COURT OF NOVA SCOTIA
Citation: R. v. Allison, 2016 NSSC 192
Date: 2016-07-21
Docket: Hfx No. 407021A
Registry: Halifax
Between:
Terry Thomas Allison
Appellant
v.
Her Majesty the Queen
Respondent
Judge:
The Honourable Justice M. Heather Robertson
Heard:
January 15, 25 and May 19, 2016, in Halifax, Nova Scotia
Decision:
July 21, 2016
Counsel:
Terry Thomas Allison, self-represented appellant
J. Christopher Nicholson, for the respondent
Page 2
Robertson, J.: (Orally)
[1] Mr. Terry Allison, self-represented, appeals his conviction pursuant to s. 253
(b) of the Criminal Code (consuming alcohol exceeding 90 milligrams while in the
care and control of a motor vehicle). The event leading to these convictions
occurred on August 4, 2007. Mr. Allison was arrested and released.
[2]
The information charging Mr. Allison was sworn on August 30, 2007.
[3] On August 13, 2012, his trial was finally completed, when a decision was
rendered. Mr. Allison’s application to permit new evidence and a Charter
challenge under s. 11(b) is successful. His conviction is overturned. My reasons
follow.
[4] The timelines of this case and explanation for adjournments are agreed upon
by the parties.
[5] Following the charges being sworn, a plea of not guilty was entered on Mr.
Allison’s behalf on September 27, 2007. The trial was to be set for June 3, 2008.
[6] The Crown was not ready to proceed on June 3, 2008 due to the
unavailability of a Crown witness. The Crown sought an adjournment. The date
of June 9, 2009 was offered and accepted by counsel.
[7] On June 9, 2009, the Crown again sought an adjournment as one of six
Crown witnesses was unavailable that day. As well, the Crown noted that a
Korean witness might require a translator, then not arranged. Crown counsel also
noted that as the breath sample was not taken within the two-hour time limit, the
presumption under s. 258 would not apply and the Crown would have to call Ms.
Elizabeth Dittmar as the alcohol expert. Crown counsel noted that their estimate of
required time for trial ought to have been a full day and that the matter could not be
completed on June 9, 2009 even if all witnesses had been available.
[8] Defence counsel noted that they did not want to split the trial and preferred a
one-day trial. The date of June 26, 2009 was offered, but defence counsel was not
available as he was to then appear in the Supreme Court on another matter.
[9] The date of December 4, 2009 was then selected as being convenient for all
witnesses.
Page 3
[10] On June 16, 2009, the Crown sought an adjournment of the trial date from
December 4, 2009 to June 15, 2010, due to the unavailability of the trial judge.
[11] Again, the court had offered the date of June 26, 2009, but defence counsel
was attending in the Supreme Court that day. The court noted that after December
4, 2009, the first full-day next available was April 19, 2010. Defence counsel was
scheduled to be out of the country. The court noted May 2010 was arraignment
month, so the first next available day was June 15, 2010. Defence counsel agreed
to the date noting he had spoken with his client, “I called him.”
[12] In the fall of 2009 and spring of 2010, correspondence between the Crown
and defence counsel raised the issue of the unavailability of the Crown’s expert
witness Elizabeth Dittmar who was eventually replaced by another expert Ms.
Josette Hackett.
[13] On June 15, 2010, the Crown sought a brief adjournment to discuss the
possibility of shortening evidence. When the matter was recalled the trial did not
proceed, as discussion ensued about whether the trial could then be completed in a
day. Defence counsel expressed the view that he wanted the trial to be heard in
one day. The court offered the date of July 29, 2010, but defence counsel was
unavailable. The court offered August 26, 2010. The court observed that the
matter has a long history and had been set for trial more than once.
[14] The trial did commence on August 26, 2010, four days short of 36 months
from the information being sworn.
[15] The trial was not completed on August 29, 2010. The matter was adjourned
to 2:00 p.m. October 7, 2010. On that date the trial was adjourned to November
26, 2010, when the expert Josette Hackett was to appear to provide an opinion on
the bolus drinking defence. On November 26, 2010, the trial resumed. It was not
completed and continuation was set for February 10, 2011.
