Court File and Parties

Ontario Court of Justice

Date: 19 May 2016

Court File No.: 14-09022 Newmarket

Between:

Her Majesty the Queen

— and —

Zarema Sycheva

s.11(b) Ruling

Before: Justice Joseph F. Kenkel

Delivered: May 19, 2016

Counsel:

• Ms. S. Thomas — counsel for the Crown
• Mr. A. Spektor — counsel for the defendant

Decision

KENKEL J.:

[1] Ms. Sycheva is charged with Fraud Over $5000 contrary to s. 380(1)(a) of the Criminal Code.

[2] The defence has applied for a stay of proceedings to remedy what they allege is a breach of the accused's right to a trial within a reasonable time contrary to s. 11(b) of the Charter. Ms. Sycheva was arrested and charged December 14, 2014 and her trial is scheduled to be heard over 4 days starting July 19th, 2016.

[3] The Crown and defence agree that the overall time to trial of 584 days (1 year, 7 months, 6 days) merits inquiry into the reasons for delay.

Court Appearances

[4] Court appearances to date:

Date	Appearance	Details
Dec 15, 2014	1st Appearance	Bail
Jan 21, 2015	2nd Appearance	Adj Def request – disclosure provided
Feb 3, 2015	—	Def – Further disclosure request
Feb 12, 2015	3rd Appearance	Adj Def request
Mar 4, 2015	—	Crown pre-trial meeting
Mar 5, 2015	4th Appearance	Adj Joint request/Chg of counsel
Mar 20, 2015	5th Appearance	Adj Def request/ 2nd Chg of counsel
Apr 13, 2015	—	Crown pre-trial meeting with new counsel
Apr 24, 2015	6th Appearance	Adj Joint request – further disclosure provided
May 29, 2015	7th Appearance	Adj Joint request – disclosure provided
June 19, 2015	8th Appearance	JPT set, translations provided May 29
Aug 12, 2015	9th Appearance	JPT held, Adj Joint request
Sep 17, 2015	10th Appearance	Adj Joint request for further JPT
Oct 5, 2015	11th Appearance	JPT, Trial dates set for July 19th-22nd 2016
Oct 20, 2015	12th Appearance	Election OCJ and trial dates confirmed

Submissions of Counsel

[5] The defence submits that total institutional and Crown delay is 18 months. The intake period ends January 21, 2015. From that date to October 5th, 2015 is Crown or institutional delay. It's appropriate to allow 15 days for trial preparation past October 5th and it's appropriate to assume that defence counsel was available to start a 4 day trial on October 20th. From October 20th to July 22nd the last scheduled date for trial should be assessed as 9 months 17 days of institutional delay.

[6] The Crown submits that the total institutional/Crown delay is 8 months and 5 days which is within the Morin guidelines, particularly for a 4 day matter. The Crown submits that the period from arrest to June 19, 2015 is intake and neutral time. From June 19 to August 12 further Crown and judicial pre-trial meetings were held which is inherent case management time. The Crown concedes the delay from August 12, 2015 to September 17, 2015 is properly attributable to the Crown. The further period to October 5th is again inherent case management time during which another judicial pre-trial meeting was held. The trial dates were set October 5th and the accused attended October 20th to elect. The Crown submits that from the remaining day of 9 months and 17 days the court should deduct 2 months as time for trial preparation, but the court should then assume the defence was ready for the 4 day trial as of December 20th and attribute the remaining time to institutional delay.

Reasons for the Delay and Waiver

[7] The appearances to March 20, 2015 were part of the intake process. Disclosure was provided and further disclosure requests were met. The accused hired a lawyer, switched to another then re-hired the first lawyer. Neither party was ready to set a trial date to that point.

[8] On March 20th counsel who had just come back on the record requested a further adjournment to meet with the Crown and to obtain further disclosure. Further disclosure was obtained by April 24th, and the defence suggested the matter be adjourned to May so that they could have a meaningful pre-trial meeting with the Crown. Some documents that had been disclosed to this point were in Russian, which the accused and counsel understood but the Crown did not. Both parties agreed on a return date of May 29th. Neither party was ready to set a trial date.

[9] On May 29th the defence received further disclosure including translations of the emails. (See the June 19th transcript as the Crown on May 29th described the disclosure as "just a few pages of paper". An adjournment was granted for translation which the June 19th transcript shows were actually part of the disclosure on May 29th.) On June 19th counsel agreed that a judicial pre-trial case management meeting was required. That "JPT" was scheduled for August 12, 2015. The need for a judicial pre-trial meeting was a necessary step before either party would be ready to set a trial date independent of any translation issue.

[10] In the period between March 20th and August 12, 2015 the intake process, including change of counsel, further disclosure, translation, and case management meetings continued. Neither party was ready to set a trial date and the matter was not otherwise ready to be scheduled because a JPT had not been held. The period from March 20th, 2015 to August 12, 2015 is inherent time.

[11] The Crown concedes the delay between August 12, 2015 to September 17, 2015 is properly attributable to them. The translation of the emails they had obtained was challenged by the defence who had greater knowledge on that point. Although the defence was fully aware of the contents of the emails and the Crown had a translation for the purpose of the JPT, the case management judge felt that a further independent translation was required.

[12] The independent translation of the emails was received by September 17, 2015. It's not plain whether it differed much from the police translation. The Crown provided the defence with a copy of an in-car video. A further judicial pre-trial meeting had been booked for October 5th so the matter was adjourned to that date. There's no indication a trial date could not have been set until the video was disclosed. The failure to have a proper translation which was quickly obtained once ordered by the court, meant a meaningful JPT was not held on August 12th. I find that the full time between that date and the date of the October 5th JPT post-translation should be attributed to the Crown.

