Court Information

Ontario Court of Justice Central West Region Brampton, Ontario

Parties

Between:

Her Majesty the Queen

-and-

Natalia Korzh

Reasons for Judgment

Before: Duncan J.

Counsel:

• A Fedak-Tarnopolsky for the Crown
• E Ashurov for the Applicant

Introduction

[1] This is an application for a stay of proceedings for alleged breach of section 11(b) of the Charter. The applicant also seeks an order for costs.

[2] The defendant was charged with impaired driving, exceed 80 and fail to comply with recognizance on October 5, 2013. Her trial is now scheduled to begin March 25, 2015, some 18 months later. It is a time period that merits inquiry.

Chronology

[3] The chronology of the case is as follows:

• Oct 5, 2013 – arrest and charge – release on surety with conditions
• Oct 24 – first appearance out of custody – disclosure given – to Nov 21
• Nov 16 – defendant retained counsel
• Nov 19 – Counsel writes for further disclosure including videos
• Nov 21 – Counsel appears and says waiting for the disclosure requested on the 19th. Adjourned to December 18.
• Dec 18 – requested disclosure not ready. Adjourned to Jan 16
• Jan 16, 2014 – disclosure received – defence requests Jan 30 to review it.
• Jan 30 – Judicial Pre-Trial (required) set for March 3
• March 3 – JPT held – 2 day trial set Dec 16 and Jan 2
• August 26 – Oct 14 – set for 11(b) app - 3 hours
• Sept 11 – applicant serves 11(b) material
• Oct 14 – 11(b) application comes before assigned trial judge. Crown response just filed that morning – 11(b) application adjourned and trial dates vacated. New 11(b) application date set for January 14 and new trial dates set for March 25 and 26.

Length of Delay

[5] The total delay from charge (Oct 5, 2013) to upcoming second trial date (March 25, 2015) is 17½ months.

Reasons for Delay

[6] This case comes down to three areas of contention:

1. Classification of the period November 21 to January 16: Neutral intake or Crown delay?
2. Attribution of responsibility for adjournment of the first trial dates.
3. Determination of whether and to what extent the defendant has suffered 11(b) prejudice.

1. Intake or Crown Delay?

[7] The first time period in contention is between November 21 (first appearance with counsel retained) and January 16 (disclosure complete). The applicant submits this delay was caused by late disclosure and is therefore delay attributable to the Crown. It is argued that the breath room video was in existence on the night of the arrest and therefore copies should have been available at the first appearance (October 24). Therefore, it is said, intake should have been complete when the defendant completed her intake task by retaining counsel (November 21) and any delay beyond that point should be considered Crown delay.

[8] I can't agree. First, it is overly simplistic and incorrect to focus on when the disclosure items came into existence. Disclosure is not simply a matter of copying something and handing it over. Rather the evidence must go through a number of hands, be reviewed, vetted and recorded. All of that takes time and case law has recognized 2 months as a reasonable time for these procedures: R v Lahiry, 2011 ONSC 6780.

[9] Secondly, in this case I think it is significant that the additional disclosure request made in writing November 19 contained 10 specific items and one omnibus request:

1. Any and all video recordings made of my client
2. Any and all I/CAD reports and audio recordings of any 911 and/or radio calls made in relation to this matter;
3. Criminal record, if any, of J.B. [civilian witness]
4. McNeil reports for any officers involved in this matter
5. Certificate of calibration of the Intoxilizer used in this matter;
6. Certificate of analyst pertaining to the standard alcohol solution used in this matter;
7. Standard alcohol solution log book for the Intoxilizer used in this matter;
8. Any and all log books for calibrations, maintenances, preventative maintenances, service records and certificates of calibration pertaining to the Intoxilizer used in this matter;
9. Intoxilizer downloaded data including 50 tests before and 50 tests after testing the applicant as well as any tests performed between her tests;

[10] Simulator and its thermometer maintenance, service and calibration records;

[11] Any and all other evidence the Crown intends to use at trial

[10] In submissions before me, counsel acknowledged that he could have - and would have - moved forward to set a trial date without most of this material. His argument focused on the first item, the breath room video, an item of standard first tier disclosure, which was not received until January 16. But that distinction was never made in the letter of request of November 19 or during the appearances in court of November 21 or December 18. To the contrary, it was a compendious request mixing that which should have been standard, simple and fairly quickly available with that which was more exotic, peripheral if not irrelevant, and obviously time consuming to satisfy. In my view the defendant cannot now carve out one fraction of his request and seek to characterize the time required to fulfill the whole as being delay in providing the part. Given the extensive nature of the request and notwithstanding that it contained one item of standard essential disclosure, it is my view that the time taken to fulfill the request (Nov 19 – Jan 16) was reasonable and should be considered neutral intake time.

