ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA 104/11
DATE: 20120612
B E T W E E N:
HER MAJESTY THE QUEEN Respondent - and - VITALIY GOSHOVSKYY Appellant
Daniel Guttman, for the Respondent
Adam Little, for the Appellant
HEARD: June 11, 2012
Kelly J.
REASONS FOR DECISION
[ 1 ] The Appellant was charged with impaired driving on February 26, 2009 following his involvement in a three car collision which he caused on a city street while driving approximately 20 kms per hour. On August 30, 2010, the Appellant began his trial. He submitted that his right to be tried within a reasonable period of time pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms had been infringed.
[ 2 ] Following two days of evidence and on August 30, 2010, Ray J. dismissed the application for a stay. On June 8, 2011, she found the Appellant guilty of impaired driving.
[ 3 ] The issues raised on this appeal are as follows:
a. Did the trial judge err in concluding there was no violation of s. 11 (b)?
b. Did the trial judge err in law in finding that the Appellant was guilty beyond a reasonable doubt of impaired driving?
[ 4 ] For the following reasons, I would allow the appeal as I am persuaded that the trial judge did err in concluding there was no violation of s. 11 (b). I am not persuaded that the second ground of appeal has merit and dismiss it.
Issue A: Did the trial judge err in concluding there was no violation of s. 11 (b)?
[ 5 ] Although much of the argument before the trial judge was with respect to one time period between the first and second trial dates, I will conduct a further analysis due to other factors arising since the judgment was rendered on the application.
(i) Length of the Delay
[ 6 ] The Appellant was charged on February 26, 2009. His trial commenced on August 30, 2010 and he was found guilty of impaired driving on June 8, 2011. The time between the laying of the charges and the disposition was approximately 26 months, 19 days. The total time that elapsed between being charged and the trial commencing was 17 months, 11 days. Accordingly, the delay warranted consideration by the Court.
(i) Waiver of Time Periods
[ 7 ] Both Counsel submit that there has been no waiver of any time periods in this case. I agree.
(ii) Reasons for Delay
a. Inherent Time Requirements of the Case
March 20, 2009 to May 19, 2009
[ 8 ] The Appellant submits that the intake period should be calculated at two months: from the date the information was sworn on March 20, 2009 to May 19, 2009 when the date for a judicial pre-trial was set. This is not disputed by the Crown and seems reasonable in the circumstances.
May 19, 2009 to June 24, 2009
[ 9 ] On May 19, 2009, a judicial pre-trial was scheduled for June 24, 2009. At the time, Counsel for the Appellant submitted that such a pre-trial was not necessary, but that because of the estimated length of the trial, one was required. He submits that this period of time should be considered institutional delay. He relies on the reasoning of Rosenberg J.A. in R. v. C.R.G. [1] where it was held that the “delay needed to schedule the judicial pre-trial is properly considered to be institutional delay, not an aspect of the inherent time requirements of the case”.
[ 10 ] Although R. v. C.R.G. and other authorities have held, in some circumstances, that delay caused by the need to conduct a judicial pre-trial is systemic or institutional delay, more recent decisions from the Court of Appeal [2] have confirmed the usefulness of a judicial pre-trial and held that the time leading up to the judicial pre-trial should be characterized as part of the inherent time requirements of the case. It is considered inherent delay provided the Court is available for a judicial pre-trial within a reasonable period of time. I consider this period of 1 month and 5 days as reasonable. Accordingly, it shall be categorized as inherent delay.
b. Actions of the Accused
[ 11 ] The trial judge found that the delay between the first trial date of February 2, 2010 to the second trial date of August 30, 2010 was neutral as opposed to Crown delay because the Appellant failed to ask for the expert’s report referred to during the judicial pre-trial that occurred months earlier. The Appellant submits that the trial judge was wrong in doing so and accordingly mischaracterized approximately six months of the delay. I agree but I attribute 4 months, 10 days of this period as Crown delay.
