Court of Appeal for Ontario

Date: June 12, 2017

Docket: C61137

Judges: Laskin, Watt and Hourigan JJ.A.

Between

Her Majesty the Queen Respondent

and

Michael Pyrek Appellant

Counsel:

• Margaux Peck, for the appellant
• Kevin Rawluk, for the respondent

Heard: April 13, 2017

On appeal from the conviction entered by Justice Paul F. Monahan of the Ontario Court of Justice on June 15, 2015, with reasons reported at 2015 ONCJ 333, 84 M.V.R. (6th) 297.

Laskin J.A.:

A. OVERVIEW

[1] One Saturday night in September 2012, the appellant Michael Pyrek, then 24 years old, went to a party at a friend's house in Mississauga. While there he played a drinking game called "Beer Pong". He played his last game just after three o'clock in the morning, and then left to get some food at a nearby McDonald's restaurant. He drove to the restaurant with his friend, eighteen year old Carlee Kather, who was in the front passenger seat.

[2] Pyrek drove at a high rate of speed down a residential street he had driven many times before. When he came to a slight curve in the road, he lost control of his car and crashed it into a tree with such force that his car was "wrapped around the tree". Both Pyrek and Kather were injured in the crash.

[3] Pyrek was charged with dangerous driving causing bodily harm, impaired driving causing bodily harm and driving with excess alcohol in his blood ("over 80") causing bodily harm. In May 2015 – 31 months after the charges were laid – after a 4 day trial in the Ontario Court of Justice, Pyrek was convicted of dangerous driving causing bodily harm and acquitted of the other two charges.

[4] Shortly before the trial began, Pyrek had brought an application under s. 11(b) of the Charter on the ground he had been deprived of his constitutional right to be tried within a reasonable time. The trial judge dismissed his application. He gave lengthy reasons in which he applied the then governing framework for s. 11(b) applications established by the Supreme Court of Canada in R. v. Morin, [1992] 1 S.C.R. 771. In July 2016, over a year after Pyrek's trial, in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada overruled Morin and established a new framework for s. 11(b) applications.

[5] On appeal, Pyrek submits that under the Jordan framework, which applies to his case because he is still "in the system", the 31 month delay was unreasonable and contrary to s. 11(b).

[6] Pyrek also submits that, in his reasons for conviction, the trial judge erred in finding that the actus reus or prohibited act of dangerous driving causing bodily harm had been made out. The trial judge convicted Pyrek because he drove too fast. Yet in finding his speed was excessive, the trial judge drew two related and improper inferences: he relied on the consequences of Pyrek's driving – his crash into the tree – instead of the manner of his driving, and he relied on speculation instead of firm evidence.

[7] Thus the two issues on appeal are:

1. Under Jordan, was Pyrek denied his constitutional right to be tried within a reasonable time?
2. In finding that the actus reus of dangerous driving causing bodily harm had been made out, did the trial judge impermissibly infer that Pyrek was driving too fast?

B. The Issues

(1) Under Jordan, was Pyrek denied his constitutional right to be tried within a reasonable time?

(a) Introduction

[8] For cases tried in the Ontario Court of Justice, as were the charges against Pyrek, Jordan establishes a presumptive ceiling of 18 months delay. Any delay beyond the presumptive ceiling is presumed to be unreasonable and calls for a stay of proceedings unless the Crown can show "exceptional circumstances" justifying the delay above the ceiling. For the purpose of measuring the delay in a particular case, the court must take the total delay from charges to trial (or anticipated trial) and deduct delay waived or caused by the defence to arrive at the "net delay".

[9] This case is a transitional case – a case that was already in the system when Jordan was released. Although the new Jordan framework applies to transitional cases, it should be applied flexibly because the conduct of the proceedings is now being judged against a framework the parties had no notice of when the proceedings began.

[10] In some transitional cases, the proceedings began in the trial court but were not completed when Jordan was released. In these cases the parties and the court itself had an opportunity to change their behaviour, to alter how they were proceeding, to try to comply with Jordan's dictates. In other transitional cases, the proceedings were entirely completed in the trial court when Jordan was released. In these latter kinds of cases, neither the parties nor the court had an opportunity to change their behaviour to comply with Jordan. This case falls within this latter category. And as the Supreme Court recognized in Jordan, at para. 102 "[u]ltimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one."

(b) The presumptive ceiling and the delay in this case

[11] In the present case, the trial judge properly applied the Morin framework and thoroughly analyzed each of its components. He concluded that the overall delay was reasonable. Pyrek does not argue that the trial judge's conclusion was wrong under the Morin framework. Instead, he contends that the Jordan framework compels a different result.

