ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SCA 106/10
DATE: 20120224

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – JOSEPH OTAVNIK Appellant

Jason A. Gorda , for the Crown/Respondent
Mark C. Halfyard , for the Appellant

HEARD: February 15, 2012

KELLY J.

REASONS FOR DECISION

1The Appellant was charged with three counts of criminal harassment on April 26, 2006. Three and a half years later and on October 22, 2009, he was convicted of two counts. He was given a suspended sentence and two years’ probation.

2On two occasions, the Appellant brought applications seeking a stay on the basis that his right to be tried within a reasonable time was violated. Both were denied.

3The Appellant submits that the trial judge erred in not staying the charges and raises the following issues on appeal:

a. Did the trial judge err in attributing the entire period of delay between the first and second trial dates as neutral time?

b. Did the trial judge err in the second application by failing to consider the totality of the delay caused by the Crown and the impact that it had on the Appellant’s rights?

4For the reasons set out below, I find that a stay of proceedings should have been granted in these unusual circumstances.

a. Did the trial judge err in attributing the entire period of delay for the first adjournment as neutral time?

5The first trial was set to commence on January 29, 2007 but was adjourned. At the commencement of the trial on October 5, 2007, the Appellant brought an application to stay the proceedings for delay. By that point, 531 days or approximately 17.7 months had elapsed from the date of arrest to the commencement of trial.

6The trial judge concluded that the first trial date had to be adjourned for two reasons. The first was that there was some disclosure that was not provided by Crown counsel. The second was that prior to the trial date, counsel for the Appellant (Ms. Katrina Mulligan) was appointed to the Ontario Court of Justice.

7The trial judge dealt with the period between the two trial dates as follows:

I find that the responsibility for the delay between the first trial date and the second should be attributed to both parties. Given that the adjournment motion would have been brought by Mr. Otavnik and clearly had some definite merit, I attribute some of the responsibility to the Crown. Given Ms. Mulligan’s appointment, however, some responsibility, and I emphasize it is not a matter of blame, lies with the defence.

Rather than apportioning the time periods, I simply classify the entire period between the first trial date and the second trial date as a neutral time period. Given this finding, I dismiss the motion …

8The Appellant does not take issue with respect to the trial judge’s finding that the delay for this period should be borne by both the Crown and defence. He takes issue with the characterization of such delay in her analysis. He submits that, rather than being characterized as inherent or neutral, a portion should be attributed to the defence and a portion should be attributed to the Crown. I find that such a submission is correct and reasonable.

9Crown counsel submits that the time between the two trial dates should be considered neutral. He takes the position that no adjournment was necessary due to late disclosure. He also submits that the trial judge committed an error in finding the Appellant had suffered actual prejudice. I disagree with both submissions.

i. The Adjournment

10The Crown submits that it was not responsible for any of the delay to the second trial date as there was no reason to adjourn the trial for late disclosure. The disclosure at issue was a tape that was approximately 15 minutes in length. It was a video recording from the offices of the complainants. It shows the Appellant arriving at their premises, being detained by security and being arrested by the police. The Crown submits that the tape was not a key piece of evidence, was disclosed 12 days before trial and any inference that the trial had to be adjourned due to late disclosure is without merit. I disagree.

11The issue regarding the disclosure of the DVD was raised many times by counsel for the Appellant and well in advance of the first trial date. Ms. Mulligan (as she then was) wrote to the Duty Crown numerous times asking for production. She was told that such a DVD did not exist but she persisted. It was then produced 12 days before the trial.

12On January 29, 2007 (the first trial date), an agent appeared for the Appellant. The agent advised the Court of Ms. Mulligan’s appointment and referred to a letter stating the following:

Though it is true that I was appointed and that it was one of the reasons for the adjournment, Mr. Otavnik would also like to make it clear that we would have been forced to seek an adjournment in any event given the recent provision of further disclosure, namely a security video.

The DVD was requested on June 2006, and on July 24 th , 2006, I … was advised by the Crown that no DVD existed.

Given the late disclosure, the client has not had the opportunity to view the tape. The disclosure relates to the credibility of the school personnel, some of whom are the complainants.

13Following this submission, Knazan J. said: “She (referring to Ms. Mulligan) is great, she is defending her clients from the bench”. The Crown acknowledged that the DVD had been disclosed and had no further submissions on the issue. The matter was adjourned to set a date. On February 12, 2007, the trial date was set for October 5, 2007 on a “with or without counsel” basis. On two occasions prior to the trial date, the matter was spoken to in court.

14In my view, there was no palpable and overriding error with respect to the finding that the adjournment was necessary for late disclosure. There is a basis for such a finding on the record. However, there was an error in characterizing this period of delay as neutral.

