which will be required to try this matter. It was agreed that the time estimate should be doubled, and that this matter will now take approximately two full days, including submissions and Charter rulings as well as final submissions and Judgment, should the Charter Applications be dismissed. Given the issues to be litigated and the length of time required to do so, this is not a simple matter and it has some complexity to it.

The Principles to Apply in Relation to s. 11(b) of the Charter 7 Section 11(b) of the Charter provides that “any person charged with an offence has the right ... to be tried within a reasonable time.” In R. v. Morin, [1992] S.C.J. No. 25 (S.C.C.), the majority of the Supreme Court of Canada held that the primary purpose of the provision is the protection of the rights of the accused to security of the person, liberty and a fair trial. Speaking for the majority, Justice Sopinka stated at paragraph 28 that: The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh. Justice Sopinka also recognized a secondary societal interest that is protected by section 11(b), namely, that those accused of crimes be brought to trial and dealt with according to law. In assessing delay, the Court must consider society’s interest in having the guilt or innocence of its members adjudged on the merits of the case. There is a “collective societal interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”. As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. (See Morin, supra, at paragraph 30) 8 It is settled law that when a violation of s. 11(b) has been established that a stay of proceedings is the minimum remedy. Justice Arbour in R. v. Bennett, [1991] O.J. No. 884 (Ont. C.A.) observed that “a judicial stay of R. v. Douale Susan C. MacLean J. 137

proceedings is the most powerful remedy available to sanction the infringement of the constitutional rights of an accused under s. 24(1) of the Charter” (at paragraph 43) and continued at paragraph 44 that, Both at common law and under the Charter, stays of proceedings for abuse of process have been granted sparingly, and only in the “clearest of cases”. A stay is tantamount to an acquittal in that it effectively brings the proceedings to a final conclusion in favour of the accused... By granting a stay, the Court, in effect stands between the accused and the state to prevent what otherwise would be a just resolution, on the merits of an allegation of criminal conduct. 9 The purposes of s. 11(b) and the principles to be considered in addressing it are well summarized by Justice Durno in paragraphs 23 to 28 of R. v. Sychterz, [2005] O.J. No. 2722 (Ont. S.C.J.) as follows: 23 The purpose of s. 11(b) is to expedite trials and minimize prejudice, not avoid trials on the merits: R. v. Morin, [1992] 1 S.C.R. 771, 71 C.C.C.(3d) 1 at p. 24 (S.C.C.). In R. v. Qureshi, Khan and Giavorpoulos [2004] O.J. No. 4711 (Ont. C.A.), Laskin J.A. summarized the legal framework for s. 11 (b) applications. The section aims to protect the individual rights of the accused, as well as the rights of society. It protects three individual rights: the accused’s right to security of the person, by minimizing the anxiety and stigma of criminal proceedings; it protects the accused’s right to liberty, by minimizing the effects of pre-trial custody or restrictive bail terms; and it protects the accused’s right to a fair trial, by ensuring that the proceedings occur while evidence is fresh and available, citing Morin. 24 Section 11(b) also seeks to protect two societal rights. First, it protects the public’s interest in having laws enforced, by having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(b) seeks to protect the public’s interest in having those accused of crimes dealt with fairly, citing R. v. MacDougall, [1998] 3 S.C.R. 45, 128 C.C.C.(3d) 483 (S.C.C.) at p. 496. As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial: Morin, p. 13. 25 The determination of whether s. 11(b) has been infringed requires the court to balance the individual and societal goals with the length and causes of the delay. The section is framed in terms of reasonableness, not whether the delay was of a desirable length: R. v. Seeg- miller, [2004] O.J. No. 5004 (Ont. C.A.) (QL) para. 30, leave to appeal refused, [2005] S.C.C.A. No. 64. 26 Courts have refrained from creating limitation periods for certain types of offences, leaving judges to exercise judgment, having regard 138 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

to the factors noted below. The exercise was described by Sopinka J. in Morin as follows: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical formula but rather by a judicial determination balancing the interests which the section is designed to protect against the factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra [R. v. Smith, [1989] 2 S.C.R. 1120, 52 C.C.C.(3d) 97], “[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable. 27 While the trial judge may not be required to specifically mention that she or he has considered society’s interest in the prosecution proceeding, it must be clear from the reasons that that vital consideration has been taken into account. The failure to do so is an error in principle: Kovacs-Tatar, para 5; Qureshi, para. 41. 28 Four factors are to be considered: the length of the delay; waiver of time periods; reasons for the delay, including inherent time requirements, actions of the accused, actions of the Crown, other reasons for the delay, and; prejudice to the accused: Qureshi, supra at par 10. 10 The Ontario Court of Appeal in R. v. Batte (2000), 145 C.C.C. (3d) 498 (Ont. C.A.) at paragraph 55 confirmed that determining an issue of this kind is not a mathematical exercise. The length of delay begins from the date of the charge to the scheduled date of the trial (see Morin, supra). The decision as to whether s. 11(b) has been infringed by that delay is not to be made “by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.” Some delay is inevitable. The question is when is it unreasonable? That question as to whether the Defendant was tried within a reasonable time is to be determined by considering and balancing the following factors (see Morin at paragraph 31): 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (a) inherent time requirements of the case; R. v. Douale Susan C. MacLean J. 139

(b) actions of the accused; (c) actions of the Crown; (d) limits on institutional resources; and (e) other reasons for the delay; 4. prejudice to the accused. 11 All prosecutions have certain inherent time requirements which lead to delay; these include the first appearance, retaining counsel, disclosure, and the resolution meeting. This period is to be considered neutral. Inher- ent time requirements may be extended in cases that are more complex. The actions of the parties that cause delay may also be relevant. (See Morin at paragraphs 33 to 46). In the Ontario Summary Convictions Ap- peal case of R. v. Sychterz, [2005] O.J. No. 2722 (Ont. S.C.J.) at paragraph 74 the appellate court indicated that any delays due to activities such as obtaining disclosure, retaining counsel, attending resolution meetings and Judicial pre-trial conferences, should be allocated as part of the inherent time requirements of the case. 12 The inherent time requirements of a case must include a consideration of whether adequate time was set aside for the trial in the first place. This is very important in considering Mr. Douale’s Application, because even if the trial had commenced on April 24, 2013, it would not have been completed that day and one additional day of trial time would have been required. A additional delay of some sort would have been inevitable, since the new 2-day estimate of trial time was not arrived at until I discussed the matter with both Counsel on July 3, 2013. This case was never judicially pre-tried because Counsel had estimated it as requiring only one day. Had a longer estimate been forecast, a judicial pre-trial would have been mandatory in Durham Region. 13 The issue of inadequate trial time being estimated by Counsel was addressed by Justice Laskin in R. v. Qureshi, [2004] O.J. No. 2004 (Ont. C.A.) in paragraph 27 as follows: [27] The trial judge failed to account for the inherent time requirements of the case in four ways. His failure to do so is reviewable on a standard of correctness. See R. v. Chatwell (1998), 122 C.C.C. (3d) 162 at para. 10 (Ont.C.A.)... (ii) The second error relates to counsels’ time estimate for the preliminary inquiry. The Crown first estimated the preliminary would last three days, but later revised his estimate downward to accord with that of defence counsel. When the lawyers appeared on April 16, 140 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

1999, to set a hearing date, they all agreed the preliminary would take three-quarters of a day. They fixed September 9, 1999. As the trial judge recognized, three-quarters of a day proved to be a “gross underestimate”. However, the trial judge did not properly characterize the consequences of the underestimate. Here, the judgment of Doherty J.A. in Allen at p. 348 is controlling. There, my colleague makes two points relevant to this appeal: the inherent time requirements can include adjournments required to find additional court time when the initial time estimates proved inaccurate and these inherent time requirements are considered neutral. In making these points, Doherty J.A. emphasized that when a case is not completed within the time estimated, its continuation must recognize the legitimate demands of other cases in the system on both counsel and the court: ... When the preliminary hearing did not finish on September 9, 1999, it was adjourned to October 27, 1999, then further adjourned for two more hearing days on February 17 and 18, 2000, — to this point a total period for the preliminary of five and one-quarter months. Ide- ally, as this court said in Satkunananthan, once a preliminary hearing goes beyond its estimated time all participants should try to schedule its completion as soon as possible, preferably on consec- utive days. That did not happen here. Thus, part of the five and one- quarter months should be assigned to institutional delay. Consistent with Allen, however, part of the period should also be characterized as neutral, part of the inherent time requirements of the case. I would assign two months to institutional delay and three and one-quarter months to the inherent time requirements of the case. [Emphasis added by the Court] 14 This issue was addressed again by the Ontario Court of Appeal in R. v. Tran, 2012 ONCA 18 (Ont. C.A.): 56 The following comments from para. 27 of R. v. Allen 1996 CanLII 4011 (ON CA), (1996), 110 C.C.C. (3d) 331 (Ont. C.A.), are particularly helpful: When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete that case: R. v. Morin, supra, at p. 16. Those time requirements can include adjournments neces- sitated by the need to find additional court time when initial time estimates prove inaccurate: R. v. Hawkins reflex, (1991), 6 O.R. (3d) 724 at 728 (C.A.), aff’d, 1992 CanLII R. v. Douale Susan C. MacLean J. 141