[12] Pyrek submits that the net delay in this case is 24 ½ months, six and half months above the presumptive ceiling, and cannot be justified by any exceptional circumstances. He therefore asks that we overturn the trial judge's decision and enter a stay. I do not agree that we should do so. Even under Jordan the delay is reasonable for this transitional case.

[13] In the present case, in summary form, the timeline was as follows:

• October 2012: information sworn
• December 2013: 4 day trial scheduled for November 2014
• November 2014: trial adjourned to April 2015 because of the Crown's late disclosure of an expert report
• April 2015: s. 11(b) application argued
• May 2015: trial completed

[14] The total delay from charge to the end of the trial was 31 months. The trial judge effectively found a total of approximately 8 months of defence delay: he expressly found 7.1 months of defence delay, and the parties agree he inadvertently overlooked a further 28 day period or .9 months expressly waived by the defence. The Crown accepts the trial judge's finding of 8 months of defence delay.

[15] Of the 8 months of defence delay found by the trial judge, Pyrek accepts 6 ½ months. Thus the net delay is either 23 months (5 months above the presumptive ceiling), or 24 ½ months (6 ½ months above the presumptive ceiling). The 1 ½ months in dispute arises out of the adjournment of the first trial date in November 2014, to which I now turn.

(c) Adjourned trial date in November 2014

[16] If the trial had proceeded in November 2014 as originally scheduled, then either under Morin or Jordan the delay almost certainly would have been reasonable. The total delay would have been 25 months, less 6 ½ months of defence delay, for a net delay of 18 ½ months, just slightly above the presumptive ceiling.

[17] But the November 2014 trial date had to be adjourned because the Crown did not disclose to the defence until shortly before the scheduled trial an expert report that the police had in its possession for two years. The Crown relied on three expert reports to prove the charges against Pyrek: a blood alcohol report disclosed to the defence in November 2012, soon after the charges were laid; a breath sample read-back report disclosed in November 2013, a year before the scheduled trial date; and a blood sample read-back report, which the Crown intended to use to prove the "over 80" charge. It is this last report that the Crown failed to disclose on time.

[18] The late disclosure of this blood sample read-back report caused the trial to be adjourned. The report itself was dated November 2012, but the police did not give it to the Crown and the Crown in turn did not give it to the defence until late October 2014, less than one week before the trial was set to start.

[19] The late disclosure of the report was not deliberate; it was negligent, and the negligence must be attributed to the Crown even though the Crown itself did not get the report for two years either. Once the report was disclosed the defence justifiably asked for, and was entitled to, an adjournment. Without the report, the Crown had no admissible evidence to prove the "over 80" charge. The defence wanted to have its own expert review the Crown's report and perhaps prepare its own rebuttal report.

[20] The late disclosure caused a six month delay, from November 2014 to April 2015. I accept that jointly the defence and the court could not find an earlier available date. And I agree with Pyrek that the root cause of the delay was the Crown's negligence. Nonetheless, the trial judge allocated the six month delay as follows: 2.5 months to the Crown; 1.5 months to the defence; and 2 months to inherent delay, the latter a factor under the Morin framework. The trial judge made this allocation because the defence and the Crown, and even the original trial judge who granted the adjournment, mistakenly believed that once an adjournment is granted the entire trial had to be adjourned, instead of preserving some of the days already scheduled to call non-expert witnesses. [1] They all arrived at this mistaken belief because of a misreading of s. 657.3(4) of the Criminal Code. [2] See R. v. Ratneswaran, 2013 ONSC 6627.

[21] Pyrek submits that even if the trial judge's allocation can be justified under the Morin framework, it cannot be justified under the Jordan framework. Under Jordan, only delay waived or caused solely by the conduct of the defence should be deducted from the total delay. This six month delay was not waived by the defence, and it was certainly not caused solely by the conduct of the defence. Also, the parties' mistaken reading of the Code provision was irrelevant because even if the trial had started in November 2014, it could not have been completed before late April 2015.

[22] For the purpose of my analysis, I am prepared to accept Pyrek's submission and allocate no part of the six month delay to the defence. Under Jordan then, the net delay is 24 ½ months, not the 23 months argued for by the Crown. But I also accept the Crown's submission that nothing turns on whether the net delay is 23 months or 24 ½ months. The critical question is whether the 24 ½ month net delay warrants a stay of proceedings for this transitional case.

(d) Does the 24 ½ month net delay warrant a stay of proceedings?