15Part of the reason for delay between the two trial dates was due to non-disclosure by the Crown and part of the delay was due to the appointment of the Appellant’s Counsel to the Ontario Court of Justice. The Appellant was required to obtain new counsel and have the file transferred, etc. Neither of these reasons for the adjournment of the trial can be said to be neutral as deemed by the trial judge.

16According to the calculation provided by counsel for the Appellant and which I accept, 143 days of the time between the trial dates is attributable to the Crown (approximately 4.5 months) and 137 days are attributable to the defence (approximately 4.5 months). In my view, this is appropriate.

17Based upon the institutional delay of 6.5 months, the trial judge, quite correctly, dismissed the application as it was well within the guidelines. If a further 4.5 months were added to the calculation for the Crown delay as I have found, the amount of delay attributable to the system and the Crown would be almost 11 months which is one month outside of the Guidelines.

18However, there is a further problem which does not allow for the application to be allowed at this point. The trial judge did not attribute any time between the setting of the first trial date and the actual trial date (on January 29, 2007) as attributable to preparation time inherent in any case. [1]

19In following the decisions of R. v. Lahiry , supra and R. v. Tran [2] , approximately two months should be removed from the calculation of the period between those two dates which would reduce the institutional and Crown delay to nine months (on my calculation) which is within the Morin Guidelines.

20Accordingly, although the Appellant was correct with respect to the mischaracterization of the Crown delay, he has failed to consider the preparation time that would be deducted from the total calculation. The total amount of Crown and institutional delay up to the commencement of the first trial is 9 months.

ii. The Finding of Prejudice

21Crown counsel submits that the trial judge made an error in finding that the Appellant had suffered real prejudice as a result of the delay in the proceedings. Her ruling states as follows:

As a final note, Mr. Otavnik did lead evidence through an affidavit filed by Mr. Berg’s articling student that he suffered prejudice as a result forfeiture [sic] order this delay. This evidence is not challenged by the Crown and established, in my view, that some specific prejudice was suffered by Mr. Otavnik in the form of lost employment income due to his stringent bail conditions.

22The trial judge did not commit an overriding and palpable error in finding that the Appellant had suffered specific prejudice in these circumstances. The Appellant was charged with three counts of criminal harassment by sending emails to his former employers. The Appellant was released from custody on terms akin to house arrest and specifically included the following terms:

a. That he reside in Ajax;

b. That he be within the City of Toronto but to attend at Court, to meet with his lawyer or in the presence of a surety or parent;

c. Not to leave his residence other than to attend court, counsel’s office, employment or in the company of a surety or parent; and

d. Not to possess any cellular phones, computers, or other mobile communication devices.

23The evidence before the Court at the time of the first s. 11(b) Charter application was that the Appellant was 47 years of age. He had never been arrested or charged criminally before these charges. The affidavit of counsel’s law student then stated as follows:

33. His profession is that of a financial risk manager. He has been working on a full time freelance basis for roughly five years. Roughly 60% of his contracts were for firms located within the boundaries of the City of Toronto. His bail conditions do not allow him to enter the City of Toronto except within certain very narrow exceptions. Moreover, the conditions of his recognizance of bail do not allow him to use a computer or similar device. This means that he has been barred from searching for new contracts, open bids, and communicating with clients; the internet and email are the standard forms of communication within his field. Research is virtually impossible absent access to the internet. As a result, there has been a substantial drop in his income.

34. Prior to being released on the present bail, he had resided in the City of Toronto for roughly 15 years at the same address. His social life revolved around friends and family within his neighbourhood and elsewhere in Toronto. It has become virtually impossible for him to maintain these social contacts as a result of the bail conditions.

24The conditions of release were imposed on the Appellant on April 27, 2006. On June 26, 2006, Ms. Mulligan suggested that the conditions of release were “overkill” and asked that the conditions that he reside with a surety, be under house arrest and stay out of the City of Toronto be deleted. Two days later, on the record, the Crown refused to permit the variation. It was only on October 5, 2007 that the bail was varied to delete the house arrest type conditions but the Appellant was not permitted to use a computer, etc. A curfew was imposed.

25It is my view that the trial judge was correct in her finding that the Appellant had suffered specific prejudice and committed no overriding and palpable error in doing so. Such a finding should have provided a real impetus in concluding the case promptly. It was obvious that, as of October 5, 2007, the Appellant was asserting his rights to be tried within a reasonable time and had suffered prejudice. Despite this, the matter was stalled in the provincial court for a further two years.

b. Did the trial judge err in the second application by failing to consider the totality of the delay and the impact that it had on the Appellant’s rights?

