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Does the right to a trial within a reasonable period of time under Section 11(b) of the Charter apply to re-trial? By J.S. Patel, Calgary Criminal Lawyer

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Section 11(b) of the Charter
Right to a trial within a reasonable period of time and the calculation of delay after a re-trial.

The right to have a trial within a reasonable period of time was reconsidered by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, and there have been many decision considering the principles that stem from that seminal case.   Recently, the Ontario Court of Appeal, in Regina v. MacIsaac,2018 ONCA 650 (CanLII), allowed the appeal of an accused and quashed his conviction of aggravated assault under the Criminal Code of Canada; and stayed the charges against him due to a violation of his rights under Section 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).  This was based on the following time-line in that case.

Mr. MacIsaac waswas charged with aggravated assault on July 11, 2012, and he proceed with an election for a trial in the Ontario Court of Justice and was convicted on December 16, 2013.  On August 31, 2015, the Court of Appeal quashed the conviction and ordered a new trial. The accused’s counsel was served with a summons for the re-trial on November 30, 2015. On February 3, 2016, a ten (10) day re-trial was scheduled to run from February 6 to 17, 2017.  On August 25, 2016, the accused applied for a stay under s.11(b). The application was denied on October 26, 2016 and the re-trial went ahead as scheduled.  The trial judge reserved her decision following the last day of trial, which was February 16, 2017. On April 18, 2017, the trial judge released her judgment finding the accused guilty of aggravated assault.

The Ontario Court of Appeal court noted that the case was argued on the assumption that the eighteen (18) month presumptive ceiling established in Regina v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631applied to the re-trial. The court stated that it would deal with the appeal on that basis. The court commented, however:

[27]     In my view, the 18-month presumptive ceiling established for a first trial is too long in the circumstances of a re-trial. Re-trials must receive priority in the system, and in the normal course re-trials in the Ontario Court of Justice should occur well before Jordan’s 18-month presumptive ceiling. It may be that a lower presumptive ceiling is appropriate for re-trials.
[28]     We heard no argument on this point and it would not be appropriate to say anything more in the context of this case. This case was argued on the assumption that the 18-month presumptive ceiling applies, and I propose to deal with it on this basis. However, the Jordan criteria must be understood in the context of the Crown’s duty to re-try cases as soon as possible.
[29]     I begin by reviewing the considerations raised by the parties concerning the calculation of delay. I conclude that the delay in this case either exceeds the presumptive 18-month ceiling or is unreasonable in any event. In either case, the appeal must be allowed and a stay must be granted.

What is more, the court also addressed the issue of when the clock starts for the purposes of a delay analysis in the case of a re-trial. The court held that the time for assessing delay runs from the date the appellate court quashed the conviction and ordered a new trial. Accordingly, the clock started running on August 31, 2015.

In terms of determine when the proverbial clock ceases to run, the court averred that the end date for calculating total delay was either April 18, 2017, which is when the judgement was rendered or February 17, 2017, which again, was the last day of trial.  However, given that the factual foundation was not before it, the court stated that it was unnecessary to resolve the issue of whether the time a judgment is under reserve is included in the calculation of total delay. This was because the net delay in the case was unreasonable under either of the above scenarios: (a) First, under the initial scenario, in which reserve time is included, the net delay was over 19 months and exceeded the presumptive ceiling. The Crown had not established the presence of exceptional circumstances that rebut the presumption of unreasonableness. Accordingly, the delay was unreasonable;  Second, (b) under the second scenario, in which the time under reserve is not included in the calculation of delay, the net delay was over seventeen (17) months. Although this net delay was below the presumptive ceiling, the defence had met its burden of showing that the delay was unreasonable.

If you have been charged with a criminal offence, it is important to ensure that sufficient and accurate representations are made on the Court record to ensure that your efforts to proceed in a diligent matter are noted despite the tests outlined by the Supreme Court of Canada in Regina v. Jordan. The common-law rules, as stated in this case, provides an example that depending on the facts of each case, may be useful in persuading the Crown or the Justice  applies to your case.

If you have been charged with a criminal offence, contact Mr. J. S. Patel, Barrister for a free initial consultation regarding your matter.