42 (SCC), (1992), 11 O.R. (3d) 64 (S.C.C.); R. v. Philip reflex, (1993), 80 C.C.C. (3d) 167 at 172-73 (Ont. C.A.). The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b) calculus. The recognition and treatment of such inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources. 57 In this case, in my view, half of the four-month adjournment period should be allocated to the inherent time requirements of the case and half should be allocated to institutional delay. 58 The trial was not completed within the originally allocated time frame plus the better part of an extra day made available by the court because the defence underestimated the trial time by more than a full day. When it became clear that the trial would not finish within the originally estimated time-frame, the court made a full extra day available within three days (September 16, 2010) and offered two additional continuation dates within two weeks (September 30, 2010 and October 1, 2010). Unfortunately, neither of those dates were available to counsel. 59 When it appeared likely that the extra time made available on September 16, 2010 would be insufficient to complete the trial, the Crown made an additional day available (September 28, 2010) by reprioritizing other cases. Defence counsel had said this day was available only a few days previously but this was no longer the case by September 16, 2010. The court also offered two half days within a month of September 28, 2010 (October 18 and 28, 2010) and another full day within a month after that (November 22, 2010). Defence counsel were unable to make themselves available. 60 Although the number of additional dates offered by the Crown and the court between September 16, 2010 and November 22, 2010 was limited, the challenges involved in rescheduling a case in the Ontario Court of Justice in the Greater Metropolitan Toronto Area once a trial judge has become seized of the matter are not insignificant. Where an additional full day is required, a delay of one to two 142 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

months is not unreasonable for an out-of-custody matter provided reasonable efforts are made. [Emphasis added by the Court] 15 As my colleague, Justice J. De Filippis observed in R. v. Singh [2013 CarswellOnt 7615 (Ont. C.J.)], (unreported, June 7, 2013): The final sentence in paragraph 60 of Tran suggests that if a trial is not completed as scheduled, a continuation of up to one day should be scheduled within one to two months. As matters are presently or- ganized in Durham Region, this presents a significant challenge for the Court; out of custody cases are scheduled many months in advance and if not completed in the estimated time, it is difficult to find a full day within 60 days to continue the matter. Moreover, many experienced Defence counsel also book cases months in advance and may experience similar difficulties. In any event, as Tran recognizes, a system of one case per judge is not feasible. In a busy jurisdiction such as this one, courts are routinely overbooked to ensure that resources are efficiently used when trials do not proceed as scheduled — as can happen, for example, due to illness of a witness, counsel, or the judge. Tran also underscores the importance of accurate estimates of trial length. 16 Defence Counsel argues on behalf of Mr. Douale that part of the delay in this case was the refusal of the Crown to provide materials relating to the Approved Screening Device [see further discussion about this disclosure request under “History of Dates” below]. The Crown argues that it made timely disclosure of all relevant material, and on a principled basis, declined to provide the remaining materials as being irrelevant while also inviting Defence Counsel to bring an application for disclosure before the trial judge if he disagreed. When looking at delayed disclosure it is important to consider the comments of the Ontario Court of Appeal in R. v. Kovacs-Tatar, [2004] O.J. No. 4756 (Ont. C.A.). At paragraph 47 it clearly states that a Court may determine that Counsel has not acted reasonably in insisting that he or she receive all disclosure before setting a trial date. The Court of Appeal indicated that while there is a continuing obligation on the Crown to make disclosure, the Crown is not obliged to disclose every last bit of evidence before a trial date is set. The Defence does not give up any “Stinchcombe rights” by agreeing to set a trial date. 17 Those principles apply in this case to the issue of Mr. Douale. The trial date was capable of being and was in fact set with that final disclosure issue relating to the Approved Screening Device remaining out- R. v. Douale Susan C. MacLean J. 143

standing. That type of issue could be sorted out in the interim and if necessary be resolved, as suggested by the Crown to Mr. Engel, by bringing a disclosure application prior to trial before the assigned trial judge. No such application has been brought in this case. 18 The Crown on this Application argues that some delay should be deducted between the set date and trial dates in Mr. Douale’s case to account for the availability of Counsel and the time required to prepare for trial. In Tran, supra, at paragraph 32, the Ontario Court of Appeal cau- tioned that in considering when institutional delay should commence the Court should be mindful about the availability of Counsel and the time required to prepare for trial: 32 Second, 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. See Morin, at pp. 791-2, 794-5, 805-806. See also Lahiry, at paras. 25-37, citing Morin, R. v. Sharma, [1992] 1 S.C.R. 814, R. v. M.(N.N.) (2006), 209 C.C.C. (3d) 436 (C.A.), Schertzer, R. v. Meis- ner (2003), 57 W.C.B. (2d) 477 (Ont. S.C.), and R. v. Khan, 2011 ONCA 173, 277 O.A.C. 165. ... 38 Turning to the approximately eight-month delay between the judicial pre-trial and the commencement of the trial, once again, the trial judge failed to take account of the time required for counsel to clear their calendar and prepare. Defence counsel did not put their first available dates for even a two-and-a-half day trial on the record when target trial dates were set at the judicial pre-trial. They were not available for the early trial dates offered by the court in March 2010; nor were they available on dates offered in early August. A little more than two months later, on March 31, 2010 at the pre-trial continuation, defence counsel did not have a single day available in April or May to conduct the s. 11(b) Charter motion. Although this is entirely under-standable in terms of counsel’s busy schedules, institutional delay does not begin to run until counsel are in a position to proceed with the trial. 39 Because of defence counsel’s failure to put their first available trial dates on the record at the judicial pre-trial in January 2010, it is difficult if not impossible to determine exactly how the delay be- 144 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

tween the pre-trial and the commencement of the trial should be allocated. In the circumstances, and in the light of defence counsel’s unavailability on March 31, 2010 for a one-day s. 11(b) motion in April or May 2010, it is unrealistic to assume that they could have coordi- nated their calendars to schedule even a two-and-a-half-day trial within even a few months of the pre-trial date. 40 It must also be remembered that counsel had to prepare and serve their various Charter motions and make time to prepare for trial. In all the circumstances, I would attribute no more than three months of this eight-month time frame to institutional delay. [Emphasis added by the Court] 19 The Court in R. v. Lahiry, [2011] O.J. No. 5071 (Ont. S.C.J.), (which case was cited with approval by the Ontario Court of Appeal in Tran, supra), had also advised at paragraphs 27 and 34, that Courts should deduct some time for the preparation of a case for trial from systemic delay. Justice Code, referring to Morin, supra, stated as follows: 27 In other words, Sopinka J. allocated about one month as time for counsel to prepare and make themselves available for trial, after setting the trial date. Sopinka J.’s judgment in R. v. Sharma (1992), 71 C.C.C. (3d) 184 at pp. 193-4 (S.C.C.) is to the same effect. The entire period, from the set date appearance to the trial date in that case, was just under twelve months. However, Sopinka J. held that only nine months was systemic delay. He deducted three months because systemic delay runs “from the time when the parties were ready for trial” and he was not prepared to infer that they were immediately ready and available for trial when setting the trial date. ... 34 Finally there is no place for fictions when seeking to prove Char- ter violations. It is rarely true that counsel is immediately available for trial, when setting a date. Whenever counsel take on a new case they complete various preliminary steps during the intake period. Once they have taken these steps and are ready to set a date for trial, they need to set aside sufficient time in their calendars to prepare the new case for trial and to then conduct the trial. If the case is lengthy and complex, or if counsel are very busy, it may be some considerable period of time before counsel are ready for trial. To use a simple hypothetical, if counsel has no time in his/her calendar to prepare a new case for trial and to then try it until ten months in the future, and the earliest date that the Court has available for the trial is twelve months in the future, then systemic congestion in the R. v. Douale Susan C. MacLean J. 145

Court is the cause of only two months of delay. The other ten months is delay that the accused needs, for entirely beneficial reasons, in order to allow his/her counsel of choice to prepare the case for trial and to accommodate it in an otherwise busy calendar. It is good and necessary delay that would have occurred in any event, even if the Court had earlier available dates. It is a fiction to characterize this kind of useful delay as unwarranted or unreasonable or prejudicial. [Emphasis added by the Court] 20 In considering any period of delay, the Court must be mindful that any waiver of delay must be clear and unequivocal. Consent to a trial date without any comment or explanation may amount to waiver but not if it merely acknowledges the inevitable. The Applicant, Mr. Douale De- fendant did not expressly waive any delay in this case. 21 When considering the actions of an accused person, “this aspect of the reasons for the delay should not be read as putting the “blame” on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the Accused which may have caused delay.” The court is concerned with actions of the Accused which are voluntarily undertaken. “Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc.” The Courts do not suggest that an accused should sacrifice all preliminary procedures and strategy, however if an accused chooses to take such action it will be taken into account in determining what length of delay is reasonable: see Morin, supra, at paragraph 39. In the case of Mr. Douale, for example, there were three adjournments sought by Defence Counsel who was making continuing efforts to attempt to persuade the Crown to provide disclosure of Approved Screening Device records, which the Crown had clearly advised weeks earlier that it would not give. 22 Lack of urgency on behalf of an Applicant can be demonstrated by repeated adjournments of a matter which prolong the hearing (even where those adjournment requests are reasonably sought by Counsel). These adjournments can be attributed to either the inherent time requirements of the case or to the actions of the accused or Defence Counsel that fall short of waiver: See R. v. Qureshi, [2004] O.J. No. 4711 (Ont. C.A.) at paragraph 29. A Court can determine that these unwaived time 146 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

periods are not excessive in the circumstances (see paragraph 37 in Qureshi as an example). An inference adverse to the Applicant may be made when he or she does not seek to expedite the proceedings. See paragraph 40 of Qureshi. ...throughout the many court appearances in this case, defence counsel and their clients never inquired about earlier dates and did not seek to expedite the proceedings. Overall, the record shows that the respondents demonstrated little concern about the slow pace of the litigation. 23 The time period for delay due to the limitation of institutional resources starts to run when the parties are ready for trial but cannot be accommodated by the system. In this regard, Justice Sopinka noted that “[I]t is appropriate for this Court to suggest a period of institutional delay of between 8 to 10 months as a guide to Provincial Courts.” (Morin, para 55). The guidelines are not to be treated as limitation periods. The application of these guidelines will be influenced by the absence or presence of actual prejudice; that is, additional prejudice beyond that inherent in any delay. 24 In Tran, supra, at paragraph 63 it was noted that: The Morin guideline for delay in the Ontario Court of Justice is eight to ten months. However, the guideline is just that: a guideline, not a limitation period. Deviations of several months in either direction can be justified by the presence or absence of prejudice: Mo- rin, at p. 807. [Emphasis added by the Court]

