Court File and Parties

Court File No.: 13-6933 Brampton

Date: June 20, 2014

Ontario Court of Justice Central West Region

Between:

Her Majesty the Queen

— and —

Mark Bezub

Before: Justice Richard H.K. Schwarzl

Application heard on: May 29, 2014

Reasons for section 11(b) Charter Ruling released on: June 20, 2014

Counsel:

• Ms. Helena Gluzman for the Crown/Respondent
• Mr. Ernst Ashurov for the Accused/Applicant

SCHWARZL, J.:

Section 11(b) Charter Ruling

1.0: INTRODUCTION

[1] On May 27, 2013 the Applicant, Mr. Mark Bezub, was charged by the Peel Regional Police with a single count of driving with excess blood alcohol contrary to section 253(1)(b) of the Criminal Code. His case is scheduled for a 1½-day trial on August 22 and 26, 2014. The overall time between the date of the alleged offence and the trial dates is just short of 15 months.

[2] Mr. Bezub has applied to the Court to find that in the circumstances of this case his right to be tried within a reasonable time as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") has been violated and as a remedy he seeks a stay of proceedings. The Crown opposes the application.

2.0: RELEVANT CHRONOLOGY OF EVENTS

2.1: Date of Alleged Offence to Setting the Trial Dates: May 27, 2013 to September 23, 2013

[3] The alleged offence occurred on May 27, 2013 at the City of Mississauga. The Applicant was released unconditionally by means of a Promise to Appear with a first appearance date of June 10, 2013. The Information was sworn on June 5, 2013.

[4] On June 10, 2013 counsel appeared on behalf of the Applicant and received initial disclosure. The matter was adjourned at the Applicant's request for four weeks to July 8, 2013 in order to review the disclosure materials.

[5] On July 8, 2013 counsel appeared on behalf of the Applicant and requested that the matter be adjourned for three weeks to August 1, 2013 for a resolution meeting with Crown counsel. On July 8, counsel for the Applicant also received some further disclosure that he had requested between the first and second appearances.

[6] On August 1, 2013 counsel appeared again on behalf of the Applicant. Counsel informed the court that he was waiting for notes of P.C. Calcagni and P.C. Alladice in order to conduct a resolution meeting. Both officers were the first police to be involved and were both material potential prosecution witnesses. Neither of the officers' notes were disclosed on either the first or second appearances but on August 1 the notes of P.C. Alladice were provided to counsel for the Applicant. The matter was adjourned until August 12 at the recommendation of the court.

[7] On August 12, 2013 counsel appeared once more for the Applicant. Following a resolution meeting between the parties, a judicial pre-trial conference was scheduled because the matter was expected to exceed one day for trial. Counsel advised the court that he still had not received the notes of P.C. Calcagni, one of the first officers to investigate the case. September 23, 2013 was the first date available to the court for a judicial pre-trial conference and was fixed. However, counsel for the Applicant was available as early as August 15, 2013.

[8] On September 23, 2013 a judicial pre-trial conference was held. Counsel appeared on behalf of the Applicant at this appearance.

[9] The time between the alleged offence date and the setting of the trial dates was 4 months.

2.2: Setting the First Trial Date to the Trial Dates: September 23, 2013 to August 22 and 26, 2014

[10] On September 23, 2013 a day and a-half trial was set following a judicial pre-trial conference. The first dates offered by the court were in early August, 2014. However, the prosecution witnesses were not available until August 22 at the earliest. Counsel for the Applicant informed the court that he was available for two days every month between October, 2013 and August, 2014. Trial dates of August 22 and 26, 2014 were thus scheduled for trial with a confirmation date of May 14, 2014. Notwithstanding the absence of notes from P.C. Calcagni, which the Applicant was still seeking, trial dates were set. Crown counsel advised that it appeared that the officer was off work with an injury and that they would follow up with the disclosure request. A Russian interpreter was ordered to assist the Applicant at trial.

