Ontario Court of Justice

Date: 2020-11-06

Court File No.: Newmarket 17-C7496K

Between:

Her Majesty the Queen

— AND —

Alexandre Sasha Mikhailov

Ruling on 11(b) Application

Before: Justice E. Prutschi

Heard on: October 22, 2020

Reasons for Judgment released on: November 6, 2020

Counsel:

• Tony Vanden Ende, for the Crown
• Adam Little, for the defendant

PRUTSCHI J.:

[1] Alexandre Mikhailov is charged with operating a motor vehicle while impaired and while his blood alcohol concentration exceeded the legal limit. These alleged offences date back to September 1, 2017. His trial is scheduled for November 23 and 24, 2020. He has brought an application to have these charges stayed for violating his right to trial in a reasonable time in contravention of s. 11(b) of the Charter.

[2] For the reasons that follow, I find that Mr. Mikhailov's 11(b) right to trial within a reasonable time has been breached and I order a stay of the charges.

FACTS

[3] The chronology of key dates is not disputed. Mr. Mikhailov was arrested on September 1, 2017. The Information was sworn September 14, 2017. The case proceeded through the normal intake process and a series of administrative court dates until Dec. 11, 2017 when a two-day trial was set for September 4 and 5, 2018.

[4] In late August 2018, the Crown learned that the breath technician had fallen ill and would not be available for the September 4 and 5 trial. The matter was addressed in court on August 28, 2018 when new trial dates of September 25 and 26, 2018 were set.

[5] The very next day defence counsel realized that he had erred and was not in fact available for the September 25-26 trial dates. The matter was brought forward to September 4, 2018 when an adjournment of the trial was granted and new trial dates were set for June 17 and 18, 2019.

[6] In light of the lengthy adjournment, it is important to provide some detail as to how the June dates were selected. Parties seeking to set a trial date in Newmarket at that time were typically directed to physically attend at the Trial Coordinator's office where a form (the "Green Sheet") was completed and signed off on by the Trial Coordinator, the Crown and defence counsel.

[7] Among other things noted on the Green Sheet are the proposed trial dates offered by the court along with check-boxes to indicate where a proposed date was not available to either the Crown or defence. Although it is common knowledge that the accuracy and completeness of the Green Sheet may prove important in any subsequent 11(b) litigation, the oft-chaotic pressures of a busy set-date court sometimes contribute to a less-than perfect record.

[8] In this case, the Green Sheet notes dates and party availability as follows:

• October 9, 10, 15, 16, 18, 19, 2019. Neither party available.
• October 29, 30. Defence not available.
• November 5, 6. Defence not available.
• Nov. 29, 30. Neither party available.
• Jan. 7, 8, 2019 etc. Defence not available
• Blank Line. Crown not available.
• June 3, 4, 6, 7, 10, 11. Neither party is noted as unavailable.
• June 13, 14. Neither party available.
• June 17 & 18, courtroom 202T at 9:00am.

[9] The accuracy and interpretation of the Green Sheet is challenging in light of some confusion evident on its face. No indication is given as to the meaning of "etc" noted on the line "Jan. 7, 8, 2019 etc". How many other dates were offered? Which dates? Was defence the sole party unavailable for all those dates? What was the Court's availability over that "etc" time span?

[10] Further confusion is introduced by the presence of a blank line on which the box "not available to crown" is marked. What dates were offered on this blank line that the Crown was not available for? Is the "x" marked in the "not available to Crown" box simply a typographical error that perhaps was intended for the previous line of "Jan. 7, 8, 2019 etc"?

[11] The line for "June 3, 4, 6, 7, 10, 11" appears to suggest that both the Crown and defence were available for these potential trial dates, yet no dates within this range were selected.

[12] Finally, the Green Sheet's veracity is even more problematic when compared to the transcript of the court appearance for that day. On September 4, 2018 counsel attended court to set the new trial date. In explaining how the parties settled on new trial dates he noted:

We were only available October 9, 10, 11, March 15th and 14th, and then May 6, 7, 20, 21, 22, 23, 24, 30, 31 and then various dates in June. The green sheet will otherwise speak for itself. There is no waiver of 11(b). We don't have instructions to that effect, but I wanted to make it clear for Mr. Vanden Ende [the Crown] that we had a very contained space with respect to where we could move this case to.

[13] These comments from counsel directly contradict the Green Sheet in several respects. First, it appears that defence counsel was available on October 9 and 10 which was a date offered by the Trial Coordinator but noted as being unavailable to both parties. Further, defence counsel notes availability in March and May though these dates are never recorded on the Green Sheet unless they are contained within the vaguely nebulous reference to "Jan. 7, 8, 2019 etc". Ultimately, the new trial is set for June 17 and 18, 2019.

[14] Although Mr. Mikhailov and his counsel appeared on both June 17 and 18, 2019 ready for trial, the matter was not reached. On this occasion, the Green Sheet is clear on its face, cataloguing a lengthy series of dates offered by the Court in which defence counsel's earliest availability was July 22 and 23 while the Crown's first availability was Aug. 22 and 23. Each party is noted intermittently available through the months that follow until the first moment where the stars align and both parties are available on a date offered by the Court, Dec. 2 and 3, 2019.

