Giselle's Case — Refuse Breath sample — Dismissed

Between
Her Majesty the Queen, and
Giselle C.

[2002] O.J. No. 5381

Ontario Court of Justice
Toronto, Ontario
Judge Kerr

Charter Application:  24 January 2002
(250 paras.)

¶ 1     MR. McGRATH:  Perhaps we can move onto the Giselle C. matter, Your Honour.

¶ 2     THE COURT:  Well, I guess we've canvassed everything else, haven't we?

¶ 3     MR. McGRATH:  Yes.

¶ 4     THE COURT:  All right.  Giselle C.

¶ 5     MR. PENNEY:  Yes.  Ms C., can you come forward, please.

¶ 6     THE COURT:  Now just before entertaining this motion — have a seat Ms C. — could you give me a brief outline.  Was this an allegation that she didn't take a roadside?

¶ 7     MR. PENNEY:  It's a roadside, yes.

¶ 8     THE COURT:  Well, all right.  Are the allegations that she took the mouthpiece, but didn't expel sufficient breath to activate, or that she refused out of hand.  What are the allegations?

¶ 9     MR. McGRATH:  Initially refused out of hand, but then took the mouthpiece, and did not provide sufficient breath to activate it.

¶ 10     THE COURT:  And I note she's retained an expert to testify that she has some breathing problems.

¶ 11     MR. PENNEY:  Yes, Your Honour, that's correct.

¶ 12     THE COURT:  Well, you know, I read the material, Mr. McGrath, and I was shocked at what I read.  There was originally — we'll go over this in more detail — originally the trial was set for a date in September.  Isn't that right?

¶ 13     MR. McGRATH:  September 10th I believe.

¶ 14     THE COURT:  Yes.  Originally it was set for September 10th —

¶ 15     MR. McGRATH:  September 14th perhaps.

¶ 16     THE COURT:  September — it's so hard to read these things — the 14th.  Now apparently when the date was set — and I don't know what date it was set — the officer hadn't given his leave dates.  Is the officer here?

¶ 17     MR. McGRATH:  The officer is here, Your Honour.

¶ 18     THE COURT:  Where is he?

¶ 19     MR. McGRATH:  Officer, he's coming forward.

¶ 20     THE COURT:  Well, why hadn't he given his leave dates?  Why weren't they on the brief?

¶ 21     MR. McGRATH:  I don't think he'd drawn his leave at that point.

¶ 22     THE COURT:  He hadn't drawn it?

¶ 23     MR. McGRATH:  Is that correct, Officer?

¶ 24     OFFICER:  The offence took place in November, and we didn't draw leave until December.

¶ 25     THE COURT:  Well, wait a minute.  What date was the trial date set?

¶ 26     MR. PENNEY:  January 5th, Your Honour.

¶ 27     THE COURT:  Come up here, Officer.  Come up here. The trial date was set on January the 5th.  You drew your leave dates in December.  Why weren't your leave dates on the brief on January 5th?

¶ 28     OFFICER:  The brief was never returned from the court to the police office.

¶ 29     THE COURT:  I see.  Well, that's not the accused's fault.

¶ 30     MR. PENNEY:  I note, Your Honour, even as late as the judicial pre-trial on March the 13th, leave dates weren't there.  The Crown brings the adjournment application —

¶ 31     THE COURT:  On what day?

¶ 32     MR. McGRATH:  On the 13th of March we had a pre-trial here with your sister Justice Ray, and the Crown indicated at that time that they were prepared to proceed on September.  So we still don't have the leave dates, even on the judicial pre-trial, which is the date set to make sure everybody is prepared to proceed.

¶ 33     THE COURT:  Well, I take it, Officer, you drew your leave dates.  What day in December?

¶ 34     OFFICER:  I don't remember.

¶ 35     THE COURT:  Sometime between the 1st and 31st?

¶ 36     OFFICER:  Yes.

¶ 37     THE COURT:  Before Christmas?

¶ 38     OFFICER:  Yes.

¶ 39     THE COURT:  All right.  If it was before Christmas, why didn't you list all your cases, and make sure that somebody put your leave dates on the brief?  Why didn't you do that?

¶ 40     OFFICER:  Well, it's not something that's normally done.  Normally the Court advises what's happening with the trial.