[11] On September 30, 2013 the Crown advised counsel for the Applicant that P.C. Calcagni had left the police service and had gone abroad. The officer would no longer be a prosecution witness.

[12] On November 19, 2013 the Crown obtained and disclosed P.C. Calcagni's notes to the defence.

[13] On March 13, 2014 the Crown provided the defence with notice regarding expert toxicological evidence expected to be presented at trial. This had been anticipated by the defence and factored into the trial time estimate.

[14] The time between setting the trial dates and the trial dates themselves is 11 months.

3.0: PREJUDICE TO THE APPLICANT

[15] The Applicant swore an affidavit in which he declared the following prejudice:

(a) He is not a permanent resident of Canada. If convicted he may have to leave the country despite being married to a Canadian with whom he has a child;

(b) A concern about losing his driver's licence should he be found guilty because he needs to drive for employment purposes;

(c) He has suffered daily anxiety since being charged. The anxiety has increased while awaiting trial. He has trouble sleeping, he is irritable and is experiencing problems in his personal and work relationships, and he is losing hair; and

(d) As time has passed his memory of relevant events might be diminished.

[16] The Applicant was cross-examined on the issue of prejudice. He agreed that until this motion he has never appeared personally in court; that he has obtained good employment despite being charged or awaiting trial; and that his stress started the moment he was charged.

4.0: POSITIONS OF THE PARTIES

4.1: Applicant/Accused

[17] The Applicant submits a number of factors have caused the delay in this trial to be unreasonable. Three factors are important to this application.

[18] First, it was acknowledged by the Crown that P.C. Calcagni and P.C. Alladice were material witnesses being the first officers to investigate the matter. The Applicant argued that their notes should have been included in the initial, basic disclosure provided on the first court appearance which was about two weeks after the date of the alleged offence. The defence submits that this basic disclosure was necessary to understand the evidence, assess the legal issues, and to decide whether to proceed to trial or to plead guilty. Mr. Ashurov submitted that the absence of these notes until P.C. Alladice's notes were provided on August 1, nearly two months after the first appearance was prejudicial. Counsel pointed out that in Ontario, offenders who resolve drink/drive cases within 90 days of the offence are subject to a more lenient driver's licence reinstatement regime than those whose cases are completed beyond this time frame. Counsel also submitted that until he had at least one of the officers' notes he could not have a meaningful resolution meeting with Crown counsel, such meeting not occurring until August 12 after P.C. Alladice's notes were disclosed on August 1.

[19] Second, the Applicant submits that it was unreasonable not to offer an earlier pre-trial conference date. In this case, the conference was fixed on August 12, 2013 for September 23, 2013 or five weeks hence. Counsel was available as early as August 15.

[20] Third, the Applicant submits that he was available for a two-day trial as early as October, 2013, or less than one month after the judicial pre-trial conference and was available each month thereafter. The Applicant submits that it was unreasonable for the court to offer trial dates commencing in early August 2014, some ten-plus months into the future. The Applicant submits that a one-month grace period for trial preparation was adequate given the nature of the charges.

4.2: Respondent/Crown

[21] The Crown acknowledges that the fault for not providing basic police notes rests with them. The Crown submits the overall delay and the reasons for that delay were not unreasonable. The Crown argued that the bulk of the prejudice claimed by the Applicant arises from being charged and not by delay. The Crown submits that when taking the situation as a whole Mr. Bezub's section 11(b) Charter right has not been infringed.

5.0: APPLICABLE LEGAL PRINCIPLES

[22] All persons enjoy the right to be tried within a reasonable time as enshrined in section 11(b) of the Charter. It is presumed that the state has respected that right and the burden is on the Applicant to establish on a balance of probabilities that he was not tried within a reasonable time: R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.).

[23] There is no cut-off or stale date at which the length of the trial process becomes automatically unreasonable. The determination of whether a delay has been unreasonable requires an assessment of the entire time from the time of the charge to the end of the trial: R. v. Allen (1997), 110 C.C.C. (3d) 331 (Ont. C.A.), affirmed, 119 C.C.C. (3d) 1 (S.C.C.); R. v. Morin, supra at ¶ 32 – 36.