[11] To summarize, it is my view that the reasons for delay to the first trial date (Oct 5, 2013 - Dec 16, 2013) were as follows:

• Intake, neutral, inherent time: October 5, 2013 – March 3, 2014: 5 months
• Actions of the Crown: Zero
• Actions of the defence: Zero
• Institutional delay: Set date (March 3) to the first trial date (Dec 16) - approximately 9½ months (9m 13d). Less a reduction for Lahiry/Tran trial readiness which both sides suggest would reasonably be assessed at 30 days. Eight and a half months.

[12] The Morin guidelines of 8–10 months were pronounced in respect of a one day case. In Lahiry, Code J commented that this range should be re-considered given the growing complexity and length of drinking/driving trials. It is unnecessary to do so in this case. For now, at least, I agree with the view that a case of twice the Morin length, 2 days, should be considered to fall within the Morin guidelines though at the upper end: R v Tieu, [2012] OJ No 4025 or slightly beyond. Accordingly, even if some or even all of the early part of the proceedings is considered as Crown delay, the additional two months would still find this case falling within the guidelines.

2. Attribution of Responsibility for Adjournment of First Trial Date(s)

[13] The applicant contends that the further delay from the first trial dates to the second trial dates (March 25 and 26) was caused by the Crown's late service and filing of its response to the 11(b) application on October 14. He seeks not only a stay for a violation of 11(b) but an order for costs against the Crown.

The Proceedings of October 14

[14] As summarized above, the defendant brought an 11(b) application in advance of the trial date, returnable October 14, 2014. The application and supporting materials were filed on September 11, within the 30 day time period provided in the Rules. The Crown did not file a written response until the morning of the hearing. The only excuse(s) offered was that Crown counsel could not find the file and because of "my schedule" apparently meaning the demands of other cases.

[15] Defence counsel took the position that the late filing of the Crown's response raised "an issue of compliance with the Rules which should be addressed". He then referred at length to a number of cases, all or most of which he had appeared in as counsel, where courts had imposed a remedy or sanction for the Crown's failure to comply with the time requirements for responding to an application. One approach was to prevent the Crown from opposing the application either by cross-examination of the applicant, presenting its own evidence or by tendering its factum or argument in response. The other approach was to adjourn, not only the 11(b) application but the trial date as well!

[16] Crown counsel pointed out that his response and factum were brief and there was nothing novel in his position or his material. It was simply a matter of the Court assessing and characterizing the few disputed periods of delay. He apologized for his late material and suggested that since the argument was simple and routine the application should proceed that day. Failing that, he suggested that the application be adjourned and heard before the trial date, which should not be vacated or disturbed.

[17] Following a recess, Court was told that a number of dates were available to hear the 11(b) application before the trial, scheduled for December 16. The one date that was available to all was December 9. But defence counsel submitted that December 9 was only one week before the trial date and if the stay was granted, there might be insufficient lead time to make use of December 16th for another case. The Crown pointed out that there is always work to fill in openings that arise if a case collapses. Finally, Court was told that new trial dates would likely not be available until June or July of 2015.

[18] The Court considered the submissions and cases presented. It rejected the first approach re prohibiting the Crown from challenging the defence evidence on the application. Referring to the cases provided by the Applicant, the Court accepted the second approach, vacated the December 16 (and January 2) trial dates without prejudice to the defence to renew its 11(b) application and seek a further order for costs (as occurred in some of the cases presented). New dates were set for March 25 and 26 with a new 11(b) application date of January 14.