The Law with Respect to the Issue of Prejudice 25 The Ontario Court of Appeal in Tran, supra, noted at paragraph 23 that: 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. R. v. Douale Susan C. MacLean J. 147

26 In R. v. G. (K.), 2009 ONCA 131 (Ont. C.A.) the Ontario Court of Appeal cited with approval its earlier decision in R. v. Qureshi, [2004] O.J. No. 4711 (Ont. C.A.) at para. 14: Two kinds of prejudice are relevant [on a s. 11(b) application]. First, the court may infer prejudice from the delay itself and is more likely to do so the longer the delay. On the other hand, an accused’s action or inaction that shows a desire to avoid a trial on the merits may negate any inference of prejudice from the delay itself. Second, the accused or the Crown may lead evidence to show either prejudice or an absence of prejudice. 27 The right to security of the person (guaranteed under Section 11(b) of the Charter) “seeks to minimize the anxiety, concern and stigma of exposure to criminal proceedings” (see Morin, supra at paragraph 28). The Courts recognize that the prejudices suffered by all accused persons by virtue of pending criminal accusations include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, and uncertainty as to the outcome and sanction (see s R. v. Mills (1986), 26 C.C.C. (3d) 481 (S.C.C.), at 538 to 539 and R. v. Askov (1990), 59 C.C.C. (3d) 449 (S.C.C.), at 455 to 456). 28 Prejudice to the accused can be inferred from prolonged delay. “The longer the delay the more likely that such an inference will be drawn.” Prejudice can occur from adverse impact of the delay upon the accused’s ability to provide full answer and defence. Prejudice can result from an ongoing restriction on the accused’s liberty, through pre-trial custody or release conditions. (see Morin, supra at 23 to 24) 29 Specific prejudice is that which is beyond what is typically expected when a Defendant is faced with an offence. In R. v. Kovacs-Tatar, [2004] O.J. No. 4756 (Ont. C.A.) at paragraphs 32 to 33, the Court indicates that “the focus of prejudice under s. 11(b) is the prejudice flowing from a situation ‘prolonged’ by delay rather than the mere fact of being charged with a criminal offence”. The Court further indicates at paragraph 37 that the Defendant bears the responsibility of taking the initiative to alleviate the prejudice (quoting Justice Arbour in R. v. Bennett (1991), 64 C.C.C. (3d) 449 (Ont. C.A.), at 478: An accused who claims prejudice, beyond the prejudice common to most accused and inferred from any delay, is claiming an entitlement to a speedier trial than other accused in apparently similar circumstances. The only way for the system to accommodate that claim is to 148 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

hear it expressed. There comes a point...where an accused who is suffering from a special prejudice from the delay of his trial must bring his or her plight to the attention of the prosecuting authorities and the courts. 30 The significance of actual or additional prejudice was highlighted in R. v. Malcolm, [2008] O.J. No. 4665 (Ont. S.C.J.) at paragraphs 33-34. In that case Justice MacDonnell made the following observations: 33 The Supreme Court of Canada has held that the minimum remedy for a violation of s. 11(b) is a stay of proceedings: R. v. Rahey, [1987] 1 S.C.R. 588, per Lamer J., at p. 614. Identifying the precise point at which, by reason of delay, society loses the right to have serious charges determined on their merits and an accused becomes entitled to what is tantamount to a summary acquittal is a difficult and case-specific exercise. Some guidance, however, may be derived from the Supreme Court’s general jurisprudence in relation to when a stay of proceedings will be appropriate. The Court has made it plain that this “drastic remedy” is a weapon of “last resort”, to be employed only in the clearest of cases: see, e.g. R v O’Connor, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1. A stay granted for delay should not be seen as an exception to those principles but rather as a particular application of them. This suggests that the threshold for a violation of the right should be commensurate with the remedy that such a violation commands. Combining a low threshold for a violation with an automatic award of a stay would be inconsistent with the balancing that is a necessary component of the process of defining constitutional rights: see, e.g., Peter Hogg, Constitutional Law in Canada (5th), Carswell, 2007, at pp. 53-55; 64-65; R. v. Edwards, [1996] 1 S.C.R. 128, per LaForest J., concurring, at paragraph 68. 34 Given that the primary purpose of s. 11(b) is to protect the right of the accused to a fair trial, liberty, and security of the person, the primary focus of the inquiry into whether the right has been infringed should be on whether the accused has suffered any real and substantial prejudice to one or more of those interests. In the absence of such proof “the basis for the enforcement of [s. 11(b)] is seriously undermined”: R. v. Morin, supra, at paragraph 61; R. v. Cranston et al, 2008 ONCA 751, at paragraph 73. A failure to approach the analysis in this manner risks trivializing a constitutional right and eroding public confidence in the proper administration of justice. 31 In G. (K.), supra, in examining the facts of that case the Court of Appeal gives some guidance to trial courts as to how to characterize certain forms of prejudice. The elderly accused was facing historical sexual R. v. Douale Susan C. MacLean J. 149 offence cases alleged to have occurred some 30 to 34 years before his arrest. He suffered from postpolio syndrome resulting in numerous health complications that made it difficult for him to travel in the winter. With respect to prejudice, the Court of Appeal concluded that (at paragraphs 38 to 43 and 47 to 48): 38 The respondent’s physical disability and the particular stress that causes for him when he is required to travel in the winter months does not arise as the result of the criminal charges he faces, nor does it arise from any delay in bringing those charges to trial. These particular difficulties would be present even if K.G. had been tried in December 2005, shortly after the charges were laid. It does not give rise to actual prejudice. In reading the trial judge’s reasons as a whole, I accept the Crown’s submission that the trial judge did equate the respondent’s “travel prejudice” with the effects of being charged with serious criminal offences, and in so doing improperly found that actual prejudice flowed from the delay. 39 Clearly there is evidence that the fact of these charges has caused stress to the respondent and has been a source of friction between him and his wife, a fact true of anyone facing serious criminal charges. Institutional delay does not cause this stress — it can only at best prolong, or exacerbate it. The respondent was prescribed medication for stress shortly after his arrest. On his evidence, only the amount he took increased when the case was adjourned. In other words, his need for medication to deal with the stress did not arise out of the delay — at best it was somewhat exacerbated by it. 40 No issue of delay was raised before October 22, 2007. The real delay about which complaint is made amounts to some two and one- half months — from October 22, 2007 to January 7, 2008. Although the respondent mentions the continued stress of having these charges outstanding against him for this further period of time, again, it must be noted that he did not avail himself of the earlier dates offered at the time the matter was adjourned to December 3, 2007. 41 In my view, the trial judge placed too much weight on the finding of prejudice, given that the contentious delay was primarily confined to this one short period. 42 In so far as the respondent’s liberty interest is concerned, there was minimal interference in this case. The respondent was released on his Promise to Appear for both court and fingerprinting and gave an undertaking to attend court in Elliot Lake on November 15, 2005. The respondent was to advise the investigating officer of any change of address, abstain from communicating with the complainant J. H. 150 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

and to abstain from alcohol or other intoxicants, except as prescribed. The respondent filed a designation of counsel and accordingly did not personally appear — nor was he required to — on several of the occasions when his case was spoken to. He was not incarcerated, had no curfew and was not subject to any reporting requirements. 43 There is no evidence, nor is it contended, that the delay has in any way impacted on the respondent’s fair trial rights in the sense that evidence has been lost or witnesses become unavailable because of delay. ... 47 Any prejudice to the respondent by reason of the delay here was slight. In the circumstances it is appropriate that the guideline as expressed in Morin be applied to reflect this fact. 48 In the absence of any real prejudice beyond that experienced by all accused persons, and the important public interest in a trial on the merits, I am of the view that the delay in this case was not unconstitutional. 32 The issue of prejudice was also examined in R. v. Nadarajah, 2009 ONCA 118 (Ont. C.A.), released by the Ontario Court of Appeal on Feb- ruary 6, 2009. On the issue of prejudice Justice Goudge wrote at paragraph 29: 29 The application judge found that the appellant had not established prejudice. While the appellant tendered no evidence of prejudice to his defence, his affidavit recited anxiety and stress, and adverse effects on his education and his ability to attend family events due to the delay. While this constituted some prejudice, it could not be said to be more than modest. For five months of the delay, the appellant was incarcerated on other charges. Up until that happened, the terms of his release permitted him to continue his education and participate in family events to some degree, albeit with some inconvenience to himself and those required to accompany him. 33 In Nadarajah the Court found that there was only “modest” prejudice and concluded that there was no unreasonable delay in spite of the fact that the charges (which were serious and involving some complexity) had taken 33.3 months in total to get to trial in the Superior Court. Of the total delay 12.6 months of the 23.3 months in the Ontario Court and 6.4 of the 10 months in the Superior Court was attributed to Crown or institutional delay. In concluding that the delay in the Ontario Court was “only modestly in excess of the guidelines set for institutional delay” it is R. v. Douale Susan C. MacLean J. 151

apparent that the limited prejudice to the Appellant was an important factor (see paragraph 32): [32] I conclude that, in all the circumstance of this case, the application judge was correct in his ultimate assessment. The delay was not unreasonable. This was not the simplest of cases. It necessarily involved multiple accused. The charges were serious. The delay in the Ontario Court is only modestly in excess of the guidelines set for institutional delay by the Supreme Court of Canada. In the Supe- rior Court that guideline was not exceeded at all. And the appellant could be said to suffer only limited personal prejudice. In my opinion, the appellant’s s. 11(b) rights were not violated. This ground of appeal must be dismissed. [Emphasis added by the Court] 34 Prejudice may be inferred from the length of delay and, at some point, may be such that a stay of proceedings is required without proof of actual prejudice. However, most cases in which section 11(b) of the Charter is engaged are not of this kind; rather they invite a balancing of the delay and prejudice. In such cases, evidence of actual prejudice, suffered because of the delay, is important. Proof of significant actual prejudice will inevitably lead to stricter adherence to the guidelines. Where such proof is lacking the basis for enforcement of the Charter right is undermined. The purpose of the right is to expedite trials and minimize prejudice, not to avoid a trial on the merits.

