Court File and Parties

Court File No.: CENTRAL EAST – NEWMARKET 4911-998-11-05416-00

Date: 2012-12-07

Ontario Court of Justice (Central East Region)

Between:

Her Majesty the Queen (Respondent)

— And —

Viktor Sokolovski (Applicant)

Before: Justice Richard Blouin

Heard on: November 23, 2012

Oral Ruling given: November 23, 2012

Written 11(b) Charter Ruling released: December 7, 2012

Counsel:

• A. Barkin and M. Dionne, for the Respondent Her Majesty the Queen
• Ian Kostman, for the Applicant Viktor Sokolovski

BLOUIN J.:

Charges and Background

[1] Viktor Sokolovski was charged that within the period between January 1, 2004 and November 30, 2010 he committed the following offences: five counts of Assault with Weapon, eight counts of Assault and one count of Utter Death Threat.

[2] The defendant operated the Tsunami Club, a martial arts instructional facility aimed at young people. The five complainants were boys instructed by the defendant, and the allegations span the years of their training with him.

Relevant Dates

Date	Event
June 17, 2011	Defendant charged, information sworn and bail hearing held.
July 5, 2011	First court appearance. Defendant had retained counsel present by way of student. Disclosure not available. Adjourned to August 9, 2011.
August 9, 2011	Some disclosure provided. Adjourned to September 1. Counsel to arrange a pre-trial with Crown.
September 1, 2011	Counsel received "substantial disclosure" and needed time to consider it. The Crown attorney agreed that there was a "fair amount of disclosure". Adjourned to October 5, 2011.
October 5, 2011	Counsel's student set a judicial pre-trial for November 3, 2011.
November 3, 2011	Judicial pre-trial held. The trial estimate was 10 days. The earliest available dates were March 4 to 8, 2013 and March 18 to 22, 2013. Counsel indicated that the defence was available to commit to a trial in early 2012, and had many dates within the month of January 2012 and thereafter. Matter adjourned to December 8, before the same pre-trial judge, to confirm the time estimate and the scheduled dates.
June 21, 2012	Counsel wrote the Crown asking for earlier dates. Wanted to move the case forward since client is "suffering significant prejudice" because of the bail conditions.
June 28, 2012	Crown wrote back to indicate that no earlier dates were available.

Legal Framework

[3] Section 11(b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: it protects the accused's right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects the accused's right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused's right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available. See R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.) at p. 12.

[4] Section 11(b) also seeks to protect two societal rights. First, it protects the public's interest in having our laws enforced by having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(b) seeks to protect the public's interest in having those accused of crime dealt with fairly. See R. v. MacDougall (1998), 128 C.C.C. (3d) 483 (S.C.C.) at p. 496.

[5] As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial: R. v. Morin, supra at p. 13. While society has a heightened interest in seeing that serious offences are tried, the Crown has a heightened obligation to ensure that the trials for such offences are held in a timely fashion: R. v. Kporwodu, [2005] O.J. No. 1405 at paragraph 194.

[6] To decide whether s. 11(b) has been infringed, the court must balance these individual and societal goals with the length and causes of the delay. In Morin, the Supreme Court of Canada set out the framework for this judicial balancing. Four factors must be considered:

1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including
   • (a) inherent time requirements of the case;
   • (b) actions of the accused;
   • (c) actions of the Crown;
   • (d) limits on institutional resources; and
   • (e) other reasons for delay; and
4. prejudice to the accused.

Length of Delay

[7] The time from the arrest date to the scheduled trial dates was approximately 21 months. That amount of time requires an examination of the Morin factors.

Waiver

[8] The defendant retained counsel within days of the arrest and expressed a desire to have the matter determined quickly. Counsel also wrote to the Crown, after the trial dates were set, in an attempt (unsuccessfully) to move the case forward. No expressed or implied waiver was apparent.

Reasons for the Delay

(a) Inherent Time Requirements of the Case

[9] Given there were five youthful complainants who were to testify regarding allegations that had allegedly occurred years earlier, 10 days of court time was necessary, and scheduled.

(b) Actions of the Accused

[10] The defendant retained counsel within days of his arrest. At all times his conduct demonstrated that he wished to have the proceedings move hastily. When the case was scheduled, in late 2011, for the spring of 2013, the defendant's counsel wrote the Crown, in June 2011, asking for an earlier date if one had become available. When the trial date was set, counsel indicated that he was prepared to conduct the trial in January 2012. This was pursuant to the required calculations in R. v. Tran, 2012 ONCA 18, and R. v. Lahiry where the principle was confirmed the institutional delay clock starts to run only when the parties are ready to proceed to trial.

(c) Actions of the Crown

[11] Except for taking what I find to be too long to provide substantial disclosure (nearly three months), the Crown was not responsible for the length of time until trial. And, since the defendant did not argue the intake period was unreasonably extended by lack of timely disclosure, perhaps recognizing the volume of disclosure involved, I do not attribute any of that period as anything other than neutral intake.