The Law Re Non-Compliance with the Rules: Issue is Prejudice

[19] The leading decision in Ontario re non-compliance with the criminal Rules is R v Blom. In that case on a voir dire into the admissibility of a statement made to police, the defence sought to advance Charter arguments under both section 10(b) and section 7. However the Crown objected arguing that the Charter application filed was deficient in that it was not accompanied by an affidavit, as then required by the Rules, but more importantly, that it referred only to an alleged breach of section 10(b) and not to a breach of section 7. The trial judge accepted the Crown's objection, ruled that proper notice had not been given, and that the applicant was precluded from arguing a section 7 violation. That decision was upheld on summary conviction appeal. However, on further appeal, the Court of Appeal directed a new trial. It held, in effect, that a court should not get too hung up on Rule compliance; that where there has been non-compliance the key question is whether there has been prejudice to the other side. The Court said:

Rule 30, requiring notice of Charter applications to exclude evidence, is a procedural rule. Its purpose is to facilitate the fair and expeditious determination of Charter issues by ensuring that neither party is taken by surprise at trial and that both parties have adequate notice of the factual and legal basis for the Charter application. As has been frequently observed, procedural rules are servants not masters. They are servants to the cause of the just and expeditious resolution of disputes. Procedural rules are important, but they are not to be rigidly applied without regard to their underlying purpose….

Where a party complains of inadequate notice, it is crucial for the trial judge to consider the issue of prejudice: does the failure to provide adequate notice put the opposite party at some unfair disadvantage in meeting the case that is being presented? If there is no real prejudice, inadequate notice should not prevent consideration of the Charter application. If the inadequate notice does put the opposing party at a disadvantage, the court must consider whether something less drastic than refusing to consider the Charter argument, but still consistent with the goal of achieving "fairness in administration and the elimination of unjustifiable expense and delay", can be done to alleviate that prejudice. If so, that course should be followed in preference.

[20] While Blom was decided under the former Rules, there is no doubt that it is equally applicable under the present ones: see R v Grant, [2014] OJ No 114 (Sup Crt Durno J.) a case much like the present one where the Crown's response was not served and filed until the morning of trial.

[21] It is clear that the prejudice referred to in Blom is case specific prejudice. It is not to the point to assert, as occurred here, that non-compliance with the Rules may create a disadvantage to the opposing party or the Court in some cases and therefore must be discouraged and sanctioned. Rather the focus must be on whether there is actual prejudice in this case and, if so, what can be done to alleviate it.

[22] Regrettably, Blom was not cited to the trial judge nor was it referred to in any of the cases upon which the applicant relied. As a result, prejudice was scarcely mentioned and was certainly not the focus, as Blom directs, that it should have been.

Conclusion Re Responsibility for Delay from First to Second Trial Date

[23] The point of all of the above is not to review or second guess the trial judge's exercise of discretion. The point is to attribute responsibility for the delay that ensued, something the trial judge was not required to decide.

[24] It was the defence that sought the adjournment, not the Crown. In my view responsibility for the ensuing delay can be transferred to the Crown only if the actions of the Crown put the defence in the position of being required to seek an adjournment in order to properly prepare and present its case.

[25] I am far from satisfied that that was the case. The response was short, simple and pretty much boiler plate, articulating a Crown position that could have been - and undoubtedly was - completely predictable. It raised no new issues. There was no reason why the defence could not have gone ahead with its 11(b) application on October 14th. Far from an adjournment being required, the defence request was completely unnecessary and unreasonable. It was an attempt to latch on to a Crown mis-step in order to manufacture delay that, it was hoped, could later be blamed on the Crown.

[26] Further, even if there was some reason to postpone the 11(b) application (which I don't think there was), there was absolutely no reason to adjourn the December/January trial dates. The parties were available and the 11(b) could have been heard on December 9th with the trial then proceeding as scheduled on the 16th. But the defence discouraged that, suggesting that if the 11(b) was successful and a stay was entered, the court time on December 16th might not be usable. That was hardly likely in Brampton and even if it was, it was hardly the applicant's concern.

[27] In summary, the reasons for delay to the upcoming trial date (October 5, 2013 - March 25, 2015) are as follows:

• Intake, neutral, inherent time: October 5, 2013 – March 3, 2014: 5 months
• Actions of the Crown: Zero
• Actions of the defence: First trial date (December 16, 2014) to second trial date (March 25, 2015): Three and 1/3 months
• Institutional delay: Set date (March 3) to the first trial date (Dec 16) = approximately 9½ months (9m 13d). Less a reduction for Lahiry/Tran trial readiness: Eight and a half months.

