Court File and Parties

Date: 2015-11-26

Court File No.: Brampton 14-12277

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Vasil Tchavdarov

Before: Justice P.A. Schreck

Heard on: November 13, 2015

Ruling on Section 11(b) Charter Application

Counsel:

• M. Shanahan, for the Crown
• A. Pazuki, for the Applicant

SCHRECK J.:

[1] Introduction

[1] On September 21, 2014, the Applicant, Vasil Tchavdarov, was charged with operating a motor vehicle while his ability to do so was impaired by alcohol (Count 1) and while the concentration of alcohol in his blood exceeded the legal limit (Count 2). His trial is scheduled to take place on December 2, 2015, about 14 and a half months after he was charged. He has applied for a stay of proceedings on the basis that his right to a trial within a reasonable time, as guaranteed by s. 11(b) of the Charter, has been infringed.

I. THE ANALYTIC FRAMEWORK

[2] The factors to be considered on a s. 11(b) application are set out in R. v. Morin, [1992] 1 S.C.R. 771. They are (1) the length of the delay, (2) waiver of time periods, (3) the explanation for the delay and (4) prejudice. There is no issue that the overall delay in this case is of sufficient length to warrant inquiry and it is not suggested that there has been any waiver. The determination of this application therefore depends on the explanation for the delay and whether and to what extent there has been prejudice.

II. EVIDENCE

A. Chronology

(i) The First Trial Date

[3] The Applicant was charged on September 21, 2014. His first appearance in set date court was on October 7, 2014, by which time he had retained counsel. Some disclosure was provided and the matter was adjourned to October 21, 2014. On that date, an agent for the Applicant's counsel indicated that some disclosure, the nature of which is not specified, was still outstanding. She requested that the matter be adjourned to November 18, 2014. On that date, a judicial pre-trial was scheduled for December 17, 2014. After the judicial pre-trial took place, the trial was set for September 14 and 15, 2015. The court had earlier dates of September 9 and 10, 2015, but defence counsel was not available.[1]

[4] A confirmation date was apparently set for July 31, 2015.[2] Defence counsel asked that the confirmation date be adjourned to August 14, 2015 as he was awaiting a second copy of disclosure that he had ordered as well as a recording of a 911 call. The Crown gave no indication of whether it was in a position to confirm the trial date. However, on August 14, 2015, the Crown indicated that it had already confirmed the trial date. The defence also confirmed the trial date at that time.

(ii) The Crown's Adjournment Application and the Second Trial Date

[5] On August 27, 2015, the Crown notified the Applicant's counsel that it would be bringing an application for an adjournment on August 31, 2015. The basis for the request was that the arresting officer was unavailable on the trial date as he was scheduled to take a course. This was not made known to the Crown at the time the trial date was set because of an administrative oversight.

[6] The Crown's adjournment application was heard on August 31, 2015. Crown counsel on the application advised the Court of what she had been told by Crown counsel assigned to prosecute the matter:

He indicated in a note from August 28 that he had spoken to the trial coordinator's office to determine the earliest new trial dates that could be offered in the circumstances. He indicated that as of August 27 the trial coordinator could offer new trial dates of September 21 and 22. He said the Crown was ready to proceed on those dates, although he had asked my friend here, but he was not available. The alternative date would be, alternative dates could be had in November 2015.

The Applicant's counsel opposed the application, but indicated that he had some availability in November if the application were to be granted.

[7] The adjournment application was granted. In his ruling, the presiding judge stated:

In coming to that conclusion, I note that in balancing competing considerations, it would appear, based on the information provided by the Crown, that this adjournment request, if acceded to, will not result in an unduly lengthy postponement of the trial and dates are available as early as this month for the matter to continue and in November, as well, counsel advises he has some availability.

[8] The matter was held down while the parties attended the trial co-ordinator's office to re-schedule the trial. When they returned, they advised the Court that the earliest dates they could find were January 13 and 14, 2016. The only November dates offered were November 23 and 24, but neither Crown counsel nor the Applicant's counsel were available. The matter was adjourned to September 2, 2015 to allow the parties to make efforts to obtain earlier dates. It was subsequently adjourned again to September 9, 2015 to allow them to continue their efforts.

[9] On September 9, 2015, new trial dates of December 2 and 3, 2015 were scheduled. The following dates were available to the court and the Crown, but not counsel for the Applicant: October 6 and 7, November 3 and 4, November 17 and 18, November 23 and 24.

B. Prejudice

[10] The Applicant filed an affidavit and gave viva voce evidence. He testified that he is 30 years old and has been employed as an IT Project Manager at the same company since 2007. The Applicant gave evidence about a number of different forms of prejudice which he attributed to the delay in his case. He stated that he suffers from insomnia, anxiety, depression and panic attacks, for which his family physician has prescribed medication. He also described problems in his relationship with his girlfriend, which he attributes to his being irritable and stressed because of the delay in his case. He also described difficulties at work because of his inability to focus. As well, because some of his work required him to travel, he was unable to make certain commitments because he was uncertain whether he would lose his driver's licence.