¶ 41     THE COURT:  Well, maybe each officer should keep track of their own cases from now on, and get their leave dates on the brief.  All right, have a seat.  Do you want the officer to sit beside you?

¶ 42     MR. McGRATH:  Yes.  I can just advise Your Honour, that the net result of this was that an earlier trial date of June 5th was obtained, and —

¶ 43     THE COURT:  Yes, but let me take it chronologically, take it chronologically.  On March 13th counsel was still unaware of the fact that the September date was not satisfactory?

¶ 44     MR. PENNEY:  That's correct, Your Honour.

¶ 45     THE COURT:  Well, when were the parties apprised of the fact that —

¶ 46     MR. McGRATH:  The Crown brought an application for an adjournment April 12th, Your Honour.

¶ 47     THE COURT:  Why would it have taken so long for the Crown to find out about this officer's leave dates?

¶ 48     MR. McGRATH:  I can only advise Your Honour that that application for adjournment was brought well in advance of the September 14th trial date.

¶ 49     THE COURT:  Well, yes, but for some reason it took until April for the Crown to find out about this officer's leave.

¶ 50     MR. McGRATH:  The application was brought in April.

¶ 51     THE COURT:  It should have happened a lot earlier.  Drinking and driving charges are serious.

¶ 52     MR. McGRATH:  They are serious.

¶ 53     THE COURT:  Officers should keep track of their own cases, should liaise with the court bureau and make sure that on the 1st of January the leave dates are on all briefs. However, that isn't the most serious problem I have.  It's a problem, but an application was brought for an adjournment. It was granted.

¶ 54     MR. McGRATH:  Right.

¶ 55     THE COURT:  And an earlier date was set...

¶ 56     MR. McGRATH:  Yes.

¶ 57     THE COURT:  ...of May the —?

¶ 58     MR. McGRATH:  June the 5th.

¶ 59     THE COURT:  June the 5th.  Now on June the 5th Mr. Penney attended with his client, and had an expert in court.  Right, Mr. Penney?

¶ 60     MR. PENNEY:  That's correct, Your Honour.

¶ 61     THE COURT:  And on that day I couldn't believe what I read.  I read the transcript of what happened on June the 5th, and I must say I was startled.  For some reason Ms W. requested an adjournment simply because of the fact there was an expert waiting for the defence.  Simply to say the lady had some breathing problems or something like that?

¶ 62     MR. PENNEY:  Essentially, Your Honour.  She has bronchitis.

¶ 63     THE COURT:  Bronchitis.  Now why on earth she wouldn't have started the trial, called the police officer, the defence might have called the defendant, they might have called the expert.  I assume they would have.  Then, and only then, if she felt that she wanted an adjournment in order that she might consult an expert of her own for rebuttal she could have asked Judge Otter for it.  I read the transcript and Judge Otter seemed surprised at first about what was going on, but then he ended up granting it.  Mr. Penney objected, although I'm surprised he didn't object more vociferously.  In any event, on that date it was adjourned all the way to January.

¶ 64     MR. McGRATH:  Right.

¶ 65     THE COURT:  Why on earth did not the Crown suggest a date much earlier, a date in July, a date in August, a date in September?

¶ 66     MR. McGRATH:  Well, I think that was the first available date, Your Honour.

¶ 67     THE COURT:  Well, you know, everybody says we've set so many hours for a certain court; the court's closed.  In my opinion, that is fallacious.

¶ 68     MR. McGRATH:  Okay.  That's not my —

¶ 69     THE COURT:  In cases of this nature, knowing what could transpire, the Crown should have set an earlier trial date even if it might have overburdened a certain day.

¶ 70     MR. McGRATH:  Well, okay.  In my submission, Your Honour, it's not the Crown that controls the docket time, the court lists.

¶ 71     THE COURT:  Well, who does?

¶ 72     MR. McGRATH:  I believe the trial co-ordinator.

¶ 73     THE COURT:  Well, yes, I know, but rules can't be inflexible.  And why somebody thought this would take four hours, how long does it take a roadside, a policeman doing roadside spot checks to testify that a defendant didn't provide a proper sample of her breath?

¶ 74     MR. McGRATH:  Well, the four —

¶ 75     THE COURT:  Ten minutes?

¶ 76     MR. McGRATH:  The four hour estimate is based on the expert's evidence as well.

¶ 77     THE COURT:  I mean, it's just ludicrous.  Four hours?  An hour would have been more than enough.

