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Toronto Backlog of Toronto drunk-driving cases threatens goal of zero tolerance

Toronto Police Sergeant Jason Wrong and directs a driver during a RIDE spot check in Toronto this week.

Christopher Katsarov/The Globe and Mail

A 23-year-old landscaper was pulled over by Peel Regional Police in a routine traffic stop on March 23, 2015. After failing a breathalyzer test, he was charged with impaired driving. In legal terms, it was a basic "over 80" case and should have taken no more than a few months to go to trial.

Instead, it would be 18 months of constant delays: Six weeks and two court appearances before evidence was disclosed to the defence, trouble finding a judge and then scheduling conflicts between the Crown and defence lawyers. Finally, in October the charges were stayed when a judge ruled that the accused – who had put off going to school, burned through his savings and spent many sleepless nights worrying about potential consequences – had waited too long for justice.

This was a "straightforward case that should have taken one day," Justice Paul Monahan wrote in his decision, noting it took an additional six months just to find half a day of court time.

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As police roll out holiday RIDE checks across the Greater Toronto Area, provincial court data show that regional court systems are struggling to process impaired cases efficiently. Provincially, it takes an average of 194 days to process an impaired-driving case. In Toronto, the overall average is 324 days and eight court appearances. At the downtown Old City Hall courthouse specifically, it is even slower, with an average of 376 days per case.

Since the Supreme Court of Canada issued its decision in R. v. Jordan in July that set out new rules on the time frame for when the delay to get to trial is unreasonable – for offences such as impaired driving with no injury it would normally be 18 months – there have been at least seven reported impaired-driving cases stayed in Ontario. All of them are in the GTA – four in Brampton, two in Toronto and one in Newmarket.

Beyond delays, more than one in five impaired-driving cases are stayed or withdrawn before trial for a variety of reasons, such as the availability of witnesses or problems with evidence collections. Critics worry that each time a charge is dropped by the courts, whether because of delays or procedural issues, it weakens the system's deterrent effect and undermines the goal of showing zero tolerance for drinking and driving.

"We used to be able to finish two impaired trials in one day," says Kate Matthews, head of the Ontario Crown Attorneys Association. Over the past several years, things have changed so that, now, even for a basic impaired, at least two days are set aside for trial, she said.

Impaired-driving cases in Toronto and the GTA are currently proceeding more slowly than in the past, even though higher courts have reduced the types of defences that can be used in impaired cases. And despite technological advances, a basic impaired trial in 2016 still requires that police evidence be burned into an old-fashioned DVD.

In the summer, Justice Rebecca Shamai, who presides at Old City Hall, complained of what she described as a "culture of complacency" in these cases. "Letters are written, words are spoken in court, but the words seem to have no impact in real life. The court is given to understand that earnest efforts are being made, by both sides, and yet there is no traction in terms of the impact of those words," the judge stated in a ruling that declined to throw out impaired charges for delay, 14 months after the person was charged.

The reasons for the slow pace are varied, with everyone blaming different parts of the system. Delays start at the front end, states defence lawyer Jonathan Rosenthal. In Toronto, it is often at least four weeks before the first court appearance for someone charged with impaired driving. By then, Mr. Rosenthal says that police should be able to provide the main "disclosure package," which includes breathalyzer data, copies of any police in-car video and booking videos at the detachment. "They often don't have that ready. I don't know why."

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That view is echoed by Toronto defence lawyer Theo Sarantis. "You never have everything on the first appearance. You usually have some disclosure, but not everything," he explains. Without receiving all of the prosecution's evidence, he says, a defence lawyer is not in a position to consult with the client and make decisions how to proceed.

Brian Starkman, a defence lawyer based in Peel Region, says that, often, it takes a long time to receive any additional evidence that is requested. "All I know is I come to court and say to the judge, 'I do not have what I need.' My client is entitled to full disclosure."

Toronto police say that it is focused on speeding up the pace of disclosure in all prosecutions, including impaired driving. "Chief Mark Saunders understands we have to address the needs of the courts," says Brian Preston, acting superintendent of Court Services for the Toronto Police Service. The current requirement for officers to provide "primary disclosure" to the Crown's office is 14 days after the date of an arrest, he says. As well, Supt. Preston has been assigned to chair a Toronto police working group seeking to find ways to provide disclosure in a more timely fashion.

"There is room for improvement, but we are collectively working with the Ministry of the Attorney-General on this," he says.

Peel Regional Police say that of the four cases in their region that have been stayed since July, only one was because of a disclosure issue. The force is increasing personnel in its impaired unit and, in 2017, will introduce electronic disclosure of evidence to the Crown to help speed up this process. A directive for officers in Peel requires a court package to be submitted within six days of an impaired-driving charge being filed.

The average time of nine months for a case to be dealt with in Brampton is "well within the presumptive ceiling of unreasonable delay set out by the Supreme Court," says Constable Mark Fischer, a spokesman for Peel police. He adds that the multiple appearance dates in court for impaired driving are "out of the control of Peel Regional Police" and include reasons such as sick dates by the defence lawyer or accused, as well as the sitting dates and availability of judges.

