Court Information and Parties

Date: August 3, 2018

Information No.: 3111-998-16-15110-00

Ontario Court of Justice

Her Majesty the Queen v. Barbara Lyjak

Before: The Honourable Justice P.T. O'Marra

Location: Brampton, Ontario

Appearances:

• K. Athanas, Counsel for the Crown
• G. Dorsz, Counsel for B. Lyjak

Reasons for Ruling

O'MARRA J. (Orally):

Introduction

These are my oral reasons in the matter of R. v. Lyjak, with respect to an application that has been brought. I always say this at the outset of an oral judgment that I do reserve the right to issue written reasons at a later date, if I choose to. And, if there's any discrepancy between my oral ruling and my written reasons, my written reasons will prevail.

This is an application for an order for a stay of proceedings, pursuant to Section 24(1) of the Canadian Charter of Rights and Freedoms, as a result of a violation of the applicant's right to a speedy trial, under Section 11(b) of the Charter.

Background and Chronology

By way of background, and before I begin, much of the background and facts I am sourcing from the applicant's material. The Crown did not take any issue with the chronology of the events. All the transcripts have been provided.

The applicant was arrested on November 30, 2016, and charged with one count of driving over 80. She was released on a promise to appear, with a first appearance date of December 21, 2016. After numerous delays, trial dates were set for May 9 and 10, 2018. The trial was not reached on those days, and new trial dates were scheduled on May 9, for August 21 and August 22, 2018.

According to the applicant, the total delay from the charge date to the scheduled end of trial is 631 days, or 20 months and 24 days. The Crown, on the other hand, has indicated that, based on the fact that the information was sworn on December 5, 2016, the Section 11(b) calculation should begin from this date to the anticipated end trial date of August 22, 2018. Accordingly, the total delay is approximately 20 months and 26 days, or 626 days.

The Crown conceded that this length of time warrants an inquiry into the reasonableness of the delay. The Crown's primary position is the following: The total delay, less defence delay, falls just above the 18-month ceiling. In particular, 81 days should be attributed to the applicant. This would bring the delay to approximately 18 months and 5 days, or 545 days. The Crown's view is, in light of the various events that occurred in this particular case, the time that the case has taken did not markedly exceed what was reasonably required.

According to the chronology, the applicant was arrested November 30, 2016. She retained counsel on December 9, 2016, and it is expected that the last day of her trial will be August 22, 2018. Counsel or his representatives attended court on each of the 16-plus court dates, until a trial date was scheduled.

Disclosure Issues

The primary source of the delay in scheduling trial dates was the non-disclosure of the booking video and the identity of a searching officer. The initial disclosure was provided to the applicant on December 21, 2016. A Crown pre-trial request was mailed to the assigned Crown, Tyler Powell, on January 5, 2017. After some back and forth, counsel Greg Dorsz advised Mr. Powell on September 13, that the defence required the booking videos, cell videos, and notes of an officer who conducted the search of the applicant. Counsel advised that he would not be in a position to set a trial date until this was provided. Mr. Powell indicated that he had sent the request to the officer in charge, and believed it would take two weeks to process. A student from counsel's office attended on February 7, and put the request on the record. The student was told that no request had been made. Emails demonstrated that this was plainly untrue. The request was made three weeks prior and acknowledged by the assigned Crown.

Counsel wrote to Mr. Powell on February 10, 2017, to ask about the status of disclosure. Counsel further advised that the breath room video of the period of time before today needs to be disclosed to the defence. Counsel further advised about the reason for the request, which effectively put the Crown on notice about the Charter allegation that was being investigated.

This was a fairly routine driving investigation. Upon reviewing the disclosure with the applicant, counsel became aware that a description of the searches of the applicant were not reflected anywhere in the disclosure. The applicant alleged, as she has in a separate Charter application before this court, that a female police officer conducted a strip search of her person during the booking process. No notes of the existence of the female officer, nor of the search, were reflected in the disclosure provided to the applicant.

The video was not available at the next court date on February 21. Some disclosure was provided on March 14, but not the videos requested. The Crown noted on the next appearance on April 18 that a request was made, several times, but the video had not been disclosed. On May 23, the Deputy Crown Attorney, as she was then, now Justice Montague, indicated that she would make some phone calls to find out what was the situation. Counsel emailed Mr. Powell again on May 24. This email included the full email chain from January and February 2018. Mr. Powell wrote back 5 days later, on May 29, that he would require the accused's full name and next court date. Counsel replied promptly. Mr. Powell replied that he saw a request on February 14 for P.C. Van Ryssel's notes, but no other request. Both the email records, fax requests, and representations made in court, show this to be incorrect. Mr. Powell indicated that he would follow up with the officer in charge.

