Court File and Parties

Ontario Court of Justice

Date: September 26, 2017

Court File No.: Brampton 15-3894

Between:

Her Majesty the Queen

— and —

Jerzy Hertyk

Before: Justice Patrice F. Band

Ruling on s. 11(b) Charter Application, released on September 26, 2017

Counsel:

• Ms. H. Gluzman — counsel for the Crown
• Mr. M. Mansour — counsel for the Applicant, Mr. Hertyk

BAND J.:

I. Introduction

[1] This is a s. 11(b) application in a "transitional case" as defined in R. v. Jordan. The parties disagree as to whether the "net delay" is above or below the 18 month presumptive ceiling. The Crown focuses on defence delay and/or waiver, and discrete exceptional events. She does not invoke case complexity or the "transitional exceptional circumstance."

[2] I have calculated the "net delay" at 12 ½ months. This is not a "clear case" for a stay as described in Jordan. For the reasons that follow, the application is dismissed.

II. Background

[3] As a result of events that took place on March 30, 2015, Mr. Hertyk was charged with care or control "Over 80," driving while disqualified and fail to comply probation. His trial began before me on June 20, 2016 and continued on a number of dates that will be discussed in further detail below. Throughout the trial on the merits, Mr. Hertyk has been representing himself (with the continuous assistance of Polish interpreters).

[4] By way of a mid-trial application, Mr. Hertyk seeks a stay of proceedings based on trial delay. The delay application was argued on July 7, 2017 by counsel retained for that purpose. The parties agreed that the application ought to take priority over the remainder of the evidence to be heard on the trial.

[5] I adjourned to September 26, 2017 to deliberate and write reasons. I went into some depth on the record concerning the other demands on my time. These included case load, pre-existing reserve judgments, summer vacation and family responsibilities.

III. Applicable Legal Principles

[6] Jordan and R. v. Cody provide a full explanation of the approach to transitional cases. It is a three-step process that was summarized by the Ontario Court of Appeal in R. v. Mallozzi.

[7] First, any time attributable to defence delay must be subtracted from the total delay. This has two components: delay expressly waived and delay caused by defence conduct. Waiver may be implicit or explicit, but it must be clear, informed and unequivocal. Also, "the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not."

[8] Second, if the net delay is above the presumptive ceiling, the court must subtract delay arising from discrete events. Discrete events lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.

…it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify. …

Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay.

[9] Where an issue arises "close to the ceiling," it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.

[10] Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e., it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).

[11] If the delay still exceeds the ceiling, the court must consider whether it is justified by case complexity.

[12] Third, and only if discrete events or case complexity do not justify the delay, the court must consider whether the transitional exceptional circumstance applies.

[13] Where the net delay falls below the 18 month ceiling, the defence bears the burden of demonstrating that the delay is unreasonable. To do so, the defence must establish that:

(1) It took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and

(2) The case took markedly longer than it reasonably should have.

[14] Stays in such cases are "to be granted only in clear cases."

IV. Chronology

[15] The important timeframes in this case can be summarized as follows.

• March 30, 2015: arrest.

• May 4, 2015: first appearance after show-cause.

• June 1, 2015: initial disclosure provided; Applicant adjourns to apply to Legal Aid Ontario ("LAO").

• July 1, 2015 – November 16, 2015: Applicant dealing with LAO; receives final denial from LAO; Applicants seeks adjournment to attempt to retain counsel.

• December 21, 2015: Applicant seeks one-month adjournment to attempt to retain counsel; Crown and Court express desire to move forward; JPT date set for February 12, 2016.

• February 12, 2016: JPT held; Applicant advises court that his wife passed away in January; Applicant wishes more time to retain counsel; Applicant expresses desire that trial be held 5-6 months from now; Crown agrees that trial date should not be set within 4 months to allow Applicant time to retain counsel; trial set for June 20 and 21, 2016; JPT judge sets April 14, 2016 as interim date to confirm efforts at retaining counsel.

• April 14, 2016: For reasons that are never explained, Applicant fails to attend court; Discretionary Bench Warrant returnable June 20, 2016.

• May 16, 2016: Crown brings matter forward to apply for adjournment; Applicant had changed address and did not receive the application; Applicant not in attendance but is contacted by telephone with assistance of Polish interpreter; matter adjourned to May 17, 2016.

• May 17, 2016: This date, before Schwarzl J., requires detailed discussion.

  The Crown applied for an adjournment of the trial on the basis that the Arresting Officer, PC Leonardo, was to be out of the country attending the second part of a Drug Recognition Expert course. The Crown advised the Court that the Peel Regional Police was short-staffed in that regard and that PC Leonardo was selected "at the last minute."

  With the assistance of a Polish interpreter and Duty Counsel, Mr. Hertyk referred to the fact that, due to the charges, he had no driver's license and that an adjournment would cause/add to his prejudice. It was later revealed that his driver's license was the subject of a suspension. The Crown offered to remove any bail conditions prohibiting him from driving. Mr. Hertyk declined that offer and the matter was adjourned to the afternoon.

  After the luncheon recess, Duty Counsel advised that because his ex-wife had passed away in January, Mr. Hertyk was without a surety. He had not contacted the authorities for fear that he would be incarcerated.

  Duty Counsel and the Crown discussed the matter and it was agreed that Mr. Hertyk's surety bail would be canceled and an "own recognizance" entered in its place. It was also agreed that Mr. Hertyk would "consent 11B will not be an issue to the next trial date."

  On the basis of the foregoing, Justice Schwarzl granted the Crown's adjournment application in part. The trial would commence on June 20, 2016 "and then be adjourned to permit PC Leonardo to be called at a later date." In doing so, His Honour stated that Mr. Hertyk, who initially opposed the adjournment, was "then consenting on his bail being varied with the Crown's consent."