[13] To this point Crown/Institutional delay applies only to the period between August 12, 2015 and October 5, 2015 – 55 days (1 month 24 days) total.

[14] On October 5th it was determined that 4 days were required to try this case given the complexity of the allegations and the need for translation. The trial was scheduled to commence July 19, 2016 and continue to July 22, 2016.

[15] The defence factum attributes the entire period from October 5th, 2015 to July 22nd 2016 to institutional delay. That assessment does not acknowledge that time would be required for trial preparation, assumes counsel was immediately available for a 4 day trial and ignores the fact of yet another change of trial counsel to Mr. Spektor. When responding to the Crown's concerns on these points Mr. Spektor conceded that some allowance for trial preparation was necessary and that must also take into account the change of counsel. He agreed with the Crown that from October 5th to December 5th would have been reasonable if Ms. Melekhovets were doing the trial. Given the change in counsel a further period of preparation would have been necessary to January 3rd even though as new counsel he accepted the existing trial dates.

[16] Although the Crown factum suggested that preparation time be counted to December 5th, following the exchange of submissions and the fact of a further change of counsel I agree with Mr. Spektor that it's fair to attribute the period to January 3rd as necessary preparation time.

[17] The Crown factum attributes all of the remaining time to institutional delay on the basis that the trial dates were the first ones offered to either party. The defence makes the same submission. However in argument the Crown pointed out that the defence did not state their availability for trial when the date was set. In that case the Crown suggests that the court apply the approach adopted in R. v. Lahiry and divide the time equally between institutional delay and inherent time requirements of the case.

[18] The calculation in Lahiry was based in part on time required to prepare for trial. In this case I find that is reasonably accounted for by Mr. Spektor's suggestion that institutional delay would not run prior to January 3rd, 2016. It's attribution of the period after January 3rd, 2016 that's problematic.

[19] In Lahiry the court confirmed that the trial judge was right to insist the defence file the letter showing their earliest availability when the trial date was set. At para 26 Justice Code cited Sopinka J.'s comments in Morin (Supra) that institutional delay "starts to run when the parties are ready for trial but the system cannot accommodate them".

[20] Justice Code discussed the submission that there was not a consistent practice at the time where defence counsel stated their availability when setting a trial date. He noted the authority to the contrary to that point and the practice of some but not all counsel to put that information on the record when dates were set. In a companion case Justice Code divided the time to trial equally between institutional delay and defence delay where it wasn't plain when the accused would have been ready for trial. See: Lahiry at para 60.

[21] The accommodation referred to in Lahiry was fair at the time. As discussed in that judgement, the practice of providing full information when setting trial dates was not consistent then. The court provided a remedy which allowed some consideration of delay despite the silent records of that era and despite the burden upon the applicant to prove the breach alleged.

[22] That was almost 5 years ago. Since then it's been routine for counsel to state on the record their availability when trial dates are set as instructed in Lahiry and R. v. Tran.

[23] When these trial dates were set defence counsel did not say she had any earlier dates for a 4 day trial. There's no evidence that she or subsequent new trial counsel had earlier dates. I'm not prepared to guess.

[24] I disagree with the Crown that the 50/50 remedy provided in Lahiry necessarily results or would be appropriate in this case. I'm not bound by their submission in that regard - Tran at para. 31.

[25] Most defence counsel in this region are booked many months forward. Availability for a 4 day trial within a shorter period cannot be assumed. If counsel had earlier dates she was required to state that at the time. That's particularly the case where counsel advised the court that she was contemplating bringing a s. 11(b) application at the time the trial date was set. She had turned her mind to the issue of delay and she knew that a proper record would be important.

[26] There was another change of counsel after these trial dates were set but new counsel accepted the existing dates. There's no evidence that current trial counsel had earlier available dates for a 4 day trial and no application was made to inquire as to the availability of earlier dates.

[27] With no evidence as to earlier availability, none referred to at the time and a change of counsel afterwards, I cannot reasonably attribute any of the remaining period to institutional delay. The applicant has shown that the total Crown/institutional delay is 55 days.

[28] Even if the defence were correct and the entire period from January 3rd to July 19th was considered institutional delay, that period would amount to 199 days or 6 months 17 days. On that calculation the total of Crown and institutional delay would be 55 + 199 = 254 days or 8 months and approximately 11 days. That's within the guidelines for this court, particularly for a complex 4 day trial.

[29] On the point of complexity, the defence emphasized that this case was not as complex as many other fraud cases and should not be viewed as a "complex case" for s. 11(b) purposes. Complexity in this context though does not refer to the intricacies of the case, but rather to the impact of the case on court resources – here 4 days of trial time. This is a complex case as compared to the routine half day and one day matters contemplated by the Morin guidelines.

Prejudice

[30] The defence called the accused to testify on the issue of prejudice. Her core complaint is that after being charged with fraud in relation to her psychic fortune-telling business she's no longer permitted to engage in that work. The Crown submits that the work is illegal as she conducts it and it's no hardship to be restrained from breaking the law.

[31] This is not the time to resolve the allegation as to the nature of the accused's business. It's plain though that the financial prejudice that was the focus of much of the accused's evidence results from the fact of the charge not from the delay. Any delay of course extends that situation but given the quick timeline here for a 4 day trial I find delay related prejudice and inherent prejudice to be minimal.

Conclusion

[32] I do not find the delay in this case to be unreasonable having regard to the interests of the accused and the societal interests s. 11(b) was designed to protect.

[33] I find that the applicant has failed to prove the breach alleged on the balance of probabilities. The application is dismissed.

Delivered at Newmarket

May 19, 2016

Justice Joseph F. Kenkel