History of Dates in the Proceedings and How the Delay in this Case is Attributed 35 As indicated earlier in these Reasons, a chart summarizing the allocation of delay in this case can be found in Appendix A at the end of this Ruling. 36 Mr. Douale was arrested on June 2, 2012 and the information was sworn to on June 13, 2012. These 11 days do not affect delay since the time starts to run from the date the information is sworn. 37 The First Appearance in court was on June 28, 2012, 15 days after the information was sworn. These 15 days are part of the usual inherent time required for a case so they are neutral. 38 By the first court appearance on June 28, 2012 [Exhibit 2.1 transcript], Mr. Douale had already consulted with his Defence Counsel, Michael Engel, (although he did not fully retain him to represent him for the trial until late October to November 1st of 2012). On June 28th, Ms. 152 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

Barbara Bristol appeared as agent for both the Defendant and his lawyer and filed a Designation Form. Disclosure was picked up and the matter was adjourned for 3 weeks to July 19, 2012 to allow Defence Counsel to review disclosure. This is part of the inherent time requirements of the case and is considered neutral time. 39 It is important to examine the correspondence in relation to disclosure when considering the reasons for delay in this case. On July 13, 2012, Defence Counsel wrote two letters to the Crown requesting additional disclosure [see Exhibit 1 Affidavit of Warsame Douale, Exhibits 1 and 2 to the Affidavit]. In the first letter he requested six items consisting of things such as maintenance and calibration logs, usage logs for six weeks, etc. relating to the Alcotest 7410 Approved Screening Device used in Mr. Douale’s case. The second letter requested 9 items relating to things such as maintenance records and logs, etc. for the Intoxilyzer 8000C used for Mr. Douale’s case, as well as “a sample of the standard alcohol solution lot used in relation to the tests pertaining to this accused”. The Crown responded in a very timely fashion by letter on July 18, 2012 [See Exhibit 1, Affidavit of Mr. Douale, Exhibit 3 to the Affi- davit], that they had already sent the Intoxilyzer disclosure by Can Par, that they were looking further into the sample of the alcohol standard, and that the Crown would not provide the requested materials relating to the Approved Screening Device on the basis that it was not relevant to the arresting officer’s state of mind [which would be relevant to his grounds for the breath sample demand] when relying upon the results. The Crown sent a follow-up letter on July 20, 2012 [see Exhibit 3, Re- spondent’s Application Record at Tab 4] advising Mr. Engel that a sample of the standard alcohol solution lot was being held at the Whitby O.P.P. station for him to pick up. Defence Counsel did not respond to any of these letters until August 20, 2012 [see Exhibit 1 Affidavit of Mr. Douale Exhibit 4 to the Affidavit] presumably because he was on vacation for some of this time period (see paragraphs below). In that letter Mr. Engel renewed his disclosure request for the Approved Screening Device materials being sought, however made no reference to the materials already provided or the sample alcohol standard being held by the O.P.P. Again, in a very timely way, Mr. Stephens on behalf of the Crown responded the very next day in a letter dated August 21, 2012 [see Ex- hibit 1 Affidavit of Mr. Douale Exhibit 5 to the Affidavit] once again explaining why the Crown was taking the position that it was not obli- gated to disclose the Approved Screening Device materials being sought. R. v. Douale Susan C. MacLean J. 153

He also invited Defence Counsel to schedule a trial date as well as a Disclosure Application in front of the trial judge to litigate the issue in dispute. Mr. Stephens stated, “We seek to have a trial set in this matter as early as possible.” Mr. Engel responded promptly to Mr. Stephens’ letter on August 23, 2012 [see Exhibit 1 Affidavit of Mr. Douale Exhibit 6 to the Affidavit] advising that he did not intend to bring a Disclosure Appli- cation prior to trial as it would put his client to additional expense. He suggested that he might apply instead for the readings to be excluded at trial based on the Crown’s refusal to provide the data being sought. No such application has been brought. Mr. Stephens responded once again on August 24, 2012 [see Exhibit 6] and elaborated on why the Crown was taking its position in refusing to provide the materials with respect to the Approved Screening Device. On November 23, 2012 Mr. Stephens also wrote to Mr. Engel [see Exhibit 3 Respondent’s Application Record at Tab 5] reminding him that the sample alcohol standard was still waiting for him at the Whitby O.P.P. station and this if it was not picked up by January 23, 2013 that it would not be kept any longer. It was finally picked up by Mr. Engel on January 7, 2013 [see Exhibit 3 Respondent’s Application Record at tab 6]. 40 On July 19, 2012 [Exhibit 2.2 transcript], Ms. Bristol appeared once again on behalf of the client and Mr. Engel. She requested an additional 3 weeks delay to August 9, 2012 because Defence Counsel had requested further disclosure relating to the maintenance and calibration of both the Approved Screening Device and Intoxilyzer Instrument, and claimed to be waiting for the Crown’s response. Mr. Saliwonchyk for the Crown advised the Court that he believed that the response had already been sent to Mr. Engel indicating that the Crown would not be providing the data from the Intoxilyzer or anything dealing with the Approved Screen- ing Device. Ms. Bristol advised the Court that Mr. Engel was away on holidays, so he might not have seen the Crown’s response on these issues. The Crown requested that a “shorter adjournment would be helpful in moving this along”. The Justice of the Peace granted the Defence request for 3 weeks, adjourning the matter to August 9, 2012, to review the response sent out by the Crown. These 21 days might be seen as Defence delay, but this time period is more properly considered as part of what was required for Defence and Crown Counsel to exchange and review correspondence concerning the disclosure requests for the records with respect to the Approved Screening Device and Intoxilyzer. This delay is due to the nature of the case and the type of disclosure being sought and 154 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

thus is properly considered to be part of the inherent time requirements of the case which I consider it to be neutral time. 41 On August 9, 2012 [Exhibit 2.3 transcript], Ms. Bristol appeared once again on behalf of both Mr. Engel and Mr. Douale. She advised the Jus- tice of the Peace that Mr. Engel was still waiting for disclosure and requested that the matter be adjourned again until August 29, 2012. Mr. Engel’s instructions to Ms. Bristol dated August 9, 2012 were, “I’m waiting for further disclosure in this case relating to some maintenance/calibration that I have requested and the Crown has agreed to provide.” Ms. Kennedy for the Crown advised that her brief indicated that the additional disclosure which the Crown was agreeing to provide [the Intoxilyzer records, etc.] had already been sent out by CANPAR courier directly to Mr. Engel on July 18, 2012, and should have been with De- fence Counsel already. Ms. Bristol advised that Mr. Engel had been away on vacation for part of July so perhaps the materials were waiting for him in his office. Ms. Bristol indicated she would follow up with Defence Counsel about the disclosure that afternoon. As indicated above, Mr. En- gel did not respond to the Crown’s letter of July 18, 2012 until August 20, 2012. The Justice of the Peace granted the Defence request to adjourn the matter to August 29, 2012. In spite of the ongoing issues about some of the disclosure (in particular with respect to the records relating to the Approved Screening Device), the Crown had provided all that they were agreeing to provide approximately 3 weeks before this date. The Crown had taken a principled approach in refusing to provide the remaining disclosure relating to the Approved Screening Device as not being relevant to the arresting officer’s grounds. If the Defence was concerned about delay, a trial date should have been set on August 9th, and any disagreement between the Crown and Defence about disclosure should have been the subject matter of an application before the Trial Judge in advance of trial. As indicated above, no such application has been brought. It is my view that the Defence should have been ready to set the trial date by August 9, 2012, and therefore I attribute the 20 day delay from August 9 to 29, 2012 to the Defence. 42 August 29, 2012 [Exhibit 2.4 transcript] was the third time that Mr. Engel requested an adjournment relating to the additional disclosure which he was seeking concerning things such as records for the Ap- proved Screening Device. Ms. Bristol appeared again on behalf of both Mr. Engel and their client. She advised the Court that, “My understanding is that Mr. Engel is involved in ongoing correspondence with the R. v. Douale Susan C. MacLean J. 155

Crown in this case, regarding disclosure, etc., as he puts it. He’s asking for September 12th, when he’ll be here to deal with this matter personally.” Mr. Boodoosingh, on behalf of the Crown, advised the Court that the Crown was in a position to set a trial date. In spite of the Crown’s indication, and without giving any reasons [although the inference is clearly for the reasons indicated by the Defence because he told the Clerk to note the reason as “Crown pre-trial” which is required to set a trial date], the Justice of the Peace adjourned the matter as requested by the Defence to September 12, 2012. In my view, this 14 day delay is clearly attributed to the Defence for the same reasons as indicated for the delay from August 9 to 29, 2012. 43 September 12, 2012 [Exhibit 2.5 transcript] was the very first time that the Defence Counsel, Mr. Engel, appeared personally for his client and was also the first time that Warsame Douale ever appeared in person on his charges. It was also the first time that the Defence was ready to set a date for trial. The earliest date offered by the Trial Coordinator was April 19th, however, Mr. Engel was not available until the second date offered of April 24, 2013 [see Exhibit 7.1 Trial Coordinator’s Record of Court Dates Offered]. This trial was set “with or without Counsel” [see Exhibit 2.5 transcript at page 3 lines 3 to 4]. A good part of this time period of 7 months and 12 days (224 days) from set date to trial is attributed to institutional/systemic delay; however, for reasons discussed below, some time period must be deducted from that delay for issues relating to the retainer of Counsel and trial preparation. 44 On September 12, 2012, Mr. Engel advised the Court that he had not yet been fully retained for trial but expected to be by late October to early November [see Exhibit 2.5 transcript page 3, lines 5 to 10] and that he would be able to confirm that on the next court date requested of No- vember 1, 2012. Mr. Engel advised the Court that he was waiting for disclosure which was data with respect to the Intoxilyzer; however, it appears that this had already sent to him on July 18, 2012. Perhaps he was referring to the sample of the standard alcohol solution that he had requested and which had been waiting to picked up from the O.P.P. since July 20, 2012 (as noted above, a reminder letter was sent to Defence Counsel about this on November 23, 2012 indicating that if it was not picked up by January 23, 2013 it would not be kept any longer; Defence Counsel finally picked it up on January 7, 2013). Mr. Engel also advised the Court that by November 1, 2012 he hoped to retrieve the balance of the disclosure that the Crown had agreed to provide [see Exhibit 2.5 tran- 156 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

