The Trial Date Nineteen Months Out
Your client is charged with driving with a blood-alcohol concentration over 80 (Criminal Code s. 320.14(1)(b)) and with careless driving under the Highway Traffic Act. The information was sworn on 3 March 2025. He appeared on 2 April 2025, and the matter was set down for trial. Two adjournments followed: five weeks because he had not yet retained counsel, and three weeks because you were in a judge-alone trial in Newmarket. His trial is now scheduled for 15 October 2026. The approved instrument certificate shows 130 mg of alcohol per 100 mL. He tells you, "Just plead me out, I was probably over anyway." He also mentions he sat handcuffed in the back of a cruiser for 55 minutes before the breath technician arrived and that nobody told him he could call a lawyer.
1. Calculate the net delay and assess whether a s. 11(b) application is arguable on the criminal charge.
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Calculation
- Information sworn: 3 March 2025.
- Trial date: 15 October 2026.
- Total elapsed: about 19 months and 12 days, i.e. roughly 590 days.
- Defence delay: 5 weeks + 3 weeks = 8 weeks = 56 days. Both adjournments were sought by or attributable to the defence.
- Net delay: approximately 534 days, or about 17.5 months.
Assessment
Under the Jordan framework, the presumptive ceiling in a provincial court proceeding is 18 months. Net delay of 17.5 months sits below the ceiling, so the defence cannot simply point to the calendar and ask for a stay. The burden would be on the defence to show that the Crown took markedly longer than it should have, and that the defence took meaningful, sustained steps to expedite the proceeding.
Advise the client accordingly, but flag the margin: there are only about two weeks of room. Any further defence-requested adjournment pushes the matter over the ceiling and reverses the burden, and any additional Crown-attributable period (late disclosure, unavailable Crown witness, lost trial time) does the same. Diarise the math and re-run it after every appearance. Also note that the Highway Traffic Act charge is a regulatory offence and the s. 11(b) analysis above does not transfer to it; delay arguments there rest on a different foundation.
2. The client instructs you to enter a guilty plea to the over 80 charge. What must you do before you can follow that instruction?
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You cannot enter the plea on these instructions as given.
A guilty plea is an admission of every essential element of the offence and is a formal admission of the facts alleged. Before pleading, you must be satisfied that:
- The client admits the essential elements - that he drove, that he had care or control, and that his blood-alcohol concentration exceeded the legal limit at the relevant time. "I was probably over anyway" is not an admission; it is a guess about a fact he says he does not remember.
- There is a factual basis that can be read in and that the client accepts. The 130 mg reading may supply the evidence, but the plea requires his admission. You must put the elements to him specifically and record his answers.
- He understands the consequences - the criminal record, the driving prohibition, the ignition interlock and remedial program consequences, any immigration or employment impact, and the fact that the plea will be treated as an admission in the HTA matter.
A guilty plea offered while the client maintains he did not do it is a plea you cannot ethically advance; the client may address the court himself, but you must not be the instrument of a plea you know to be untrue. Before any plea, canvass the breath-testing issues (approved instrument maintenance records, the technician's qualifications, the as-found and as-calibrated readings) so that the plea is informed. Then get written instructions.
3. What do you do with the 55-minute detention in the cruiser?
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Treat it as an investigative lead, not as a conclusion.
Get the chronology first. Demand and review full disclosure: the arresting officer's notes, the breath technician's notes, the roadside video, and the times recorded for the demand, the arrest, arrival at the detachment, the call to counsel, and the first sample. The legal question is not the 55 minutes in the abstract; it is what happened during it. A brief roadside detention before a breath demand is a recognised category in which the right to counsel may be suspended, but once the client is arrested and taken for testing, he must be given a reasonable opportunity to consult counsel without delay, before the sample is taken.
If there is a breach, the remedy is exclusion under s. 24(2), assessed under the Grant factors: the seriousness of the Charter-infringing state conduct, the impact on the accused's interests, and society's interest in adjudication on the merits. A clear denial of access to counsel before a breath sample is a serious breach, but exclusion is never automatic.
Advise the client of the tension. Running a s. 10(b) application will almost certainly require him to testify about what he was and was not told, which is inconsistent with the instruction to "plead out." He cannot do both. Put the choice to him in writing and let him instruct you.