[ 12 ] The transcript from the February 2, 2010 appearance discloses the following:
a. that both Crown Counsel and Counsel for the Appellant had been in communication over the past few days to make sure “this case stays on course”;
b. that one of the main Crown witnesses was unavailable to attend court due to an illness in the family;
c. that there was a judicial pre-trial conducted on June 24, 2009 and Counsel was advised that it was the Crown’s intention to rely upon an expert’s report;
d. that the Crown was in possession of the Expert Toxicology Report from the Centre of Forensic Sciences that was prepared as of September 25, 2009 and that it “just sat somewhere”;
e. that there was a copy of the report in the brief and that Crown Counsel was of the belief that it had been disclosed;
f. that outstanding disclosure of an expert toxicology report was just provided, that morning, to Counsel for the Appellant and Crown Counsel said: “Why that hasn’t been disclosed on a prior occasion, I do not have that answer.”
g. that the Crown required an adjournment;
h. that Counsel for the Appellant did not consent to the adjournment and that the Appellant was not waiving his s. 11 (b) rights; and
i. that the Court acknowledged that Counsel for the Appellant would be entitled to an adjournment due to the late disclosure of the toxicology report.
[ 13 ] After canvassing available dates at the trial co-ordinator’s office, the Court was advised of the following availability:
i. Counsel for the Appellant had dates available in April and May, 2010, but that dates were not available in the court system;
ii. Counsel for the Appellant and Court were available: June 1, 4, 14 and 15, 2010 but Crown Counsel was not; and
iii. The Court was available July 5 to 9, 2010 but Crown and Counsel for the Appellant were not; and
iv. The Court was available from July 12 to August 30, 2012, but Counsel for the Appellant was not.
[ 14 ] The trial judge found that the cause of the adjournment on February 2, 2010 was the Appellant and considered it neutral in her assessment. She found that because there had been a judicial pre-trial where the provision of an expert’s report was discussed, Counsel for the Appellant should have been “more duly diligent and should have asked for the report”. I disagree.
[ 15 ] Firstly, there is nothing from the discussion on February 2, 2010 that either the judge or Crown Counsel were of the belief that Counsel for the Appellant was responsible for the delay on that occasion. It appeared that Crown Counsel was bewildered about the lack of disclosure and almost apologetic in his submissions when asking for the adjournment. Further, Counsel for the Appellant indicated that his client was not waiving his s. 11 (b) rights and went so far as to put the Court on notice of the prejudice his client was suffering as a result of the delay.
[ 16 ] Secondly, I agree with Counsel that a criminal trial is an adversarial process. The law does not require Counsel for an accused person to bring to the Crown’s attention that without an expert’s report, the Crown is not in a position to prove an essential element of the offence. Section 657.3 of the Criminal Code does not require defence counsel to pursue a report; it requires the party seeking to rely on the report to produce it in advance of trial. The Crown did not do so. [3]
[ 17 ] In light of the record from the February 2, 2010 appearance and the requirement of Crown Counsel to make disclosure of an expert’s report, I find that the trial judge mischaracterized this category of delay as neutral. However, I find that the delay for this period should be from February 2, 2010 to July 12, 2010 when the Court and Crown were available to accommodate the trial, but Counsel for the Appellant was not.
[ 18 ] It was reasonable for Counsel for the Appellant to have made himself available during the month of July, 2010. In coming to this conclusion, I have adopted the reasoning in R. v. N.N.M. [4] at paragraph 23 : “the party who causes an adjournment is responsible for the entire delay until the matter can be re-scheduled, unless the other party is unavailable for an unreasonable length of time”.
[ 19 ] I would also deduct one month of time from this period for Counsel to clear calendars and to prepare for trial as per R. v. Lahiry [5] and R. v. Tran [6] . Accordingly, 4 months and 10 days of this period of time from February 2, 2010 to August 30, 2010 will be characterized as Crown delay.
c. Actions of the Crown
[ 20 ] For the reasons set out above, I find that the trial judge erred in not attributing the delay of four months and 10 days between the first and second trial dates as the actions of the Crown. The reason for the Crown seeking an adjournment was that the officer in charge was not available and the Crown had failed to provide disclosure of an expert’s report in compliance with s. 657.3 of the Criminal Code.
d. Institutional Delay
June 24, 2009 to February 2, 2010
[ 21 ] On June 24, 2009 and immediately following the judicial pre-trial, the trial dates of February 2 and 3, 2010 were set. The Appellant submits that the entire time period of 7 months, 9 days should be characterized as institutional delay.
