Court File and Parties

Court File No.: 1055/14 Date: 2015-03-27 Ontario Court of Justice

Between: Her Majesty the Queen — and — Konrad Czerczak

Before: Justice Stephen D. Brown

Heard on: March 12, 2015

Reasons for Ruling on an 11(b) Charter Application released on: March 27, 2015

Counsel:

• Arish Khoorshed, for the Crown
• Frank Pizzimenti, for the accused Konrad Czerczak

Reasons for Ruling

A. INTRODUCTION

[1] Konrad Czerczak is charged with the offences of over 80 and impaired operation of a motor vehicle allegedly occurring on April 10, 2014. The defendant, through his counsel, makes an application pursuant to s. 11(b) of the Charter of Rights and Freedoms and states that his right to be tried within a reasonable time has been infringed.

[2] The relief sought pursuant to s. 24(1) of the Charter is a judicial stay of proceedings.

[3] He was charged with this offence on April 10, 2014 and the information was sworn April 16, 2014.

[4] Mr. Czerczak retained counsel the day after his arrest, attended at his first appearance on May 6, 2014, received initial disclosure and the matter was adjourned to June 17, 2014 where initial disclosure was provided.

[5] Counsel for the applicant wrote to the Crown's office on May 15, 2014 requesting numerous further items of disclosure, such as Intoxilyzer 8000 maintenance logs and various other items of disclosure relating to the maintenance and functioning of the approved instrument used. Various officers' notes were also requested, as well as bringing to the Crown's attention that some parts of the statements provided by the Crown were illegible. In total, 23 items were requested in counsel's letter.

[6] On June 17, 2014 counsel appeared and advised the Court that a request for further disclosure had been forwarded to the Crown. The Crown that day advised that further disclosure had been sent to defence counsel the previous day by courier, but counsel did not receive the disclosure until June 18th.

[7] On July 18, 2014 counsel faxed a letter to the Crown indicating that, although they received the further disclosure on June 18th, items #1-11 in the first request for additional disclosure were missing and asked when they would be available.

[8] On July 21, 2014 counsel received a faxed letter from the Crown that was dated June 19, but not faxed until July 21, that responded to the request for items #1-11 that counsel first requested on May 15, 2014. As well, a toxicologist's report was disclosed from the CFS.

[9] On July 22, 2014 counsel appeared in court and advised that he had just received a substantial amount of disclosure the previous day, together with an expert's report, and requested the matter go over until August 21, 2014.

[10] On July 28, 2014 the Crown faxed a letter to defence counsel asking if they received the additional disclosure memo and enclosures that was dated June 19th but not faxed to defence until July 21, 2014.

[11] On August 11, 2014 counsel for the applicant faxed a letter to the Crown indicating that the disclosure he received pertaining to the Intoxilyzer records contained CD's that had been examined by his expert and it was discovered that of the 3 CDs that the Crown sent, only one pertained to the instrument used for the accused and its data contained records ending mostly in 2012. The other two CDs pertained to an Intoxilyzer different from the one used to test the applicant. Counsel also pointed out that none of the CDs contained any 911 calls from civilian witnesses as had been requested. In the letter, counsel stated, "Please note that my client is suffering a great deal of stress and anxiety as a result of the ongoing delay of these charges."

[12] On August 21, 2014 counsel appeared in court and was provided with a further CD containing some of the disclosure that he had again requested from the Crown on August 11, 2014. The matter was put over to September 30, 2014 to conduct a Crown pretrial and to set a trial date.

[13] A Crown pretrial was held in the interval and on September 30, 2014 trial dates were set for June 12, 2015 and September 14, 2015. A judicial pretrial was set for October 10, 2014.

[14] On October 10, 2014 counsel attended the judicial pretrial and confirmed the trial dates and trial time estimates.

[15] The Crown agrees that the overall delay in this matter until the end of trial will be 17 months and 4 days.

B. THE SECTION 11(b) ANALYTICAL FRAMEWORK

[16] Courts have, since R. v. Morin, [1992] 1 S.C.R. 771, been instructed to apply the section 11(b) principles flexibly, taking into account several required factors. The factors that have to be considered are set out as follows:

1. The length of 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.

[17] In R. v. Godin, 2009 SCC 26, 2009 S.C.J. No 26, the Supreme Court of Canada revisited and confirmed the R. v. Morin analysis. As stated at paragraph 18:

The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89. Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, "[t]he general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."