¶ 78     MR. McGRATH:  Well, that's based on taking into account the expert testifying as well, Your Honour.

¶ 79     THE COURT:  Well, the expert was going to say she had bronchitis.

¶ 80     MR. McGRATH:  Well, I think we're oversimplifying.

¶ 81     THE COURT:  Now are you going to cross-examine an expert for three hours on that?

¶ 82     MR. McGRATH:  Well, I think we're oversimplifying.  The expert would have to be qualified, would have to provide an opinion, subject to cross-examination.

¶ 83     THE COURT:  And as it turned out, the Crown has decided to call no rebuttal at all.

¶ 84     MR. McGRATH:  That's how it turns out, and I was able to make that decision after carefully reviewing the expert report.  That was something my colleague, Ms W., was not able to do.  As she indicated in the transcript, she just got wind of the expert report that morning of trial.  Now —

¶ 85     THE COURT:  Well, with the greatest of respect to Ms W., in my opinion what she should have done was let the case unfold, and as I said earlier, then at the end of the defence evidence, if she felt that she wanted an adjournment so she could call an expert to rebut the defence expert, and I don't know how she possibly could, because it wouldn't be a doctor that had examined her.  It would simply be a doctor giving a general opinion.  Then she could have asked Judge Otter for that indulgence, and I feel reasonably confident that the senior administrative judge would have granted it.  I can't speak for him, but I don't think it would be an unreasonable request.  But to simply waste a trial date like this, the net result is the trial is set for today, and when was the occurrence?

¶ 86     MR. McGRATH:  The occurrence was —

¶ 87     THE COURT:  Could I see the information.

¶ 88     MR. McGRATH:  I think it was November 18th.

¶ 89     THE COURT:  I've got it.

¶ 90     MR. PENNEY:  November the 18th, Your Honour.

¶ 91     THE COURT:  Yes, but the first appearance wasn't until January 5th.

¶ 92     MR. McGRATH:  Right.

¶ 93     MR. PENNEY:  Approximately six weeks later, Your Honour.

¶ 94     THE COURT:  I find that rather strange too.  I've noticed that the police, of course who control the first appearance, release people to appear six weeks to two months after the occurrence on a drinking and driving charge.  Can you explain why that's done, Mr. McGrath?

¶ 95     MR. McGRATH:  Well, in the case of Ms C., she's a professional person, and so if an appearance — I'm just thinking off the top of my head here — but if an appearance is just a few days or a few weeks away, they may have a prior commitment.  The officer is indicating that she was, in fact, away in the States.

¶ 96     THE COURT:  Oh, she requested that day.

¶ 97     MR. McGRATH:  Well, I think she was away is what I'm hearing right now.

¶ 98     THE COURT:  You mean she told the officer she was going to be in the States, so he said, "I will set your first appearance for January 5th."  Is that right?  Is that your understanding, Mr. Penney?

¶ 99     MR. PENNEY:  That's not my understanding.  I don't see any indication of that in the officer's notes at all, in fact.  I just see an indication that —

¶ 100     THE COURT:  Well, it's not just this officer; it's all officers.

¶ 101     MR. PENNEY:  But, Your Honour, this date, I tend to disagree, Your Honour, because in all the cases I've gotten, first appearance is typically, for out of custody, six to eight weeks after the offence date.

¶ 102     THE COURT:  Do you feel that's reasonable?

¶ 103     MR. PENNEY:  I don't feel it's reasonable, no, but in this — I'm simply suggesting —

¶ 104     THE COURT:  I fail to understand why?  I don't understand why a drinking — in the old days — and perhaps I'm dating myself when I harken back to the old days — in the old days people were held in jail overnight, and about nine o'clock in the morning — I'm talking City Hall — about nine o'clock in the morning a justice of the peace would come into the cells and release them to appear in the old "D" court at 10 a.m.  So they made their first appearance within hours of their arrest.  Some of them were in pretty rough shape.  But I just fail to understand why — does your client have any recollection of telling the officer she was going to be in the States, and as a result she wanted the first appearance to be after the Christmas festivities?

¶ 105     MR. PENNEY:  Just briefly, Your Honour.  Ms C.'s advising me that the officer suggested the 5th, and she did have her schedule with her, and she worked it out with the officer to indicate the 5th was okay.

¶ 106     THE COURT:  So she was quite happy with that date.