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Front-end delay is not a new issue. Justice Gary Trotter (who was recently elevated to the Ontario Court of Appeal) stated in a decision nearly seven years ago that it was a "common occurrence" for there to be slow disclosure by police in impaired cases. "In our digital world, in which data is so easily shared, there is no good reason why a copy cannot be produced in a very short period of time," he wrote.

A spokesman for the provincial Ministry of the Attorney-General says it takes impaired-driving cases very seriously. "The vast majority of these prosecutions are completed well below the Jordan threshold of 18 months in the Ontario Court of Justice," says Brendan Crawley. The ministry is also working on ways to enhance management of impaired-driving cases and working with police to speed up disclosure, he adds.

According to Ms. Matthews of the Crown attorneys' association, there is also a need for more prosecutorial resources. "There is not enough support staff to process everything."

The province acknowledged the shortage this week by expanding the justice system with 13 judges, 32 assistant Crown attorneys, 16 duty counsel serving accused people and 26 court staff in an attempt to meet Supreme Court deadlines for timely trials. It is not clear if the measures will speed up impaired-driving cases as it focused on improving the bail-hearing process. Virtually everyone charged with an impaired-driving offence is released without requiring a bail hearing, unless there is a fatality.

Ms. Matthews noted that Charter motions by the defence seeking to have impaired charges thrown out are still common and take up court time.

Even when new measures have been instituted to try to streamline the process, it has not always gone smoothly. A provincial initiative called SCOPE is supposed to permit police to share evidence electronically with the Crown; yet, there have been glitches. "The system used by the Toronto police does not communicate with the Ontario government system. I think this has made it worse," says Ms. Matthews.

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Supt. Preston points out that SCOPE is not Toronto police software. "It is their [the ministry's] software. We feed that product. On both sides there is a bit of a learning curve."

Mr. Rosenthal, the Toronto defence lawyer, suggests that individual Crown attorneys should be given more leeway to agree to let a defendant plead guilty to a lesser Highway Traffic Act offence instead of going ahead with a criminal trial. "There are too many levels needed to get approval. The Crown attorneys know what they are doing. You should give them more discretion," he says.

A plea bargain to a non-criminal charge such as careless driving can be in the public interest, says Mr. Starkman, the Peel defence lawyer. "If there are issues that prevent the prosecution from having a reasonable prospect of conviction, there is still some punishment and you save public resources."

Plea bargains are rarely palatable, however, to those who campaign against drunk driving and worry the zero-tolerance message isn't getting through. According to the Ontario Provincial Police, drunk-driving charges are down slightly across the province, but about 6,600 have still been laid so far this year. Last spring, Marco Muzzo was sentenced to 10 years in prison for impaired driving causing four deaths, the toughest penalty for a drunk driver with no previous criminal record in recent Canadian history.

Mr. Muzzo's case moved swiftly through the courts because he pleaded guilty to the Vaughan crash that killed siblings Daniel Neville-Lake, 9, Harrison, 5, and Milagros, 2, and their 65-year-old grandfather, Gary Neville. Their grandmother, who was driving, and great-grandmother were also seriously injured.

In her ruling, Ontario Superior Court Justice Michelle Fuerst noted impaired driving is a crime committed by otherwise law-abiding people, so a strong penalty is a potential deterrent – one that has often failed.

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"For as long as Mr. Muzzo has been alive, courts have warned about the consequences of impaired driving. Yet the message escaped him. It is important it does not escape others," she wrote.

How courts handle drunk-driving cases is critical and addressing delays with more pleas "is not acceptable," says Mothers Against Drunk Driving Canada chief executive Andrew Murie. "Very few 'over 80' charges involve readings just over the legal limit. The majority of cases come close to double the legal limit," he says.

MADD Canada has been lobbying the Ontario government to enact measures similar to those brought in in British Columbia in 2010. Drivers who register a "fail" on a roadside breath test can have their vehicle impounded immediately, receive a 90-day licence suspension, pay a fine and may be required to take a course to regain the right to drive.

The Crown still has the discretion to proceed criminally, but Mr. Murie believes that the measures have reduced the number of cases in B.C. courts while also improving road safety. "If you want to improve the system, the B.C. model is the perfect model," he says.

Since the B.C. government enacted its new measures, the number of drug- or alcohol-related traffic fatalities has been consistently lower, with 127 deaths in 2010 and 69 last year, according to data released by the province. Criminal prosecutions of standard impaired-driving charges are also down by about 85 per cent in B.C., since it implemented more serious administrative penalties, according to the provincial Ministry of Justice.

Ontario has some administrative penalties for drivers who register a "warn" (.05 to .08) on a roadside test. For the immediate future at least, anything higher than that will still involve navigating the slow-moving criminal courts.

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