Court File and Parties

Date: November 14, 2014

Court File No.: 13-8960

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Kazimierz Zieba

Before: Justice Paul F. Monahan

Heard on: October 21, 2014

Reasons for Decision on s.11(b) Charter Application

Released on: November 14, 2014

Counsel:

Mr. Colin Henderson for the Crown

Mr. Frank Pizzamenti for the defendant Kazimierz Zieba

MONAHAN J.:

Introduction

[1] Kazimierz Zieba is charged that on or about August 2, 2013 while his ability to operate a motor vehicle was impaired by alcohol or a drug, he did operate a motor vehicle contrary to s.253(1)(a) of the Criminal Code of Canada (the "Code"). In addition, he is also charged that on or about August 2, 2013, he did consume alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood and that he did operate a motor vehicle contrary to s.253(1)(b) of the Code.

[2] Mr. Zieba brings this application to stay the proceeding on the basis that his rights under s.11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") have been violated, namely the right to be tried within a reasonable time.

[3] For the reasons set out herein, I am dismissing the application.

Legal Framework

[4] The Supreme Court of Canada in R. v. Morin confirmed the well-established framework for a s.11(b) Charter application. The accused must show a breach of s.11(b) on the balance of probabilities. The Court must consider the following four factors:

(i) the overall length of the delay;

(ii) whether the accused has waived any of the delay;

(iii) the reasons for delay; and

(iv) any prejudice to the accused.

[5] The Court must make findings with respect to the above four factors and then the Court must undertake a balancing analysis wherein the Court considers whether the delay is unreasonable, having regard to the interests of the accused, including any actual or inferred prejudice suffered, and society's interest in having the matter tried on the merits. Before staying the charges, the Court 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.

[6] A guideline of 8 to 10 months is to be used by provincial courts to assess institutional delay, but deviations of several months in either direction can be justified, depending upon the presence or absence of prejudice. The Ontario Court of Appeal has suggested that the guideline for a straightforward case in the Region of Peel is 8 to 9 months. In another case, the Supreme Court of Canada indicated on the facts of that case that the lower end of the Morin guidelines should apply in Peel. I do not interpret these cases as permanently adjusting the Morin guidelines in all cases in Peel. Rather, I interpret these cases as indicating that for a straightforward case in Peel, the lower end of the guidelines is a desirable objective. The Courts have also made it clear that the guidelines are not limitation periods.

[7] Prejudice can be inferred from a prolonged delay. As the Supreme Court of Canada said in Morin, "the longer the delay the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined."

[8] Prejudice will not usually be inferred unless the delay is "substantially longer than can be justified on any acceptable basis". Moreover, prejudice which results from the inherent time requirements of the case or the actions of the accused is to be accorded no weight.

[9] Turning then to an analysis of the four factors:

(i) The Overall Period of Delay

[10] In this case the overall period of delay runs from when the information was sworn on August 13, 2013 until the date set for trial of January 5 and 6, 2015, a period of almost 17 months. This period of delay clearly requires further examination and consideration.

(ii) Whether the Accused Has Waived Any of the Delay

[11] There is no suggestion that the accused has waived any of the delay.

(iii) The Reasons for the Delay

[12] Under this heading, the Court must make findings with respect to the reasons for the delay. The burden is on the accused on a s.11(b) motion to prove the reasons for individual periods of delay. Each period of delay must be categorized as according to the following reasons:

a) the inherent time requirements of the case which are considered to be neutral;

b) the actions of the accused;

c) the actions of the Crown;

d) limits on institutional resources; and

e) other reasons for the delay.

August 13, 2013 to December 17, 2013

[13] In this case, the period of time from August 13, 2013 (when the information was sworn) until February 27, 2014 when a trial date was set for January 5 and 6, 2015 must be examined carefully.

[14] I will deal first with the period from August 13, 2013 to December 17, 2013. By way of overview, the information was laid on August 13, 2013. There was a Court attendance on September 17, 2013 at which time counsel for Mr. Zieba received initial disclosure and he asked that the matter be adjourned to October 15, 2013 so that he could review the disclosure to ensure that it was complete.

