Court File and Parties

COURT FILE NO.: 1258/15 DATE: 20160722

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – NATALIA KORZH Appellant

COUNSEL: M. Michaud, for the Crown E. Ashurov, for the Appellant

HEARD: July 18, 2016

[On Appeal from the Judgment of Duncan J. dated October 2, 2015]

MILLER J.

[1] Natalia Korzh was found guilty October 2, 2015 of, on October 5, 2013 committing the offences of Impaired Driving and Over 80. A conviction was entered on the charge of Impaired Driving and the Over 80 was provisionally stayed. She appeals from the findings of guilt on the basis that the learned trial judge erred in finding that the Appellant’s right to trial within a reasonable time, pursuant to s. 11 (b) of the Charter had not been violated; in refusing to grant a stay of proceedings based on a denial of privacy while in custody; by finding that the Appellant had not been subjected to a strip search or an assault by police; by finding that the Appellant’s s. 10(b) rights had not been violated and in rejecting the Appellant’s bolus drinking defence and finding that both offences had been proven beyond a reasonable doubt.

[2] The Crown submits that the learned trial judge correctly decided the s. 11(b) application, and did not err in refusing to grant a stay of proceedings based on a denial of privacy while in custody; in finding that the Appellant had not been subjected to a strip search or an assault by police; in finding that the Appellant’s s. 10(b) rights had not been violated and in rejecting the Appellant’s bolus drinking defence and finding that both offences had been proven beyond a reasonable doubt.

Section 11(b)

[3] Natalia Korzh was arrested for these offences on October 5, 2013. Her trial was completed October 2, 2015.

[4] On October 5, 2013, Ms. Korzh was released from custody on a recognizance of bail with a surety and certain conditions requiring, amongst other things, that she reside with her surety. Her first appearance was October 24, 2013, at which time, she received an initial disclosure package. She re-attended court on November 21, 2013. In the interim, Ms. Korzh retained counsel on November 16, 2013 who, on November 19, 2013, made a written request for further disclosure, including “any and all video recordings” of the Appellant. This request was re-iterated on the record November 21, 2013 as “videos, videos from the station” and the matter was adjourned to December 18, 2013 and then, again to January 16, 2014 in order for the requested disclosure to be provided. A second written request for this disclosure was made on December 18, 2013, again asking for “any and all video recordings” of the Appellant.

[5] The matter went to January 30, 2014 to set a judicial pre-trial. On that date, March 3, 2014 was the first date offered for a judicial pre-trial and was accepted by the Appellant. On that date, a two day trial was estimated and a trial set for December 16, 2014 and January 2, 2015, the first dates available for the Court and the Crown. Counsel for Ms. Korzh indicated his availability on dates as early as March 2014. The trial dates were set subject to a determination as to whether the Appellant’s s. 11(b) rights had been violated.

[6] On August 26, 2014, counsel for Ms. Korzh scheduled a hearing of the s. 11(b) application for October 14, 2014. The Appellant’s material was served and filed by September 11, 2014. The Crown did not serve or file any responding material until the morning of October 14, 2014. At that time, counsel for Ms. Korzh asked that either the matter proceed that day if the Crown was not permitted to cross-examine Ms. Korzh on her affidavit filed in support of the application or the matter to be adjourned. The earliest date available to the Court and the parties for the hearing of the application was December 9, 2014; counsel for Ms. Korzh being unavailable on dates October 28, 2014 and November 4, 2014, which had been offered, and neither the Crown or counsel for Ms. Korzh being available November 12, 2014. The presiding justice determined that the December 9, 2014 application date was too close to the scheduled trial commencement date of December 16, 2014.

[7] The presiding justice, having been satisfied that the Crown had not complied with the rules determined that there should be some remedy. The presiding justice noted the unfairness to the accused in not being able to properly respond and as well, the cost to the administration of justice in lost court time. In the result, the application was adjourned to be heard January 14, 2015 and the trial was adjourned to March 25 and 26, 2015.

[8] Counsel for Ms. Korzh served and filed new material on December 7, 2014 for the s. 11(b) application. Again, the Crown filed no responding material until January 14, 2015 when the application was to be heard. The application proceeded that date. A ruling on the s. 11 (b) application was made February 17, 2015.

