Court File and Parties

Ontario Court of Justice

Date: 2015-09-16

Court File No.: Halton 14-1816

Between:

Her Majesty the Queen

— and —

Stanislaw Dyrda

Before: Justice D.A. Harris

Heard on: July 9, 2015

Reasons for Ruling released on: September 16, 2015

Counsel

Sean Bradley — counsel for the Crown

Alireza Pazuki — counsel for the defendant Stanislaw Dyrda

Decision

HARRIS J.:

[1] Stanislaw Dyrda is charged with having the care or control of a motor vehicle in the Town of Oakville on June 20, 2014:

(1) when his ability to operate a motor vehicle was impaired by alcohol, and

(2) when his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 milliliters of his blood.

[2] These matters are scheduled for trial on October 13 and 16, 2015.

[3] In the meantime, counsel for Mr. Dyrda brought an application to stay these charges pursuant to the Canadian Charter of Rights and Freedoms on the basis that Mr. Dyrda's right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter has been infringed here.

[4] I find that Mr. Dyrda has failed to establish on a balance of probabilities that his right to a trial within a reasonable time was infringed here and I am dismissing his application. The reasons for this are as follows.

The Law

[5] Section 11(b) of the Canadian Charter of Rights and Freedoms provides that "Any person charged with an offence has the right to be tried within a reasonable time".

[6] The primary purpose of s. 11(b) of the Canadian Charter of Rights and Freedoms is to protect the individual rights of the accused to liberty, security of the person and to a fair trial. There is a secondary societal interest in having cases tried on their merits - a matter important to the maintenance of respect for the administration of justice.

[7] This application requires a judicial balancing with an examination of the delay and its evaluation in light of other factors in order to determine whether the delay is reasonable. This balancing requires consideration of:

1. The length of the delay;
2. Waiver of time periods;
3. 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,
   • (e) other reasons for delay, and
4. Prejudice to the accused.

[8] Having made findings about each of these four factors, the final balancing stage of analysis requires consideration of the societal interest in a trial on the merits.

The Length of the Delay

[9] The total delay in this case will be just under 16 months. This delay is of sufficient length to warrant judicial inquiry.

Waiver of Time Periods

[10] The onus is on the Crown to prove or establish waiver. A waiver must be clear and unequivocal with full knowledge of the rights the procedure was enacted to protect and of the effect a waiver will have on these rights. The notion of waiver contemplates a choice has been made between available options. Where no real choice or option exists there can be no waiver. Agreement to a date within the proceedings in question does not constitute waiver where the agreement can be reasonably and fairly characterized as mere acquiescence in the inevitable.

[11] It is the duty of the Crown to bring an accused person to trial. This requires that the prosecution apparatus and the government strive to expedite the trial to minimize the effect that is inherent in delay in the disposition of criminal litigation. There is no constitutional imperative upon the accused to bring himself or herself to trial. The protection of s.11(b) of the Charter is not restricted to those who demonstrate a desire for a speedy resolution by asserting the s.11(b) right.

[12] Silence and acquiescence in the face of Crown requests for adjournments or in accepting the trial date that is offered clearly do not constitute waiver.

[13] I am satisfied that there was no waiver in this case.

Reasons for the Delay

[14] Mr. Dyrda faces "impaired/over 80" charges. Counsel agreed that this should be a relatively straightforward trial which should not take more than two days.

[15] Having said that, I note that there are certain time requirements inherent in any case. These would include the intake period. This intake process would include such things as obtaining and reviewing disclosure, a Crown/defence resolution meeting, a judicial pre-trial and defence preparation for trial.

[16] In this case, counsel agreed that the intake period ran until October 21, 2014 when counsel was ready to set the dates for trial.

[17] Counsel for Mr. Dyrda also argued that he would have been prepared to conduct the trial as early as October 28, 2014. The 11(b) clock therefore starts then.

[18] The delay between that day and October 13, 2015 amounts to 11 months and 15 days.

Actions of the Accused

[19] The case became more complicated however when Crown counsel wrote a series of emails to counsel offering alternative trial dates which had since become available.

[20] On May 27, 2015 she proposed June 12, 22, 23, 24 and July 21, 2015.

[21] On June 2, 2015 she proposed July 14, 15, 22, 23, 24, 2015.

[22] On June 3, 2015 she proposed June 18 and July 16, 17, 20, 27, 2015.

[23] On June 11 and 12, 2015, she proposed August 11, 12, 13, 26, 2015.

[24] On June 17, 2015, she proposed July 7 and 8, 2015.

[25] In total, she proposed 20 separate dates spread out over ten weeks.

[26] Mr. Dyrda declined all of these dates. I will address his reasons for this when I review his evidence in the section of these reasons dealing with the question of prejudice. I will note here however that I reject his explanation for declining the earlier dates.