[24] Some delay in bringing a matter to trial is inevitable. In assessing whether the entire time is unreasonable, courts must balance a myriad of factors identified by the Supreme Court in Morin, supra. Those factors are:

(a) The length of the delay;

(b) The waiver of any delay by the Applicant;

(c) The reasons for the delay, including:

(i.) The inherent time requirements of the case;

(ii.) The actions of the Accused/Applicant;

(iii.) The actions of the Crown including the police;

(iv.) Limits on institutional resources; and

(v.) Other reasons for delay; and

(d) Prejudice to the Applicant caused by the delay.

[25] With respect to the concept of "inherent time requirements" it encompasses four different aspects: (a) the intake period of the case[^1]; (b) the court time required to try the case; (c) adjournments required to find additional court time to try the case when the initial time estimates prove inaccurate; and (d) the complexity of the case. The inherent time requirements of a case are considered neutral in the 11(b) analysis and are not included in systemic delay: R. v. Ferguson, [2005] O.J. No. 3442 (S.C.J.) at ¶140 – 149; R. v. Shyshkin, [2007] O.J. No. 1821 (S.C.J.).

[26] Delay needed to schedule a Judicial Pre-Trial (JPT) is institutional delay and the period between the scheduling of the JPT and the hearing as inherent time requirements: R. v. C.R.G. (2005), 77 O.R. (3d) 308 (C.A.); R. v Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.) at ¶ 33 - 37. Arranging a JPT should be treated as part of the inherent time requirements of the case as long as the court is available within a reasonable time: R. v. Emanuel, 2012 ONSC 1132, [2012] O.J. No. 709 (S.C.J.), at paras. 16, 20-21.

[27] With respect to delay caused by any actions by the Crown, those actions include acts of both the prosecution and acts of the police. The Crown is responsible for timely disclosure and for any lackadaisical conduct of the police: R. v. Stacey, [2002] O.J. No. 5143 (S.C.J.)

6.0: ANALYSIS

6.1 Reasons for Delay

[28] The total delay from the date of the alleged offence to the second trial date is just shy of 15 months. The total delay is sufficiently long to require an assessment of whether the Applicant's section 11(b) Charter right has been violated.

[29] There has been no explicit waiver by the Applicant in this case. No actions of the Applicant contributed to the delay.

[30] On the first appearance (June 10, 2013) initial disclosure was provided to the defence. Missing from that disclosure were the notes of the two primary investigators, P.C. Calcagni and P.C. Alladice. The notes of P.C. Alladice were disclosed on the third appearance (August 1, 2013) some seven weeks after the first appearance. The notes of P.C. Calcagni were disclosed in November, 2013 some five months after the first appearance. Defence counsel reasonably and properly required the disclosure of the notes of at least one or the other officer in order to make a basic assessment and to provide advice to the Applicant prior to deciding whether to resolve the case with or without a trial. No reason was provided to the court as to why the notes of the two primary officers were not in the initial disclosure.

[31] It would have been of assistance to the defence to have received the police notes on the first appearance and helpful in deciding whether or not to take the matter to trial or take advantage of the early reinstatement regime of the Ontario Highway Traffic Act for an early guilty plea.

[32] Cases such as Morin, supra, and Meisner, [2003] O.J. No. 1948 (S.C.J.) have held that two months is an appropriate intake period for simple drink/drive cases. Here the notes of P.C. Alladice were disclosed within two months of the first appearance. Counsel for the Applicant acknowledged that Alladice's notes were sufficient to make the necessary assessments and to provide his client with advice. In the circumstances, there was still a month or so to potentially take advantage of the Highway Traffic Act early reinstatement programme if so desired.