[9] The learned trial judge found that the time from the charge October 5, 2013 to the scheduled commencement of the trial March 25, 2015 was 17.5 months. He attributed the time from October 5, 2013 to March 3, 2014 as intake and inherent time to be considered neutral; the time from March 3, 2014 to December 16, 2014 (less 30 days for inherent time) as institutional delay, and the time from December 16, 2014 to March 25, 2015 to the defence, finding that the adjournment requested by the defence October 14, 2014 was unnecessary and therefore, that delay was not attributable to the Crown.

[10] The trial commenced March 25, 2015 and continued March 26, 2015. In the course of the proceedings March 26, 2015, it was revealed that video recordings of the Appellant in the sally port and booking area of the police station on October 5, 2013 existed but had not been disclosed. These were recovered and disclosed that day. The trial was adjourned to continue March 27, 2015. The trial was not completed that day, during which the newly disclosed videos were played and were the subject of examination and cross-examination of the witnesses. The trial was adjourned to June 8, 2015.

[11] Before the trial resumed June 8, 2015, further disclosure was made of the Appellant in a police station cell on October 5, 2013. This video was the subject of a s. 8 Charter application on June 8, 2015. The Crown conceded a breach of s. 8 but sought to call additional evidence on the issue of remedy. The trial was not completed June 8, 2015 and was adjourned to July 31, 2015, at which time, the Crown called evidence as to remedial steps taken by police to ensure the privacy of prisoners in cells. Rulings on the s. 8 breach, the alleged strip search and assault were made September 11, 2015. The trial continued October 1, 2015. On that date, defence evidence was called. Closing submissions were made on October 1 and 2, 2015. Judgment was rendered October 2, 2015.

[12] The learned trial judge gave his decision on s. 11 (b) in accordance with the prevailing law: R. v. Morin, [1992] S.C.J. No. 25. The Supreme Court released R. v. Jordan, 2016 SCC 27 and R. v. Williamson, 2016 SCC 28 on July 8, 2016. The Crown included Jordan in its written and oral argument. Counsel for the Appellant had submitted his factum before Jordan was released but indicated he was prepared to proceed with the appeal, nonetheless, and that he would address Jordan in his oral submissions. Both parties were prepared to proceed with the hearing of the appeal on that basis.

[13] The Supreme Court in Jordan sets out a new framework for the analysis in s. 11(b) applications. Notably, the 5:4 majority determined that:

At the centre of this new framework is a presumptive ceiling on the time it should take to bring an accused person to trial: 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. (paragraph 5)

[14] The crux of the new framework is set out at paragraphs 47 and 48:

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show 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. We expect stays beneath the ceiling to be rare, and limited to clear cases.

[15] “Compelling case-specific factors” remain relevant to the assessment of reasonableness above and below the presumptive ceiling. (paragraph 51)

[16] It is clear that defence delay that will be subtracted from the overall time from charge to the end of trial encompasses only defence waiver or delay caused solely by the defence. (paragraphs 61-63) The defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. (paragraph 64)

[17] It is clear that the Supreme Court expects judges hearing s. 11(b) applications (and appeals of s. 11 (b) rulings, as I would interpret it) “to apply the framework contextually and flexibly for cases currently in the system.” (paragraph 94)

[18] In this case, the time to the beginning of the trial, as found by the learned trial judge, was 17.5 months; just under the presumptive threshold. The time to the actual end of trial, however, was just under 24 months; presumptively unreasonable according to Jordan.

[19] The Crown submits that the time should run from October 29, 2013, the date the information on which the Appellant was tried, and the one contained in the s. 11 (b) application record, was sworn. I disagree. Counsel for Ms. Korzh submits that the October 29, 2013 information was a replacement information. As Ms. Korzh was detained in custody and only released after a bail hearing on October 5, 2013, the only reasonable inference to draw is that there was an information before the Court that date. I find that the time should run from October 5, 2013.

[20] It is also clear that at no time was there any waiver on the part of Ms. Korzh.