[15] On September 27, 2013 defence counsel wrote to the Crown and requested nineteen areas of further disclosure, including "videos that captured my client's image and any audio as well while he was being booked and while in the breath room". Another letter was written by defence counsel to the Crown on October 9, 2013 requesting two further areas of disclosure. On October 15, 2013 and again on November 12, 2013, defence counsel appeared in Court and indicated that they were still seeking disclosure and on both occasions the matter was put over, first to November 12, 2013 and then to December 17, 2013.

[16] In drinking and driving cases of this nature, one would normally expect approximately two months of intake which would be part of the inherent time requirements of the case and not institutional delay. That will not always be the case and I note that in other cases of a similar nature, three months or more has been held to be a reasonable period of intake.

[17] It is well-established in the case law that defence counsel is not entitled to wait for every last piece of disclosure before setting a trial date. However, it is also equally well-established in the case law that the disclosure of the breath room video is essential disclosure and is normally required before an accused can be called upon to set a trial date.

[18] In this case, notwithstanding the request in writing for the breath room video which request by defence counsel was made by letter dated September 27, 2013, the DVD relating to the same was not disclosed until December 17, 2013, just over 4 months after the information was laid. No explanation was given by the Crown for this delay.

[19] During oral submissions on the application, Crown counsel urged me to treat the period from August 13 to October 15, 2013 as neutral intake time and to treat the period from October 15 to December 17, 2013 as defence delay as during this period of time the defence twice requested adjournments pending further disclosure. In support of the submission, Crown counsel pointed out that even when the breath room DVD was disclosed on December 17, 2014, a trial date was not set until the February 27, 2014.

[20] Crown counsel submits that the Court should essentially overlook the Crown's failure to disclose the breath room DVD in a timely fashion based on the argument that the defence did not really require it. I reject this argument. The breath room DVD should have been disclosed within the normal two month intake period following the laying of the information.

[21] In the circumstances, I find that the period from August 13, 2013 to September 17, 2013 is neutral intake time. I further find that the period from September 17, 2013 to December 17, 2013 is attributable to Crown delay specifically attributable to the delay in the disclosure of the breath room DVD. I recognize that further disclosure (apart from the breath room DVD) was provided on December 17, 2013 but I make no finding that this other disclosure was essential disclosure which the defence could insist upon receiving prior to setting the trial date.

December 17, 2013 to January 14, 2014

[22] As indicated above, on December 17, 2013, defence counsel attended Court and was provided with the breath room DVD and other disclosure. On December 17, 2013, defence counsel requested an adjournment until January 14, 2014 so as to review the disclosure. I attribute this period of time as neutral intake time. The defence urged me to treat this time as Crown delay based on the submission that the DVD should have been provided well within the two month intake period during which time it could have been reviewed without further delay. I do not agree with this submission. As indicated above, I have found that the breath room DVD should have been provided at some point during the two months of intake. For example, the breath room video could have been produced towards the end of the intake period after it was requested and this would have been acceptable Crown conduct in my view even if the breath room video is produced in some other cases at an earlier point in the proceeding. If disclosure had been made towards the end of the two month intake period, the defence would have required the same amount of time it sought on December 17 to review the disclosure. Accordingly, the 28 day period from December 17, 2013 to January 14, 2014 should be treated as neutral intake time.

[23] While I have treated this 28 day period as neutral intake time, I note that 28 days is a fairly lengthy period of time for the defence to require to review the disclosure provided. I will consider and comment further on this point further under the balancing of interests section below.

January 14, 2014 to February 5, 2014

[24] On January 10, 2014, defence counsel wrote to the Crown and indicated that at the December 17, 2013 Court attendance they had received a disk containing Intoxilyzer 8000 records (the defence had requested various types of records relating to the Intoxilyzer 8000 back on September 27, 2013) but apparently the defence did not receive some of the intoxilyzer records, namely the "Intoxilyzer 8000 alcohol standard solution logs" or "simulator thermometer maintenance and calibration records".

