Court Information and Parties

Info #: 12-316

Court: Ontario Court of Justice Region: Central West - Owen Sound

Parties:

• Plaintiff (Private Prosecutor): John Edward Strachan
• Defendant: Joseph Szewczyk

Justice of the Peace: Anna Hampson

Counsel:

• For the Defendant: Mr. Scrivens
• For the Prosecutor: Mr. Thibaudeau

Hearing Date: February 6, 2014

Decision

Mr. Szewczyk is charged that on or about April 7, 2012 he drove a motor vehicle on a beach contrary to Bylaw #52-2011 Dynamic Beach Park Bylaw, Town of South Bruce. He has brought an application for a stay of the proceedings for a violation of s. 11(b) of the Charter due to unreasonable delay. Mr. Scrivens is counsel for the defendant. As is his right, Mr. Strachan brought these proceedings by way of a Private Information. Neither the municipal prosecutor nor the Attorney General has taken over the prosecution. Mr. Thibaudeau is now the prosecutor for these proceedings having been retained by Mr. Strachan. Proper notice was provided to the Attorneys General as well as upon the prosecutor.

This application was argued before me on February 6th. At that time, Mr. Szewczyk was cross examined on his affidavit. I ruled that the cross examination was to be limited to the issue of prejudice. The defendant's factum made reference to issues involving disclosure, however the parties agreed that the disclosure issues would be deferred, particularly now that Mr. Thibaudeau has taken over the prosecution.

I have reviewed the Notice of Constitutional Challenge, the defendant's Factum and Affidavit in support of the Application, the transcripts of some of the previous court appearances and the Prosecutor's Factum. I have also reviewed several of the cases provided by the parties.

Mr. Scriven argues that there are 12 months of excessive delay that is unreasonable in the circumstances and thus there has been a violation of s. 11(b). Mr. Thibaudeau argues that there has been a delay of between 144 to 200 days (maximum of 6 ½ months), and that this is not unreasonable and thus the application should be dismissed.

For the following reasons, the Application is granted and the charge is stayed.

General Principles

The onus is on the defendant to prove that there was an unreasonable delay on a balance of probabilities. A defendant does not have to assert that he wants to be tried within a reasonable time to invoke the right. There is no mathematical formula and there must be a weighing of the competing interests, namely society's interest in seeing someone tried on the merits and individual's interest in prompt adjudication. The total delay involved must be significant or exceptional to raise the issue of unreasonableness.

The factors to be taken into consideration are set out in the Supreme Court of Canada decision of R. v. Morin, [1992] 1 S.C.R. 771 as follows:

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 the delay
4. prejudice to the accused

In this particular case, a total of 22 months will have passed from the time the Information was sworn, June 8, 2012, to the trial scheduled for April 14, 2014, and thus it merits an examination of the reasons for the delay. I find that there have been no specific waivers of delay.

In general terms, the history of this case shows that the defendant was summonsed to court, had an articling student attend on the first appearance, it was adjourned, a trial date was set, the court questioned the standing of Mr. Strachan as both the Informant to provide evidence and the Prosecutor and it was adjourned again, the prosecutor did not attend the return date and the court dismissed/withdrew the charge, that decision was appealed by Mr. Strachan, the appeal was granted and a new trial was ordered, there were judicial pre-trials, and eventually the trial date was set as well as a date for the Charter application.

When examining the reasons for the delay, it is not to attribute blame to the parties in terms of bona fides of the motives, but to examine the voluntary actions taken by the parties.

Reasons for Delay

June 8, 2012 to November 19, 2012

The Information was sworn June 8, 2012 and the first appearance date was July 25, 2012. I find that these 45 days would properly be characterised as part of the inherent time requirements of the case as being part of the intake portion of any proceeding and are thus neutral.

On July 25th, the matter was adjourned to August 27th for further service of a summons despite the fact that the defendant appeared by way of an articling student. From the transcript of that proceeding, the parties had agreed to an adjournment date, however it would appear that there was some concern about the lack of an affidavit of service of the summons and thus it was adjourned. It really was not necessary for this adjournment, and these 33 days would be considered as an "other reason" for the delay and should not be attributed to either party.