¶ 107     MR. PENNEY:  She was indicating the 5th was okay.

¶ 108     THE COURT:  Because she was going down to the United States for part of the Christmas vacation.  Is that the idea?

¶ 109     GISELLE C.:  No, I had — excuse me, Your Honour.  I had some business down in New York prior to Christmas time.

¶ 110     THE COURT:  Well, all right.  You were down in the States.

¶ 111     GISELLE C.:  Yes.

¶ 112     THE COURT:  For how long?

¶ 113     GISELLE C.:  Three days.

¶ 114     THE COURT:  Three days?

¶ 115     GISELLE C.:  Yes.

¶ 116     THE COURT:  My goodness the trip to the States should have been immaterial.  However, it appears that she and the officer agreed on January the 5th, which means now that the trial date is taking place...

¶ 117     MR. McGRATH:  Twelve and a half months.

¶ 118     THE COURT:  ...12 months and 19 days from her first appearance.

¶ 119     MR. PENNEY:  That's correct, yes.  I'm prepared to concede that that's a reasonable intake time, even though as my materials indicate, Ms C. did retain me the day afterwards.

¶ 120     THE COURT:  And you were here on the 5th — what day in June?

¶ 121     MR. PENNEY:  The 5th of June, Your Honour.

¶ 122     THE COURT:  The 5th of June you were here with your client and an expert.

¶ 123     MR. PENNEY:  That's correct.

¶ 124     THE COURT:  And is your expert here today?

¶ 125     MR. PENNEY:  He's on his way in from — oh, Dr. Storrey's (ph) here.  I told him to come in for 10:30, and it's 10:30 and he's here.

¶ 126     THE COURT:  Well, do you wish to abandon your application and have a trial, or do you still wish to follow through with your motion?

¶ 127     MR. PENNEY:  I would like to follow through with the motion, Your Honour.  I would like to argue the motion, call some evidence, and have Your Honour rule upon it.

¶ 128     THE COURT:  Well, what evidence would you be calling?

¶ 129     MR. PENNEY:  Well, simply, Your Honour, the Crown in its factum has indicated that the intake time for a case such as this is four months.  The Supreme Court of Canada in Moran says that intake time on a simple over 80, which is more complicated than a refusal, is two months, and I simply want to call the officer.  I can just put this to you in submission, if my friend agrees, that the investigation, Your Honour, was finished on November the 18th.  The brief was prepared on November the 20th, because that's the date of this report.  My friend says at the time, right up until March the 13th, is intake time, and not delay.  But there's absolutely no evidence in his materials why this should be intake time.  The officer indicated to me this morning that, as far as he was concerned, the case was prepared as of November the 20th.  He didn't do anything between January and March.

¶ 130     THE COURT:  Well, all right, but could you tell me this, sir, why was the case remanded from January the 5th to March 13th?

¶ 131     MR. PENNEY:  But it wasn't remanded to the — Your Honour, we set the trial date on January the 5th.  That was the very first court appearance.

¶ 132     THE COURT:  Oh, right off the bat.

¶ 133     MR. PENNEY:  Right off the bat, Your Honour, and it's only a tiny percentage of accused persons who come into this court, prepared to accept disclosure, have a pretrial and schedule the trial date right on that very day.

¶ 134     THE COURT:  Right off the bat, okay.  Now why were you in court on March 13th then?

¶ 135     MR. PENNEY:  Well, simply we came back — it's my understanding, Your Honour, that it's the protocol in this court to come back — to set the trial date and to come back for a judicial pretrial in the interim to ensure —

¶ 136     THE COURT:  There was a judicial pretrial on this?

¶ 137     MR. PENNEY:  Your Honour, anything scheduled over three hours, apparently that's the protocol.  I didn't feel it was necessary, and I don't think the Crown did, but that's the protocol.

¶ 138     THE COURT:  I won't make any comment on that, because I might say something I'd regret later.

¶ 139     MR. PENNEY:  But my submission to Your Honour though is that that March 13th date doesn't add or subtract from the delay time, because the trial date had been set. We're simply coming back to ensure that the officers are available, that both parties are ready to proceed.

¶ 140     THE COURT:    Well, has your client suffered?  I mean, I suppose anyone facing a criminal charge suffers, but has she suffered unduly?