[25] On January 13, 2014, Crown counsel responded in writing to defence counsel's letter of January 10, 2014 and indicated that the Crown would inquire as to whether or not there were any such maintenance records over and above what had already been provided. The Crown indicated that they would notify the defence if/when additional records became available.

[26] On January 14, 2014, the parties attended Court and agreed to set a judicial pretrial date for February 5, 2014. Defence counsel was offered January 22, 2014 for the judicial pretrial but he indicated that he was hoping to get some of the "outstanding disclosure in time for the judicial pretrial" so he asked for a date "two, three weeks down the road [in] early February" and was given the February 5, 2014 date.

[27] As indicated above, the defence received records relating to the Intoxilyzer 8000 on December 17, 2014. I am not satisfied that the defence has established that the further intoxilyzer records mentioned in the January 10, 2014 letter from defence counsel were essential disclosure that defence was entitled to insist upon prior to the setting of a trial date or that these were needed for the judicial pretrial. I will have more to say about this issue below. However, the setting of a judicial pretrial in the circumstances of this case was appropriate and I attribute the 22 day period from January 14, 2014 to February 5, 2014 as inherent/neutral delay.

[28] While I have treated this 22 day period as neutral time, I note that an earlier pretrial date was offered to the defence and that would have shortened this period to only eight days. Again, as with the previous time period, I will consider this point further under the balancing of interests discussed below.

February 5, 2014 to February 27, 2014

[29] The parties attended before the Court on February 5, 2014. It appears from the transcript that day that a judicial pretrial of some form was held on that day and that a further judicial pretrial was requested by defence counsel. The Court record indicates that defence counsel had received some additional disclosure that day and defence counsel indicated on the record as follows:

"I'd like to have an opportunity to review it and to make sure it's complete and review it with my toxicologist. I'm hoping to move this matter along and as a result, I understand that Thursday, February 27, 2014, a 9:15 is available for a judicial pretrial and I'm hoping by then the disclosure will be complete and we can proceed to the next step of setting, a trial date as early as possible."

[30] Correspondence from defence counsel in February 10, 2014 indicates that the materials received on February 5 included "McNeil reports", event chronology (three pages), audio copy report (one page) and a disk regarding Peel Regional Police communications. Defence counsel also repeated his earlier request for the alcohol standard solution logs and simulator thermometer records.

[31] On February 27, 2014, counsel attended at Court and held a judicial pretrial, after which a two day trial date was set for January 5 and 6, 2015. I note that the Court offered, and the defence indicated that they were available on December 18, 19, 22 and 24, 2014 but that the Crown could not proceed on those days because the police officers needed to testify were unavailable until December 26, 2013.

[32] It is apparent from the record as whole, including correspondence quoted above wherein defence counsel indicates on February 5, 2014 that "I'm hoping by then the disclosure will be complete and we can proceed to the next step of setting, a trial date as early as possible", that the approach the defence took to this matter was that it was not going to seek to set a trial date until it had all the disclosure it had requested, whether or not such disclosure was essential disclosure needed for the setting of a trial date.

[33] On the other hand, I note that at no time following the laying of the information did the Crown ever suggest on the record that a trial date should be set, notwithstanding that it is the Crown's obligation to move the matter forward.

[34] As indicated above, the defence bears the burden of establishing the reasons for individual periods of delay. The defence submits that this period (February 5 to February 27) is attributable to Crown delay due to the additional disclosure made on February 5. It is true that some further disclosure was made by the Crown on February 5 but I am not satisfied that it necessitated yet a further 22 day delay to conduct a further judicial pretrial. As indicated earlier, defence counsel is not entitled to wait for every last piece of disclosure prior to setting a trial date and that appears to be the approach that was taken here.

[35] In my view, the February 5 to February 27 time period is not Crown delay. The issue is whether it is neutral or whether it is defence delay. In my view, this 22 day period should be treated as defence delay for the reasons outlined above.