26The Appellant submits that with respect to the second application, the trial judge failed to properly characterize the additional delay that accrued following the dismissal of the first application. The Appellant submits that a significant portion of this delay is attributable to the Crown for two reasons:

a. The Crown failed to subpoena their witnesses to a particular day set for the continuation of the trial resulting in a further delay of almost four months (3 months, 20 days); and

b. The Crown failed to comply with a deadline for filing written submissions resulting in a further delay of 4.5 months.

27The trial judge described the delay resulting from the failure of the Crown to subpoena its witnesses as “Crown” delay but she characterized it in her reasons as neutral. No mention was made of the delay of the Crown providing written submissions and, again, the trial judge considered this period as “neutral”.

i. The Failure to Subpoena Witnesses

28The Respondent agrees that the failure of the Crown to subpoena witnesses for the continuing trial date on May 16, 2008 contributed to the delay: 3 months, 20 days. I agree that the proper characterization for this period is Crown delay and not neutral delay.

ii. Failure of the Crown to File Written Reasons on Time

29Crown counsel submits that the late filing of submissions by the Crown, although a contributing factor, was partially due to “illness and technical difficulties”. As such, a portion of the 4.5 months during which the Crown took to file written submissions after the deadline should be considered “neutral” and that one month characterized as Crown delay would be appropriate. I disagree.

30The evidence given at trial finally finished on January 28, 2009. It appears that a decision was made for both counsel to provide written submissions to the Court regarding conviction. Defence submissions were due on March 30, 2009 and counsel met that deadline. Crown submissions were due on April 23, 2009 but were not provided until September 11, 2009.

31Various excuses were provided to the Court for the failure of the Crown to provide her submissions: Crown counsel had injured her back and that she was experiencing technical difficulties at her cottage preventing their completion. The written submissions were filed on September 11, 2009 and the judgment of the Court was provided a month later on October 22, 2009.

32Based on the chronology provided, it would appear that the written reasons of the trial judge were available approximately one month after the submissions of counsel were provided to her. Had the submissions been provided by the Crown on April 23, 2009 as required, written reasons might have been produced on May 23, 2009 but were not because of the late filing.

33It is my view that taking into account the illness, technical difficulties and other issues resulting in the delayed production of the written submissions should result in a further five months of delay attributable to the Crown. The Crown was well aware that, almost two years prior, an application to dismiss the matter for delay had been pursued and actual prejudice was found.

34While I appreciate that all counsel and the trial judge were collegial in their efforts to schedule this matter in accordance with their various schedules, the delay of a further two years following the first delay application is simply unacceptable. There is no doubt that in these unusual circumstances, the Appellant’s right to be tried within a reasonable time has been infringed. Needless to say, prejudice can be inferred by this further delay. [3]

35The trial judge classified the entire period of time from October 5, 2007 to October 22, 2009 as neutral. I find that her characterization of that period was incorrect. I agree that 9 months is Crown delay due to the failure to subpoena witnesses and file written submissions on time. This amount of delay should be added to that found in anticipation of the first trial date which was 13 months of Crown delay.

Conclusion

36Based upon my analysis, I find the following characterizations of time relevant:

Crown delay: 13 months

Institutional delay: 4.5 months

This results in 17.5 months of institutional/Crown delay. Thirteen of those months is attributable to the Crown. This amount of time, in and of itself, exceeds the Morin [4] Guidelines. In my view, this warrants a stay of proceedings in the circumstances.

37The rest of the time taken from the arrest date to trial was correctly identified by the trial judge as neutral or inherent. The time estimate for this trial after disclosure was provided was one day. Due to the fact that witnesses took longer to testify than anticipated and various motions were brought, additional time was required to complete the case. This is considered to be neutral in the calculus and the trial judge was correct in finding it so. [5]

38For the abovementioned reasons, the appeal is allowed and the proceedings are stayed.

Kelly J.

Released: February 24, 2012

COURT FILE NO.: SCA 106/10
DATE: 20120224
ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent – and – JOSEPH OTAVNIK Appellant

REASONS FOR DECISION Kelly J.

Footnotes

1. 1See: R. v. Lahiry , 2011 ONSC 6780 , 2011, O.J. No. 5071 at 25-37 and R. v. Schertzer , 2009 ONCA 742 , [2009] O.J. No. 4425 at 110-112.
2. 22012 ONCA 18 , [2012], O.J. No. 83 (C.A.).
3. 3See: R. v. Godin , 2009 SCC 26 , [2009] S.C.J. No. 26 at para. 27 .
4. 4(1992), 1992 SCC 89 , 71 C.C.C. (3d) 1 (S.C.C.).
5. 5R. v. Allen (1996), 1996 ONCA 4011 , 110 C.C.C. (3d) 331 (Ont. C.A.) and R. v. Beteta-Amaya [2001] O.J. No. 5136 at paras. 26-28 .