• June 20 and 21, 2016: Trial commences before me; matter is adjourned to November 8, 2016 for continuation.

• [July 8, 2016: The Supreme Court of Canada releases Jordan; "total delay" is 15 months and one week.]

• November 8, 2016: Crown requests adjournment on basis that PC Leonardo had undergone shoulder surgery some three weeks prior; as scheduled, it was not believed to require an adjournment but PC Leonardo had suffered a setback the previous night and was not well enough to attend court; Applicant opposed the application on the basis that the case was taking too long and affecting his personal life; adjournment granted; matter set to continue on March 1, 2017; December 16, 2016 was available to the Court but not to the Crown, due to a scheduled jury trial, or the Applicant, for reasons that were not explained; I explained Jordan to the Applicant, as well as the need for transcripts of all appearances; I also arranged for Duty Counsel to advise the Applicant; the Applicant seeks a month to consider his options; matter also adjourned to November 28 for oversight on that issue.

• November 28, 2016: Applicant advises will not be making s. 11(b) application.

• March 1, 2017: I was ill; matter before Mackay J., who discussed Jordan and procedure with Applicant; adjourned to April 13, 2017 for continuation.

• April 13, 2017: Applicant seeks adjournment to make a s. 11(b) application; no transcripts filed; evidence continues on the merits; matter adjourned to June 8, 2017.

• June 8, 2017: Applicant files most of the required transcripts; matter adjourned to July 7, 2017, for s. 11(b) written materials and argument.

• July 7, 2017: Section 11(b) application argued; matter adjourned to September 26, 2017 for decision and continuation, if required.

V. Computation of Net Delay

Total Delay

[16] I treat April 13, 2017 as the "anticipated end of trial" in this case. In his factum, the Applicant "waived" the period between that date and July 7 as attributable to him. On July 7, I reserved until September 26 for a number of reasons. In my view, this time is an exceptional circumstance and ought to be subtracted as well.

[17] The "total delay" from March 30, 2015 to April 13, 2017 is 24 ½ months.

Defence Delay

[18] Aside from the length of time that it took the Applicant to receive a final response from LAO, the matter proceeded through its initial stages (disclosure etc.) in an unremarkable way. While the LAO issue could have been a source of debate, the parties have agreed that none of the time from arrest to final determination by LAO should count against the Applicant.

[19] Approximately one month and one week (from November 16, 2015 to December 21, 2015), requested by the Applicant in relation to seeking counsel, should be subtracted. So, too, should one of the approximately 1 ½ months between December 21, 2015 and February 12, 2017 (the JPT date), requested by the Applicant – again in relation to seeking counsel. LAO aside, the Applicant ought to have been working on selecting counsel in the 7 ½ months prior to November 16.

[20] I do not subtract any of the four months that elapsed between February 12 and June 20, 2016. While it is true that the Court and Crown were available in April, the Crown agreed with the Applicant that the trial should not be set within less than four months. I disagree that the two additional months of delay constitute "implicit waiver" or "defence delay." There is no clear, informed and unequivocal waiver on this record and, having been offered and agreed to by the Crown, the delay was not caused "solely" by the Applicant.

[21] When the matter was adjourned on November 8, 2016 because of PC Leonardo's injury, the Court and Crown were available to resume on December 16 and the Applicant was not; yet, the Applicant characterizes the entire period to March 1, 2017 as "Crown delay." The 2 ½ months between December 16, 2017 and March 1, 2017 are to be subtracted as defence delay.

Defence Waiver

[22] The real controversy surrounds the 4 ½ month delay that was caused by the adjournment relating to PC Leonardo's unavailability to attend trial as originally set (between June 21 and November 8, 2016). The Crown argues that the Applicant waived his s. 11(b) rights for that period on May 17, 2016. The Applicant argues that any such waiver was not clear, informed and unequivocal because certain words spoken by Duty Counsel are described in the transcript as [indiscernible].

[23] For the following reasons, I find that the lack of clarity in the transcript does not cast doubt on the clarity of the waiver. First of all, the Applicant had the assistance of Duty Counsel and a Polish Interpreter throughout. Second, on the record, Duty Counsel advises the Court that "he understands" both the propositions put to him; had there been any concerns, one would have expected the Applicant or interpreter to have voice them. Third, with the benefit of legal advice, agreeing to a new "own recognizance" in exchange for a limited waiver of s. 11(b) rights was a rational course of action when viewed in light of the fact that the Applicant had kept his surety's death from the authorities for several months out of fear of incarceration. Fourth, the Applicant's Affidavit, filed in support of his s. 11(b) application, is completely silent on this issue.

[24] The result is that approximately 4 ½ months ought to be subtracted.

Discrete Events/Exceptional Circumstances

[25] PC Leonardo's post-surgery shoulder injury was clearly a discrete event per Jordan. The Court and Crown were available 5 weeks later. Better can not reasonably have been expected of the Crown or the system. That period is to be subtracted.

[26] The same must be said about the 5 week delay attributable to my illness.

Net Delay

[27] The "net delay" is approximately 12 ½ months.

VI. Conclusion

[28] Well over half of the time that this case has been in the system was pre-Jordan. But for the first adjournment, it would have been completed within 18 months. It is true that under the old regime, 8-9 months of institutional delay would have been reasonable in a straightforward case such as this. It is also true that stays in such cases were often granted at anywhere between 10 ½ and 13 months of actionable delay.

[29] On this record, the Applicant has not established that he took meaningful steps that demonstrated a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have. This is not a clear case for a stay.

[30] The application is therefore dismissed.

Released: September 26, 2017

Justice Patrice F. Band