[16] On February 10, 2011, the Crown indicates its wish to call rebuttal evidence
of the expert witness Josette Hackett, in reply to Mr. Allison’s testimony. Counsel
agreed to put the matter over to March 30, 2011.
[17] On March 30, 2011, defence counsel sought an adjournment as he had
suffered an injury and was on painkillers.
Page 4
[18] Following an additional expert rebuttal report of Josette Hackett being
secured by the Crown in May 2011, the trial resumed on July 21, 2011. The trial
evidence was completed. Dates for counsel submissions were set: Defence –
September 16, Crown – October 11 and return date October 27.
[19] On October 27, 2011, the Crown requested an adjournment to prepare
further written argument. The court offered January 11, 2012.
[20] On January 11, 2012, both counsel requested further adjournment. March
20, 2012 was set.
[21] Defence counsel suffered a ski accident and subsequent adjournments were
sought.
[22] On August 13, 2012, the decision was rendered – almost five years after the
charges had been laid on August 30, 2007.
[23] The grounds of the appeal are outlined in Mr. Allison’s brief dated
November 17, 2015:
I would like the Court to proceed with this new evidence request
because of the length of time and the actions my defense [sic] council [sic] took at
trail [sic].
The reason I started this appeal, is to clear my name of this
conviction. I was not drinking and driving on the day I was charged. The car I
was driving prior to parking it and locking the starting device that was in stalled
[sic] on this car, disabling anyone’s ability to drive this vehicle; other than my
wife who had the starting code and who was coming to pick it up shortly after I
parked the vehicle.
However, I did start to drink inside the laundry mat where I was
washing my clothes and was convicted of impaired driving after I consumed
alcohol in this laundry mat. I argue that my right to a trial within a reasonable
period of time has been violated. I have a general understanding that a trial
shouldn’t take more than a period of 2 years. On June 3, 2008 I asked Mr.
Scaravelli to bring this matter to the attention of the judge as the case was just put
over until June 2009. Mr. Scaravelli at that point made excuses for not doing this
“He didn’t want to piss off the judge” as he put it. I had no understanding of what
took place in court so I put my trust in his hands a fact I would later regret. I
brought this to his attention at every adjournment and he always had excuses not
to. While trying to discuss this in court with him I was scolded by the judge for
talking and didn’t think I could go directly to her with any situation. I continued
blindly to trust Mr. Scaravelli.
Page 5
[24] Mr. Allison’s motion was supported by his affidavit sworn July 31, 2015. In
his affidavit, Mr. Allison stated his issue with defence counsel:
3. THAT Mr. L. Scaravelli failed to provide effective assistance during my trial.
4. THAT I asked my lawyer (Mr. L.Scaravelli), at different times, to ask the court
to have my case dismissed because it was taking so long. He replied “we don’t
want to get the judge angry” or “we delayed at one time.”
[25] This matter was originally set down for a summary conviction appeal in the
Supreme Court of Nova Scotia on December 20, 2013. However, the Crown
counsel became aware that the amended notice of appeal filed October 4, 2012 by
the self-represented applicant set out a number of grounds of appeal including the
competence of counsel.
[26] Following procedures set by the Nova Scotia Court of Appeal, “Protocol for
Appeal Proceeding Involving Allegation of Ineffective Counsel” the appeal was
adjourned to allow trial defence counsel to file an affidavit with the court
respecting his representation of the accused. That affidavit was sworn and filed
September 29, 2015.
[27] In paras. 5 and 6, defence counsel addresses Mr. Allison’s complaint:
5.
With respect to paragraph 3 of Allison’s affidavit: I exercised my
professional judgment when determining the appellant’s position. We
discussed and reviewed the evidence and his position at length. I
communicated with him in a timely and effective manner at all times so
that he could provide informed instruction on how he would like to
proceed.
5.
With respect to paragraph 4 of Allison’s affidavit: we did discuss the
Crown’s requests for adjournments for which we provided consented. He
attended court with me and was present when the Crown sought the
adjournments and at no time instructed me to object.
[28] The appeal was heard by me on January 15, 2016.