[15] The case continued to be plagued by hiccups and speedbumps though the parties agree that the further chronology is not relevant to the section 11(b) analysis. The timeframe under consideration is therefore from September 1, 2017 to Dec. 3, 2019, a period of 26 months and 2 days (or 823 days).

THE LAW

[16] Since the Supreme Court's decision in R. v. Jordan, 2016 SCC 27, a "ceiling" of 18 months has been set for cases being heard in the Ontario Court of Justice. Cases below that ceiling are deemed to be presumptively within tolerable limits for delay subject to the defence demonstrating that, in the face of meaningful and sustained steps to expedite proceedings, a case still markedly exceeded its reasonable time requirements in the circumstances.

[17] Cases above the 18-month ceiling are deemed presumptively unreasonable and this presumption can only be rebutted by the Crown establishing "exceptional circumstances" warranting further delay.

[18] The 18-month tolerable ceiling is applied after deducting defence delay and accounting for any discreet events which must be subtracted to reach a net delay figure.

[19] Jordan was a clarion call from the Supreme Court to all actors within the criminal justice system. It was an explicit directive to jettison the culture of complacency that had infected trial scheduling. The introduction of a presumptive ceiling drew a clear bright line in the hopes of establishing a well recognized marker for tolerable delay that would vastly simplify the hyper-mathematical battleground upon which previous 11(b) wars had been waged.

[20] As this case illustrates so well, it has proven impossible to completely escape the tyranny of calendar litigation. Though the line is clear, calculating whether it has been crossed is not always so.

POSITION OF THE PARTIES

[21] The parties are in general agreement as to the proper apportionment of the vast majority of delay in this case. By the Crown's calculation, the net delay after appropriate deductions is 15 months and 7 days. The defence calculation claims a net delay of 19 months and 26 days.

[22] The roughly 4.5-month differential between the net delay calculations is attributable to two distinct disagreements over how certain times should be apportioned. These relate first to the question of whether the 11(b) clock begins to tick on the date of charge or the date the information is sworn (the "Kalanj issue"), and the appropriate mechanism by which to assess a large block of time between January and June 2019 necessitated by the September 4 adjournment of the September 25-26 trial (the "scheduling issue").

THE KALANJ ISSUE

[23] Concerned with the unpredictability of pre-information investigative delay, the Supreme Court in R. v. Kalanj set the starting gun for section 11(b) delay as the date of the swearing of the Information rather than the date an accused is charged.

[24] The accused in Kalanj was arrested and released without charge until some eight months later when the Information was sworn. The application of Kalanj to cases where the arrest and charge occur simultaneously has been extensively considered and distinguished by numerous lower courts whose reasoning I adopt.[1] It is difficult to see how the logic of Kalanj could apply to a typical impaired driving case such as Mr. Mikhailov's where arrest, charge and investigation are all completed in a manner of hours.

[25] From the moment of being charged, an accused may be subject to a promise to appear, bound by conditions of release, and face immediate ancillary consequences such as the administrative suspension of their driver's licence in impaired driving cases. They face the option of an early guilty plea which might permit access to ignition interlock remediation programs reducing the length of licence suspension, but only if a plea takes place within 90 days of the date of the alleged offence. The date the Information is sworn has no bearing on these consequences, restrictions or timelines and it should similarly have no bearing on the moment that Charter protection against unreasonable delay is triggered.

[26] The constitutional rights of an accused person must run contemporaneously with the consequences and restrictions that flow from being charged with a criminal offence. A slavish application of Kalanj would create the untenable and bizarre scenario whereby an accused person who is held for bail – thus ensuring that the Information is sworn immediately to facilitate the Criminal Code requirement to be brought before a Justice within 24 hours – benefits from an earlier 11(b) clock than those who are released unconditionally or on their own undertaking.

[27] For these reasons I find that the relevant time period begins as of the date Mr. Mikhailov was charged, September 1, 2017.

THE SCHEDULING ISSUE: 'BUT-FOR' VS 'COMMON SENSE' ANALYSIS

[28] Mr. Mikhailov's trial necessitated rescheduling twice during the time period under analysis. The parties dispute the proper mechanism by which to approach apportioning the delay occasioned by the lengthy adjournment from September 2018 to June 2019.

[29] The Crown urges me to adopt a straight-forward 'but-for' analysis which would categorize the entire time period from the September 26, 2018 to June 18, 2019 as defence delay noting that "both the Crown and Court were ready to proceed but-for defence counsel being unavailable". Essentially, the Crown submits that once a trial date is missed due to the fault of one of the parties, all subsequent delay up to the next scheduled trial falls at the feet of that party.