[ 22 ] While the Appellant’s position may [7] have been correct in the period of time prior to the decisions in Lahiry and Tran that is no longer the case. Those cases have held that Counsel should not be deemed to be automatically ready for trial as of the date the trial is set. Factors such as counsel’s availability and preparation time must be considered to determine when the institutional period should commence.
[ 23 ] I find that some period of time is necessary to clear calendars and to prepare for trial. One month would be appropriate in these circumstances. Accordingly, I find that the institutional delay during this period is 6 months, 9 days. The other month will be considered inherent delay.
August 31, 2010 to February 8, 2011
[ 24 ] On August 30, 2010 the trial commenced and continued the following day. It did not finish. Three additional dates were scheduled: October 26, 2010, December 1 and December 3, 2010.
[ 25 ] The trial did not commence on October 26, 2010 until 3:30 p.m. because the trial judge was hearing other matters. The trial was not completed on either December 1 or 3, 2010. A further date was set for February 8, 2011.
[ 26 ] The Appellant submits that a portion of this period should be considered institutional delay and the other portion inherent. I agree. The trial was adjourned because the matter was not reached until 3:30 p.m. on the first additional day and simply did not finish in the time required. Accordingly, 2.5 months of this period will be categorized as institutional delay. [8]
e. Other Reasons for Delay
[ 27 ] There are other factors to be considered in the s. 11 (b) analysis which cannot be categorized as set out above. These, the Appellant submits, cannot be relied upon by the Crown to justify the period under consideration. [9]
April 1, 2011 to May 2, 2011
[ 28 ] On April 1, 2011 the trial judge was not able to provide her reasons on a Charter application because she had just received the transcripts. She indicated that the matter would be adjourned “just for judgment on the Charter issue”. The Crown submits that this period should be considered neutral. Although the Appellant would have conceded that “neutral” was the right characterization in normal circumstances, the time should be characterized as systemic in this one. I agree with the Appellant.
[ 29 ] It is clear that as of December 2010 the trial judge required transcripts and she was advised that the bulk of them would be available in January 2011. When Counsel appeared on February 8, 2011, the trial judge indicated that she was adjourning the matter until April 1, 2011 to provide her reasons on the Charter application. At that time, the trial judge acknowledged that the adjournment was a long one but “the requirements of this case are such that I want to take the time that I need to deliberate”.
[ 30 ] On April 1, 2011, the trial judge indicated that despite having ordered the transcripts “in plenty of time” and the fact that the matter went “over for lots of time”, the matter had to be adjourned to May 2, 2011. The trial judge had received the relevant transcripts on March 31, 2011 and April 1, 2011 which did not give her enough time to write her judgment. The purpose of adjourning to May 1, 2011 was solely for the purpose of giving her reasons on the Charter application.
[ 31 ] I agree with Counsel that it is most beneficial to have a trial judge review the materials he or she considers necessary to properly prepared reasons which is exactly what the trial judge was doing in this case. However, the transcripts were not provided to her despite the fact they were ordered in “plenty of time”. There is to be no criticism of the trial judge or the parties for such difficulty. It is the system that was not able to facilitate the continuation of the trial and accordingly, I attribute the one month between April 1, 2011 and May 2, 2011 as institutional delay.
May 2, 2011 to June 1, 2011
[ 32 ] On May 2, 2011, the trial judge gave her s. 8 Charter ruling. She then said: “I may not have made this clear the last time”, but she was “ready and willing” to hear submissions on the impaired charge. Unfortunately, Counsel for the Appellant was not aware of that because of the comments made on April 1, 2011 and he was not present. As a result, the matter had to be adjourned for submissions.
[ 33 ] Crown counsel submits that this period of time should be attributed to the Appellant. The Appellant submits that this period of time should be considered in the category of “other reasons for delay” and was caused by the trial judge’s reference on April 1, 2011 that she was going to provide reasons on the Charter issue only. I agree with Counsel for the Appellant.