¶ 141     MR. PENNEY:  Well, Your Honour, there's some prejudice on the part of Ms — does my friend intend to cross-examine Ms C. on her affidavit?

¶ 142     THE COURT:  Well, I just want to listen to you for a moment.

¶ 143     MR. PENNEY:  That's fine.  Your Honour, in Ms C's case it's primarily the emotional burden of carrying this case, having it hanging over her shoulders for such a lengthy period of time.  And she's worn her emotions very openly with me from the very beginning.  My instructions from the very beginning were, "Get this thing on for trial."  It's not even my practice, Your Honour, to get instructions out in the hallway and to review disclosure in the hallway, but Ms C. wanted to get this case on right away.  She says she was shocked when she was charged with refusing to provide a sample.

¶ 144     THE COURT:  I suppose her defence would be, as it often is in these charges, she did her best to provide a sample, but she just couldn't quite do it.

¶ 145     MR. PENNEY:  That's correct.  In fact, Your Honour —

¶ 146     THE COURT:  And the doctor who was treating her for bronchitis would testify that because of her bronchitis she might have more difficulty in providing a sample of breath than a person without bronchitis.

¶ 147     MR. PENNEY:  That's correct, yes, Your Honour.

¶ 148     THE COURT:  Well, you know what puzzles me though, Mr. Penney, is on the day before Judge Otter, why didn't you get up and stress to the learned judge, why didn't you say, "Look, my client wants to go ahead with her trial right here and now.  If at the end of the day's proceedings the Crown requests an adjournment so they can call their own expert in reply, then I won't object too strongly, provided it's a brief one, perhaps a month or so."  I'm just curious as to why you didn't stress —

¶ 149     MR. PENNEY:  Your Honour, I submit to you that I did exactly that.  My position is that —

¶ 150     THE COURT:  Well, let's see, let's look at the transcript.

¶ 151     MR. PENNEY:  This is under tab 9 of the materials.

¶ 152     THE COURT:  Tab 9.  Ah, yes, this is the fateful day, June 5th.

¶ 153     MR. PENNEY:  I first want to point out, to set out the context for June the 5th, Your Honour, the Crown was assigned the case that morning.  So it doesn't really matter whether they got their expert's report that morning, 30 days in advance, or in late May when I sent it.  The Crown was only assigned that morning.  That's on page 16.

¶ 154     THE COURT:  Just out of curiosity, had you notified the Crown before that date that you were going to be calling an expert?

¶ 155     MR. PENNEY:  Yes, I did, Your Honour.  On March the 13th I met with Ms Sylvano C., and your sister Judge Ray.

¶ 156     THE COURT:  And did you provide the Crown with a copy of the expert's report?  Mr. McGrath, it's best that you sit down.  Only one counsel should be on their feet at one time.

¶ 157     MR. PENNEY:  Your Honour, if you look under tab 3 you'll see my letter to Ms Sylvano C.

¶ 158     THE COURT:  Oh, you talked about the possibility of expert evidence.

¶ 159     MR. PENNEY:  Well, March the 13th I indicated — I indicated to the Crown, Your Honour, in January that there's going to be an expert's report.  In fact I said to the Crown, "Would you want to review the report with a view to withdrawing the charge?"  And the Crown says, "No."  So I said, "Fine.  Well, if that's your position, let's just set it for trial today."  On March 13th I again confirm there will be an expert's report.  Ms Sylvan C. asked me to submit the report to her in advance.  She asked me to send it 30 days in advance.  I said I would consider it.  In any case, on May the 22nd I did get Dr. Storrey's report, and his resume, and Dr. Vincent Wong's medical notes.  Dr. Vincent Wong, Your Honour, is her medical doctor.  Ms C's been under his care for many years.

¶ 160     THE COURT:  Hmm-mm.

¶ 161     MR. PENNEY:  So I sent Ms Sylvano C. the letter and the report and the resume, which is under tab 3 of the materials indicating what our position would be.

¶ 162     THE COURT:  Well, did you ever discuss it with Ms Sylvano C.?

¶ 163     MR. PENNEY:  No, I didn't discuss it with Ms Sylvano C.

¶ 164     THE COURT:  You just mailed it to her or sent it in or what?  Faxed it in?

¶ 165     MR. PENNEY:  I mailed it in to her, Your Honour.

¶ 166     THE COURT:  But you didn't follow it up by phoning her up and saying, "Now that you've got the report and have had a chance to read it, where do we go from here," or something like that.