February 27, 2014 to January 5, 2015

[36] As indicated above, at the time that the trial date was set, defence counsel indicated that they were available on other dates offered by the Court namely December 18, 19, 22 and 24, 2014 but that those dates were not acceptable to the Crown because police witnesses were unavailable until December 26, 2014. The next available dates were January 5 and 6, 2015 and those dates were agreed upon for the trial.

[37] There are 313 days between February 27, 2014 and January 6, 2015. The issue is how much of the 313 days, if any, should be treated as neutral time needed for counsel and the parties to prepare for trial.

[38] Defence counsel indicated on the record on February 27, 2014 that he had earlier dates for trial and in fact was available for trial starting March 14, 2014 and had dates in "every month thereafter".

[39] Accordingly, the defence submits that of the 313 days between February 27 and January 6, 2015, only 16 days (period from February 27 to March 14) should be deducted for preparation time as defence counsel was available to start the trial as early as March 14. The defence therefore submits that during this time period, 297 days should be treated as institutional delay.

[40] In its factum filed on the s.11(b) application, the Crown submitted that a total of 60 days should be deducted from the 313 days for trial preparation, apparently based on the provision in the Criminal Rules of the Ontario Court of Justice that requires that Charter applications be heard 60 days in advance of trial with 30 days notice of the application being given. The Crown also notes that under s.657.3 of the Code, the defence must give 30 days notice of an intention to call an expert and the defence concedes that it may call an expert in this case.

[41] During oral argument on the application, the Crown revised its submission such that it submitted that 90 days should be deducted from the 313 days for preparation. The Crown based this submission on the fact that in order to bring a s.11(b) application, transcripts needed to be ordered and the transcripts were not available until April 28, 2014. The Crown therefore submitted that the 60 day period of time from February 27, 2014 to April 28, 2014 was needed for the defence to prepare its s.11(b) application. The Crown relied upon the decision of Justice Code in R. v. Emmanuel wherein Justice Code treated as neutral time some two months for preparation of a s.11(b) application.

[42] In addition, the Crown submitted that a further 30 days was needed for trial preparation, given that 30 days notice needed to be given for a Charter application and/or the calling of an expert. In the result, the Crown submitted in oral argument that there should be a total of 90 days of neutral trial preparation during the 313 day time period.

[43] I have concluded that 30 days should be deducted from the 313 day time period between February 27, 2014 in January 5/6, 2015 for trial preparation time. Institutional delay is the period of time that begins to run when the parties are ready to proceed but the system cannot accommodate them. In this case, the defence is arguing numerous Charter breaches. In my view, the parties are not ready to proceed to trial until they have complied with the rules of the Court for the service of Charter applications notwithstanding that these requirements may be abridged from time to time. In addition, the record indicates that the defence is considering calling a toxicologist and that position was acknowledged by defence counsel in oral argument on the application. Accordingly, given the 30 day notice requirement for Charter applications in the Court rules, the 30 day notice which the defence must give if he intends to call an expert and given all of the other circumstances of this case including that this is a 2 day trial with likely 4 to 5 Crown witnesses, I have concluded that a 30 day period of neutral trial preparation should be deducted from the 313 days.

[44] I do not think that it would be fair to the defence to deduct further time for preparation of the s.11(b) application. The earliest available trial date agreeable to the parties was January 5 and 6, 2015. This is not a circumstance where the defence wanted a later date so it could prepare and deliver a s.11(b) application. There was plenty of time from the set date to the trial date for the defence to prepare the s.11(b) application and it was because of the institutional delay that they had a bona fide application to bring. In my view, it would be somewhat circular reasoning to deduct from the 313 days a further period of time for preparing the s.11(b) application.

Summary of Institutional and Crown Delay

[45] In summary, I have found that the institutional delay in this case is 283 days (313 days less 30 days trial preparation time) and the Crown delay is 60 days. The total institutional/Crown delay is 343 days. This is just under 11.5 months.

(iv) Prejudice

[46] As indicated by the Supreme Court of Canada in R. v. Morin, deviations of several months from the guidelines in either direction can be justified by the presence or absence of prejudice. Prejudice may take the form of restrictions on liberty, undermining the accused's ability to get a fair trial or interference with the security interests of the person.