According to the transcript of August 27th, the trial date of October 22nd was set despite the fact that full disclosure had not been provided, but Mr. Strachan indicated he would provide it later that week. These 56 days are part of the "limits on institutional resources", although some of it would form part of the "inherent time requirements" as counsel would have to prepare. It is very difficult if not impossible to accurately apportion the time, but I will characterize these 56 days as institutional.

On October 22nd, the matter did not proceed to trial. The presiding justice was concerned with the status of Mr. Strachan as being the prosecutor and a witness. On the court's own request, the matter was adjourned to November 19th to investigate this issue further. No one had raised this issue and no input was asked of the parties and the adjournment was likely not necessary. Again, these 28 days are characterised as "other reason" for the delay and are not attributable to either party.

November 19, 2012 to May 1, 2013 – The Appeal

On November 19th, Mr. Strachan did not appear and the matter was either dismissed or withdrawn, and there was also an order for costs against Mr. Strachan. This decision was the subject of an appeal which was finally granted on May 1, 2013 at which time the appeal was allowed, the order of costs was set aside, and the matter was ordered back to the provincial offences court for May 27th to set a date for trial.

The undated Notice of Appeal was filed in the appeal court on December 18, 2012 and the appeal was actually argued on April 9, 2013. Initially, Mr. Scrivens argued that the 29 days between November 19th and December 18th was the only time that should not be considered as this was during the time when the defendant was not an "accused" person, but that he reverted to an accused person once the prosecutor filed the Notice of Appeal and thus the 4 months 13 days (December 18, 2012 to May 1, 2013) should be attributed to the actions of the prosecutor and relied upon the decision of R. v. Potvin, [1993] SCJ No 63.

However, as noted at paragraphs 63 and 66 of Potvin, the Supreme Court of Canada decided that s. 11(b) does not extend to the appellate period and that if a new trial is ordered, the accused reverts to the status of a person charged and the constitutional clock should be "rewound" at the time of the order by the appellate court. As was noted in the minority decision, however, it was unclear as to the date that the clock should be rewound. Regardless of whether the "constitutional clock" being rewound to the commencement of the proceedings, or to the date the appeal is granted, it is clear that the time involving the appeal process is not included in the s. 11(b) analysis.

As a result, the entire time between November 19th, 2012 (day the charge is dismissed/withdrawn) and May 1st, 2013 (day the appeal is granted and a new trial is ordered) namely 5 months 12 days is excluded from the s.11(b) analysis. In addition, I find that the time from June 8, 2012 up to the dismissal on November 19th, 2012, as well as the time from May 1, 2013 to April 14, 2014 is included in the analysis: see R. v. Spencer, [2004] O.J. No. 5863, P. Hyrn J. at paragraph 22.

May 1, 2013 – April 14, 2014

On May 1st, 2013, the appeal was granted and a new trial was ordered. The matter was adjourned to May 27th, 2013 to set a new trial date. I find that these 26 days are part of the inherent time in terms of scheduling and thus would be neutral.

May 27th, 2013 – September 25th, 2013

On May 27th, 2013, the matter was adjourned to September 25th, 2013 for a judicial pre-trial. A review of the transcript shows that Mr. Scriven indicated to the court that he and Mr. Strachan, the prosecutor, had discussed the matter before court and there was an issue whether a pretrial would be required given that it was "on the bubble", and when asked by the court how long the matter would take, Mr. Scriven indicated half a day at a minimum. Mr. Strachan does not speak at all during this court appearance and thus there is no comment from him to Mr. Scriven's comments that he was available June 26th at 11:30 but that he was advised by Mr. Strachan that he, Mr. Strachan the prosecutor, was not available.

There was a second opportunity for Mr. Strachan to say something when the court commented "the lengthy request is because of the availability of Mr. Strachan", but again, nothing was said. In addition, Mr. Scrivens wanted to clarify the record to show that he was not conceding or waiving about the lengthy delay.