¶ 167     MR. PENNEY:  Well, Your Honour, the Crown had already indicated to me they're not considering withdrawing the charge no matter what the report says because —

¶ 168     THE COURT:  They what?  They'd consider what?

¶ 169     MR. PENNEY:    The Crown had indicated to me at an early stage they wouldn't even consider withdrawing the charge no matter what the report said.

¶ 170     THE COURT:  All right.

¶ 171     MR. PENNEY:  So I didn't really see the point in —

¶ 172     THE COURT:  All right, all right, stop for a minute, sir.  You're getting a little carried away here. Would it not have been incumbent upon the Crown, Mr. McGrath, to have taken some action with respect to this report long before trial?

¶ 173     MR. McGRATH:  Well, if Your Honour looks at the transcript, and I think tab 9, again is the relevant tab in my friend's materials, and this of course is all occurring when Ms Sylvano C. has just gone on maternity leave.

¶ 174     THE COURT:    Well, yes, but I mean —

¶ 175     MR. McGRATH:  I'm just trying to give Your Honour some context.

¶ 176     THE COURT:  She should have then turned it over to some other Crown before she left, should she not?

¶ 177     MR. McGRATH:  Ms W. indicates that she hadn't seen the materials until Mr. Penney had provided her with another copy that morning.  I'm not suggesting anything improper on Mr. Penney's part.

¶ 178     THE COURT:  No.

¶ 179     MR. McGRATH:  I think he sent the materials, but we don't know —

¶ 180     THE COURT:  We all know the Crown's office is busy.  We all know that it's difficult to keep track of each and every case, but drinking and driving cases are very serious.  They occupy a lot of court time, and I would think that they would be prioritized, and that when a report like this came in some Crown attorney would get a hold of it, look at the brief, would perhaps discuss it with the officer or whatever, and if they felt they wanted to call some evidence to rebut the evidence of the doctor giving the report, would speak to one of their own experts prior to trial.

¶ 181     MR. McGRATH:  I guess my point is, Your Honour, I don't have any indication that the Crown received Mr. Penney's report.  Admittedly it was mailed.  I don't see any proof of service or anything like that, and —

¶ 182     THE COURT:  You mean it might have got lost in the mail.

¶ 183     MR. McGRATH:  Well, Ms W. certainly wasn't aware of it the morning of the trial.

¶ 184      THE COURT:  Well I'm going to presume it was delivered — I mean, occasionally things get lost in the mail. None of my bills do, so I assume it didn't get lost.  That's only a minor part of it, but I just find what went wrong on June the 5th incomprehensible.  This lady was ready for her trial.  Can you imagine the anguish she must have felt when she realized she'd have to wait from — June the 5th until January 24th, Mr. Penney?

¶ 185     MR. PENNEY:  Yes, Your Honour, January 24th.

¶ 186     THE COURT:  To me, there's no rational reason why the Crown should have sought an adjournment.

¶ 187     MR. McGRATH:  I think, Your Honour, if you look at Ms W's comments found at tab 9, she was of the view that even in examining the officer-in-charge, there would be relevant evidence to elicit from the officer with respect to —

¶ 188     THE COURT:  Well, she could have asked the officer if the lady exhibited any undue coughing, if she complained of any ailments such as bronchitis.

¶ 189     MR. McGRATH:  But I think the point was, she just got her hands on the report.  She wasn't able to look at it in detail.  She wasn't —

¶ 190     THE COURT:  How long is the report?  Where is it?

¶ 191     MR. PENNEY:  The report, Your Honour, is at tab 3.

¶ 192     THE COURT:  Tab 3.

¶ 193     MR. PENNEY:  Two pages.

¶ 194     THE COURT:  Two pages.

¶ 195     MR. McGRATH:  There's medical records as well, Your Honour.

¶ 196     THE COURT:  Goodness gracious.  Goodness gracious, two pages.

¶ 197     MR. PENNEY:  Sorry, not tab 3, Your Honour.

¶ 198     THE COURT:  What tab is this report?

¶ 199     MR. PENNEY:  Sorry, Your Honour, I'm...

¶ 200     THE COURT:  Well, have you got a copy of it?

¶ 201     MR. PENNEY:  Tab B, Your Honour.

¶ 202     THE COURT:  Tab B.