[47] The burden is on Mr. Zieba to establish prejudice on a balance of probabilities. Prejudice can be actual or inferred. As indicated above, prejudice will generally not be inferred except where there is a very long period of delay.

[48] In this case, the defence does not take the position that the delay has implications for restrictions on the liberty of Mr. Zieba or that the delay had impaired his fair trial interests. The prejudice allegations in this case relate to the security of the person.

[49] Mr. Zieba swore an affidavit and testified on the s.11(b) application and was subject to cross-examination. He testified to two areas of prejudice which he claimed were associated with the delay:

(i) Prejudice in the form of stress and related matters. In this regard he testified to sleepless nights; a loss of enjoyment of life by less socializing with friends and less traveling; a diminished sex drive particularly over the past several months, and a resumption in the taking of his blood pressure medication which he had taken in the past but which he was not taking at the time that he was charged in August 2013; and

(ii) The second area of prejudice Mr. Zieba testified to relates to his employment/business. He testified that his business had decreased significantly since the laying of the charge.

[50] I will examine each one of these areas in turn.

[51] Dealing first with the issue of the stress associated with the prolonged nature of this case, Mr. Zieba acknowledged that he had not sought medical attention for his decreased sex drive. He in effect self-diagnosed his diminished sex drive as being associated with the delay in the case.

[52] He was also clear that he had previously been on high blood pressure medication. I'm not satisfied that he has established that the need to go back on this blood pressure medication was as a result of the delay in this case.

[53] Mr. Zieba acknowledged that he had previously been convicted of impaired driving and that the Crown was seeking a jail sentence in this case and that there was stress associated with the potential of him going to jail if convicted in this case.

[54] I accept that the prospect of going to jail imposes some stress on Mr. Zieba and that the longer the case goes on, the greater the stress becomes. Having said that, I believe that most of the stress of facing a potential jail sentence comes from the charges themselves and not the delay.

[55] I note that leading up to the s.11(b) application, Mr. Zieba has attended Court on only two or three occasions and that generally the Court attendances have been dealt with by his lawyer.

[56] I am not satisfied that Mr. Zieba has established that any material prejudice in the form of stress (or related matters) has specifically resulted from the delay as opposed to the charge. I believe that there is stress associated with the risk of a jail sentence in this case but that exists regardless of the delay. To summarize, the stress-related prejudice connected to the delay is low at best.

[57] Turning to the evidence concerning the employment/business interests of Mr. Zieba, I note that Mr. Zieba testified that he has had difficulty concentrating and has been distracted at work since August 2013. He testified further that in August 2013 he had 125 people working for him and that as of September 2014 he has only 48 people working for him. He says that the decrease in his business is "undoubtedly linked in part to my lack of concentration at work". In addition, in cross-examination, Mr. Zieba said that his business was not as good as it was before. All of this evidence is vague in my view and doesn't even establish a decrease in business. It only establishes that he has fewer employees working for him which may actually an improvement to the financial bottom line. No documentation was put forward to support the position that Mr. Zieba has lost business due the delay. In addition and in any event, the reduction in employees and alleged loss of business appears to be specifically linked to the fact of the charges starting in August 2013. The evidence does not establish any loss of business due to the delay in the hearing of the offences with which Mr. Zieba is charged.

[58] On an institutional/Crown delay of 11.5 months, I do not consider that there is a basis to infer any significant prejudice. I note that in Morin, there was 12 months of institutional delay and there was no evidence of actual prejudice. I note in particular that no material prejudice was inferred in that case and similarly none can be fairly inferred in this case. In arriving at this conclusion, I have considered the point further discussed below under the balancing of interests that my interpretation of the record as a whole is that the defence was content with the pace of the litigation.

[59] In summary, on the question of prejudice, I am not satisfied that any actual material prejudice associated with the delay has been established by Mr. Zieba, nor can any such prejudice be reasonably inferred in this case.