[ 34 ] It would be reasonable to interpret the trial judge’s comments on April 1, 2011 that she was giving reasons on the Charter issue only and nothing more. Accordingly, Counsel for the Appellant had somebody attend on his behalf to obtain the judgment which is entirely reasonable as it was apparent from the prior date that nothing else was going to occur. As such, I find that this period should be characterized as “other reasons for delay” weighing against the Crown for purposes of the s. 11 (b) analysis.
June 1 to June 8, 2011
[ 35 ] It is agreed by both counsel that this period should be considered institutional delay. June 1, 2011 was set for the purpose of submissions. They could not be heard because the Court was otherwise engaged.
Conclusion
[ 36 ] In summary, I categorize the relevant periods of delay in this case as follows:
Reason
Dates
Total
Actions of the Crown
February 2, 2010 to July 12, 2010 (Crown request for an adjournment of the first trial date)
4 months, 10 days
Institutional delay
June 24, 2009 to February 2, 2010 (the time between the trial date being set and the first trial date, less one month for preparation time)
6 months, 9 days
August 31, 2010 to February 11, 2011 (the time between the trial commencing and further dates required, less 50% for inherent delay)
2.5 months
Other reasons
April 1 to May 2, 2011 (the time required by the trial judge to provide her reasons because the transcripts were not available)
1 month
May 2, 2011 to June 1, 2011 (the adjournment required to hear submissions)
1 month
June 1-8, 2010 (adjourned for submissions)
7 days
[ 37 ] The result is that 15 months, 10 days were caused by the Crown’s actions, institutional, or other reasons attributable to the Crown for s. 11 (b) consideration. This is well in excess of the guideline set out for a trial in the provincial court of 8 to 10 months.
Prejudice
[ 38 ] The trial judge concluded that there was some actual prejudice to the Appellant due to financial issues. However, she concluded that there was no inferred prejudice “within the context of the reasons for the delay”. For the reasons set out above, I find that the trial judge mischaracterized the delay and that such mischaracterization informed her findings regarding prejudice.
[ 39 ] I do find that there was actual prejudice in these circumstances as the record reflected on the first court date of February 2, 2010: the Appellant would have to pay his lawyer more money, he missed one day of work to attend at Court for his aborted trial, and he and his wife had planned to travel to the Ukraine in the summer of 2010, but would have to return early to attend the second trial date.
[ 40 ] The prejudice suffered by the Appellant was further set out in his affidavit filed in support of the application for a stay. No cross examination was conducted.
[ 41 ] The Appellant indicated that he exhausted all of his savings in order to purchase the transcripts and prepare the materials for the s. 11 (b) application. He also suffered stress and anxiety when the matter was not reached on the first trial date. That anxiety increased as time passed. This stress was magnified due to the fact that the Appellant is self employed in the roofing business which requires him to drive a truck. The uncertainty was causing tremendous personal difficulty for the Appellant who lived with a common law spouse and a new baby.
[ 42 ] Over 26 months had passed from the laying of the charges to the disposition. It can also be found that the Appellant suffered inferred prejudice due to the delay in bringing him to trial. [10] I find that actual and inferred prejudice was suffered by the Appellant in these circumstances.
Balancing
[ 43 ] After having balanced the competing interests in this case, I find that the matter should be stayed. While I realize that it is always in society’s interests to have a trial on its merits (especially in impaired driving cases), I find that the delay in this case warrants a stay based on the circumstances referred to above. The seriousness of the offence and the interest in a trial on the merits do not outweigh the interests of the Appellant and society in a prompt trial.
[ 44 ] For these reasons, the first ground of appeal is successful and the charge is stayed. Notwithstanding this disposition, I will deal with the second ground of appeal raised.
Issue B.: Did the trial judge err in law in finding that the Appellant was guilty beyond a reasonable doubt of impaired driving?