In this application, Mr. Scrivens argues that 30 days between May 27th and June 26th is inherent time as a reasonable part of scheduling a judicial pretrial, but that the 3 months from June 26th to September 25th is attributable to the prosecutor because he (Mr. Strachan the prosecutor) did not make himself available for the first pretrial date of June 26th. Mr. Thibaudeau argues that the defendant is the one who "triggered" the issue of a judicial pretrial since the time estimate was half a day, but that these 3 months are part of the inherent time requirements and are considered neutral, partly because he argues that Mr. Strachan was not allowed to say anything on the May 27th date.

In all of these circumstances, it would appear that the only pretrial dates that were available were either June 26th or September 25th. Mr. Strachan, a private citizen, was the prosecutor during this time (and indeed, Mr. Thibaudeau has only become the prosecutor as of February 6th, 2014). I do not accept Mr. Thibaudeau's argument that Mr. Strachan was not "allowed" to say anything on May 27th when the pretrial was scheduled—he had spoken and addressed the court at previous court appearances on July 23rd, 2012, August 27th, 2012, October 22nd, 2012 and also argued the appeal on April 9th, 2013.

I find that the 3 months from June 26th to September 25th to be attributed to the unavailability of Mr. Strachan. These were the only dates available for the pre-trial and thus this could also be viewed as a limitation on judicial resources. While generally considerations are given to counsel's availability in terms of scheduling, excessive delays can occur. In this case, the reason was due to Mr. Strachan not being available, and thus are prosecutorial delay.

September 25th, 2013 – November 13th, 2013 – The Pre-Trial

The pre-trial on September 25th, 2013 was commenced and further adjourned to October 23rd, 2013 and was further adjourned to November 13th, 2013 at which time the dates were set for this application (February 6th, 2014), the confirmation hearing date of March 27th, 2014 and then the trial date of April 14th, 2014. There are no transcripts of the pre-trial proceedings.

Mr. Scrivens argues that these pre-trial proceedings were "on the record" proceedings due to Mr. Strachan being a private citizen as prosecutor and thus that is why no transcripts were ordered. Mr. Thibaudeau argues that the end portion of the pretrial could have been transcribed that adjourned the dates. This would clearly pose a difficulty as to who would decide which portion of the proceedings could be transcribed. As there is no formal procedure for the Charter application, it is not absolutely necessary that all transcripts need to be provided if there is other evidence to assist the court in determining what happened at these appearances: see W.K.L v. The Queen, 64 CCC (3d) 321.

As discussed in R. v. Tran, 2012 ONCA 18, [2012] O.J. No 83 (C.A.) at paragraph 34:

"…it seems to me that requiring a judicial pre-trial to set the trial date(s) is a reasonable and necessary case management tool in busy judicial centres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in presentation of their cases. Accordingly, some reasonable period of delay in arranging a judicial pre-trial should be treated as part of the inherent time requirements of the case"

The benefit of judicial pre-trials was also discussed in R. v. Mahmood, 2012 ONSC 6290 at paragraph 59:

[59] Pre-trial conferences serve many useful purposes. They require the parties to wrestle with the real issues in the case before setting the matter down for trial. Admissions can be made. Issues can be narrowed and focused. Pre-trial motions can be discussed and efficiently planned. Potential problems can be addressed, if not resolved. Practical issues regarding the trial can be anticipated. Such conferences not only permit the parties to better prepare themselves for trial, they invariably reduce the court time necessary to try the matter, and ensure that the trial proceedings move as efficiently as justice permits. It is hardly surprising, therefore, that busy judicial centers require, as a matter of court policy, that before valuable court time and resources are scheduled and committed for the trial of particular kinds of cases, such pre-trial conferences must be held.

The judicial pre-trial is part of the inherent time requirements. It should be noted that in Tran, the pretrial was on January 10th and then continued on March 31 (see paragraph 38). Neither Tran nor Mahmood stand for the principle that there can only be 1 judicial pre-trial. Mr. Scrivens argues that the time from September 25th to November 13th should all be attributed to institutional delay as there should only be 1 judicial pretrial. However, Mr. Scrivens pointed out during his submissions that the pre-trial process was helpful. This is also confirmed in Exhibit "G" of the affidavit of Mr. Szewczyk wherein Mr. Scrivens describes the "comments of His Worship were candid and appropriate".