[12] Similarly, since this trial was expected to be lengthy, the judicial pre-trial was both necessary and desired by the defendant. Accordingly, no period of institutional delay was attributed to the time needed to hold judicial pre-trial hearings. In this case, it was inherent.

(d) Limits on Institutional Resources

[13] On November 3, 2011, when this matter was set for trial, the earliest dates available for a 10-day trial were in March 2013. I am informed by the trial coordinator that setting dates for a multi-day trial that far into the future are essentially the same for a two-day trial as a 10-day trial. In other words, the judge available for a two-day matter would also likely be available for a 10-day matter since his/her schedule is open at that point. This is important because the argument that greater acceptable delay should be accorded because it is a 10-day trial, and not two or three days, is not borne out.

[14] This case was not unusual in that, as at November 2011, many multi-day matters were being set on dates 13 to 16 months into the future. As a result, the length of the case (beyond one day) did not significantly increase the time frame required for the system to accommodate the trial. In addition, Mr. Kostman wrote the Crown in June 2011 requesting a move forward of the trial schedule, if possible. The Crown consulted with the trial coordinator and discovered that it was not possible.

[15] Over the last few decades, the reality of limited resources available to prosecute criminal cases has become crystal clear. In many jurisdictions, including this one, the complement of judges, and hence available court space, has not kept up with the burgeoning population growth. As a result, unreasonable delay cases inevitably occur. The criminal justice system attempts to respond to the problem with temporary initiatives such as blitz courts, and more structural alterations such as Justice on Target. Beyond that, Crown offices have instituted systems to better manage files so that appropriate prosecutorial decisions can be made earlier in the process, ultimately saving precious court time.

[16] It is in the context of a recognition that attempts have been made to address the limited resource issue, that I conclude that the prosecution service still must do much more to effectively manage the number of cases that end up on their doorstep. In my experience as a trial judge in this jurisdiction, there are many examples of inordinate trial time allocated to minor prosecutions. This case is illustrative of the problem.

[17] Mr. Sokolovski is a 58-year-old man with no criminal record. He operates a martial arts school for young children. The allegations essentially are that he, at certain times over a multi-year period, used physically excessive training techniques on five children. No bodily harm was ever alleged. While I completely understand why parents would not want their child subjected to the defendant's approach, I fail to understand why a 10-day trial would be required to hold him accountable for his actions.

[18] Again, let me emphasize that I am not concluding that the defendant's actions should never attract a finding of guilt, but that, with limited resources, the Crown must employ other methods to protect the public, that don't involve using court time to determine guilt. One possibility would be victim/offender(s) mediation, which is available in this jurisdiction. There are plenty of cases higher on the scale of seriousness that require that precious court time. Given the consequences to this defendant having been handcuffed upon arrest in front of his students, and having suffered a significant decrease in business as a result of the charges laid, and having had to hire counsel to protect his liberty and security interest, I find the defendant had suffered a substantial penalty within months of his arrest and even before any trial was contemplated.

[19] I am perfectly aware that my role is not to determine what gets prosecuted and what does not. In a perfect world of unlimited resources, this case might well have been appropriate to use 10 days of court time to determine the defendant's culpability. However, in the imperfect world in which we operate, allocating substantial resources to a case such as this significantly decreases the ability of the system to handle all others. Inevitably, delay occurs.

Prejudice

[20] Prejudice in this context is concerned with the three interests of the accused that s. 11(b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See R. v. Godin, 2009 SCC 26, paragraph 30.

[21] The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even in the absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay." See R. v. Godin, supra, paragraph 31.

[22] Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred. See R. v. Godin, supra, paragraph 38.

[23] Mr. Sokolovski provided an affidavit supporting his 11(b) application. He was cross-examined extensively on that affidavit, and it became apparent that the prejudice suffered by the defendant resulting from the prolongation of this case was both significant and palpable.

[24] Mr. Sokolovski is a 58-year-old immigrant from the former USSR. He has no criminal record. He used his physical training skills, developed in his native country, to build a successful business and a life for himself and his family, in a new country. This business has been gutted by the arrest. The bail conditions prevented him from being alone with children. Since his arrest anxiety and sleeplessness have been a constant. Without doubt there were negative consequences resulting from the charges being laid in the first place. Nevertheless, I find they continued, and worsened as time extended. Mr. Sokolovski's anguish was visible during his testimony, and indelible.

Conclusion

[25] In this case, the time between when the parties were ready for trial (January 2012) and the scheduled completion of the trial (March 18, 2013) was approximately 14 months. This is well above the Morin guidelines. When I factor in significant prejudice caused by the delay to both his liberty interest and security of the person interest, I conclude the defendant's right to be tried within a reasonable time to be violated.

[26] The only appropriate remedy is a stay of proceedings.

Released: December 7, 2012

Signed: "Justice Richard Blouin"