Call 403-585-1960

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Curative Discharges in Impaired Driving Cases. What is a curative discharge application under Criminal Code of Canada and will I receive a criminal record, if a discharge is granted by the Court? 403-585-1960

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The Criminal Code of Canada (the “Code”) imposes mandatory minimum sentences when convictions are entered for impaired driving offences under Section 253(1)(a) and (b).  This means that once a Court finds that an accused person is guilty of an offence for impaired driving or driving while their blood-alcohol ratio is over 80 milligrams percent, the Court is obligated to impose the minimum sentence that was application in the Code during the year of the indexed offence; and enter a criminal conviction on their record.  By way of an example, if an accused person is convicted of an offence on or about August of 2017, the Court would be required, by law, to impose a fine of $1000.00 plus Victim Fine Surcharge (based on the Province of the alleged offence) for a first offence, and the mandatory minimum driving prohibition, typically, one (1) year. Again, a criminal record would be entered.  Under the rubric of this regime, the sentencing judge retains no discretion to interfere with the mandatory minimums imposed by the Parliament of Canada; and must impose the minimums  There is one exception to his legal rule: “Curative Discharge Applications” for impaired driving offences.

Curative discharge application is contemplated by Section 255 of the Code.  Under certain circumstances, it accords the sentencing judge the discretion to avoid the entry of a conviction of an offence under Section 253 of the Code.   If the Court is persuaded by criminal defence counsel, it will not impose the mandatory minimum sentence required by the Code.  In such circumstances the Court will place the offender a (lengthier) term of probation with terms and conditions calibrated to assist in achieving rehabilitation concerning the underpinning substance abuse issues, whether it be alcohol or drugs or both.

The offender bears the burden of proof on the application for a curative discharge. To be granted a “curative discharge” the offender must prove, on a balance of probabilities, a number of factors, as outlined by the Court of Appeal in Alberta in Regina v. Storr and Regina v. Soosay, 2001 ABCA 287 (CanLII).   Alberta courts have identified the ‘test’ for granting an application for a curative discharge as being a reasonable chance that the offender will overcome his or her alcoholism and related problems.  ‘Overcoming’ in this context is not synonymous with the term ‘cure’.  In Regina v. Gray, 2004 ABPC 158 (CanLII) (‘Gray’), the Honourable Judge Semenuk P.C.J. commented upon this distinction in the following terms (at para.16):

“I interpret the word “overcoming”, in the public interest test stated in Beaulieu (supra) [cited by the court in Soosay], to mean surmounting the problem by managing it so as to substantially reduce the risk of recidivism. In the context of alcohol dependance, it would not be realistic to interpret the word to mean curing oneself of the problem entirely. I come to this conclusion based on the expert opinion evidence of Vivian Jones. Addictions are not cured, they are managed so as to reduce the risk that they will overtake someone’s life. That, in my view, is all that is needed to meet this aspect of the public interest test.”

A. The Test for Curative Discharge Applications. 

The Provincial Courts of Appeal, throughout the dominion of Canada, have provided guidance on factors which ought to be taken into account when deciding whether to grant a curative treatment discharge. See: Regina v. Storr, [1995] A.J. No.764 (C.A.) (‘Storr’); Regina v. Ashberry (1988), 47 C.C.C. (3d) 138 (Ont.C.A.). Those factors were neatly summarized in Regina v. Smillie, 2010 ABPC 407 (CanLII) (‘Smillie’), at paras.31-33:

  1. Circumstances of the Offence – the offender’s blood/alcohol level likely played some role in his driving behaviour that evening. However, there was no death, injury, accident or even significant regulatory failure on his part. His excessive blood/alcohol level was the principal aggravating feature of the crime.
  2. Bona Fides of the Offender – the Court considers whether it is satisfied with the offender’s motivation to seek treatment and whether that motivation if bona fide. The Court will also consider whether the motivation is governed by the threat of jail or whether it is ground in the desire to secure effective treatment and management of their condition in the community.
  3. Criminal Record as it relates to the Alcohol Related driving offence. Obviously, if an accused’s alcohol-related driving behaviour has not improved despite prior Court sanctions, there is an increased risk of the behaviour being repeated which warrants a sentence emphasizing specific and general deterrence.
  4. Driving Prohibition(s) – Whether the offender was subject to a driving prohibition at the time of his driving in this case. f he was, this demonstrates a lack of respect for Court orders and increases the likelihood that the accused will ignore Court orders respecting his/her curative treatment.
  5. Prior Discharges – Whether the accused has received the benefit of a prior curative discharge and what, if anything, the accused has done to facilitate his rehabilitation under the prior discharge. The Court will also look at the lapse in time between the prior discharge the matter currently before it.