Mr. Thibaudeau argues that these 49 days are inherent delay. I agree. In all of the circumstances, I find that the 49 days are part of the inherent time involved in this case. On November 13th, this trial was set for 1 day which reflects the complexity of the case as a result of the various judicial pre-trials, bearing in mind that there was an estimate of 3 hours and then half a day when the subject of the pre-trial first arose. Although it is likely this jurisdiction is not as busy as either of the jurisdictions in Tran or Mahmood, "valuable court time and resources" for a full day for a trial requires a special date and could not be scheduled for the regular POA court which is only twice per week which must also accommodate all Part 1 matters, all Part 3 matters, and walk in guilty pleas.

November 13, 2013 – April 14, 2014

On November 13th, 2013, the date for the Charter application was set for February 6th, 2014, the confirmation hearing was set for March 27th, 2014 and then the trial date was set for April 14th, 2014. A total of 152 days is involved. Both counsel argue that this is "institutional delay" as the parties were ready but the system was not able to accommodate them. I do not find that this entire time is "institutional" delay.

Clearly, the Charter application was contemplated by the November 13th date since a date was set specifically for the application. Counsel would need some time to prepare the material—indeed there was a Factum as well as an affidavit in support of some 37 paragraphs along with 24 exhibits. In addition, there would need to be time for counsel to prepare for the case itself and to clear a schedule. There is no evidence that the Charter application itself contributed to the delay. The Notice of Constitutional Challenge and corresponding material was served by January 7, 2014.

Although it is difficult, if not almost impossible to determine how the delay between the end of the pre-trials and the commencement of the trial should be allocated, some of this is inherent and not institutional. In all of the circumstances, I would attribute 7 days for inherent time and the balance (145 days) as institutional. Although this takes into consideration future days (namely March 3–April 14th or 42 days), counsel agreed and it is appropriate to take these days into account since the trial is actually scheduled for April 14th, 2014.

Summary of Reasons for Delay

In summary, of the 22 months in total, I find as follows:

Period	Duration	Category
June 8/12 – July 23/12	45 days	INHERENT
July 23/12 – August 27/12	35 days	OTHER
August 27/12 – October 22/12	56 days	INSTITUTIONAL
October 22/12 – November 19/12	28 days	OTHER
November 19/12 – May 1/13	163 days	EXCLUDED
May 1/13 – May 27/13	26 days	INHERENT
May 27/13 – June 26/13	30 days	INHERENT
June 26/13 – September 25/13	91 days	PROSECUTION
September 25/13 – November 13/13	49 days	INHERENT
November 13/13 – April 14/14	7 days	INHERENT
	145 days	INSTITUTIONAL

Totals:

• EXCLUDED: 163 days (5.4 months)
• INHERENT: 157 days (5.2 months)
• PROSECUTION: 91 days (3 months)
• INSTITUTIONAL: 201 days (6.7 months)
• OTHER: 63 days (2.1 months)

In Morin, the "guideline" of 8–10 months for institutional delay as suggested by Askov in provincial court was not to be seen as a limitation period and was to be considered in light of many other factors, including the issue of prejudice. In these circumstances, I have found that the delay of 6.7 months attributed to "institutional" delay would fall below the "guideline". In and of itself, it is not unreasonable.

The "other" reasons for delay were delays attributed to the court's decisions and significantly contributed to the overall delay. As was noted in Morin at paragraph 59:

There may be reasons for delay other than those mentioned above, each of which should be taken into consideration. As I have been at pains to emphasize, an investigation of unreasonable delay must take into account all reasons for the delay in an attempt to delineate what is truly reasonable for the case before the court. One such factor which does not fit particularly well into any other category of delay is that of actions by trial judges. An extreme example is provided by Rahey, supra. In that case it was the trial court judge who caused a substantial amount of the delay. Nineteen adjournments over the course of 11 months were instigated by the judge during the course of the trial. Such delay is not institutional in the strict sense. Nevertheless, such delay cannot be relied upon by the Crown to justify the period under consideration.