script at page 3, lines 4 to 10]. This supports the Crown’s argument that the Defence was not in fact ready for trial until after November 1, 2012 since all of the disclosure that the Crown was agreeing to provide had already been provided in July or could be picked up at any time (the standard alcohol solution). 45 The Crown argues that some time should be deducted from the time period between September 12, 2012 to April 24, 2013 as time which would be required for Defence Counsel to be retained and to prepare for the trial, including the writing of Charter Applications and complying with the Notice requirements. In other words, the time between the trial date being set and when Defence Counsel would be truly “ready for trial”. On September 12, 2013 the trial date was set “with or without Counsel” because Mr. Engel had not yet been fully retained for trial. The November 1, 2012 [Exhibit 2.6 transcript] appearance was for the De- fence to confirm that Mr. Douale had in fact retained Mr. Engel for the trial date. On November 1, 2012 this was confirmed by Ms. Bristol, who once again appeared as agent for both Mr. Engel and Mr. Douale pursuant to the Designation filed. There is no additional delay caused by this appearance, but it is important nevertheless, because this was the first date that Mr. Engel was prepared to go on the record to represent Mr. Douale for his trial. I conclude that Mr. Engel would not have been in a position to represent his client at a trial before this date (he would not be “truly ready” for trial), therefore, I attribute the 50 day period from Sep- tember 12 to November 1, 2012 as inherent/neutral time. 46 While I might also consider deducting an additional 51 days or more between the set date and trial as inherent/neutral time (to reflect the estimated time for Defence Counsel to prepare for trial including the writing of Charter Application materials and complying with Notice timelines), the record is not clear to me as to when Mr. Engel would have been “truly ready” for trial and how much preparation time would be required. The record before me is silent as to how much work Mr. Engel had done to prepare for trial between the set-date and the date when he was fully retained for trial on November 1st. It would normally be the Applicant’s burden to provide that information. Since this period of time does not add to any delay, and because I am already deducting time from set-date to retainer-date, I will consider this time to be institutional/systemic delay, for this case only, because even if I do so, this case still remains within the Morin guidelines for delay in the Ontario Court of Justice. This should not, however, be taken as a precedent for other cases, be- R. v. Douale Susan C. MacLean J. 157

cause in similar circumstances in another case, I might well characterize it as neutral/inherent time as suggested by Justice Code in the case of R. v. Lahiry, supra, and the Ontario Court of Appeal in Tran, supra. If I were to deduct preparation time in addition to the retainer time, I would have deducted an additional 7 weeks and treated that as neutral time. This would be based on the three weeks that Mr. Engel indicated (during oral submissions) that it would take him to prepare the trial Charter Ap- plication materials in this case, plus 30 days to comply with the Notice provisions for service on the Crown. 47 On April 24, 2013 [Exhibit 2.7 transcript], the day set for Mr. Douale’s trial, the matter could not be reached. The matter appeared before Justice Devlin, who was sitting on the last day of a three-day fraud trial. The Crown, Mr. Malleson, had alerted Justice Devlin on the first day that Mr. Douale’s trial was scheduled for the third day and he had made efforts to see if another court would open up to take the trial, unfortunately without success. The matter had been moved to Justice Devlin’s court from another courtroom which had to be cancelled when it was discovered that a newly appointed Judge would be out of Province at a new judges’ educational program [see Exhibit 5]. This was not known at the time that Mr. Douale’s trial was originally scheduled. There is no evidence before me as to when the cancellation of that judge was first known by the Trial Coordinator’s office. It was hoped that another courtroom’s list would collapse and that Mr. Douale’s trial could be moved there. Unfortunately that opportunity never arose. 48 By the afternoon of April 24th it was apparent that Mr. Douale’s trial could not be accommodated, so Defence Counsel attended at the Trial Coordinator’s office to obtain a new trial date. He returned with a date of September 18, 2013. It is important to note that when the Crown, Mr. Malleson, became aware of this being the first date offered by the Trial Coordinator, that he very kindly offered to make attempts to look for an earlier trial date if Defence Counsel, Mr. Engel, would be willing to forward his available trial dates starting from the week after April 24th. The Crown advised Justice Devlin that “I believe there’s a very good chance that I could find a trial date earlier than this, and bring the matter forward”. Mr. Engel responded, “Well, I’ll leave it for my friend, it’s not for me to hunt and search for the earliest date. I came here prepared to deal with it today”. [See Exhibit 2.7 transcript at page 5 lines 4 to 15]. On this Application Mr. Engel advised that when he made that statement that he was frustrated with what had occurred that day. 158 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

49 When Justice Devlin was told about the September 18 th date she was concerned that there was no note from the Trial Coordinator reflecting that they had been made aware of there being a Charter s. 11(b) concern. She was also concerned that this date had been arrived at without any input from the Crown. As a result of this she sent both of the lawyers back to speak to the Trial Coordinator together to look for earlier dates. In an attempt to minimize delay, the Crown offered to double-book courts on May 1 and 13, 2013, however, the Trial Coordinator did not offer those dates to Defence Counsel. The first date that the Trial Coordi- nator could offer was June 28, 2013 [see Exhibit 7.2 Trial Coordinator’s Record of Court Dates Offered]. Justice Devlin was advised of the June 28th date but was informed that while both Crown and Defence lawyers were available that the Defence could not accept it because Mr. Douale, who is a student, “has an exam that date” (stated without any qualifica- tion) [see Exhibit 2.7 transcript at page 7, line10]. Justice Devlin clearly relied on Mr. Douale’s claim that he had an exam on June 28th when setting the next available date and added a note to that effect in red ink on the Trial Coordinator’s Record of Dates Offered [See Exhibit 2.7 at page 8, lines 13-26 and Exhibit 7.2]. For that reason alone, the new trial date was scheduled for September 3, 2013, the next date offered by the Trial Coordinator. I attribute the delay from April 24, 2013 to June 28, 2013, the earliest date offered, to institutional/systemic delay. 50 Based on the evidence as described in the paragraphs below, I attribute the delay from June 28, 2013 when the trial would have proceeded but for the exam issue, to September 3, 2013, the next date offered, to the Defence. This is because Mr. Douale did not in fact have an exam on the June date. Defence and Crown Counsel and the witnesses were all available on the June date, and it would have proceeded then but for Mr. Douale’s claim that he had an exam that day. 51 Exhibit 1 is the Affidavit of Warsame Douale dated May 30, 2013 in support of this s. 11(b) Application. Paragraph 10 of his Affidavit states in part, Although I was offered one date in late June earlier than the present re-scheduled date of September 3, 2013, I was unfortunately unable to accept that because I was concerned about a conflict with my continuing education. I had enrolled in a course at George Brown that was scheduled to run from the end of April to the end of June. Al- though I didn’t know the final date of the course in June, I expected that I’d be writing one of my four exams that day. I have attached as Exhibits my offer of enrolment and payment for the course as well as R. v. Douale Susan C. MacLean J. 159

the actual timetable which I was provided at the first day of school on April 29th. 52 While the Affidavit indicates only that Mr. Douale “expected” he would be writing one of four exams June 28, 2013 when Justice Devlin was advised of that conflict, nowhere in Mr. Douale’s Affidavit does it advise the Court on the s. 11(b) Application, that he did not in fact have an exam on June 28, 2013. Although he initially claimed that he only found out his exam schedule in June, during cross-examination on July 3, 2013, Mr. Douale admitted that by the time he swore his Affidavit on May 30, 2013 (one month after his courses had commenced), he knew that he had no exam on June 28 th. 53 Sometime after June 3, 2013 when the Affidavit was served on the Crown’s office, the Crown, Mr. Malleson, made inquiries of George Brown College to determine if the Defendant, Mr. Douale, in fact had an exam scheduled for June 28, 2013. Exhibit 3 is the Respondent’s Appli- cation Record. At tab 3 is an e-mail sent from Mr. Malleson to Mr. En- gel. The Defence has agreed that its contents can be treated as admitted facts [see Exhibit 4]. To summarize, Mr. Malleson found out three things: 1) that Warsame Douale never had an exam or any other educational commitment with George Brown College on June 28 th, 2) that he would have known the “end date” for any course when he signed up for it, and 3) that course calendars could be checked online or by telephon- ing George Brown College. Mr. Douale knew all of this information by the time he testified before me on July 3, 2013. In light of what Mr. Malleson had discovered, Mr. Douale had to explain why he had claimed to have an exam on June 28, 2013. 54 When Mr. Douale testified on this Application he was cross-examined on his May 30, 2013 Affidavit. Exhibit 8 to Mr. Douale’s Affida- vit [see Exhibit 1] is an Offer of Classroom Training dated February 9, 2013 confirming that Mr. Douale was registered for a class that started on April 29th and ended on June 21, 2013. Mr. Douale had paid $452 for his course and the receipt from George Brown College dated March 5th is Exhibit 9 to his Affidavit. Mr. Douale testified that he assumed that an exam would take place in the week after the course ended because he hadn’t taken a course with George Brown before. In Cross-Examination he agreed that all of his exams were in fact completed by the end-date of the courses, April 21, 2013 and not the week following that. Exhibit 10 to Mr. Douale’s Affidavit is his curriculum for the hours and weeks of his courses. He received this on the first day of classes on April 29, 2013. 160 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