Balancing

[60] As indicated above, the Court must undertake a balancing analysis wherein it considers whether the delay is unreasonable, having regard to the interests of the accused, including any actual or inferred prejudice suffered and society's interest in having the matter tried on the merits. Before staying the charges, the Court 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 a trial on the merits.

[61] I have considered all of the circumstances of this case including the following:

a) I have found the institutional delay in this case to be 9.5 months and the Crown delay to be a further 2 months for a total institutional/Crown delay of 11.5 months. I do agree with counsel for the defence that Crown delay weighs more heavily against the Crown than simple institutional delay. In my view, the Crown's failure to disclose the breath room video in a timely way is inexcusable. It is an important point that favours the defence position on this application but, having said that, it is one only fact and it must considered in the context of the record as a whole;

b) As noted above, the Supreme Court of Canada in R. v. Morin, a drinking and driving case involving 12 months of institutional delay, found no s.11(b) violation. As one Superior Court judge noted in another case, in the absence of distinguishing circumstances, the Morin decision "virtually controls" the outcome in a similar case. I note as well that in R. v. Kovacs-Tatar, the Ontario Court of Appeal dealt with an s.11(b) Charter application in a sexual assault case. In that case, there was an overall delay of 16 months and 12 months institutional delay. The trial judge had entered a stay of proceedings for a violation of s.11(b) of the Charter. The summary conviction appeal judge lifted the stay and ordered the matter to proceed to trial. The Court of Appeal dismissed the appeal from the summary conviction appeal judge, thereby directing that the matter proceed to trial. In the course of its reasons in Kovacs-Tatar, the Court of Appeal stated "in any event, the 12 months of institutional delay does not greatly exceed the 8 to 10 month guideline" (Emphasis added). In the same judgment, the Court of Appeal stated "the institutional delay of 12 months exceeded, but just barely, the 8 to 10 month guideline set out in Morin" (Emphasis added);

c) This is not a straightforward drinking and driving case for number of reasons. It is anticipated that the Crown will call four to five police and civilian witnesses. Second, there will be multiple Charter issues raised by the defence which, while quite common in these cases, somewhat complicates the case further. The mere fact that the trial is scheduled to last two days indicates that it is not a simple straightforward case. While this is not a complex case per se, on the spectrum of drinking and driving cases, it is towards the more complicated end. As Justice Code pointed out in Lahiry, drinking and driving cases have increased in complexity since the Supreme Court of Canada's decision in Morin. In my view, this factor favours some flexibility in the application of the Morin guidelines;

d) While I do not fault the defence, it is clear that its approach to the intake period from August 13, 2013 to February 27, 2014 was to require close to every piece of disclosure prior to setting the trial date. While I have found only 22 days of defence delay during this timeframe, the record also indicates fairly lengthy adjournments, sought by the defence particularly in the period December 17, 2013 to February 27, 2014. The adjournments sought by the defence during this period were 28 days, 22 days and another 22 days to consider disclosure and to arrange a second judicial pretrial. In my view, on the record before this Court, once it had the breath room video on December 17, 2014 and had had time to review it and the other disclosure, the defence should have been in a position to set a trial date without waiting for the further items of disclosure it was seeking. It is true that the Crown did not state on the record that it wanted to set a trial date. It is also true that the defence has no obligation to move the matter along. However, the defence's failure to do so suggests that it was content with the pace of the litigation and this fact undermines it claim to prejudice and its position that the delay was unreasonable; and

e) Society has a strong interest in a trial on the merits. Drinking and driving cases, including this one, are serious cases.

[62] Whether one applies the 8 to 10 month guideline from R. v. Morin or the 8 to 9 month guideline from R. v. Rego, the analysis and result is the same. These are guidelines, not limitation periods. In all of the circumstances, including a consideration of absence of material prejudice to Mr. Zieba and society's interest in having a trial on the merits, I have concluded that the institutional delay in this case, while not acceptable or desirable, does not rise to the level of a violation of Mr. Zieba's s.11(b) Charter rights.

[63] For the foregoing reasons, the application is dismissed. I commend both counsel for their very helpful submissions.

Released: November 14, 2014

Justice Paul F. Monahan