[11] According to his evidence, the Applicant did not suffer any of these adverse consequences prior to August 31, 2015, when the Crown's adjournment application was granted. Before then, he did not experience anxiety, panic attacks or depression. His relationship with his girlfriend was fine. Although he did not know whether he would lose his licence, he was able to make commitments at work and could focus on his job. All of this changed, however, when the original trial date was adjourned.

III. ANALYSIS

A. Attribution of the Delay

(i) The Laying of the Charges to the Setting of the First Trial Date

[12] During the period between September 21, 2014, when the charges were laid, and December 17, 2014, the Applicant retained counsel, disclosure was provided and a judicial pre-trial was scheduled and held. This period of approximately three months is properly characterized as part of the inherent time requirements of the case and therefore neutral time for the purposes of s. 11(b). While counsel for the Applicant maintains that he could have conducted the trial soon after December 17, 2014, there is authority suggesting that additional time should be added to the inherent time requirements in recognition of the fact that counsel would have needed some additional time to prepare for trial: R. v. Lahiry (2011), 2011 ONSC 6780, 109 O.R. (3d) 187 (S.C.J.) at paras. 31-34; R. v. Tran (2012), 2012 ONCA 18, 288 C.C.C. (3d) 177 (Ont. C.A.) at para. 32. In this case, the Applicant is bringing an application to exclude evidence based on alleged Charter violations. At the very least, he would have been required by Rule 3.1(1) of the Criminal Rules of the Ontario Court of Justice to provide 30 days' notice of his intention to bring the application. This would add a month to the inherent time requirements for a total of four months.

(ii) The First Trial Date

[13] There was no court time available between when the parties were ready for trial and September 2015. Although the Applicant's counsel was not available for the first available date of September 9, 2015, in my view nothing turns on the five-day period between then and the initial trial date of September 14, 2015. This period of approximately eight months is properly characterized as institutional delay.

(iii) The Crown's Adjournment Application and the Second Trial Date

[14] The real area of disagreement between the parties relates to the period between the initial trial date of September 14, 2015 and the re-scheduled date of December 2, 2015, a period of approximately two and a half months. Relying on R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, counsel for the Applicant submits that this entire period should be characterized as Crown delay as it was necessitated by the Crown's adjournment application. The Applicant's position is therefore that the combined Crown and institutional delay in this case is 10 and a half months, while the rest of the time is neutral.

[15] Crown counsel submits that although the Crown is properly held responsible for some of the delay, because there were dates available prior to December 2, 2015 on which defence counsel was unavailable, at some point "the balance shifts" and the delay should become attributable to the defence. This shift, he submits, occurred sometime in November and one month should be attributable to the defence. Thus, the overall Crown and institutional delay is nine and a half months, the defence delay is one month and the rest of the time is neutral.

[16] I do not agree that any of the time between September 14 and December 2 is attributable to the defence. In my view, such a finding would be inconsistent with R. v. Godin, where the Court held (at para. 23) that defence counsel cannot be expected to hold themselves "in a state of perpetual availability". That said, I am also not persuaded that the entire time period should be attributed to the Crown. The approach to be taken to time periods following an adjournment for which the defence is not responsible was considered by Rosenberg J.A. in R. v. W.(A.J.), [2009] O.J. No. 2814 (C.A.) at paras. 30-33:

The question of how to characterize the resulting delay is a difficult one. It seems to me that in principle, since the mistrial was caused by a systemic failure, the delay until the system is able to again accommodate the trial is properly characterized as institutional delay. Thus, from March 19, 2007 until June 4, 2007 at least, is institutional delay.

Appellant's counsel submits that the balance of the delay of 5 months should be considered neutral. He accepts that defence counsel could not be expected to hold his calendar open in the expectation that a trial will not proceed. Thus, the delay cannot be considered defence delay. However, he submits that equally, the system is not at fault; the system was ready to accommodate an earlier trial.

I am very sympathetic to the position of both the respondent and his counsel. They were ready and anxious to proceed to trial and through no fault of theirs the trial could not proceed. Further, defence counsel should be able to organize their affairs in reliance on schedules set by the court.

In my view, the answer to this dilemma is to closely examine the reasons for the resulting delay. In this case, the delay from June 4 to July 31 is properly considered to be neutral. The system was available to hear the case, but defence counsel, for perfectly valid reasons was not. The reason for the delay from June 4 to July 31 was made clear on the record. That delay was not waived but the result of unavailability of defence counsel, who had been prepared for trial on the original date but quite properly had scheduled other matters in the reasonable assumption that the respondent's case would proceed as scheduled: see R. v. Godin, [supra] at para. 23.

