* Names have been changed to protect client privacy.
IN THE MATTER OF:
HER MAJESTY THE QUEEN
RULING ON A CHARTER MOTION
BEFORE THE HONOURABLE MR. JUSTICE J. D. WAUGH
HEARD At the Ontario Courthouse,
Brockville, Ontario on May 4, 2010
J. Legrand, Ms. Counsel for the Attorney General of Ontario
R. Auger, Esq. Counsel for NATALIE
HER MAJESTY THE QUEEN AND NATALIE
HELD AT THE ONTARIO COURT OF JUSTICE
BROCKVILLE, ONTARIO, ON MAY 4, 2010
REASONS FOR RULING
WAUGH, J. (Orally)
Natalie stands charged that on November 22nd, 2008, she operated a motor vehicle with a blood alcohol concentration in excess of what the law allows under s. 253(b) of the Criminal Code of Canada.
The information indicates that her first court appearance was February the 4th, 2009. There were two more court appearances on February the 11th and March the 4th before, on the fourth court appearance of April the 1st, 2009, a one-day trial was set for October the 14th, 2009.
On October 14th, 2009, the matter was adjourned after the investigating officer and the breathalyser technician had testified in-chief only. Defence counsel was not required to cross-examine either officer because on this first trial date the investigating officer indicated to the Crown and the defence that two other police witnesses were at the scene around the time of the arrest and their evidence had not been disclosed. It was my decision, agreed upon by both Crown and defence, that the witnesses available would testify in-chief to salvage what court time we could, but I was not going to ask the defence to cross-examine either witness until he knew the complete Crown’s case that he had to meet, that might be evidenced by the statements of the two recently identified officers who were at the scene.
Transcripts of both officers’ evidence in-chief was to be available for the officers to review and defence to use during cross-examination at the continuation date. The trial matter was to continue on November 18th, 2009. A document dated November the 5th, 2009 from the trial coordinator to both Crown and defence indicated that because of an unfortunate injury suffered by the court reporter, the transcripts would not be ready for November 18th and a further adjournment would be necessitated.
On November 18th, 2009, a third trial date of February 10th, 2010 was set. On December 23rd, 2009, the investigating officer advised the Crown that he would not be available on the February date because he was undergoing surgery.
The matter went to the February 10th, 2010 trial date where a fourth trial date of September 8th, 2010 was set. Cooler heads prevailed and the matter was brought back to court on February the 17th, 2010, where fifth and sixth continuation dates were set for March 22nd, 2010 and May 4th, 2010.
Correspondence from the Crown indicated that one of the officers defence was to hear from would not be available on March 22nd, 2010, but would be available on the second date of May 4th.
On March 22nd, 2010, after hearing the cross-examination of the investigating officer and the breathalyser technician, the matter was adjourned to May 4th.
During the cross-examination of the breathalyser technician an issue arose that brought the rights to counsel into play. In the interim, counsel have filed written submissions on this s. 10(b) issue. Also in the interim, defence has brought a s.11 (b) motion based on the fact that seventeen and a half months have passed since the laying of the charge.
At the beginning of this trial, defence brought a number of Charter applications and I wish to make it very clear that I am dealing at this point in time only with the s.11 (b) motion and the right to counsel issue that arose during the cross-examination of the breathalyser technician.
Section 10 (b) rights to counsel.
The accused was given her rights to counsel at the time of her arrest and exercised that right at the police station when she spoke to duty counsel before she was turned over to the breathalyser technician. After she provided the first breath sample she was asked if she would like to do any coordination tests.
At this state, it is important to note that this young woman was just some two months and a few days past her eighteenth birthday. She was so emotional and distraught as a result of a fight with her boyfriend prior to her arrest that the investigating officer only charged her with an over eighty as he could not be sure that all of her other symptoms were not attributable to her distressed emotional state, indicated among other things by her continually crying and sobbing. It could be concluded as well that she was highly intoxicated as her first reading was over 200 milligrams of alcohol in 100 millilitres of blood.
The following is part of the exchange between the accused and the breathalyser technician that occurred after he asked her if she wanted to do coordination tests.
“Do I just walk the line?”
“Well, there’s – there’s – there’s one that’s a balance one.”
“Where I get you to stand and tilt your head back and …”
Should I contact my lawyer or is it – is it serious or, like …”
You don’t have to do it. You don’t have to, okay? So, if you don’t want to do it.”
Even though the accused had spoken to duty counsel that question should have been addressed. She was a young woman, emotionally distraught and intoxicated, asking if she should contact her lawyer, is the situation she is now in serious.
It is obvious from what followed this exchange that the breath technician felt her only concern was whether or not she should do the balance test, but that is not a conclusion he should have drawn without first addressing her reference to contacting a lawyer.
In these somewhat unique circumstances, by not addressing this issue, there has been a violation of the accused’s right to counsel when that inquiry was ignored.
Section 11 (b) rights to be tried within a reasonable time.
It is agreed obviously that seventeen and a half months is not reasonable and merits an inquiry into what caused the delay.
The trial was not completed on the first date set for trial because on that date further disclosure was provided. That the defence wished the matter to be completed expeditiously was evidenced by their agreement that the Crown witnesses present at the first trial date be examined in-chief.
No evidence was called on the second trial date because the court reporter had unfortunately been injured and the transcripts were not available. Where there is a paucity of evidence is when this injury occurred; when the Crown was made aware of it; and what, if any efforts, the Crown made to have the transcript provided by another reporter at an earlier date.
No evidence was called on the third trial date because the investigating officer had undergone shoulder surgery. There is absolutely no evidence as to when this officer was first made aware of the trial date in question, and when he was aware he would have to undergo this surgery. Again, there is no evidence as to what, if any, efforts the Crown made to expedite the matter.
A September, 2010 trial date was quickly abandoned by the Crown, but the first date where evidence was again called was March 22nd, 2010 and on that date an officer that at that time defence wished to examine was not going to be available.
This brings us to today, May 4th, 2010, seventeen and a half months after the charge was laid.
In my view, a s.24 (2) analysis of the accused’s right to counsel in these particular circumstances leaves no option but to exclude the evidence.
When Ms. Natalie made the inquiry about a lawyer she was in real jeopardy, given her first breathalyser reading. Her inquiry should not have been ignored, it should have been addressed. The right to counsel is an important cornerstone of the Charter and must be honoured in the spirit as well as in the letter of the law.
Serious matters should be tried on their merits and impaired driving is one of those matters, but not if the Charter breach is serious and the denial of right to counsel in these circumstances is such that, in my view, to admit the evidence following the breach would do more to bring the administration of justice into disrepute than to admit it.
If I am wrong in this decision, I would stay the trial after a s.24 (2) analysis based on the breach of the accused’s right to a trial within a reasonable time. Seventeen and a half months brings with it a real inferred prejudice because of the lapse of time. The setting of five trial dates brings with it a real pecuniary penalty and, therefore, prejudice to the accused. The lack of any evidence other than the bare-boned cause of the delays occasioned by the injury to the reporter and surgery to the investigating officer, means I have no option but to count them as institutional delays. Seventeen and a half months for a simple over-eighty, without even an impaired included, is much too long and unreasonable and there will be a stay in the prosecution.
In conclusion, I would exclude the evidence based on the s. 10 (b) breach of counsel rights and if I am wrong there, I would stay the prosecution on the basis of a s.11 (b) breach.
Young lady, do not ever get behind the wheel of a car with that kind of alcohol in your system again.
THE ACCUSED, NATALIE: No, I won’t do it again.