The matter returned to court on May 30. A student for counsel highlighted the importance of the disclosure issue. The Crown agreed and wanted three weeks to investigate. On June 20, counsel's associate attended and received videos. Upon reviewing the video, it was obvious that the applicant's position was accurate. The video showed that a female officer attended, conducted a search of the applicant, and then took the applicant into the breath room for several minutes. The interaction in the breath room was not recorded. Upon her exit, clothing can be seen in the applicant's hands. A further search of her clothing and boots was conducted in the booking hall.

Counsel met with Assistant Crown Mara Basso, on July 6 in courtroom 103. Both counsel watched the video. Mr. Dorsz inquired about the identity of the female officer. Ms. Basso indicated that she would follow up. In the interim, now that disclosure was complete, a judicial pre-trial was scheduled. Mr. Powell sent a fax, which can be found at tab 7 of the applicant's materials, dated July 11, to advise counsel of the identity of the officer. Mr. Powell advised counsel that this officer took no notes of the interaction that she had with the applicant.

Resolution Discussions and Trial Scheduling

A judicial pre-trial was conducted on July 28. Counsel was advised to write a letter to the Deputy Crown to canvass the possibility of a resolution via a plea to careless driving. Counsel did so on August 4. Crown Attorney Sandra Caponecchia, as she was known then, and now Justice Caponecchia, replied on August 10, dismissing the request for a careless driving charge, but left open the possibility of a careless driving resolution if a report by a forensic toxicologist was provided.

On August 18, counsel attended in court and adjourned the matter for the preparation of a toxicology report. Despite the report being suggested by the Crown, counsel acknowledged that the parties were otherwise ready to set trial dates, but waived 11(b). The waiver continued to September 15. A report was prepared and provided to the Crown on September 25. Ms. Caponecchia replied on September 26, approving a careless, but according to the applicant, there were numerous, onerous conditions attached. Counsel canvassed this resolution with the applicant and wrote back with concerns, on September 29.

On October 4, Ms. Bridge, Crown counsel, wrote back to counsel to advise that Ms. Caponecchia was appointed to the bench of this court, and that she would have to review the request. Ms. Bridge replied on the morning of October 6, when the matter was in court.

The matter was further adjourned from October 6 to October 13. On October 13, Ms. Bridge suggested to set a trial date as negotiations had apparently reached an impasse. Because negotiations collapsed, counsel brought the matter forward to October 20, from the regular adjournment date scheduled in November. Counsel took the first date offered that was available to all parties -- May 9 and 10, 2018. Counsel was available on an earlier date, April 25 and 26, but the Crown was not.

On May 9, counsel and the applicant attended, prepared for trial. The applicant's matter was placed on hold, and waited for an open court. After lunch break, the applicant continued to wait for another court to open up. It became clear that the matter could not be reached, and counsel was advised in the afternoon that alternate trial dates were available, for May 29 and 30. Counsel accepted those dates and attended the trial coordinator's office to confirm. Counsel was scheduled for a preliminary hearing on those dates, but advised that the hearing could be given to a colleague in order to make room for the applicant's trial. The Crown's office refused the dates. Further dates were not acceptable to either party until August 21 and 22, 2018.

The Law and Analysis

The seminal decision of R. v. Jordan, 2016 SCC 27 set out the applicable principles and guidelines that I must consider. To calculate the appropriate delay, the court must consider the delay from the charge date or, in other words, in my view, the laying of the information, which is December 5, 2016; to the scheduled end of the trial date, which in this matter is August 22, 2018 -- see R. v. Jordan at paragraph 47. The court must then subtract defence delay to determine the net delay -- see Jordan at paragraph 47. Compare the net delay to the applicable presumptive ceiling -- see Jordan at paragraph 66. In the Ontario Court of Justice, that presumptive ceiling is 18 months.

Then the court must, if there is defence delay, determine the cause of the delay. The Supreme Court of Canada tells me that I must ascertain whether there was a waiver by the defence, and if the defence caused any delay, solely by their conduct, due to deliberate tactics aimed at causing delay or prolonging the proceedings. For matters that fall above the 18-month ceiling, the Crown must then provide the existence of exceptional circumstances that were, "outside of their control."

In the applicant's case, there is a consensus that the delay is above the presumptive 18-month ceiling. The applicant argued there were no exceptional circumstances that exist that justified the delay occasioned on the applicant. The net delay was as a result of two circumstances: A lackadaisical attitude towards critical disclosure, and a systematic lack of court resources. The applicant submitted that she was expedient in receiving and reviewing disclosure, and beginning discussions with the Crown. This was not a situation in which the defence avoided communicating with the Crown, until full disclosure was made. The assigned Crown, Mr. Powell, was advised less than a month after the first court date about the missing booking video, and that it was important for the applicant to make full answer and defence. Indeed, defence counsel wrote to the Crown with the specific allegation being made by the applicant a year before that Charter application was filed. The booking video, once disclosed, demonstrated events consistent with the applicant's version of events. Events which, according to the notes of the arresting officer and breath technician, never happened. The missing disclosure went beyond the mere video, because the applicant was prevented from even knowing the identity of the officer conducting the search.