B.  The Practical Reality of Curative Discharge Applications. 

In practice, the Court must be persuaded that the offender is a person in need of treatment for his/her substance abuse issues.  Not all offenders will meet this criteria.  This is because not all offenders have substance abuse issues – they were simply caught driving while impaired.  Put differently, their choice to drive, while impaired, was simply a poor choice in judgement; and not necessarily the produce of an addiction issue.   An applicant for a curative discharge would have to proffer evidence demonstrating a history of dependency.  That evidence ought to be provided by the medical professional, who has treated the offender for the addiction issue.  Evidence  and supporting materials from drug treatment programs, psychologists, psychiatrists, counsellors, and support groups (ie. A.A.) should be provided to the Court that details the current addiction issue(s), and the plan of treatment on a forward moving basis.   Our criminal law offices in Toronto and Calgary have a list of recommendations that we offer to our clients for the purposes of counselling and seeking rehabilitation on their own volition.

While the testimony of such professionals is advisable, there is some judicial debate about whether such treatment must be presented in the form of oral evidence.  Some criminal defence counsel provide evidence in the form of reports, which may be disputed by the Crown who may seek to cross examine such experts on their opinions and qualifications.  During the application for a curative discharge, it is also advisable to ensure that the offender address the court, when called upon to do so to relate the scope, quality and degree of their addiction; and the steps, if any, he or she has undertaken to seek rehabilitation.

The Court is also obliged to consider whether a curative discharge, if granted, would be contrary to the public interests.  At this juncture, the Crown Prosecutor, if they are opposed to the application, would posit their position on any frailties in your case regarding the above noted factors, and will assert their policy position, namely the carnage occasioned by drunk drivers, and the need to deter them through stiffer penalties, including jail terms.   The skill of your criminal lawyer is critical at this point of the application.  A common rebuttal position advance by criminal lawyers is that it would be in public interest to grant to discharge as the public interest would be best served by a treating an offender such a severe addiction issue to ensure that they become a productive member of society.  Ensuring such offenders with the taint of a criminal record, would be otherwise counter-productive to protecting the public interests. Ultimately, if the Court grants a discharge, the offender will be placed on a period of probation subject to conditions that he follow counselling and treatment as directed by his probation officer to deal with an alcohol or drug problem.   Commonly, the Court will impose a condition that the offender not possess or consume alcohol or illegal drugs. If the offender completes the period of probation successfully, he will be deemed never to have been convicted of the criminal offence of impaired driving, and will avoid the entry of a criminal record.

If should be noted that a “curative discharge” is not available for all impaired driving related offences.  It has no application to those convicted of refusing to provide a breath sample for a screening device or for the breathalyzer.  Section 255(5) of the Code limits the option of a “curative discharge” to offences under section 253 of the Code.  It is critical to consult with your counsel to ensure that the correct pleas are entered to the offences that keep your options open to a curative discharge. What is more, it is not available in all of the Provinces within Canada.  At the time of writing, the remedy of a curative discharge is not available in Ontario.

Clearly, an application for a curative discharge is complicated.  An experienced lawyer ought to be consulted in making such an application.

J.S. Patel, Barrister

Contact our offices in either Calgary or Toronto at 403-585-1960 or 1-888-695-2211 for an initial consultation.

*** The opinions expressed in this Blog are not a substitute for full and through legal advice.  Nor is it meant to be used as fulsome account of area of law discussed.  

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Recent Developments in DUI Cases: The imposition of a lawful demands is not required for issues that arise under s. 258 – Criminal Code for DUIs or Over-80 matters.

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On July 6th, 2017, the Supreme Court of Canada, in a DUI case, ruled that a police officer and the Crown is not required to establish reasonable and probable grounds for a lawful breath demand for the purposes of a Section 258 of the Criminal Code of Canada

In R. v. Alex, 2017 SCC 37 the Supreme Court of Canada was asked to consider whether sections 258(1)(c) and (g) of the Criminal Code of Canada (the “Code”) requires a police officer to have reasonable and probable grounds in order to make an evidentiary demand as a pre-condition governing the admissibility of the certificate of analysis, which captures the evidentiary breath readings of an accused person who has been charged for DUI or “Over-80”).  Mr. Alex’s Criminal Lawyers argued that the subsections of 258 of the Code imposes such a requirement.  Section 258(1)(g) establishes a statutory exception to the common law hearsay rule. It permits a certificate of analysis, which sets out the accused’s breath test results, to be filed for the truth of its contents without the need to call for oral evidence.   Section 258(1)(c) then provides two inferences that may be presumptively drawn from the certificate.