[ 45 ] The Appellant submits that the trial judge erred in law and unreasonably found that the Crown had proven beyond a reasonable doubt that the Appellant’s ability to operate a motor vehicle was impaired by the consumption of alcohol. He also submits that the trial judge made an error in the application of R. v. W.D. [11] I do not agree.
a. Unreasonable Verdict Issue
[ 46 ] At the commencement of her reasons, the trial judge reminded herself of the proper considerations before ruling and correctly set out the law in accordance with the principles of R. v. Stellato. [12] She then referred to the fact that the analysis was “fact driven”. I agree and her findings of fact shall be given great deference.
[ 47 ] The trial judge set out the facts upon which she based her decision which included the following:
a. that it was the Appellant who caused a three-car collision;
b. that following the accident, the Appellant was described by a credible witness as nervous, pacing and chain smoking;
c. that she rejected the testimony of a witness that testified the Appellant was swaying;
d. that the officer smelled alcohol on the breath of the Appellant but detected no dexterity problems, swaying, glassy eyes, red eyes or other symptoms of impairment and that she found him to be reliable;
e. that another officer made observations of the accident, but not of the sobriety of the Appellant;
f. that it was a rainy day;
g. that this was an unexplained accident and there was no evidence that the Appellant was attempting to avoid a cyclist when the accident occurred; and
h. that when leaving the intersection where the accident occurred, the Appellant appeared slow in timing and judgment.
[ 48 ] While I agree with Counsel for the Appellant that the smell of alcohol is just proof of consumption but not necessarily proof of impairment and while I accept that an unexplained accident on a wet road is not necessarily proof of impairment, those are not the only facts considered by the trial judge in reaching her conclusion. She is entitled to consider the facts as a whole, as she did above, and come to her conclusion that the Appellant was impaired having heard the evidence of the witnesses.
[ 49 ] I agree with the comments of Durno J. in the case of R. v. Kumric [13] where he stated as follows:
I do not read Sigh [14] as authority that there must be overt physical indica of impairment before a conviction can be entered. Indeed, LeSage J. found that perhaps the smell and bad driving might be sufficient. Rather, it appears the trial judge did not direct his mind to all of the evidence, including that which told against the finding. Here, the trial judge addressed the issue directly, finding no overt symptoms of impairment. Having done so, he was required to, and did, assess all of the evidence to determine if the Crown had established the case beyond a reasonable doubt.
[ 50 ] It is clear from the judgment that the trial judge considered all of the evidence before coming to her conclusion. I find that her reasons are supported by the evidence and I reiterate that an appeal is not a re-trial where the same factual arguments raised at trial and having lost are to be repackaged in appellate friendly language and re-argued hoping for a different result. [15]
b. The W.D. Issue
[ 51 ] The Appellant also makes the submission that the trial judge erred in law when she said that there was no evidence that the Appellant was attempting to avoid a cyclist which caused the accident thereby resulting in a failure to properly apply the principles in R. v. W.D. While Crown Counsel concedes that the trial judge committed an error in stating there was “no” evidence regarding the cyclist, it was really an error in form rather than substance. I agree.
[ 52 ] It is clear from the record that Crown Counsel had elicited a conversation that occurred between the Appellant and a witness. During that conversation, the Appellant advised that he was attempting to avoid hitting a cyclist and that that was the cause of the accident. The Appellant did not testify and no other witness testified that they observed a cyclist in the area at the time of the accident. As a result of this evidence, it was an error to suggest that there was “no” evidence regarding the cyclist.
[ 53 ] Notwithstanding the trial judge’s error with respect to the reference of “no” evidence regarding the cyclist, it is clear from a review of the reasons that she was in fact applying the principles in R. v. W.D. She referred to the issue of the “cyclist” and simply was not convinced that it raised a reasonable doubt. As Crown Counsel submits, she was looking to determine whether such a reference raised a reasonable doubt and she found that it did not.
[ 54 ] I find that the trial judge did not err in law in finding the Appellant guilty beyond a reasonable doubt of impaired driving. As such, this ground of appeal fails.
Conclusion
[ 55 ] For the above-mentioned reasons, the appeal is allowed pursuant to the first ground of appeal. A stay of proceedings is entered. The second ground of appeal is dismissed.
Kelly J.
Date: June 12, 2012