[30] The defence proposes a more nuanced approach conceding that delay from September 26, 2018 to January 8, 2019 is defence delay due to their limited availability for only the first set of new trial dates offered on October 9 and 10. However, by January 9, 2019 the record of each party's availability becomes somewhat muddled with the Green Sheet noting defence as not available "January 7, 8, 2019 etc" and the Crown noted as unavailable for some unspecified dates not recorded in a blank line that appears on the form. The transcript signals defence availability in March and May.

[31] Reflecting on the confusion, the defence rejects the Crown's categorical approach, instead urging me to apply a "common sense" analysis to situations where the parties have interspersed availability over a prolonged period in setting a new trial date. Support for this common sense approach is found in the Supreme Court's comments in R. v. Godin, 2009 SCC 26 at paragraph 23:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.

[32] This common sense approach to assessing responsibility for scheduling delays has survived the new framework established by Jordan and is particularly compelling in cases where, as here, the defence had availability interspersed between the dates offered by the court and the dates when the Crown and/or the court were unavailable.

To summarize, the appellate authorities, including Mallozzi, Albinowski and R. v. Picard, 2017 ONCA 692 make clear that s. 11(b) requires reasonable availability, flexibility and some level of cooperation. Clearly, when a single date or block of time is offered to the defence, and counsel is unavailable on that date, not all of the delay to the next available date is necessarily defence delay. Rather than taking this sort of "categorical" approach, there needs to be consideration of the particular circumstances of a case, bearing in mind the Jordan call for a change in direction and break in the culture of complacency.

However, when the Crown is available on numerous dates that are offered by the court, and the defence counsel is repeatedly unavailable for any dates over a reasonable period, the delay that results is defence delay. The justification for this approach is that it is defence counsel's lack of availability that results in the matter being set further in the future than would otherwise be necessary. [emphasis added]

R. v. Ameerullah, 2019 ONSC 4537 at paras. 28-29.

See also R. v. King, [2018] N.J. No. 366 (C.A.) at para. 108 and R. v. Albinowski, 2018 ONCA 1084 at paras. 28-35 and 46-47.

[33] There is very little dispute between the parties as to how to apportion delay in the scheduling of the Dec. 2 and 3, 2019 trial. Of the 168 days required to reach this trial, the Crown contends that 57 should be characterized as defence delay due to defence counsel's prolonged unavailability and the defence accepts that only 111 days be added towards the presumptive 18-month ceiling.

[34] I note with curiosity that the Crown has not proposed resort to a but-for analysis for the categorization of this adjournment period. If they had, the inability of the Court to accommodate the June 17 and 18 trial date would necessitate applying all of the subsequent 168-day delay to the presumptive ceiling since, but-for the loss of the June trial dates, there would have been no need for the December dates at all.

[35] While Jordan introduced a categorical approach to the consequences of falling on either side of the presumptive ceiling, it would not be appropriate to apply such a rigid structure to the apportionment of scheduling delay. The common sense approach articulated in Godin and adopted by the post-Jordan appellate authorities cited in Ameerullah remains appropriate.

CALCULATION OF NET DELAY

[36] Having considered all of the above, the calculation of net delay is as follows:

• September 1, 2017 (date of arrest) to August 28, 2018 (date of adjournment of the first trial) accounts for 361 days of net delay.

• August 28, 2018 to September 25, 2018 is a discreet event caused by the unforeseen illness of the breath technician and is not considered as part of net delay.

• September 26, 2018 to January 8, 2019 is largely defence delay caused by limited availability to reschedule the trial though I note defence counsel's availability on Oct. 9 and 10 which the Crown could not accommodate. The defence has conceded that this time period should not form part of the net delay.

• From January 9, 2019 to June 18, 2019 is general scheduling delay totalling 160 days. Though the defence availability appears to have been limited during some of this time period, it is clear from the transcript that the defence became reasonably available by March 14-15, 2019. Therefore, the period from March 15, 2019 to June 18, 2019 adds 95 days to the net delay calculation.

• June 19, 2019 to December 3, 2019 is a total of 168 days of which 57 are deducted for defence delay due to limited defence availability to reschedule the trial, leaving 111 days to be added to net delay.

[37] Therefore, the total net delay is 567 days or 18 months and 17 days and is thus over the presumptively reasonable ceiling. There are no exceptional circumstances present in this case which would justify tolerating delay in excess of the Jordan ceiling.

CONCLUSION

[38] The adjudication of criminal trials on their merits is vital to the public's perception of a functional system for the administration of justice. However, where net delay exceeds the constitutionally tolerable upper ceiling, respect for the administration of justice demands that a trial not proceed in the face of such a Charter violation.

[39] Such is the case here. Mr. Mikhailov's charges are hereby ordered stayed.

Signed: Justice E. Prutschi

Released: November 6, 2020

Footnotes

[1] See R. v. Egorov, [2005] O.J. No. 6171 at footnote 2; R. v. Nash, [2014] O.J. No. 4878 at paras. 6-7; R. v. Swaminathan, 2015 ONCJ 394 at paras. 18-23; and R. v. Luoma, 2016 ONCJ 670 at paras. 19-34.