[33] In the case at bar, the parties had conducted a resolution meeting and were ready to fix a judicial pre-trial conference on August 12, 2013, being two months after the first appearance. A judicial pre-trial was required because the parties estimated the case to take more than one day to try. The pre-trial was booked for September 23, 2013 or five and a-half weeks later. This was the first date offered by the court, although Mr. Ashurov was available much sooner.

[34] This case is not unduly complex. However, the Applicant does require an interpreter, there is expert evidence to be tendered by the Crown, and there are claims of breaches of some of the Applicant's Charter rights. Therefore, it cannot be called a simple case, thereby increasing somewhat a reasonable intake period beyond two months.

[35] Since the advent of the Charter over thirty years ago, trial time for many cases involving Charter claims, particularly in drink-drive cases, has ballooned. It is common that drink-drive cases with Charter issues take at least one full court day or more to complete. This reality was recognized by Code, J in R. v. Lahiry, supra, where he noted:

158 ... It will be remembered that Darlene Morin was charged with both impaired driving and "over 80". On the trial date, in early 1989, her counsel argued the s. 11(b) Motion unsuccessfully and then conducted the trial on the merits. The Crown called the arresting officer and the breathalyzer technician and filed one exhibit (the breathalyzer certificate of analysis). No defence evidence was called. The trial evidence was described as "brief, covering only thirty-eight pages of trial transcript". The entire case, including the s. 11(b) Motion, must have taken no more than an hour, or two hours at the most. See: R. v. Morin (1990), 55 C.C.C. (3d) 209 at pp. 217-218 (Ont. C.A.).

159 Modern drinking and driving trials, such as the cases under appeal, bear no resemblance to Morin's Case. In Lahiry, a full day was set aside for a one witness trial and Motion. In Davidson, two full days were set aside for the trial and a further half day was set aside for the Motion. In Carreira, four hours was scheduled for trial but then it expanded and ended up taking between two and three full days. Four hours was scheduled for the Shelson trial.

160 The Supreme Court of Canada was setting standards for short, efficient, high volume summary trials in Morin's Case. The four cases under appeal do not fit this description. ...

[36] Given that this case involves a drink-drive charge with an interpreter, evidentiary applications, and a Charter application the parties were correct in estimating a trial of one and one-half days. Accordingly, it was appropriate to hold a judicial pre-trial conference to assist the parties in assessing and, in this case, confirming the necessary amount of trial time. Given the heavy lists in Brampton, I find that the JPT was held within a reasonable time. The court could not be expected to make itself available at counsel's earliest date.

[37] In this case, the overall time from the alleged offence date to the judicial pre-trial conference was four months. Of these four months, I find that 3½ months was due to the inherent time requirements of the case considering the complexity of the case, the need for a judicial pre-trial conference, and the provision of disclosure materials. I find that two weeks of this period is attributable to the actions of the Crown in not providing the police notes sooner.

[38] With respect to the period between the setting of the trial dates and the dates themselves, 11 months will have passed if the matter continues beyond this ruling. In this case, I would apportion one month as reasonable preparation time as neutral time.

[39] It is a matter of common sense that the simpler and shorter the case, the greater the expectation that the matter will be tried in the nearer future. Conversely, it is equally a matter of common sense that the more complex and longer the need to try the case that one will have to look deeper into the court calendar to accommodate the matter. Here, the first date offered by the court for a day and a-half trial was August 8, 2014. This was not available to the Crown. The next dates offered were August 22 and 26, 2014 both of which were available to both parties. The defence was available for a two-day trial every month between October 2013 and August 2014. No evidence was given as to the Crown's availability in that time frame.

[40] There was no explanation as to why trial dates were only being offered so far into the future. Of the 11 months between September 2013 and August 2014, I apportion 10 months to institutional delay.

[41] In consideration of all of the various factors at play in the period between the judicial pre-trial conference and the trial dates, I apportion one month as neutral as preparation time for the parties and 10 months as limitations on institutional resources.