[17] Thus, in cases such as this, where an original trial date is adjourned through no fault of the defence, the reasons for the resulting delay must be closely examined. How this examination should be conducted was explained by Durno J. in R. v. Amyotte, [2009] O.J. No. 5122 (S.C.J.) at paras. 58-60:

I am not persuaded that in the circumstances of this case it is appropriate to stop the clock on April 25, the first date offered or May 12, the first date offered on which the Crown was available. Neither, am I prepared to let it run to July 11 given the appellant's counsel was unavailable for 7 dates offered over almost 3 months. Like the counsel in W.(A.J.), Mr. Lent was unavailable for perfectly valid reasons. He prepared for trial and scheduled other matters in the reasonable expectation that the appellant's case would proceed as scheduled: W.(A.J.) at para. 33.

Some reasonable allowance for the schedule of counsel must be made. There is no breach of s. 11(b) when the state offers a trial date within a reasonable time, when the accused refuses the offer and delays the proceeding further: R. v. M.(N.N.), [supra] at para. 23, 55. However, where a court offers multiple dates over a period of months, the accused is expected to accept a new date within a narrow range of time: R. v. Shyshkin, [2007] O.J. No. 1821 (S.C.J.) at para. 140.

[18] In this case, although the trial was adjourned at the Crown's request, there were multiple dates offered between September and December on which the trial could be re-scheduled but on which defence counsel was unavailable. As in the cases cited above, his unavailability was due to perfectly valid reasons, which is why this period cannot be characterized as defence delay. However, as in W.(A.J.) and Amyotte, it does mean that some of the subsequent period should be characterized as neutral. For these reasons, I am in agreement with Crown counsel that at least one month of this period should not be attributed to the Crown. I do not agree that it should be attributed to the defence. In my view, it was neutral.

[19] Based on the foregoing, I have concluded that the Crown and institutional delay in this case was nine and a half months. In R. v. Morin, it was held that the appropriate guideline for institutional delay at this level of court was eight to 10 months. However, there is authority suggesting that the lower end of that range, eight or nine months, is appropriate in this region: R. v. Rego, [2005] O.J. No. 4768 (C.A.) at para. 4; R. v. Ratneswaren, [2013] O.J. No. 5037 (S.C.J.) at para. 68; R. v. Purewal, [2014] O.J. No. 2824 (S.C.J.) at para. 138. The delay in this case exceeds that range, but not by much.

B. Prejudice

[20] The adverse consequences described by the Applicant are not uncommon in cases of this nature. What is uncommon, however, is his claim that he only began to suffer those consequences on August 31, 2015. In most cases, these types of adverse effects exist throughout the time the individual is charged and grow worse as the period of delay grows. Based on his own evidence, the Applicant has suffered prejudice, but only for about three and a half months.

[21] In my view, the Applicant's evidence was likely tailored to meet the common Crown argument that the prejudice being complained of arises from the charges themselves and not the delay. The distinction between the two types of prejudice was explained in R. v. Kovacs-Tatar (2004), 73 O.R. (3d) 161 (C.A.) at para 33:

The focus of prejudice under s. 11(b) is the prejudice flowing from a situation "prolonged" by delay rather than the mere fact of being charged with a criminal offence. . . . In R. v. Silveira, [1998] O.J. No. 1622, 35 M.V.R. (3d) 30 (Gen. Div.), Hill J. clarified at para. 53, that "[t]he shame of disclosure to family, the expense of defending criminal charges, and the like, arise from the laying of the criminal charge itself and not from delay to trial". He accepted, however, that the delay to trial beyond the guidelines prolongs an accused's shame and increases his or her anxiety. Thus, what was initially prejudice from being charged may become prejudice caused by institutional delay due to a delay beyond the guidelines.

[22] While there is a distinction between prejudice arising from the charges and that which results from the delay, in most cases there is no clear line separating one type of prejudice from the other. Rather, the prejudice arising from the charges increases because of the delay, and the extent to which it does so will be relevant to the ultimate disposition of the s. 11(b) application. The Applicant's claim that his prejudice began on a specific day is neither credible nor ultimately helpful to his position.

[23] I am, however, prepared to find that the Applicant suffered some prejudice arising from increased legal fees resulting from the Crown's adjournment application: R. v. McMunn (2008), 2008 ONCA 520, 233 C.C.C. (3d) 454 (Ont. C.A.) at paras. 19, 40.

C. Balancing

[24] The overall delay in this case is within the Morin guidelines. Although it exceeds the guidelines for what is appropriate in this jurisdiction, it does not do so by much. In addition to this, while the Applicant suffered some prejudice, it was in my view limited. In these circumstances, I am not persuaded that the Applicant's s. 11(b) Charter rights have been infringed.

IV. DISPOSITION

[25] The application is dismissed.

Justice P.A. Schreck

Released: November 26, 2015

Footnotes

[1] In the transcript from December 17, 2014, defence counsel stated that earlier dates of December 9 and 10 were available. The parties agree that he misspoke and intended to say September, not December.

[2] The December 17, 2014 transcript indicates that the confirmation date was set for January 31, 2014. However, as no transcript from that date is included in the application record, I am assuming that this was stated in error and that the actual confirmation date was July 31, 2015.