[23] 24 ½ months net delay is 6 ½ months above the presumptive ceiling of 18 months. It is presumed to be unreasonable. Under Jordan the Crown has the burden to show exceptional circumstances to justify the excess delay. Exceptional circumstances are circumstances that lie outside the Crown's control and generally fall into two categories: discrete events and particularly complex cases. See Jordan, at paras. 69-71. The Crown acknowledges that it cannot justify the 6 ½ month excess delay under either category.

[24] The Crown's inability to do so, however, does not end the analysis of whether the delay is unreasonable. For transitional cases that exceed the presumptive ceiling after subtracting defence delay and delay caused by exceptional circumstances, other considerations may show that the delay is reasonable. These considerations are rooted in the parties' reasonable reliance on the law as it previously existed. See Jordan, at paras. 92-98, 101-103 and its companion case R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 74, at para. 24.

[25] Five considerations, taken together, justified the reasonableness of the 24 ½ month delay.

[26] First, the defence showed no interest in moving the case along. The trial judge found that the defence was content with the pace of the litigation. In the 18 court appearances that took place in these proceedings, not once did the defence express a concern about getting a trial date as soon as possible. The defence did not even elect to be tried in the Ontario Court of Justice until nearly 15 months after the charges were laid.

[27] In contrast to the defence's attitude to the pace of the proceedings, the Crown showed no complacence. For example, when the trial had to be adjourned in November 2014, the Crown and the court gave the case priority. A six month adjournment for a four day trial in the Ontario Court of Justice was a relatively short adjournment.

[28] Second, the delay caused little prejudice to Pyrek. And as the trial judge found, any prejudice it did cause was "significantly undermined by the defendant's own conduct". Under the Jordan framework prejudice underpins the presumptive ceiling, but it is not an express factor. Under the Morin framework, however, prejudice was an express factor. For transitional cases it remains a factor to be considered in assessing the reasonableness of the delay. See Jordan, at para. 96.

[29] Under the Morin framework, prejudice from delay could be actual or inferred. It addresses the question whether an accused's liberty, security of the person and fair trial interests were prejudiced by the delay. The trial judge found that any prejudice Pyrek suffered was caused almost entirely by the charges themselves, not the delay in prosecuting them. He refused to infer any prejudice from the delay. He did find a small amount of actual prejudice from the delay: Pyrek's seemingly increased anxiety. But as I have already said, he also found this prejudice was undermined by Pyrek's conduct. The trial judge's finding on prejudice weighs against Pyrek's submission that the delay was unreasonable.

[30] Third, although this case was not sufficiently complex to meet the requirement of exceptional circumstances under Jordan, for transitional cases moderate complexity bears on the reasonableness of the delay. See Jordan, at para. 97 and Williamson, at para. 26. This case was of at least moderate complexity. The trial judge found: "on the spectrum of drinking and driving cases, this case is towards the more complicated end." That finding was reasonable. Pyrek was charged with three indictable offences, each involving bodily harm; the trial was expected to last four days; the Crown intended to call between 10 and 12 witnesses; the defence intended to bring a Charter application; and conflicting expert evidence was a real possibility.

[31] Fourth, also relevant for transitional cases is whether the delay exceeded Morin's guidelines for institutional delay. See Jordan, at para. 100. Under the Morin framework, institutional (and Crown) delay was a relevant factor. The guideline for that kind of delay in the Ontario Court of Justice was eight to ten months. On the trial judge's finding, institutional and Crown delay was 11 ½ months, only slightly above the guideline.

[32] Finally, in Jordan itself, at para. 98, the court categorized the kind of transitional case in which the delay would warrant a stay, and the present case is far removed from that categorization. The court said: "if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework." The present case was not "simple". The delay did not "vastly" exceed the ceiling. And the delay was caused by an isolated act of Crown negligence, not by "repeated mistakes or missteps".

[33] For these reasons, under the Jordan framework for transitional cases the 24 ½ month delay did not deny Pyrek his constitutional right to be tried within a reasonable time. I would therefore not give effect to Pyrek's submission on this first issue.

(2) In finding the actus reus of dangerous driving causing bodily harm was made out, did the trial judge impermissibly infer Pyrek was driving too fast?

[34] The actus reus and mens rea of dangerous driving are well established. The actus reus or the prohibited conduct is driving a car in a manner dangerous to the public that results in bodily harm. The mens rea, or the required degree of fault, is exercising a standard of care that is a marked departure from the standard of care a reasonable person would observe in the accused's circumstances. See R. v. Hundal, [1993] 1 S.C.R. 867; R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49; and R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60. In Beatty, Charron J., writing for the majority at para. 46, stressed that to establish the actus reus of dangerous driving, "it is the manner in which the motor vehicle was operated that is at issue, not the consequences of the driving" (emphasis in original).