6.2: Prejudice Caused to the Applicant by the Overall Delay

6.2.1: General Prejudice

[42] Section 11(b) of the Charter is designed to guard against prejudicing a person's rights to (i) liberty, (ii) security of the person, and (iii) to make full answer and defence: R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26 (S.C.C.). In the case at bar, it is only the second and third rights that must be assessed given that the Applicant is out of custody.

[43] Prejudice to these rights can be inferred the longer the overall delay. Delay, in and of itself, can be expected to have a detrimental effect on a fair trial: R. v. Godin, supra; R. v. Brace (2010), 2010 ONCA 689, 104 O.R. (3d) 32 (C.A.).

[44] Conduct of the Applicant which is inconsistent with a desire for a timely trial is something that the court must consider in evaluating the degree of prejudice, if any, suffered by the accused: R. v. Morin, supra, at ¶ 62. In this case, there is nothing to suggest that the Applicant has been in any way content with the pace of this litigation. To the contrary, the Applicant appears from the outset to have been most anxious to move this matter forward. The Crown appears to have moved this matter forward with reasonable diligence but must be held responsible for the delay in the police providing disclosure of the officers' notes.

[45] Prejudice to the Applicant must be balanced with society's interest in adjudicating matters on their merits: Morin, supra at ¶ 26 – 30; R. v. Seegmiller, [2004] O.J. No. 5004 (C.A.); R. v. Kporwodu, [2005] O.J. No. 1405 (C.A.). This balancing of the Applicant's interests and society's interest in a trial on the merits is even more important where the charges are serious: R. v. Seegmiller, supra. No one would doubt that drink-drive crimes are indeed serious: R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 (S.C.C.).

[46] In Mr. Bezub's case some, but not much, general prejudice has occurred due to delay. The vast bulk of the general prejudice in this case arises not from delay, but from being charged in the first place. Having said this, the general prejudice he has suffered has been exacerbated by the limitations on institutional resources found in this case.

[47] In considering the social toll of drunk driving as recognized by the Supreme Court, it is somewhat confounding that the Ontario Court of Justice is restricted in its institutional resources such that earlier dates could not have been offered to the parties in a case like this. Both the public and charged persons suffer prejudice when judicial resources are insufficiently marshalled or deployed.

6.2.2: Specific Prejudice

[48] Mr. Bezub's specific prejudice arises from the enhanced anxiety of not being offered trial dates until quite far into the future. In balancing this specific prejudice with all of the circumstances and weighing it against society's interest in proceeding with a trial on its merits, I find that the specific prejudice to the Applicant in this case is both palpable and significant.

7.0: CONCLUSIONS

[49] For the foregoing reasons, I have apportioned the delay over the entire 15 months of this case as follows:

Inherent Time Requirements (neutral): 4½ months[^2]

Crown Delay: ½ month[^3]

Limitations on Institutional Resources: 10 months[^4]

TOTAL: 15 months

[50] In assessing whether or not the overall delay in this case was unreasonable, I have taken into account the following: (a) the intake period was near the outside limit of what is reasonable; (b) some delay was caused by the Crown providing police notes in an untimely manner; (c) the institutional delay is on the outer boundary of accepted reasonable range for Peel Region; and (d) there has been detrimental prejudice to the Applicant caused by the overall delay.

[51] Balancing all of the circumstances and the reasons for delay, I find that the Applicant has demonstrated that his right to be tried within a reasonable time as guaranteed by section 11(b) of the Charter was probably violated in this case. The application is granted. The charge is judicially stayed.

ORIGINAL SIGNED BY THE HONOURABLE JUSTICE RICHARD H.K. SCHWARZL

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice

Footnotes

[^1]: The intake period for a case represents not only the time it takes from the laying of the Information until the parties are meaningfully ready to set a trial, but also a reasonable period of time for the parties to prepare once the trial date is set: R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 at ¶ 27 – 30.

[^2]: 3½ months as intake; 1 month for trial preparation.

[^3]: Due to delay in providing police notes.

[^4]: Being the period in which – without explanation – no earlier dates were offered by the court.