This "other" reason (63 days) will be added to the prosecution (91 days) and institutional (201 days) reasons for delay. As a result there is a total delay that falls on the shoulders of the prosecution of 355 days—almost 1 year of delay that is of significant concern.

Competing Interests

As noted in paragraphs 26–29 of Morin, there is a dual purpose in s.11(b): the primary purpose being the protection of the individual rights of an accused person in terms of the right to security of the person, the right to liberty and the right to a fair trial. There is also a secondary societal interest that parallels that of an accused person in terms of seeing those accused of crimes are treated fairly by having prompt trials within a reasonable time—prompt trials have intrinsic value and enhance the confidence of the public.

As noted in Morin, there are competing interests in the s. 11(b) analysis. As Justice McLachlin stated in paragraph 87:

The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis, the judge, before staying the charges, must be satisfied that the interests of the accused and society in a prompt trial outweigh the interests of society in bringing the accused to trial.

Prejudice

This is a prosecution for an allegation of breaching a by law. There are clearly no bail conditions or restrictions on his liberty. In addition to any inferred prejudice, the defendant argues that there has been actual prejudiced by the delay. In support of this, he filed an affidavit that he is the primary caregiver for his wife who has cancer and he or his wife have had to change medical appointments as a result of court appearances, that the proceedings have caused him additional stress and embarrassment due to the media attention, and that Mr. Strachan as the prosecutor and another individual who may be a witness have confronted him on many occasions in an effort to intimidate him.

Mr. Thibaudeau was given permission to cross examine the defendant only on the issues of prejudice. The defendant is 77 years old and is a proud man who has built a positive reputation as a business man in the community. As in most families, there is stress. In addition to the stress of having been charged with the by law offence in the first place, and having the proceedings before the courts for the past 22 months, the defendant is aging. Although he has not been diagnosed with anything specific in terms of his memory, he is aging and doesn't remember everything. He agreed that he was unable to say with any precision, what ranking on a scale of 1–10 he would give to the case and the delay in terms of stress. Realistically, I doubt anyone could give such a ranking or would be able to say that any one of these stressors was more significant than another.

Although this is an allegation of breaching a by law and that the potential penalty is a monetary fine, it is apparent that far more is resting on the disposition of this matter at least according to the defendant and perhaps to Mr. Strachan as well given some of the exhibits attached to the affidavit in terms of the media, the petitions, the photographs, and that the defendant believes he has been unable to use his land. While it is likely that this may have to do with what Mr. Strachan and the defendant believe that this court could decide, this has been exacerbated by the length of time this matter is taking to proceed through the courts.

The defendant also made several comments with respect to the fact that Mr. Strachan was an individual prosecuting this case as opposed to being charged by the OPP or by-law enforcement people. I find that this really does not have much to do with the delay but perhaps may be the basis for some other complaint about the proceedings. This is not one of those cases where a defendant really may not want an early trial and is attempting to use the protective shield of the charter as an offensive weapon.

Overall, however, I am satisfied that there has been actual prejudice to the defendant as a result of the delay.

Conclusion

This matter will have been before the courts for 22 months. When the appeal period of 5.4 months is excluded, the defendant has been before the courts for 16.6 months. Of this, the delay of almost 12 months is unreasonable in all of the circumstances. There is prejudice to the defendant.

The provincial offences court deals with "quasi-criminal" offences of a regulatory nature often times involving significant safety issues such as those pursuant to the Occupational Health and Safety Act. It also deals with minor traffic violations and violations of by-laws. This is a relatively minor offence involving a breach of a municipal by-law infraction for which a modest monetary penalty could be imposed which weighs in favour of a prompt trial. The defendant has done nothing to contribute to the delay.

Although this amount of time may or may not be tolerable in a civil law context, it is unreasonable in the quasi-criminal, regulatory, municipal by-law provincial offences context. Overall, I am satisfied that the interests of the defendant and society in having a prompt trial outweigh the societal interest in bringing the defendant to trial in all of these circumstances.

The defendant's right under s. 11(b) to be tried within a reasonable time has been violated. The only appropriate remedy for a s.11(b) violation is a stay of the proceedings.

Thus, this charge is stayed.

March 3, 2014