[35] In the present case the trial judge found that the actus reus was made out solely because of the speed at which Pyrek was driving. According to the trial judge, Pyrek was driving too fast, much faster than the posted speed limit of 50 km/hr. But the trial judge had no evidence of Pyrek's actual speed. Pyrek argues that contrary to Beatty the trial judge inferred excessive speed from the amount of damage to Pyrek's car. And Pyrek argues the trial judge compounded this error by a second error; he relied on speculation instead of evidence to infer that Pyrek was driving too fast. In support of his argument Pyrek points to para. 216 of the trial judge's reasons:

I cannot say with certainty precisely what speed Mr. Pyrek was driving but that does not prevent the Court from making a finding of dangerous driving in the circumstances. He was driving well over the speed limit in my view. I believe that Ms. Kather's original evidence that he was driving 80 to 100 km/h was correct. I believe Ms. Kather was wrong when she said in cross that perhaps he was only going 60 km/h. I consider that he would have had much better control of his vehicle at only 60 km/h. The damage to [the] vehicle was consistent with a high rate of speed although the Court recognizes that there was no expert evidence on this point and the most that can be said is that common sense suggests that the greater the speed, the greater the damage. Standing alone, the damage to the vehicle, is of limited value. As I have said, it does not matter that his precise speed cannot be precisely determined.

[36] I do not accept Pyrek's argument. In his careful and thorough reasons, the trial judge accurately set out the actus reus of dangerous driving at para. 200:

The Supreme Court of Canada has given guidance to trial courts on what is required to make out the offence of dangerous driving. The actus reus will be made out where the 'trier of fact [is] satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is what might reasonably be expected to be at the place': see R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49 at para. 43. When determining whether the actus reus is made out the Court must examine the manner in which the motor vehicle was operating not the consequences of the driving. Accordingly, where death or injury occurs for example, that has no bearing on the question of whether dangerous driving has occurred. The consequences of the driving may inform an assessment of the risk involved but it does not answer the question of whether or not the vehicle was operated in a manner dangerous to the public (see Beatty at para. 46).

[37] And at para. 211 the trial judge found that the actus reus had been proved because Pyrek was significantly exceeding the speed limit:

[It is] my view that the actus reus of the offence of dangerous driving is made out. This follows from the fact that in my view Mr. Pyrek was most certainly exceeding the speed limit [of] 50 km/h by a significant amount. He was driving on a residential Street that he knew well. He lost control of his vehicle and could not keep it on the roadway. Finally, when he lost control of the vehicle and it left the roadway, his inability to control the vehicle continued such that his vehicle collided with a tree. It took the presence of the tree to cause an abrupt stop to the vehicle. While it was the middle of the night and there could not have been many people around, it was a residential area and it is reasonable to infer that there would be others out in their vehicles or walking in the neighbourhood. In the circumstances, the actus reus for dangerous driving is made out.

[38] At para. 216, on which Pyrek relies, the trial judge was observing that although he could not determine Pyrek's precise speed, on the evidence he accepted, his speed was well over the speed limit. The trial judge cautioned himself that the evidence of the damage to the car was of limited weight. The trial judge's reasons as a whole, especially the paragraphs to which I have referred, show he correctly focused on Pyrek's manner of driving.

[39] Also, the trial judge was not speculating about Pyrek's rate of speed. He had Kather's evidence which he was entitled to accept. In addition to Kather's evidence in chief about Pyrek's rate of speed, which the trial judge referred to at para. 216, he had her evidence that during the drive she "freaked out" and twice yelled at Pyrek to slow down. Finally as she and Pyrek lay injured in the wreckage of the car, he turned to her and confessed he had "fucked up".

[40] The trial judge did not err in finding the actus reus of dangerous driving causing bodily harm had been made out. I would not give effect to Pyrek's arguments on this second issue.

C. Conclusion

[41] On the two issues Pyrek argues on his appeal I would hold first that he was tried within a reasonable time, and second that the trial judge correctly found the actus reus of driving causing bodily harm had been established. I would dismiss the appeal.

Released: June 12, 2017

"John Laskin J.A."

"I agree. David Watt J.A."

"I agree. C. W. Hourigan J.A."

Footnotes

[1] Monahan J, who tried the case in 2015, was not the judge who mistakenly adjourned the entire trial in November 2014.

[2] This section reads:

If notices not given

(4) If a party calls a person as an expert witness without complying with subsection (3), the court shall, at the request of any other party,

(a) grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross-examination of the expert witness;

(b) order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3)(b); and

(c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness's testimony, unless the court considers it inappropriate to do so.