[21] The Crown submits that the finding by the trial judge that delay from December 16, 2014 (the first trial date) to March 25, 2013 (the commencement of the trial) is “solely” attributable to the defence is correct. I disagree. While I concur that counsel for Ms. Korzh might have been forced on October 14, 2014, despite the late service and filing by the Crown of their responding material, that was not the decision of the presiding justice, and the defence request for adjournment in those circumstances was not unreasonable, and the resultant delay cannot be said to be “delay caused solely by the defence”.

[22] The only part of the almost 24 months of time to complete the trial, which is attributable to the defence such that it could be subtracted is the period between the first trial date of December 16, 2014 and the commencement date of the trial March 25, 2015 – three months and one week. I arrive at this conclusion due to the fact defence counsel was not available for alternative dates for the arguing of the s. 11 (b) application once it was determined that the application should not be heard October 14, 2014. Had defence counsel been available on the offered dates of October 28 or November 4, 2014, the December 16, 2014 first trial date need not have been abandoned. Subtracting that period from the overall delay would reduce the overall delay to just under 21 months. It is still above the presumptive threshold.

[23] Further, because the adjournment was occasioned by the actions of the Crown, it cannot be said to be caused solely by the defence.

[24] The Crown submits that the fact that the trial took seven days rather than the estimated two days should be seen as unavoidable and unforeseen delay as contemplated in Jordan at paragraphs 73 and 74:

…if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.

Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial 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.

[25] Here, however, much of the trial extension was a direct result of the Crown’s failure to provide disclosure as requested. The late disclosure not only created delays in the time it took to try the matter but also was a significant factor, I find, in the estimate for trial time arrived at by Crown and defence counsel and the presiding justice at the judicial pre-trial. Had the videos requested in disclosure at the outset been provided in a timely way – before the judicial pre-trial – all parties would have been in a better position to estimate the actual time for trial and to ensure that the trial was set, either on March 3, 2014 or on October 14, 2014, so that it could be heard on consecutive days, rather than in the piecemeal fashion that directly resulted from the Crown’s late disclosure.

[26] Crown counsel submits that the defence case, independent of the Charter issues raised by the late video disclosure, took two days in addition to the time estimated. If this is correct, then the case could have concluded within the two days following the original time estimate – namely March 27, 2015 and June 8, 2015. This would place the overall time from charge to the completion of the trial at approximately nineteen months or just over the presumptive threshold.

[27] Were this the overall trial time, I might well find that the Crown had met its burden to “establish the presence of exceptional circumstances”. However, it is clear that the remainder of the delay to the completion of the trial lies squarely at the feet of the Crown and its failure to meet its disclosure obligations.

[28] The Crown submits that when counsel for the Appellant received only one video (the breath room video) in response to his request for “any and all video recordings” of the Appellant, he should have followed up with an additional request, along the lines of “are you sure that is the only video recording of my client in police possession?” I disagree. The defence request for disclosure was clear and unequivocal. It was made twice in writing November 19 and December 18, 2013 and additionally on the record November 21, 2013. I find there was no additional responsibility on counsel for the Appellant to “follow-up” on the disclosure request in the manner suggested by the Crown.

[29] I am mindful of the Supreme Court’s admonition “to apply the framework contextually and flexibly for cases currently in the system,” but nonetheless find that the case is clearly over the presumptive threshold for cases in the Provincial Court and the Crown has not met its burden to establish the presence of exceptional circumstances such that the charges should not be stayed.

[30] In coming to this conclusion, I bear in mind the public interest in having serious charges proceed on their merits and the circumstances of Ms. Korzh’s offences. I conclude, nonetheless, that Ms. Korzh’s right to have her trial on those offences within a reasonable time has been breached and the only appropriate remedy is a stay of proceedings. In that respect, the appeal is granted and the charges are stayed pursuant to s. 24 (1) of the Charter.

[31] While it is not necessary given my decision on the s. 11 (b) issue, I would not find any error in the learned trial judges’ refusal to grant a stay of proceedings based on a denial of the Appellant’s privacy while in custody; in his finding that the Appellant had not been subjected to a strip search or an assault by police; in his finding that the Appellant’s s. 10(b) rights had not been violated or his rejection of the Appellant’s bolus drinking defence. I would not find any error in the trial judge’s conclusion that both offences had been proven beyond a reasonable doubt.

MILLER J. Released: July 22, 2016