The first inference, referred to as the presumption of accuracy, is that the breath readings in the certificate are accurate measures of the accused’s blood-alcohol concentration. This presumption dispenses with the need to call the qualified technician who administered the tests to verify their accuracy.  The purpose of these evidentiary short-cuts, according to the Court, streamline the trial proceedings by permitting an accused’s blood-alcohol concentration at the time of the alleged offence to be presumptively proven through the filing of a certificate of analysis. These shortcuts, however, do not affect the issue of whether the accused’s breath readings are admissible or not. They only impact the manner of admission — specifically, whether the Crown must call two (2) additional witnesses: (i) one to verify the accuracy of the certificate and enter it as an exhibit, and (ii) to opine on the accused’s blood-alcohol concentration at the time of the alleged offence — matters which have no connection to the lawfulness of the breath demand. This was made clear in R. v. Deruelle, [1992] 2 S.C.R. 663, at pp. 673-74, where the Court observed that the breath readings remain admissible at common law through viva voce evidence, irrespective of whether the shortcuts apply.

Thus the central question for the Court was whether the opening words of each s. 258 evidentiary shortcut — “where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3)” — refer specifically to a lawful demand made under s. 254(3), which among other things, is predicated on the police having reasonable grounds to make the demand.

The Majority decision of the Supreme Court of Canada decided that it doesn’t imposed such a requirement.  It used the modern principles of statutory interpretation to arrive at its conclusion. Parliament did not include the word “lawful” within section 258(1)(c) or (g) of the Criminal Code and when read in light of its over context, above and beyond the plain meaning of the sections, the lawfulness of the demand had no bearing on the manner in which the Certificate of Analysis, containing the blood-alcohol breath readings, could be introduced during a trial of a DUI matter.  Effectively, the Court found that it was lawfulness of a demand was not a condition precedent to the manner in which the Certificate of Analysis could be introduced.   It further consider that that Section 8 of the Canadian Charter of Rights and Freedoms could be invoked, should a Criminal DUI lawyer decide to file the requisite notice to seek the exclusion of breath samples at trial by positing that they were inadmissible due to a breach of an accused’s persons right to be free from an unreasonable search and seizure.

The Court further reasoned that if such a line of reasoning and logic were adopted as suggested by the Mr. Alex’s criminal lawyers,

“….in many cases, trial scheduling would have to account for the possibility that two (2) additional witnesses would be required to testify. This would extend estimated lengths of trial proceedings: one day trials would become two day trials, two day trials would become three days, and so on. In addition, the Crown would have to be prepared to call a breath technician and toxicologist in every case and limitations on their availability could add to the delay. And the effects do not end there. The consequences of trial scheduling are pervasive, creating backlogs and congestion throughout the justice system as a whole. This raises the following question: For what purpose? The answer, as I will explain, is none, other than to provide an accused with a hollow form of protection against police misconduct which the Charter now accounts for in a much more satisfactory and meaningful way.”

The majority decision appears to be in inline with the it’s recent judicial pronouncements in Regina v. Jordan and Regina v. Cody where in the Court set out the new rules and law under Section 11(b) of the Charter to ensure timely trials.

For more general information about DUI charges, please refer to our link on DUIs and Over 80 offences.

If you have been charged with DUI and Over-80, this case underscores the importance of ensure that your rights under Section 8 of the Canadian Charter or Rights and Freedoms are thoroughly canvassed to ensure that all possible defences undergird a Charter Notice (where applicable) and filed in the Court prior to your trial.  To make arrangements, for a free initial thirty (30) minute telephone consultation, during our regular office hours, please contact J.S. Patel, Criminal DUI Lawyer at 403-585-1960 (Calgary) or 1-888-695-2211 (Toronto).

  *** The opinions expressed in this Blog are not a substitute for full and through legal advice. It is not meant to be used a fulsome account of entire decision and area of law discussed.