Court File and Parties

Ontario Court of Justice

Date: 10 June, 2016

Court File No.: 15-04570 Newmarket

Between:

Her Majesty the Queen

— and —

Kamil Jakub Jaworek

Charter s. 11(b) Application

Before: Justice Joseph F. Kenkel

Heard and Delivered: June 10, 2016

Counsel:

• Ms. Jina Lee — counsel for the Crown
• Mr. Stefan Dimitryjevec — counsel for the defendant

Decision

KENKEL J.:

Introduction

[1] The accused is charged with assaulting a woman in the middle of Main Street in Stouffville. His trial started November 27, 2015 but a further date was required. The matter continued February 3rd, 2016 but circumstances resulted in three further trial dates being scheduled to continue June 10th (11B), July 19th and 20th, 2016. Both the Crown and the defence agree the multiple trial dates and the overall period justifies inquiry into the reasons for delay.

Timeline

[2] The history and appearances to date:

Date	Event
31 May, 2015	Pre-Charge Arrest and release
12 June, 2015	Charge Sworn Information Sworn
25 June, 2015	1st Appearance — Disclosure — Adj – Defence
16 July, 2015	2nd Appearance — CPT – Adj – Defence
21 July, 2015	3rd Appearance — 1 day Trial set for Nov 27th
27 Nov., 2015	4th Appearance — Trial, 1 further day set
3 Feb., 2016	5th Appearance — Trial, 3 further days set
19 July, 2016	7th Appearance — Trial scheduled to July 20th

Pre-Charge Delay

[3] The defence submitted that the s. 11(b) analysis should start from the day that Mr. Jaworek was arrested. Section 11(b) protects persons "charged with an offence". A person is "charged with an offence" when an Information is sworn so delay for s. 11(b) purposes is calculated from that point. R v Kalanj, [1989] SCJ No 71. Pre-charge delay may have an influence in assessing post-charge delay in some circumstances R v Morin, [1992] SCJ No 25 at para 35, but this is not such a case.

Analysis

[4] The period from the swearing of the Information to the accused's first appearance is neutral intake time.

[5] June 25, 2015 — Disclosure was provided on the first appearance. The defence requested an adjournment to review disclosure and meet with the Crown. The defence submits one week of the resulting three week adjournment should be attributed to the Crown given lack of available phone pre-trial slots. The Crown did agree though to the date of July 9th initially requested by the defence on the basis that counsel could attend and meet with the Crown available every day for that purpose. Defence counsel (not Mr. Dimitrijevec) declined saying to the court, "I'm easy with bringing it back the week after then …".

[6] As it turned out on July 16th another lawyer attending that day did meet in person with the Crown available and then requested a brief adjournment to take instructions before setting a trial date.

[7] I find that the period between June 12th when the Information was sworn and July 21st when the trial date was set is neutral intake time where neither party was ready to set a trial date. Both parties acted very quickly though such that they were ready to set a trial date less than a month after the first appearance.

[8] July 21 – November 27, 2015 – November 27th was the first date the court had available for a one day trial. The defence counsel at the time did not mention earlier availability but an affidavit filed in support of this application states he could have started the trial a week later. The defence submits that institutional delay runs from July 28th. The Crown submits that the court should not infer instant availability for either party and the time required for the Crown to prepare their case, subpoena witnesses and notify officers is inherent time. See: R v Tran, 2012 ONCA 18 at para 32.

[9] I accept that the defence was ready for trial as of July 28th. I find that the one month suggested by the Crown is reasonable to prepare this case. The period between July 21 to August 21 is therefore inherent time. Institutional delay runs from August 21 to November 27th, 2015.

[10] November 27, 2015 – This trial did not start until 2:15 p.m. Prior to that time this court was hearing another assault trial which was scheduled for a full day but completed in time for us to start this matter at 2:15 p.m. The trial did not finish and a further date was scheduled. The evidence of the complainant to that point caused the Crown to make inquiries that resulted in some brief, but potentially relevant further disclosure being provided. Based on the evidence to that point, a full day was scheduled for February 3rd, 2016.

[11] The defence was available to continue the trial on two earlier days — December 1st and 3rd. The court offered earlier dates on December 4th, 9th and January 19th. The defence was not available for any of the three earlier dates. The Crown was unavailable January 9th. The defence submits that the entire time should be counted as institutional delay given that a half day was lost due to the late start. The Crown submits that only the time from January 19th onward counts as institutional delay as the defence was not available on the earlier dates offered.