It shows the dates for his courses as April 29 to June 21. Mr. Douale testified that he did not how to check a course calendar online. He gave evidence that even if he had phoned George Brown on April 24th to find out about his exams, in his experience it takes a week for them to respond after leaving a message on voicemail. In Cross-Examination Mr. Douale testified that on April 24th he had told Mr. Engel that he “probably” had an exam that day and that he did nothing to correct the situation when Mr. Engel told Justice Devlin that he did have an exam that day. Mr. Douale never contacted his lawyer to bring the matter forward once he found out about his true exam schedule. He said he didn’t know he should do that. Even if an honest mistake had been made about the exam on April 24th, the Defence did nothing to correct the error that had been made or bring the matter forward once it was discovered to see if the June 28th date was still available. The facts of this case are very different from those where Defence Counsel cannot proceed on a single earlier date offered by the Court: see R. v. Godin, [2009] S.C.J. No. 26 (S.C.C.) at paras. 21-23; and R. v. Barnes, [2003] O.J. No. 3217 (Ont. C.J.) at paras. 6 and 11. In those cases the Court was considering Counsel’s busy schedule and not the accused’s, especially in circumstances as here where the accused provided incorrect information to the court about his availability. For all of these reasons, I attribute the delay from June 28 to September 3, 2013 to the Defence, because the matter would have proceeded on June 28th but for Mr. Douale’s misstatement about his exam. 55 The s. 11(b) Application was scheduled at some time after April 24 th for July 3, 2013. On July 3rd, I had a detailed discussion with Crown Counsel, Mr. Malleson, and Defence Counsel, Mr. Engel, about the anticipated trial issues in this matter as outlined earlier in these Reasons. The case had been never been judicially pre-tried and was estimated by both lawyers to take 1 full day. As indicated earlier, it became readily apparent during our discussions that due to the issues to be litigated, that the original trial estimate was woefully inadequate, and that instead of the one day set aside for trial on September 3, 2013 that it would likely take two full days of trial time to complete this matter. This had never been discussed or recognized by anyone before July 3rd. I attended with both lawyers at the Trial Coordinator’s office where it became apparent that it would be very difficult to find a second day of trial within a date proximate to the first trial date since our courts are now fully booked to March of 2014. The Trial Coordinator did offer to add dates on July 19 and 24, 2013, but these were not available to Defence Counsel who R. v. Douale Susan C. MacLean J. 161

would be on vacation from July 19 to August 9, 2013 (which I accept is a very reasonable basis upon which to decline those dates). In order to minimize any further delay I gave up a Chambers (Non-Preside) Day on September 27, 2013 for the second day to continue the trial [See Exhibit 7.3 Trial Coordinator’s Record of Court Dates Offered]. Given that both Crown and Defence Counsel significantly underestimated the time required for this trial when it was first set, I consider the time from Sep- tember 3 to 27, 2013 (24 days) to be neutral time. This was conceded by Defence Counsel during submissions.

Claims of Specific Prejudice Suffered by the Applicant 56 The Applicant, Warsame Douale, filed an affidavit in support of this Application and as indicated above, testified. In his Affidavit, he claims that in addition to the usual inferred prejudice that he has suffered the following actual/specific prejudice: On April 24, 2013 I appeared for trial as scheduled at 9:30 in #403 court. Given that a whole day had been set aside for the hearing I expected my case to be the only matter on the docket. Another case was being heard however so counsel and I waited all morning hoping that some other court would open up and we can at least start the case. This was particularly important since I understood from counsel that the Crown was late in responding to our Charter materials and that he was, in the absence an explanation for the breach, not inclined to consent to their application to abridge the time for service. I have attached as an Exhibit Mr. Engel’s correspondence with the Crown expressing his position on delay. ... Over the past year that this proceeding has hung over my head, with yet another 3 months left before this case is finally expected to proceed, I have experienced considerable stress. On top of countless, sleepless nights I have also experienced anxiety during the day which seems to be increasing as the trial date finally draws near. I feel as if my life is “on hold”. As I’ve waited for this trial to come I feel very unsettled. I have dreams of becoming a journeyman, the key word “journey’. I’ve been doing my apprenticeship for three years after receiving my welder fitter diploma and I still have two and a half more years to go to achieve my dream of securing my Red Seal licence that would allow me to work anywhere in Canada or even the world. I have particular concerns about my driving privileges in the event that I don’t win the case. In order to advance to the next year it takes 1700 hours 162 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

of work and school and without a driver’s licence I don’t know what I could possibly do in the line of work because I have to be able to drive to wherever the job is, which could be as far east as Peterbor- ough and as far north as Barrie. Because of this outstanding trial I have also postponed financing a car because I am worried that if the case doesn’t wind up in my favour I’ll get stuck with payments for a vehicle I won’t even be able to drive. For the time being I’ve relied on company vehicles which limits my employment options. Apart from personal anxiety I also have concerns about caring for my family. I live at home with my mother and support her because of her inability to work due to poor health. She is 55 and presently recover- ing from breast cancer. She relies on my income to help pay the monthly household bills. In addition to my concerns about the prospects of losing my licence, I have experienced real and present losses due to the delay in this case. My education has suffered because the school that would better teach my trade and better equip me for my Red Seal exam, which has a 80% success rate, is located in Oakville. Without a car it is almost impossible to attend five days a week so I have to settle with a course closer to home at George Brown. That’s certainly more convenient but the problem is that this school only has a 60% success rate on Red Seal exams and I need a minimum of 70% to pass. I have also missed several work days going to court dates and meetings with Mr. Engel at his office to discuss the case. Consequently, I haven’t even taken a sick day even when I am ill or a vacation from work due to concerns that if I take too many days off I could get fired. My personal relationships have also suffered. Last year before I was charged I had plans to ask my girlfriend to marry me but lately we have been seeing less and less of each other because we both live so far away so we decided to break up earlier this year. Needless to say, my legal fees have also been substantial and just when I thought I had them under control I now have to deal with the additional cost associated with the second trial date I now face this coming September. Apart from the emotional turmoil that I have endured over the past year awaiting trial, Mr. Engel informs me that my right to full answer and defence has also been potentially compromised. He has explained to me for instance that in the event that I choose to testify I R. v. Douale Susan C. MacLean J. 163

can expect that my powers of recollection will be challenged due to the significant passage of time since the arrest. 57 As directed by the appellate authorities, it is important to distinguish between specific prejudice suffered as a result of delay in bringing the matter to trial, from that caused by the fact of being charged. 58 I do not doubt that Mr. Douale has experienced the usual inferred stresses as a result of these charges and that they have been aggravated by delay. There is no doubt that delay also negatively affects witnesses’ memories. I also accept that on April 24th when the trial could not be reached that it made Mr. Douale anxious and that the stresses of having these charges outstanding for a longer period of time have added strain on Mr. Douale. I accept that there is increased prejudice where a trial is not reached on the first trial date due to overbooked courts: see R. v. Jaramillo, [2002] O.J. No. 4435 (Ont. C.J.) at para. 24; and Barnes, supra, at paras. 3 and 6. Further, I accept that there are increased legal costs when delay occurs, including the costs of bringing this Application. It is important to keep in mind, however, that many of his legal costs for a two day trial would have been sustained even if the trial had been held sooner. 59 I am sympathetic to the fact that Mr. Douale has had his personal relationships suffer as a result these offences, and that he has made decisions about his education based on the possibility that he might lose his license if convicted. I conclude, however, that those issues arise as a result of being charged, and not because of any delay in having the charges come to trial. The impact of the legal proceedings on Mr. Douale’s family, job, education plans, and income stream was inevitable and has little to do with delay.

Result 60 I conclude that the delay in this case did not compromise the fairness of the trial or materially affect the Applicant’s liberty or security of the person. There is an important societal interest in having these offences tried on the merits. I conclude that at the most, only 8 months of the total 15 months and 25 days of delay is allocated to institutional/systemic delay. If I were to deduct an additional 7 weeks of preparation time, the total systemic delay would be only 6 months and 1 week. This case, therefore, meets the Supreme Court of Canada’s Morin, supra, guidelines of 8 to 10 months of acceptable delay for trials in the Ontario Court of Justice. As a result, I am of the view that the delay in this case is not 164 MOTOR VEHICLE REPORTS 49 M.V.R. (6th) unconstitutional. In all of the circumstances, and in spite of any prejudice suffered by Mr. Douale (real or inferred), I am not persuaded that the Applicant has satisfied me that section 11(b) has been infringed or that these charges should be stayed. This Application is dismissed and the trial will continue as scheduled. Application dismissed.

Appendix A — Summary of Allocation of Delay in R. v. Warsame Douale

Period: Duration: Attributed to: Reason: June 2, 2012 11 days Inher- Time from arrest to in- to June 13, [0 attrib- ent/Neutral formation being sworn. 2012 uted] No time allocated. June 13, 2012 Inher- Time from information to June 28, 15 days ent/Neutral being sworn until First 2012 Appearance. Defence Counsel partially retained. June 28, 2012 Inher- Time needed for De- to July 19, 21 days ent/Neutral fence Counsel to review 2012 disclosure. Also to write for additional disclosure concerning the Ap- proved Screening De- vice and Intoxilyzer. July 19, 2012 Inher- Defence Counsel on va- to August 9, 21 days ent/Neutral cation for part of this 2012 time. Time also needed for Defence Counsel to review and respond to the Crown’s response regarding additional disclosure being sought. R. v. Douale Susan C. MacLean J. 165

Period: Duration: Attributed to: Reason: August 9, 2012 to Au- 20 days Defence Defence Counsel sought gust 29, 2012 an adjournment to review disclosure which had in fact already been provided by the Crown on July 18, 2012. August 29, 2012 to Sep- 14 days Defence This was the third re- tember 12, quest by the Defence to 2012 adjourn the matter to seek disclosure which the Crown had by July already made clear it would not provide. NOTE: the alcohol standard solution requested by Defence on July 13, 2012, which the Crown offered to provide in a letter dated July 20, 2012, and re- minded the Defence about in a second letter on November 23, 2012 was not in fact collect- ed by the Defence at the O.P.P. station until January 7, 2013. 166 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