Furthermore, the relevance of a booking video has been litigated in the past. The delays in providing the booking or cell videos has been noted in this jurisdiction, as well as others, leading to successful 11(b) applications in similar matters. My colleague, Justice MacKay, of this honourable court, noted in August 2016, in the case of R. v. Hart, [2016] O.N.C.J. 693, the following, at paragraph 64:

It is clear that cells video can be important evidence and which an accused person is entitled to have prior to deciding whether to plead guilty or not. Given the recent developments of the case law, the Crown's office will be held accountable for further delays as a result of failing to provide these videos in a timely manner.

In analysing the six-month gap in providing the booking video to the defence, in another matter my former colleague, Justice Schreck, who is now a justice in the Superior Court of Justice, refused to consider the period waiting for that disclosure as defence delay. He noted that booking videos are in the hands of the police and routinely requested and provided in drunk driving prosecutions. In a pre-Jordan analysis of reasonable intake times, Justice Harris wrote:

In terms of the nature and complexity of the case, one could readily conclude that an impaired and over-80 case, where there was one arresting officer, a civilian witness and a breath and booking DVD would be the most straightforward and uncomplicated example of these type of charges, the disclosure only a matter of copying statements and a DVD. As Justice Sopinka observed in Moran, 'Equally, the fewer the activities which are necessary and the simpler the form each activity takes, the shorter should be the delay.'

See R. v. Dvorak, [2016] O.N.C.J. 420 at paragraph 19.

Some authority does exist that disclosure must not be fully complete before a matter is set down for trial. However, the role that the missing disclosure plays in the case is of substantial importance. Justice Code wrote, in R. v. Lahiry, [2011] O.N.S.C. 6780 at paragraph 114:

It is only when the missing disclosure is truly material to crucial steps in the process, like the election and plea, that it will justify delay at these early stages. This is simply common sense.

Justice Harris in Dvorak analysed 12 cases in the issue of video disclosure from the Ontario courts. He finds that it would be tantamount to professional negligence to consider whether to resolve or set a trial without possession of such disclosure. See Dvorak (paragraph 28).

The Crown position in regards to this matter, is that the time period between June 20 and July 6 falls on the defence's shoulders. This seems to be the only really contentious time period. The Crown took the view that since the defence had received the video disclosure, that the defence should have been in a position to set a date. In my view, that would have been imprudent. The video disclosed a police officer that had never been identified in the disclosure before. Further follow up was required and was necessary in order to identify that officer. She was not identified until July 11, according to a letter from Mr. Powell found at tab 7. Furthermore, on July 6, it was Ms. Basso's agreement that led to the necessity of a judicial pre-trial to be scheduled.

The Crown, in this case, agreed that the disclosure was a part of the crucial step in determining election and/or plea. It was quite clearly relevant, or was relevant, and continued to be relevant, to the defence's Charter argument, which has been filed and is affixed to the information. In my view, the delay on this date was not a waiver, nor was it caused solely by the defence. In other words, there was no deliberate attempt to cause delay and/or prolong the proceedings.

Therefore, I find the total delay to be the following: From the swearing of the information and to the trial date, that period of time is 626 days, or 20 months and 18 days, less defence delay due to waiver of 11(b) for resolution discussions. I find that to be 64 days. I am urged by counsel to reduce a further 7 days due to the judicial appointments of two prominent Crown attorneys. Therefore, I find the total net delay to be 569 days, or 18 months and 29 days. Or, if I am incorrect about the allocation of the 7-day period between June 20 and July 6, the presumptive ceiling was still exceeded.

Once the ceiling has been exceeded, the onus shifts to the Crown to establish the presence of exceptional circumstances. The Crown has not pointed to any exceptional circumstances, such as discrete events, or argued that this was a complex case. In my view, the case was a simple "over-80" matter, that contained, like many 'over 80s', a Charter issue and expert evidence by way of a toxicology report.

Ultimately, in my view, this was a case where there was a lack of urgency to get critical disclosure into the hands of the defence, and, the lack of Crown resources to get that disclosure. There was also the problem of Crown unavailability for earlier trial dates, and finally, I find that there was a failure of institutional resources to accommodate this case on the first trial date.

Conclusion

Since there are no exceptional circumstances to justify exceeding the presumptive ceiling, I am staying the proceedings in this matter. You are free to go.

MR. DORSZ: Thank you, Your Honour.

MS. ATHANAS: Thank you.

MR. DORSZ: I take it those trial dates will be vacated then?

THE COURT: We will make those arrangements. Good Luck, Ms. Lyjak.

BARBARA LYJAK: Thank you very much.

THE COURT: Again, thank you, both counsel.

Released: August 3, 2018 Justice P.T. O'Marra