[12] There are a number of circumstances that are relevant to this period, some not known to the parties at the time. First, the late start as noted by the applicant. Second, the fact that as the evidence unfolded it became apparent even in November that a further half day would not be sufficient. A further day was scheduled in January to a total of 1½ days which is a doubling of the original 5 hour estimate. The trial would not have finished in November even if it had started in the morning as scheduled.

[13] A third factor is that evidence on the first day of trial caused the Crown to make further inquiries of the police and further disclosure was made in January. This and other factors has added three further days to the trial time estimate. What was once thought to be a 5 hour trial turned out to be a 4½ day trial.

[14] Despite all of that I agree with the defence that it's important that the matter did not start at the time scheduled. It's also relevant that the disclosure issue although inadvertent, would cause further delay. In scheduling further dates, the defence is not required to be perpetually available for any one case. R v Godin, 2009 SCC 26, [2009] SCJ No 26 at para 23. I find that the defence readiness on December 1 and 3 is reasonable availability even though they could not accept the one other close date, December 4th, that was available to the Crown. I find that the time between December 1st and the second trial date represents institutional delay. The one further date declined January 19th does not change that assessment.

[15] On the second day of trial the complainant's cross-examination was completed. The defence had received the further disclosure requested in the interim. The evidence of a second witness was started and then there was a lengthy delay until after lunch while the defence considered a potential issue regarding the admissibility of the store video. That issue was settled by an agreed statement of fact marked as Exhibit #1. The defence then brought a recusal motion based on information they provided to the court. That motion was heard and dismissed. The evidence of the second Crown witness was completed with cross-examination. Three further trial dates were set: June 10th (11B), July 19th and 20th.

[16] Further disclosure resulted from the complainant's evidence at the first day of trial where she spoke of other police cars attending the scene. The defence requested further disclosure and the Crown made inquiries to determine whether other officers had attended what they thought was a one officer investigation.

[17] It turned out that there had been two complaints. The first complaint was about noise. Officers attended and their notes were logged under an incident number. There was a second call about the altercation that led to the charge before the court. That was investigated by the one officer and logged as a separate incident. Unfortunately the two incidents weren't linked and the very brief but potentially relevant information contained in the notes of the first noise complaint officers was not disclosed to the Crown or the defence until the Crown made a specific inquiry. The notes of the officer who investigated this case were provided with initial disclosure.

[18] The two incidents should have been linked in some fashion but I accept that the failure to do so was inadvertent. In hindsight, had everyone known about the brief further disclosure, and more importantly if everyone had known how the trial would unfold, it would have been plain that 3½ days were required for trial not ¾ of a day. The further disclosure did not cause any actual delay as the matter had to be adjourned for multiple other reasons and counsel was fully briefed and prepared to finish cross-examination of the complainant when the trial resumed. The further disclosure related to the credibility of the complainant but counsel was able to complete her evidence on the second scheduled day.

[19] While the Crown would attribute the further adjournment past February 3rd to the defence given the hold-down related to the video and the recusal application, I find that the original estimate of 5 hours proved inadequate for many reasons including but not restricted to the disclosure issue. The failure to disclose the information was reasonably explained and remedied before the second trial date.

[20] I find the remaining time from February 3rd to the scheduled end of trial July 20th to result from the fact that the time estimates proved inadequate for multiple reasons as the case developed. That sometimes happens despite the best efforts of all parties to identify these issues prior to trial.

Prejudice

[21] Mr. Jaworek testified as to the impact the charges have had upon him. The stress and anxiety he described flowed from the fact of the charges and the potential consequences and not from the delay, although I accept that the delay over now 3 trial dates and an application date exacerbated the stress in this case. The financial impact of three different dates is likely greater than one, but had all the circumstances been known when the date was originally set he still would have been retaining counsel for a 3½ day trial. There's nothing in his release that would give rise to the social restriction he mentioned. His injury while walking his dog which has restricted his movement and his income is the more likely source of any isolation.

[22] There is inherent prejudice but the accused confirmed that his memory is intact and available should he choose to testify. There's nothing arising from the delay that would compromise the accused's right to a fair trial.

Conclusion

[23] I find the total delay to be 3 months and 6 days + 2 months and 2 days = 5 months 8 days. This case has received very quick trial dates throughout and the overall institutional delay is well below the guidelines set for this court in R v Morin, [1992] SCJ No 25. Despite the multiple trial dates, considering the circumstances as a whole and the interests s. 11(b) was meant to protect, I find that the applicant has failed to prove the breach alleged on the balance of probabilities. The application is dismissed.

Delivered June 10, 2016:

Justice Joseph F. Kenkel