Period: Duration: Attributed to: Reason: Total time 224 days from Set date (7 months Institution- Delay needed by the to First Trial and 12 al/Systemic system to accommodate date: days) — AND Inher- this trial. September 12, see break- ent/Neutral Less time attributed to 2012 to April down be- Inherent/Neutral time 24, 2012 low for retainer of Counsel and preparation for De- fence to be “truly ready” for trial [see break-down below] September 12, Inher- Time between set date 2012 Novem- 50 days ent/Neutral and appearance when ber 1, 2012 Defence Counsel confirmed he had been retained for trial and was “truly ready” for trial. 51 days NOTE: This 51 days estimated as [NOTE: might be con- time for Defence Coun- these 51 sidered Inher- sel to prepare Charter November 1, days are ent/Neutral but Application materials (3 2012 to De- already is being includ- weeks) and comply cember 22, included ed under insti- with Notice Provisions 2012 in the tutional delay (30 days) so that De- next total in next entry fence was truly “ready of 175 below for trial”. days] 175 days November 1, (5 months Institution- Delay needed by the 2012 to April and 23 al/Systemic system to accommodate 24, 2013 days) this trial. R. v. Douale Susan C. MacLean J. 167

Period: Duration: Attributed to: Reason: April 24, 2013 Institution- Time needed to reac- to June 28, 65 days al/Systemic commodate the trial 2013 when trial could not be reached due to the un- expected unavailability of a particular judge on April 24, 2013 to first date offered by Trial Coordinator which was turned down due to Mr. Douale advising he had an exam. June 28, 2013 to first day of 67 days Defence Delay caused by Mr. trial on Sep- Douale giving incorrect tember 3, 2013 information (perhaps ac- cidentally) about his availability. September 3, 2013 to second (continuation) Inher- Additional 1 day of trial 24 days day of trial on ent/Neutral added on July 3, 2013 September 27, when Trial Judge di- 2013 rected that insufficient time had originally been estimated by both De- fence and Crown Coun- sel. Total Delay from Offence Date (June 2, 2012) until Trial is to be Completed (September 27, 2013) = 15 months and 25 days Total Institutional/Systemic Delay = 240 days (8 months) Total Inherent/Neutral Delay = 131 days (4 months and 13 days) Total Defence Delay = 101 days (3 months and 12 days) Total Crown Delay = 0 days 168 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

[Indexed as: R. v. Lore] Her Majesty the Queen and Pasquale Lore Ontario Court of Justice Docket: Toronto 4817 998 12 70018541 2013 ONCJ 439 W.B. Horkins J. Heard: July 22, 2013 Judgment: August 9, 2013 Criminal law –––– Charter of Rights and Freedoms — Right to be tried within reasonable time [s. 11(b)] — Pre-trial delay –––– Accused charged with impaired driving and driving with excessive alcohol — Pre-trial delay was 15 months — Accused applied for stay of proceedings based on excessive delay in breach of s. 11(b) of Canadian Charter of Rights and Freedoms — Applica- tion granted — It took five months for police to produce officer’s notes, and only two months was reasonable, so three of initial five months of delay lay at feet of Crown — Time to trial from setting of date was ten months, although experienced counsel was prepared to try case almost immediately — Combined institutional and Crown attributable delay was at least 12 months — Net delay for s. 11(b) purposes was in range of 12 months — Systemic delay and delay due to Crown conduct was well in excess of what was constitutionally tolerable — While there was no significant prejudice to accused in terms of receiving fair trial or having been under restrictive bail conditions, there was clearly significant prejudice to his constitutional right to security of person in not being overexposed to ongoing impact of criminal justice system — Excessive delay overtook societal interest of trying case — Stay of proceedings granted. Criminal law –––– Charter of Rights and Freedoms — Charter remedies [s. 24] — Stay of proceedings –––– Accused charged with impaired driving and driving with excessive alcohol — Pre-trial delay was 15 months — Accused applied for stay of proceedings based on excessive delay in breach of s. 11(b) of Canadian Charter of Rights and Freedoms — Application granted — Prejudice to accused from delay could not be characterized as extreme, but it was far from insignificant — Nature of allegations, drinking and driving, created heightened public interest in seeing allegations proceed to trial on merits — Net delay for s. 11(b) purposes was in range of 12 months — Systemic delay and delay due to Crown conduct was well in excess of what was constitutionally tolerable — While there was no significant prejudice to accused in terms of receiving fair trial or having been under restrictive bail conditions, there was clearly significant prejudice to his constitutional right to security of person in not being over- R. v. Lore W.B. Horkins J. 169

exposed to ongoing impact of criminal justice system — Excessive delay overtook societal interest of trying case — Stay of proceedings granted. Cases considered by W.B. Horkins J.: R. v. Hamilton (2010), 2010 ONCJ 465, 2010 CarswellOnt 7762, [2010] O.J. No. 4407 (Ont. C.J.) — followed R. v. Lahiry (2011), 2011 CarswellOnt 12516, 2011 ONSC 6780, 283 C.C.C. (3d) 525, 90 C.R. (6th) 90, 244 C.R.R. (2d) 248, 109 O.R. (3d) 187, 108 O.R. (3d) 187, [2011] O.J. No. 5071 (Ont. S.C.J.) — considered Statutes considered: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 s. 11(b) — considered

APPLICATION by accused for stay of proceedings due to pre-trial delay.

Robert Levan, for Crown Adam Little, for Defendant, Pasquale Lore

W.B. Horkins J.:

1 Mr. Lore stands charged with impaired driving and driving “over 80”. On the date scheduled for trial this case will be almost 15 months old. The accused has applied for a Judicial Stay of the proceedings, asserting an infringement of his rights under s. 11(b) of the Canadian Charter of Rights and Freedoms, which guarantees him a trial within a reasonable time. 2 For the reasons that follow the application is granted.

I. Introduction 3 Mr. Lore was arrested on July 17, 2012, and charged with these drinking and driving offences. The allegations are very straight forward. The accused was pulled over for speeding; some indicia of alcohol impairment were observed; the accused admitted to having had “a few beers”; he was arrested and taken in for breath testing. The tests indicated a very high blood alcohol level, in the range of 220 milligram percent; a level approaching three times the legal limit. 170 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

II. Applicable Principles 4 As to the applicable principles of law, I have instructed myself by referring to my own judgment in R. v. Hamilton, [2010] O.J. No. 4407 (Ont. C.J.), paragraphs 7 through 27, which I insert here for ease of reference: The Law [7] With respect to the law and its application, I have instructed myself in this case in accordance with my own reasons for judgment in the case of R. v. Donaldson, reported at [2010] O.J. No. 72. Taken directly from that judgment are the following paragraphs, 8-27. [8] Invoking Section 11(b) of The Canadian Charter of Rights and Freedoms stipulates that, “any person charged with an offence has the right to be tried within a reasonable time”. [9] On its face, this would seem to be a simple objective. Yet the failure of the criminal justice system to deliver consistently on this promise has generated more litigation than any other provision in The Canadian Charter of Rights and Freedoms. The seemingly perpetual lack of adequate resourcing, across the board, in the criminal justice system in this province is without doubt the principal reason for this failure. [10] At the outset of the analysis of this issue I caution myself that, as tempting as it may be for the Court to vent on the sorry state of the case management systems in this jurisdiction, this application is not the appropriate forum for “critiquing the system”. To do so risks the undignified appearance of the Court descending into some sort of judicial labour grievance. As the Court of Appeal noted recently in overturning a judicial stay in Schertzer, [2009] O.J. No. 4425, and “s. 11(b) is not the medium through which the quality of the prosecution’s performance is measured. Section 11(b) focuses exclusively on delay and the causes of that delay ...” [11] I take the point of this comment to be a reminder that the s. 11(b) analysis is case specific and that the issue is delay itself and not determining culpability for the underlying causes of that delay. The task of the Court is to identify the various operative factors in the particular case that have created delay and then judicially balance the competing interests that s. 11(b) seeks to protect. As Chief Justice McLachlin wrote in her reasons in Morin (1992), 71 C.C.C. (3d) 1, “... simply listing factors does not resolve the dilemma of a trial judge faced with an application for a stay on grounds of delay. What is important is how those factors interact and what weight is to be accorded to them.” R. v. Lore W.B. Horkins J. 171

[12] At the outset of this exercise it is also worth bearing in mind the caution voiced by Justice Cromwell in Godin, [2009] S.C.J. No. 26, that the 11(b) framework of analysis “often leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaged in this detailed analysis.” [13] Section 11(b) of The Canadian Charter of Rights and Freedoms seeks to protect both the individual rights of an accused and also the collective public interest. These are often naturally opposing interests in the criminal justice system: the individual rights of an accused and the competing broader societal interests of the community. [14] The constitutionally protected individual rights which section 11(b) seeks to ensure have essentially three aspects: 1) The right to security of the person by minimizing the anxiety and stigma of criminal proceedings; 2) The accused’s right to liberty by minimizing the effect of pre- trial custody or restrictive bail conditions; and 3) The accused’s right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available. See R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.). [15] Section 11(b) also seeks to protect two societal rights: 1) The public’s interest in having our laws enforced with some certainty by having those accused of crime brought to justice swiftly; and, 2) The public’s interest in having those accused of crime dealt with fairly. See R. v. Qureshi, [2004] O.J. No. 4711. [16] Undue delay erodes public confidence in the criminal justice system; The Charter recognizes the truth in the old adage “justice delayed is justice denied”. The Framework of Analysis [17] To determine whether s. 11(b) has been violated, the Court must consider and balance all of these individual and societal goals in the context of both the quantum of delay and the causes of delay in the particular case. In Morin, the Court set out four factors as the framework for this judicial balancing: 1. The length of the delay 2. Waiver of time periods 172 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