[18] The Court went on to restate, "...that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice." The Court further stated at paragraph 37 and 38 that:

37 It is difficult to assess the risk of prejudice to the appellant's ability to make full answer and defence, but it is also important to bear in mind that the risk arises from delay to which the appellant made virtually no contribution. Missing from the analysis of the majority of the Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforward case to trial. As noted already, prejudice may be inferred from the length of the delay.

38 Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant's ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. 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.

[19] An 11(b) analysis requires a balancing of two distinct rights: the individual rights of the accused and general societal rights. As Mr. Justice Laskin explained in R. v. Qureshi (2004), 190 C.C.C. (3d) 453 (Ont. C.A.), at paras. 8 and 9:

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] 1 S.C.R. 771, 71 C.C.C. (3d) 1 (S.C.C.) at p. 12.

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] 3 S.C.R. 45, 128 C.C.C. (3d) 483 (S.C.C.) at p. 496.

C. APPLYING THE ANALYTICAL FRAMEWORK

1. The Length of the Delay

[20] The total time from charge to conclusion of trial in this matter will be 17 months and 4 days, a time that warrants scrutiny into the reasonableness of the delay.

2. Waiver of Some or All of the Time Periods

[21] There is nothing in this case that indicates that the defendant was not ready and willing to proceed to trial at the earliest possible time. He retained counsel the day after his arrest and then moved expeditiously to obtain and review disclosure, set a Crown pretrial date when disclosure was complete enough to enable this and then set a trial date on the earliest dates offered.

3. Reasons for the Delay

(a) Inherent Time Requirements of the Case

[22] Nothing is overtly complex with this case. There is a toxicologist's report that the defence does not take much issue with since the samples were taken outside of the required time periods.

[23] There is a notice given at the judicial pretrial that a s. 8 and 10(b) Charter application will be advanced and that the required timelines under the Rules of Court will be adhered to. The 11(b) issue was discussed at the judicial pretrial and counsel agreed to bring that motion 60 days in advance of the trial. That was done; in fact, the application was argued on March 12, 2015, three full months before the commencement of the trial date.

[24] There are a total of 4 civilians and 6 police officers that are expected to testify, according to the pretrial memorandum.

[25] The trial time required was estimated at two days by both counsel and approved by the pretrial judge.

[26] All of the evidence with the exception of the toxicologist report was crystallized on the date of the arrest and thereafter it was only an administrative function to deliver that disclosure to the defendant.

[27] Counsel for the applicant is experienced, competent and he diligently pursued disclosure that was necessary to make full answer and defence to these charges. The Crown does not submit that these were frivolous disclosure requests and does not assert that the disclosure requested was not relevant and necessary for the proper preparation of a defence in this case.

[28] The parties should have been able to set a trial date within 60 days of the arrest.

[29] As it was, a trial date was not set until September 30, 2014, a period of some five months and three weeks after the arrest.

[30] Even being overly generous with the Crown, my view is that at the very outside, two-and-a-half months of time for the Crown to meet its disclosure obligations would still leave a period of 3 months and one week of delay as the responsibility of the Crown because of their delay in providing disclosure.

[31] It is to be stressed that the Crown at no point suggests that the disclosure requested was not necessary or properly requested by the applicant to make full answer and defence and, as well, did not suggest that a trial date be set in advance of the defence receiving this necessary disclosure.

[32] Deducting the overly generous allocation of time of two-and-one-half months for the Crown to fulfill its disclosure obligations from the overall time frame of 17 months and 4 days, we then reduce the total time under scrutiny as institutional delay to a period of about 14 months and 19 days.

(b) Actions of the Accused

Availability of Counsel

[33] In the case of R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83, the Court of Appeal stated that:

Parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel requires time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing ... and these times are part of the inherent time requirements of the case.

[34] In determining these issues, there should be some evidence either at the time the trial date was set or at the 11(b) hearing upon which this matter can be ascertained. If not, it would appear that the Court is free to (as in Tran) substitute its own estimates. In assessing the defence preparation time, obviously counsel's expertise in dealing with this type