[27] I am satisfied that the facts in this case are similar to those in R. v. Lof in that the offer of earlier dates came many months before trial and many dates were offered. I agree with the comments of Duncan J. in that case where he said that:

it would be wrong to fault the system for delay beyond … the revised date when the court was available to accommodate the case. The reason the case was not tried then was due to defence unavailability. Simply put, it was not the system's fault.

[28] Depending on which one of the proposed dates is applied by me, the institutional delay then falls somewhere between 8 months, 5 days and 10 months, 11 days.

[29] A further potential complication arose on September 14, 2015, two days before this Ruling was to be released, advising me that contrary to the position taken earlier by counsel for Mr. Dyrda, he had since reviewed the disclosure and determined that he would now be bringing "a Charter application". No further details were provided. I include this fact however since it does cause me to question whether counsel can be said to have been ready to conduct the trial in October 2014, when he is deciding only now, in September 2015, to bring an unspecified "Charter application".

[30] I will note here that this further development did not negatively impact on the present Application as I was about to dismiss it in any event.

Actions of the Crown

[31] I do not attribute any delay to the actions of the Crown.

Limits on Institutional Resources

[32] I attribute any remaining delay to the limits on institutional resources in our courts here in Halton. Mr. Dyrda was offered the earliest days for trial (within a reasonable proximity of each other) that were available.

[33] I will say more about this in the Analysis section of this Ruling.

Other Reasons for Delay

[34] There are no other reasons for the delay here.

Prejudice to the Accused

[35] Everyone suffers prejudice as a result of being charged. This is inherent in the process itself. The prejudice of concern in the s. 11(b) analysis is not prejudice associated with the laying of criminal charges but the prejudice arising from the delay in processing or disposing of the charges. A court may infer or presume the existence of prejudice or it may be otherwise proven. Prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn. The inference of prejudice from a very long delay becomes nearly irrebuttable.

[36] In addition, in this case, Mr. Dyrda swore an affidavit which was filed in support of this application. He then testified before me. Crown counsel chose to cross-examine him.

[37] In the end, I did not believe Mr. Dyrda. Along with other reasons, I did not believe him as a result of the following.

[38] He repeatedly gave nonresponsive answers to the questions that were asked. Many of these questions were simple and straightforward. Mr. Dyrda's answers to them were anything but simple or straightforward.

[39] He stated that his affidavit was in his own words. I cannot believe that. The affidavit has a very formal structure and uses what I would describe as formal legal language. Mr. Dyrda did not speak in such a fashion during his viva voce evidence. It should be noted that the affidavit was written in English. Mr. Dyrda testified with the assistance of an interpreter. Mr. Dyrda testified that his son had assisted in interpreting his words for the affidavit. The affidavit may well have reflected what he told his lawyer with the assistance of his son, but in the end, it was written in the lawyer's words and not those of Mr. Dyrda.

[40] In his affidavit, Mr. Dyrda stated that the defence was not available on the proposed new dates for trial "due to scheduling difficulties of my counsel and the unavailability of my witness". This was inconsistent with his viva voce evidence where he made no reference to counsel being unavailable. He only said that he was unable to connect with his witness to determine if the witness was available on any of those days.

[41] The affidavit of Stephanie Dryfhout, assistant at counsel's office, also stated only that "the defence was not available" on the proposed dates. There is nothing even suggesting that counsel was unavailable on any of those days.

[42] The above mentioned viva voce evidence of Mr. Dyrda is also inconsistent with the further statement in his affidavit that "I am advised and do verily believe that had these earlier dates been available when the trial date was initially set, the defence would have been available on many of those days". In the absence of information from the witness, Mr. Dyrda could not know (nor could the unnamed source who "advised" him) if the witness would or would not have been available on those days.

[43] In any event, Mr. Dyrda's explanation does not make sense. According to him it was important that the trial be heard as soon as possible. It was also important to him that the witness testify on his behalf. However, although Mr. Dyrda made about ten telephone calls in an attempt to determine if the witness would be available, he was unable to speak to him. There was no answer, only the answering machine. Yet Mr. Dyrda left no messages either asking the witness to call back or explaining the situation to him. He certainly did not communicate to the witness the fact that it was important to Mr. Dyrda to have the trial heard as soon as possible.

[44] There was also no attempt made at any compromise that might have allowed the trial to be heard earlier. One possibility that came to mind to me would be to start the trial on one of the earlier days, hear all of the witnesses available then, and then, if necessary, hear the missing witness on another (still earlier) day when he was available.

[45] The absence of any credible effort to accommodate the earlier dates leads me to doubt Mr. Dyrda's sincerity in claiming to have been prejudiced by the ongoing delay.

[46] In that regard, I note the comments of the Supreme Court of Canada in R. v. Morin regarding the fact that several months before trial Crown counsel wrote to defence counsel on pending cases offering to attempt to arrange for earlier trial dates if any particular accused was feeling prejudiced by the delay in getting their case to trial.