¶ 203     MR. PENNEY:  Tab B.  Sorry.

¶ 204     THE COURT:  Wait a minute, I'm looking at the Crown's...

¶ 205     MR. PENNEY:  Your Honour, it's the Application Record.

¶ 206     THE COURT:  Oh, I'm sorry.  B is at the back, tab B, Dr. Storrey's report.  "I saw your client at my office on May the 9th."  Stated she'd had two glasses of red wine. Stopped for a spot check.  Now here's an interesting point. According to Storrey she told you, Officer, she had bronchitis.  Are you prepared to confirm or deny that through your officer who is sitting beside you, Mr. McGrath?

¶ 207     MR. McGRATH:  I can do that, Your Honour.

¶ 208     THE COURT:  Well, confer with him, see if he has it in his notes.

¶ 209     MR. McGRATH:  I'm not sure that it's extremely relevant to the 11(b) application, but I can do that.

¶ 210     MR. PENNEY:  If my friend will confirm that not only was that, but the medication and everything was detailed in the officer's notes, Your Honour.

¶ 211     MR. McGRATH:  There's an indication that she tells the officer she has bronchitis.

¶ 212     THE COURT:  Well, why on earth this would be cause for an adjournment — the issue would simply be, notwithstanding her bronchitis, did she have the capacity to provide a proper sample of her breath?  We hear of cases like this all the time, and it arises particularly on roadsides, because despite what the police say, I have reason to believe it's more difficult to activate an Alert than it is to activate, well the old Borkenstein, and now the Intoxilyzer. So this case should have taken less than an hour, and could have been disposed of very quickly.  Do you have anything further to say, Mr. McGrath, as to why I should not grant this application?

¶ 213     MR. McGRATH:  If I can just have a brief indulgence, Your Honour.  My colleague...

¶ 214     THE COURT:  Now, could I have your final argument, Mr. McGrath.

¶ 215     MR. McGRATH:  Yes, Your Honour.  I think we have to talk about prejudice suffered by the defendant, and it is my submission there is not a great deal of prejudice in this particular case.

¶ 216     THE COURT:  Well, can you imagine how she felt. She was in court.  This isn't like a case where the matter was adjourned from January to January right off the bat.  This lady was in court, she was ready for her trial.  She had gone to the expense, I assume, of having an expert witness, a doctor, come all the way from Collingwood, and the case was adjourned, in my opinion, for specious reasons.

¶ 217     MR. McGRATH:  Well, if Your Honour looks at the respondent's materials, respondent's factum — and I'm going to point you to tab 2, paragraph 34.  There's a case there of Silvera (ph), a General Division case, and it speaks of prejudice in the 11(b) analysis, and indicates,

¶ 218     THE COURT:  Is it the Chance case?  What case are you talking about?

¶ 219     MR. McGRATH:  Tab 2, paragraph 34 of the Respondent's Factum and Authorities.

¶ 220     THE COURT:  At tab 2 I have the case of R. v. Chance.  Are we not on the same page?

¶ 221     MR. McGRATH:  I think you might possibly —

¶ 222     THE COURT:  Oh, wait a minute.  Here's some more materials.  All right.  Yes, there's another... age what?

¶ 223     MR. McGRATH:  It's tab 2, paragraph 34.

¶ 224     THE COURT:  This is paragraph 34, they refer to the Rahey case?

¶ 225     MR. McGRATH:  It quotes Silvera and it cites Rahey with approval, and the quote in question is speaking of prejudice, and it's indicating the shame of disclosure to a family, the expense of defending criminal charges and the like arise from the laying of the criminal charge and not from delay of the trial.  So I think —

¶ 226     THE COURT:  But what were the facts there.  I mean, really, Mr. McGrath, by quoting a case and just simply quoting me a principle, without the facts, doesn't assist me at all, because unless I knew the facts of the case I would be unable to make any intelligent decision as to how the principle in that case should apply to this case.

¶ 227     MR. McGRATH:  Well, Silvera is found at tab 4 of the same materials, and it is a drinking and driving case, Your Honour, so similar facts.

¶ 228     THE COURT:  All right.  Was there a motion here for undue delay?

¶ 229     MR. McGRATH:  There was.