3. The reasons for the delay, including: a) 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 4. Prejudice to the accused. [18] For 11(b) purposes, the history of a case begins with the laying of the charge, or the swearing of the Information, and continues until the completion of the trial or until there is a final resolution. [19] The history of a typical criminal case will have two major chap- ters, firstly, the intake period leading up to the assignment of a trial date and, secondly, a period of time simply waiting for the scheduled trial date to arrive. A reasonable intake period is inherent in all cases and so considered neutral time in the 11(b) analysis. Once the intake process is complete, the case is theoretically ready for trial. The backlog of other “ready” cases already set down for trial dictates the waiting time for a trial date. The period of time from the setting of the trial date to the earliest available trial date is systemic or institutional delay. The Backlog of “Ready” Cases [20] It is a startling fact that the backlog of cases in the College Park Courthouse consists almost entirely of cases that will never actually proceed to trial. I am the administrative judge in this courthouse and, as such, I know for a fact that, during the material timeframe of this case, every week, not just some weeks, but every week, 90% of the cases forecast to last one day or more collapsed on the trial date. This is the real delay problem in the prosecution of criminal cases in this jurisdiction. I reference this aspect of the backlog problem because it is the context in which this case exists. [21] Institutional or systemic delay starts to run “when the parties are ready for trial but the system cannot accommodate them” with a trial date. Morin gave as a guideline, a range of 8 to 10 months as acceptable institutional delay. It is certainly arguable that the guidelines of constitutionally tolerable systemic delay as described in Morin are today outdated reference points. The government has had more than a quarter of a century to improve upon the systemic deficiencies that undermine the constitutional rights protected by section 11(b) of the Charter and the situation has only grown worse. R. v. Lore W.B. Horkins J. 173

[22] A 9-to 12-month systemic delay created by the backlog is a vir- tual given for every case set for trial in this courthouse. This puts every case potentially at the outer limits of the Morin guideline. In the present state of affairs then, there remains little, if any, margin for error in the intake phase if a case has any hope of being tried within the constitutionally mandated reasonable timeframe. The Intake Phase [23] Every criminal case has certain inherent time requirements, which inevitably lead to some delay. The inherent “intake” time requirement of a case is the time reasonably required to have the case ready to proceed to trial. This “intake” stage of a criminal case includes laying the charge, retention of counsel, applications for bail and other pre-trial procedures. The intake period is an inherent and necessary phase in the life of every criminal prosecution and is neutral in the 11(b) analysis, but only to the extent that it is reasonable. [24] The availability of adequate institutional resources is assumed when determining what is a constitutionally reasonable intake time and therefore neutral, for a given case. The Standard for Granting a Stay [25] Having referenced above the present institutional inadequacies as the context in which this case exists, a note on the standard of constitutional toleration is appropriate; the standard is clearly not one of perfection but rather one of reasonableness. The assessment is not whether the time to trial is optimal but rather whether the delay exceeds what is constitutionally tolerable. The Morin guideline is a marker at the boundary of what is constitutionally permissible. [26] Although the “only in the clearest of cases” test generally applies to granting the extraordinary remedy of a judicial stay, that test is clearly not appropriate in an 11(b) application. Authority for this is found in R. v. Thompson, [2009] O.J. No. 4586 (Ont. C.A.): ... For non-section 11(b) Charter breaches, a stay is the remedy of last resort to be reserved for the clearest of cases, the vast majority of which involve prejudice to the right to a fair trial or the right to make full answer and defence. However, a different test applies in the case of a breach of s. 11(b). There, a stay is the “minimal remedy” and it has been held that “[n]o flexibility exists; a stay of proceedings must be ordered”: see Rahey v. The Queen, [1987] 1 S.C.R. 588, at p. 615; R. v. Kporwodu (2005), 75 O.R. (3d) 190 (C.A.), at para. 2. Proof of actual prejudice to the rights to a fair trial and to make full answer and 174 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

defence is not invariably required. The purpose of s. 11(b) is broader. Attribution of the Intake Period Delays [27] The attribution of delay in s. 11(b) cases may often seem a rather unscientific and at times, a somewhat arbitrary exercise. The underlying cause of a troublesome pace of a prosecution can often be a mixture of problems arising from a combination of sources. What at the time might have seemed reasonable, with the benefit of hindsight, may now appear to have been an unnecessary waste of time. What to the Court may now seem unreasonable may have made bona fide good sense to counsel in the context of their instructions and a more informed and contemporary understanding of the case. I caution myself accordingly in attributing the sources of the delays in this case.

III. Chronology 5 The history of this proceeding is, as follows: 7 July 2012 Date of Offence: accused arrested 0 and released on “Form 10”; ALS in effect. 31 July 2012 Information Sworn. +2 wks 28 August 2012 1 The first appearance. The matter +6 wks was put over to September 26, 2012. 26 September 2 Disclosure incomplete; officer’s +2 mos 2012 notes, Intoxilyzer records, etc. — put over to October 17, 2012. 17 October 2012 3 Disclosure still incomplete — +3 mos Crown pursuing it — put over to November 7, 2012. 7 November 2012 4 Some further disclosure — notes +3.5 and Intoxilyzer materials still mos missing — put over to November 21, 2012. R. v. Lore W.B. Horkins J. 175

21 November 5 Disclosure complete except for +4 mos 2012 essential officer’s note — Crown pre-trial to be conducted in any event — put over to December 12, 2012. 12 December 6 Trial date set for October 8, +5 mos 2012 2013 — defence counsel available from December 18, 2013. 22 July 2013 7 Section 11(b) Application heard. +1 yr 8 October 2013 Trial date — approximately 15 +15 months from the arrest date. mos 6 The first issue joined by the parties was when to start counting time, from the date of arrest or from the date the Information was sworn? The law is usually accepted as starting from the date of the Information. Mr. Little makes a very persuasive argument that in cases such as this the starting point ought to be the date of the arrest. The date of the arrest is when this accused is in fact in jeopardy and in fact already suffering sanctions, such as the Automatic License Suspension. It strikes me as artificial to say that the accused is not yet in jeopardy when he leaves the station “charged” with impaired driving. However, the two weeks difference in this case makes insignificant difference in the final analysis, so I will defer to the accepted precedents and count from the date of the In- formation: July 3, 2012. 7 The second issue joined is how much of the intake period is neutral? It took five months to complete the simple disclosure in this case. Five months to get one final officer’s notes produced. No more than two months is reasonable; so three of the initial five months delay is due to that failure by the police; that delay lies at the feet of the Crown. 8 The gross time to trial from the setting of the date is ten months. Should this be “netted” by allowing some arbitrary period of time for the parties to be truly ready to proceed? Is that really what Justice Code meant in Lahiry1? I don’t think so. I read that case as reminding trial judges that these applications must be decided on evidence, on facts, rather than on fictional assumptions. On the facts before me, experienced counsel was prepared to try the case almost immediately. I accept that as

1R. v. Lahiry, [2011] O.J. No. 5071 (Ont. S.C.J.) 176 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

a fact. Even if reality dictates that a couple of weeks are needed to gather the witnesses and take care of other logistical issues, the system has still imposed a waiting list on the accused of at least nine months. 9 The combined institutional and Crown attributable delay is at least 12 months.

IV. Prejudice to the Accused 10 For the sake of economy I will again instruct myself from my judgment in Hamilton: [41] In the 11(b) analysis prejudice to the accused focuses on prejudice arising from delay as opposed to prejudice arising from the fact of the charges themselves. Our Court of Appeal has stressed that the issue of prejudice is an important aspect of the 11(b) analysis. The absence of meaningful prejudice can lengthen the period of delay that is constitutionally tolerable and an otherwise marginal case may tip either way on this pivotal issue. [42] The most recent guidance on this issue comes from Justice Cromwell in Godin, (supra), where he states: [30] Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin, at pp. 801-3. [31] The question of prejudice cannot be considered sep- arately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn”. ... [38] Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred. R. v. Lore W.B. Horkins J. 177

[43] S. 11(b) recognizes that the impact of the criminal justice process can be dramatic and that the injury to security of the person flowing from a sustained overexposure to the process cannot be minimized. In Mills, Chief Justice Laskin described the constitutionally protected right recognized by s. 11(b) as encompassing, “protection against overlong subjection to the vexations and vicissitudes of a pending criminal accusation. ... These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction. These forms of prejudice cannot be disregarded or minimized when assessing reasonableness of delay.” See R. v. Mills (1986), 26 C.C.C. (3d) 481 (S.C.C.) [44] The accused here put forward very little by way of prejudice beyond the natural stress, anxiety and financial burdens of being charged. He did legitimately claim that those aspects of the process have been significantly amplified by both the passage of time and the dozen or so court appearances required. [45] While much of this prejudice is initially attributable to the mere fact of the charges, there is no doubt that the passage of time significantly amplified the impact on this accused. The prejudice to the accused from the delay in this case cannot be characterized as extreme but it is far from insignificant.

V. Balancing the Interests at Stake 11 I agree with the Crown’s submission that the nature of the allegations in this case, drinking and driving, creates a heightened public interest in seeing the allegations proceed to trial on their merits. 12 This case will be 15 months old at the trial date. The “net” delay for 11(b) purposes is in the range of 12 months. Leaving aside for another day the issue of whether the 8-10 month Morin guideline is now obso- lete, the delay here that is attributable to systemic delay and Crown conduct is well in excess of what is constitutionally tolerable. 13 While there is no significant prejudice to the accused in terms of receiving a fair trial or in terms of having been under restrictive bail conditions, there is clearly significant prejudice to his constitutional right to security of the person in not being overexposed to the ongoing impact of the criminal justice system. 178 MOTOR VEHICLE REPORTS 49 M.V.R. (6th)

VI. Conclusion 14 Having balanced the competing interests, I find in favour of the accused. The excessive delay in this case overtakes the societal interest of trying this case, in any event. I order that the charges be Stayed. 15 Again, borrowing from my own comments in Hamilton at paragraph 50: This Court has a constitutional mandate to stay charges where an accused’s protected rights under s. 11(b) are violated. It is the government, not the Courts that decide the priorities in allocating public resources. The predominant reason that criminal cases in this jurisdiction take so long to get to trial is very simply because insufficient resources are made available to deal with them properly. The cost of delivering swift justice is undoubtedly steep. The cost of failing to deliver justice in a constitutionally acceptable manner is that the Courts are forced to terminate prosecutions such as this. Application granted.