[29] In cross examination by the applicant, Mr. Scaraveill’s recollection was
different:
MR. ALLISON: Okay. So, Mr. Scaravelli, can you tell me how many times I
requested this matter to you to be thrown out of court, to bring it up to the Court's
attention?
Page 6
A. You asked me a few times.
Q. Every time they had a delay I think I asked so ...
A. No, I don't think so, no. It seems to me it would have 1 started the first day we
had the trial, August 26th, 2010.
Q. No. No.
A. ...(inaudible)
Q. Well, anyway.
A. My recollection could be wrong. But the reason why I didn't request the delay
... you were trying to interrupt me during the proceedings, do you recall that?
Q. I was trying ... at what point?
A. At ... mostly all the points when you wanted me to tell the judge that, Your
Honour, we should ... you should drop this ... these charges because it's taking too
long.
[30] Mr. Scaravelli went on to testify that he afforded Mr. Allison a good defence
by introducing the evidence of Mr. Dong to discredit the evidence of the ticketing
officer, Ms. Shea, and by addressing the toxicology report “that would help you
mount an appropriate defence.”
[31] With respect to delay and all of the Crown’s requests for adjournments,
Crown counsel, Mr. Nicholson, accepted as accurate the explanation of the
timelines; attached as Exhibit “A” to Mr. Allison’s affidavit.
[32] However on appeal he was not prepared to address the timelines in detail or
comment on the delay by attributing the delay to Crown’s requests, defence
requests, inherent delay or institutional delay.
[33] Mr. Nicholson’s position was that on the appeal of this conviction, the issue
of delay could not properly be raised before this court, as defence counsel had
failed to address the issue of delay at trial. Crown counsel relied on R. v. Tran
[2004] B.C.J. 2217 (B.C.C.A.) and R v. Phillips, 2006 NSCA 135 (N.S.C.A.). The
Crown submitted:
An application for unreasonable delay must be done at trial so the issues can be
fully canvassed and the trail [sic] judge can make an informed decision on the
facts and timing of the issue being raised.
The Respondent respectfully submits that the fresh evidence requested by the
Appellant on delay should not be permitted in these circumstances.
Page 7
[34] Crown counsel noted that he could find no cases “where a failure to raise
delay resulted in a claim of ineffective counsel.”
[35] On July 8, 2016, the Supreme Court of Canada released its decision in R. v.
Jordan, 2016 SCC 27. The Supreme Court has chosen to revisit the issue of
unreasonable delay and the former s. 11(b) analysis under Morin.
1 Timely justice is one of the hallmarks of a free and democratic society. In the
criminal law context, it takes on special significance. Section 11(b) of the
Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the
right of accused persons "to be tried within a reasonable time".
2 Moreover, the Canadian public expects their criminal justice system to bring
accused persons to trial expeditiously. As the months following a criminal charge
become years, everyone suffers. Accused persons remain in a state of uncertainty,
often in pre-trial detention. Victims and their families who, in many cases, have
suffered tragic losses cannot move forward with their lives. And the public, whose
interest is served by promptly bringing those charged with criminal offences to
trial, is justifiably frustrated by watching years pass before a trial occurs.
3 An efficient criminal justice system is therefore of utmost importance. The
ability to provide fair trials within a reasonable time is an indicator of the health
and proper functioning of the system itself. The stakes are indisputably high.
4 Our system, however, has come to tolerate excessive delays. The
circumstances in this appeal are illustrative. Notwithstanding a delay of over four
years in bringing a drug case of modest complexity to trial, both the trial judge
and the Court of Appeal were of the view that the appellant was tried within a
reasonable time. Their analyses are reflective of doctrinal and practical difficulties
plaguing the current analytical framework governing s. 11(b). These difficulties
have fostered a culture of complacency within the system towards delay.
5 A change of direction is therefore required. Below, we set out a new
framework for applying s. 11(b). At the centre of this new framework is a
presumptive ceiling on the time it should take to bring an accused person to trial:
18 months for cases going to trial in the provincial court, and 30 months for cases
going to trial in the superior court. Of course, given the contextual nature of
reasonableness, the framework accounts for case-specific factors both above and
below the presumptive ceiling. This framework is intended to focus the s. 11(b)
analysis on the issues that matter and encourage all participants in the criminal
justice system to cooperate in achieving reasonably prompt justice, with a view to
fulfilling s. 11(b)'s important objectives.