¶ 230     THE COURT:  Well, it talks about an appeal from a conviction.  Where do they talk about undue delay?  Oh, I see, on the morning of the trial the defence sought a stay due to unreasonable delay.  The trial judge apparently dismissed it for lack of extraordinary prejudice, and that was upheld.

¶ 231     MR. McGRATH:  Right.

¶ 232     THE COURT:  But were the facts similar?  Had there been a trial date when all the parties were in court and ready to go, ready to proceed?  I somehow doubt it, but —

¶ 233     MR. McGRATH:  I don't think so, Your Honour.  I guess when citing case law the facts are never quite the same, but I still think the principle gleaned at paragraph 53 of that particular case is applicable to the case at hand.

¶ 234     THE COURT:  Well, the reason I consider this case so startling is that she was here with her lawyer; she was ready to proceed.  The Crown sought an adjournment on reasons which I feel were totally unnecessary.  As I say, the Crown could easily have listened to the evidence, and then, if the Crown felt, at the end of all the evidence, they needed to consult an expert with a view to giving reply evidence, could have requested the trial judge to grant them that continuance.

¶ 235     MR. McGRATH:  Well, all I can say, Your Honour, is Your Honour points to the fact that isn't this something that the Crown should take very seriously and monitor, and my colleague, Ms W., indicates at tab 9 that she did not —

¶ 236     THE COURT:  It's not her fault that she didn't receive it.  There were problems in the Crown's office which shouldn't have existed.  There should have been a mechanism whereby somebody who got that letter from Mr. Penney would have looked at it and prepared the matter for trial.

¶ 237     MR. McGRATH:  Well, all I can argue, Your Honour, is that I think there should equally be — the defence should be held to a high standard in these situations, and perhaps follow-up and perhaps send something by registered mail, and take some efforts to ensure that —

¶ 238     THE COURT:  Well, I suppose Mr. Penney could have gone further: he could have mailed it in, he could have phoned and said, "Did somebody get it?"  He could have hammered on the door of the Crown attorney's office and said, "Look, I want to discuss this report with the Crown attorney." He could have done more, but he did give notice, and while it's not Ms W's fault — she just picked up the brief the day in question — but here's the lawyer, defendant and doctor all ready to proceed.  And the Crown, above anyone, should be mindful of the enormous backlog in these courts.  In effect, trial time was wasted on that day.  It could have been put to good use.

¶ 239     MR. McGRATH:  The Crown also has to be mindful of the interests of justice and not proceeding when not ready, and when just handed some material.  And it's not just the expert.  There were medical records, there was a resume, there may have been issues, qualifications of the expert.  So I think it's not exactly accurate to —

¶ 240     THE COURT:  Well, Mr. McGrath, I've been involved in drinking and driving cases for 38 years as a prosecutor and a judge, and I have never seen one where the Crown would be so concerned that they would have to analyze it with a fine-tooth comb.  It would be enough, I assume, to hear the expert, and then decide if they wanted to call an expert in reply.  That could have been done during the course of the trial.

¶ 241     MR. McGRATH:  Well, I understand where Your Honour's coming from.  Ms W., which is clear in the transcripts, did just receive the experts material...

¶ 242     THE COURT:  I know she did.

¶ 243     MR. McGRATH:  ...the morning of trial.

¶ 244     THE COURT:  It's not her fault personally, but it's the Crown's fault she didn't get it earlier.

¶ 245      Look, I think I have heard all I am going to hear about this case.  In my opinion I cannot think of a more clear cut case for granting the Charter relief sought, and staying these proceedings on the ground that the delay was unconscionable.  The trial should have proceeded on June the 5th.  In my opinion the Crown should not have sought to adjourn it, but should have proceeded with the evidence, and then perhaps request it if necessary that the trial judge grant a further adjournment so they could call an expert of their own.  They failed to do that.  I have no hesitation on staying these charges on the grounds of unconscionable undue delay.

¶ 246     However, Mr. Penney, you chose to proceed this way rather than have a trial on the merits.  Mr. McGrath may very well take it to a higher court, and a judge of the superior court might have a different view than I do.

¶ 247     MR. PENNEY:  That's his right, Your Honour, and we'll argue that another day if he does.  Thank you, Your Honour.

¶ 248     MR. McGRATH:  Thank you.

¶ 249     MR. PENNEY:  Thank you, Your Honour.

¶ 250     THE COURT:  All right.  The charge is stayed for undue delay.

BACK TO GISELLE'S CASE