[47] The Supreme Court stated that:

It may be unrealistic to suggest that a trial set for approximately two months from the date of this letter could have been significantly moved up but we will never know what would have happened as the accused did not request any action. While the accused was not required to do anything to expedite her trial, her inaction can be taken into account in assessing prejudice. I conclude for this reason that the accused was content with the pace with which things were proceeding and that therefore there was little or no prejudice occasioned by the delay.

[48] There is another inconsistency in the fact that Mr. Dyrda was unable to say what this witness would testify to. He testified that the witness was there that night. He was driving by and stopped. It was important that he come to court and say what happened, but Mr. Dyrda did not know what the witness saw. He therefore did not know what the witness would say.

[49] Mr. Dyrda stated in his affidavit that with the passage of time he became more anxious, even depressed and experienced difficulties sleeping. He had been under a doctor's care and had paid for and taken costly medications. In his viva voce evidence, however, he admitted that he had also been treated for similar problems prior to being charged. He had been prescribed sleeping pills prior to being charged as well as since then. His prescription medications were, for the most part, paid for by his employer's drug plan. Although he continued to fence with Crown counsel throughout his testimony on this point, he never directly stated how much he himself had paid for his medicines.

[50] Nothing from any of Mr. Dyrda's doctors was presented to me.

[51] In his affidavit, Mr. Dyrda also made sweeping statements regarding the impact that all of this had on his employment. "I believe that the passage of time negatively impacted my performance at work. I have experienced trouble concentrating on my work. As a result, I failed to meet deadlines and failed to complete projects". "I have also taken days off work, and have refused more overtime work, which has had a financial consequence for me".

[52] In his viva voce evidence he testified that he works on the assembly line at the Ford plant in Oakville. Again, he fenced with Crown counsel throughout his testimony on these points but did not provide any details.

[53] Further, there were no pay stubs or other work records presented to document this alleged decrease in income.

[54] Mr. Dyrda stated in his affidavit that he believed "that due to the passage of time my ability to defend myself has been compromised given that my memory of events has faded over time. I am unable to recall specific details of my arrest".

[55] In his viva voce evidence, he testified that his memory would have faded very soon after the events and that in recognition of that fact, he had made notes of what happened.

[56] He further stated in his affidavit that he had incurred extra legal expenses in bringing this Charter application. In that regard I simply note that this was his choice. He was the one who decided what steps to take and how to allocate his financial resources in dealing with these charges.

[57] After considering all of these factors, I am not satisfied that Mr. Dyrda suffered prejudice arising from the delay in processing or disposing of the charges.

Balancing the Societal Interest in a Trial on the Merits

[58] Appeal courts have repeatedly stated that there are societal interests in ensuring that an accused is tried within a reasonable time, to minimize the prejudice to the accused and to ensure that they are treated humanely and fairly. There is also a societal interest in ensuring that accused are tried on their merits. As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial.

[59] With that in mind, I note the comments of Code J. in R. v. Lahiry with respect to the seriousness of drinking and driving offences, that

It must be remembered that, for over twenty-five years now, drinking and driving has been regarded as a very serious offence. Indeed, it has been authoritatively stated that "it has a far greater impact on Canadian society than any other crime", that it is "clearly the crime which causes the most significant social loss to the country", and that "every drinking driver is a potential killer". ….. Given these pronouncements, balancing the societal interest in a trial on the merits is particularly important in drinking and driving cases.

Analysis and Conclusion

[60] In R. v. Morin, the Supreme Court of Canada stated that "it is appropriate for this Court to suggest a period of institutional delay of between eight and ten months as a guide to Provincial Courts". However, "deviations of several months in either direction can be justified by the presence or absence of prejudice".

[61] This Supreme Court of Canada guideline is neither a limitation period nor a tariff. It is however, an instructive device for measuring the constitutional state of the inventory of cases before the Court. Still, it is necessary to examine the particular circumstances of each case.

[62] I note as well the comments of Code J in R. v. Lahiry that "the Supreme Court of Canada was setting guidelines for short, efficient, high volume summary trials in Morin". He further stated that modern drinking driving cases bear no resemblance to Morin in that respect. The case of Mr. Dyrda certainly does not.

[63] As I stated earlier, the institutional delay in this case eventually fell somewhere between 8 months, 5 days and 10 months, 11 days.

[64] Although I am satisfied that the shorter time would have been applicable here, I am also satisfied that both times were reasonable in all of the circumstances.

[65] Needless to say, the case for Mr. Dyrda was weakened even more by the latest development which indicates that his counsel is not yet ready even now to conduct a trial any earlier than the dates actually set.

[66] I find that Mr. Dyrda has failed to establish on a balance of probabilities that his right to a trial within a reasonable time was infringed.

[67] The application is dismissed.

Released: September 16, 2015

Signed: "Justice D. A. Harris"