[36] The court examined the Morin framework in paras. 30-37 and “observed
culture of complacency toward delay has emerged in the criminal justice system.”
(para. 40)
Page 8
[37] The new framework for s. 11(b) analysis is described in paras. 46-48:
46 At the heart of the new framework is a ceiling beyond which delay is
presumptively unreasonable. The presumptive ceiling is set at 18 months for cases
going to trial in the provincial court, and at 30 months for cases going to trial in
the superior court (or cases going to trial in the provincial court after a
preliminary inquiry).
47 If the total delay from the charge to the actual or anticipated end of trial
(minus defence delay) exceeds the ceiling, then the delay is presumptively
unreasonable. To rebut this presumption, the Crown must establish the presence
of exceptional circumstances. If it cannot, the delay is unreasonable and a stay
will follow.
48 If the total delay from the charge to the actual or anticipated end of trial
(minus defence delay or a period of delay attributable to exceptional
circumstances) falls below the presumptive ceiling, then the onus is on the
defence to show that the delay is unreasonable. To do so, the defence must
establish that (1) it took meaningful steps that demonstrate a sustained effort to
expedite the proceedings, and (2) the case took markedly longer than it reasonably
should have. We expect stays beneath the ceiling to be rare, and limited to clear
cases.
[38] In accounting for delay, the court instructed at paras. 60-67:
60 Application of this framework, as under the Morin framework, begins with
calculating the total delay from the charge to the actual or anticipated end of trial.
Once that is determined, delay attributable to the defence must be subtracted. The
defence should not be allowed to benefit from its own delay-causing conduct. As
Sopinka J. wrote in Morin: "The purpose of s. 11(b) is to expedite trials and
minimize prejudice and not to avoid trials on the merits" (p. 802).
61 Defence delay has two components. The first is delay waived by the defence
(Askov, at pp. 1228-29; Morin, at pp. 790-91). Waiver can be explicit or implicit,
but in either case, it must be clear and unequivocal. The accused must have full
knowledge of his or her rights, as well as the effect waiver will have on those
rights. However, as in the past, "[i]n considering the issue of 'waiver' in the
context of s. 11(b), it must be remembered that it is not the right itself which is
being waived, but merely the inclusion of specific periods in the overall
assessment of reasonableness" (R. v. Conway, [1989] 1 S.C.R. 1659, per
L'Heureux-Dubé J., at p. 1686).
62 Accused persons sometimes, either before or during their preliminary
hearing, wish to re-elect from a superior court trial to a provincial court trial for
legitimate reasons. To do so, the Crown's consent must be obtained (Criminal
Code, R.S.C. 1985, c. C-46, s. 561). Of course, it would generally be open to the
Page 9
Crown to ask the accused to waive the delay stemming from the re-election as a
condition of its consent.
63 The second component of defence delay is delay caused solely by the
conduct of the defence. This kind of defence delay comprises "those situations
where the accused's acts either directly caused the delay ... or the acts of the
accused are shown to be a deliberate and calculated tactic employed to delay the
trial" (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at
causing delay, which include frivolous applications and requests, are the most
straightforward examples of defence delay. Trial judges should generally dismiss
such applications and requests the moment it becomes apparent they are frivolous.
64 As another example, the defence will have directly caused the delay if the
court and the Crown are ready to proceed, but the defence is not. The period of
delay resulting from that unavailability will be attributed to the defence. However,
periods of time during which the court and the Crown are unavailable will not
constitute defence delay, even if defence counsel is also unavailable. This should
discourage unnecessary inquiries into defence counsel availability at each
appearance. Beyond defence unavailability, it will of course be open to trial
judges to find that other defence actions or conduct have caused delay (see, e.g.,
R. v. Elliott (2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).
65 To be clear, defence actions legitimately taken to respond to the charges fall
outside the ambit of defence delay. For example, the defence must be allowed
preparation time, even where the court and the Crown are ready to proceed. In
addition, defence applications and requests that are not frivolous will also
generally not count against the defence. We have already accounted for
procedural requirements in setting the ceiling. And such a deduction would run
contrary to the accused's right to make full answer and defence. While this is by
no means an exact science, first instance judges are uniquely positioned to gauge
the legitimacy of defence actions.