3. Prejudice

[28] On September 10, 2014 the defendant swore an affidavit for use on the 11(b) application. That affidavit was resubmitted on the renewed 11(b) application before me on January 14 together with a short supplementary affidavit. She was briefly cross-examined by the Crown.

[29] The defendant asserts some discrete items of specific prejudice:

a) Bail conditions require her (and her child) to live with surety: But there is no evidence as to where she lived before the bail order was made. In fact, her address as it appears on court documents suggests that she may have lived at the same address both before and after she was charged.

b) Faded memory: The defendant expressed concern that if she testifies she may not be able to recall "all the important details". In cross-examination she conceded that she has done nothing to preserve her memory such as making notes. Further, in my view it is entirely speculative whether the defendant will testify or, if she does, whether her memory will be lacking to any significant degree. Unlike sexual assault cases, defendants in drinking and driving cases do not often testify.

c) Employment opportunities hindered: She maintains that her ability to secure employment has been hampered because most jobs require the ability to drive either on the job or at least to get to the job. In cross examination she conceded that she has done nothing to get her licence back even though she was eligible to do so three months after being charged. Her decision to hold off seeking employment because of the prospect of an eventual unfavourable outcome to the trial is a voluntary decision that she has made and is not prejudice imposed on her by either the charge or the ongoing proceedings.

d) Prohibition on drinking: The defendant laments not being able to raise a glass, particularly on celebratory occasions such as New Years and birthdays. Yet she has never sought a variation from the Crown or the Court. In any event, this is a relatively minor imposition.

[30] The main thrust of the claimed prejudice centres on the anxiety and stress that the defendant has suffered and is suffering from the proceedings, and in particular, the uncertainty as to the future and inability to move on with her life. This type of prejudice is of course recognized in 11(b) jurisprudence and in fact is so self-evident that it is assumed to be present in every case.

[31] An assertion by a defendant that she is suffering from an elevated level of this form of prejudice is both difficult to support and difficult to refute in most cases. However in this case, the conduct of the defence provides some insight into the bona fide of the assertion. In my view, it is unimaginable that anyone truly experiencing the 'exquisite agony' of ongoing criminal proceedings would take the position adopted by the applicant on October 14, particularly when faced with the prospect of further delay of the trial until possibly June or July 2015. I conclude that the defendant was experiencing little or no such prejudice.

Conclusion on 11(b)

[32] The applicant has not satisfied me that her right to a trial within a reasonable time has been infringed or denied. The application is dismissed.

Costs

[33] Had I been satisfied that the applicant was justified in seeking an adjournment of the 11(b) application on October 14, I would have considered making an order for costs to compensate for the duplication of preparation time and attendance in court for argument of that application, even though the 11(b) application itself failed. However, as is apparent from the above, I do not think such a position was reasonable or justified. Consequently I dismiss the application for costs as well.

February 17, 2015

B Duncan J.

Counsel

• A Fedak-Tarnopolsky for the Crown
• E Ashurov for the Applicant

Footnotes

[1] The only other area of potential dispute is the 30 day delay for a judicial pre-trial that is required in all cases of 2 days or more. This has been held to be a reasonable length of time and part of the inherent time requirements of the case. See R v Tieu, [2012] OJ No 4025, paras. 15–18.

[2] See Tieu, supra, para. 21. The concept of readiness for trial includes preparation as well as availability: R v Si, [2014] OJ No 3363.

[3] Including: R v Belousov, [2014] OJ No 2974; R v Yu, [2014] OJ No 297; R v Zakharchenko, [2014] OJ No 3254; R v Leibovitch, [2009] OJ No 3156.

[4] The same point had been made by defence counsel in his submissions before the recess. It had been accepted by courts in some of the cases that he cited.

[5] The Crown argued that there was no prejudice and no reason why the matter could not go ahead. He did not cite any case law, perhaps understandably, in that he had no notice that the applicant would take such a position.

[6] In argument, defence counsel submitted that if it was not the Crown's fault, it was the Court's fault for adjourning the proceedings. I completely reject that submission. Clearly the defence steered the Court to the result that it reached. The defence got exactly what it wanted.

[7] As occurs all the time in this jurisdiction. The local bar in Peel, both Crown and defence, routinely agree to proceed notwithstanding late service of materials from the other party if they are able to do so without being disadvantaged. This is as it should be.