66 To summarize, as a first step, total delay must be calculated, and defence
delay must be deducted. Defence delay comprises delays waived by the defence,
and delays caused solely or directly by the defence's conduct. Defence actions
legitimately taken to respond to the charges do not constitute defence delay.
67 The next step of the analysis depends upon whether the remaining delay -that is, the delay which was not caused by the defence -- is above or below the
presumptive ceiling.
[39] In the circumstance of this case, the Crown did agree in its submissions that
“the length of the delay is sufficient, almost five years to call for an inquiry into
reasonableness. However this should have been done at trial.”
[40] In considering the R. v. Jordan, supra, framework applied to this case, the
trial commenced on August 26, 2010 – 35 months and 26 days after the charges
Page 10
were laid, almost twice the presumptive ceiling for matters before the Provincial
Court. This was a very straight forward breathalyzer trial, without complexity the
trial ought to have been completed within a year, most certainly within 14-18
months as per the Morin guidelines.
[41] The calculation of any delay to be attributed to the defence must now be
considered in light of the motion before me to introduce new evidence relating to
the issue of delay and competency of counsel.
[42] Initially defence counsel stated that his client was consulted about and
agreed to every adjournment. But that is not correct.
Why was there such a delay in this trial?
[43] For the first 36 months of this trial proceeding, I deem the delay to be Crown
delay. They requested adjournments, due to the unavailability of witnesses, the
unavailability of a trial judge, the need to replace a Crown expert on alcohol levels,
and poor planning as it ought to have been obvious from the outset that six Crown
witnesses, one of whom as an expert, could not have completed their evidence in
even one day. Even when aware of the bolus defence that the applicant’s counsel
wished to pursue, the trial evidence was not completed for another year. Delay
occasioned by defence counsel’s requests did not occur before 2011 well outside
the presumptive ceiling that the Crown is unable rebut. There were no exceptional
circumstances in this trial.
[44] Even under the old Morin framework, this Provincial Court trial exceeded
Morin’s 18-month tolerance for institutional delay in Provincial Court.
[45] It is clear from the evidence before me that Mr. Allison had a sense of his
own jeopardy, as years went by and the trial continued to be adjourned.
[46] His defence counsel agreed to new dates at the various appearance I have
outlined. However in my view he did not turn his mind to the Charter right of his
client “to be tried within a reasonable time” despite his client’s efforts to ask him
to raise the delay issue before the trial commenced in 2010. Crown counsel for its
part seemed content to allow three years to pass before commencement of the trial
so long as they believed defence counsel agreed to new dates.
[47] By agreeing to the new dates, I do not accept that defence counsel effected a
waiver of his client’s s. 11(b) right, i.e. “the inclusion of special periods in the
Page 11
overall assessment of reasonableness” Jordan, supra, para. 61. This is particularly
so on the occasions when his client directly asked him to raise the issue with the
court.
[48] The waiver was not clear and unequivocal with the accused having full
knowledge of his rights. It was an issue that deserved discussion before the court,
discussion between counsel and discussion between defence counsel with his
client.
[49] Counsel aware of the s. 11(b) issue will often specifically state “I agree that
the matter will be adjourned to x date, but my acquiescence to the adjournment is
not meant to be a waiver of my client’s 11(b) right.” No such acknowledgement
was made in this case, despite the client’s many attempts to address delay.
[50] I do not view the circumstance of this case as meriting transitional tolerance
because of a previously understood state of the law, or some exceptional
circumstance arising from any of the acknowledged timelines.
[51] In this case, five years is simply beyond any reasonable tolerable limit for
the completion of the trial.
[52] Mr. Allison’s motion to admit new evidence for the purpose of arguing
unreasonable delay must succeed in the light of R. v. Jordan, supra.
[53] It is not necessary to address the second ground of appeal, that of a
reversible error of the trial judge.
[54] The appeal is upheld on the s. 11(b) grounds and the conviction is set aside.
Justice M. Heather Robertson