R. v. Vasylenko, 2017 ONSC 4714
CITATION: R. v. Vasylenko, 2017 ONSC 4714
COURT FILE NO.: CR-15-05064
DATE: 2017-09-12
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Nataliya Vasylenko
BEFORE: The Honourable Mr. Justice M. McKelvey
COUNSEL: Paul Tait, Counsel for the Crown Nataliya Vasylenko, In-person
HEARD: June 16, 2017
ENDORSEMENT
Introduction
[1] This is an appeal by the Crown from a stay of proceedings granted by the trial judge under s. 11(b) of the Canadian Charter of Rights and Freedoms. The Crown is seeking an order setting aside the stay and directing a new trial. For the reasons that follow, I have concluded that the Crown’s appeal should be allowed and a new trial ordered.
Chronology
[2] The chronology of events leading up to the s. 11(b) application is important. The following is a summary of the dates on which significant events occurred:
• June 21, 2015 – The defendant was arrested and charged with one count of operating a motor vehicle with more than 80 milligrams of alcohol per 100 millilitres of blood contrary to s. 253(b) of the Criminal Code.
• July 3, 2015 – The information in relation to this prosecution was sworn.
• July 17, 2015 – First appearance. The matter was adjourned to August 14, 2015.
• August 14, 2015 – Matter adjourned to August 28, 2015 at the request of the defence as defence counsel was not available on that date.
• August 28, 2015 – The matter is adjourned to September 28, 2015 at the request of the defence. Section 11(b) rights waived.
• September 28, 2015 – The matter is adjourned to October 26, 2015 for defence to complete a toxicology review. Section 11(b) rights waived.
• October 26, 2015 – Matter adjourned at the request of the defence to November 2, 2015 in order to finalize toxicology issues. Section 11(b) rights waived.
• November 2, 2015 – Defence counsel seeking a meeting with a resolution Crown. Advised that no resolution Crown was available on that date. Defence also advises that he is still trying to arrange a toxicologist and is not available because of his schedule until December. Matter adjourned to December 10, 2015. Section 11(b) rights waived.
• December 10, 2015 – A trial date of April 20, 2016 is set. One day set aside for trial.
• April 20, 2016 – The trial in this matter is not reached because there is no available courtroom. Defence counsel advises that he consents to the adjournment without 11(b) waiver and notes that there are going to be additional costs for his client and that it is stressful for his client to come to court on the trial date, wait until 2:00 p.m. only to find out there is no courtroom available. The Court requests some priority on the next occasion for this case.
• July 8, 2016 – The Supreme Court of Canada releases its decision in R v. Jordan, 2016 SCC 27.
• August 15, 2016 – At 2:20 p.m., the Crown advises that this case will not be reached on that day. October 14 was offered as the next date available for trial but defence counsel was not available. The trial was adjourned to October 27, 2015. Defence counsel advises that he will be ordering transcripts and if there is going to be an 11(b) motion he will correspond with the Crown’s office ahead of time as best he can.
• October 27, 2016 – The trial judge considers an application dated September 29, 2016 for a stay of this action pursuant to s. 11(b) of the Charter. The trial judge stays this proceeding.
The Applicable Legal Principles
[3] The majority decision in Jordan set out a new framework for consideration of s. 11(b) applications. The new framework created a ceiling beyond which delay is presumptively unreasonable. Delay is calculated by first calculating the total delay from the time of the charge to the actual or anticipated end of trial. The next step is to calculate the defence delay which must be deducted from the total delay which results in the “net delay”. Defence delay is any delay which has been waived by the defence or delay caused solely by the defence. This would include delay caused in a situation where both the Crown and the Court are ready to proceed but the defence is not. The net delay is then compared to the presumptive ceiling. If the delay exceeds the presumptive ceiling, the court must consider whether there were exceptional circumstances as defined in the Jordan decision, such that the time the case has taken is justified and the delay is reasonable. If the net delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. In the present case it is clear that the net delay fell below the presumptive ceiling.
[4] A delay may be unreasonable even if it falls below the presumptive ceiling. However, if the delay falls below the presumptive ceiling, the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things. First, it must establish that it took meaningful steps to demonstrate a sustained effort to expedite the proceedings. Second, the defence must also establish that the case took markedly longer than it reasonably should have. In the absence of these two factors, the s. 11(b) application must fail.
[5] In calculating the length of the delay, the time will commence when the information is sworn. This assumption is based on the Supreme Court of Canada decision R. v. Kalanj, 1989 63 (SCC), [1989] 1 S.C.R. 1594, at p. 1607. This conclusion is further supported by the Ontario Court of Appeal decision R. v. Coulter, 2016 ONCA 704. In Coulter, which was decided after Jordan, the court considered a s. 11(b) appeal and calculated the total delay running in that case from November 18, 2011, “when the information containing the first five counts was sworn” (at para. 62).
[6] The applicable standard of review on this appeal was set as follows by the Ontario Court of Appeal in R. v. Tran, 2012 ONCA 18, at para. 19:
This court has repeatedly held that the characterization of the various periods of delay on a s. 11(b) Charter application and the ultimate decision concerning whether the delay is unreasonable are reviewed on a standard of correctness. However, the underlying findings of fact are reviewed on the standard of palpable and overriding error: R. v. Schertzer, 2009 ONCA 742, 255 O.A.C. 45, at para. 71.
Calculation of the Net Delay in this Case
[7] The calculation of the net delay as defined in Jordan is calculated, as noted above, by determining the length of the total delay less the defence delay, which results in the net delay. The trial judge deals with this calculation in his reasons as follows:
The applicant was charged on June 21, 2015 with operate over 80. The trial date is today, October 27, 2016. The total delay is 18 months, 6 days. It is agreed that the net delay to be considered is 13.5 months, given periods waived by the defence.
[8] It is apparent that the calculation by the trial judge commenced on the date of the charge, June 21, 2015, rather than the date of the information, which was on July 3, 2015. However, even assuming a June 21start date, his calculation of the total delay being 18 months and 6 days is, unfortunately, incorrect. The correct calculation accepting the commencement date on June 21, 2015 and an end date on October 27, 2016 would be 16 months and 6 days. Thus, the trial judge has overestimated the total delay by at least two months. If the commencement date is taken as July 3, 2015, as I believe it should be, then the total delay is reduced further to 15 months and 24 days.
[9] The trial judge reduced the net delay to 13.5 months to account for defence delay. As noted above in the chronology, the defence waived its 11(b) rights from August 28, 2015 to December 10, 2015, which totals 3 months and 12 days. In addition to the explicit waivers, there was a further two week adjournment attributable to the defence between August 14, 2015 and August 28, 2015 and a further two week period of time between October 14, 2016 and October 27, 2016 when the defence was not available for the earliest trial date offered. Thus, the defence delay totaled approximately 4.5 months. This figure is consistent with the trial judge’s reduction of the total delay from 18 months, 6 days to a net delay of 13.5 months. However, the net delay is incorrect based on his assumption of a total delay of 18 months, 6 days. If one deducts 4.5 months from a total delay of 15 months and 24 days, the net delay is reduced to approximately 11 months and 5 days.
[10] In reviewing the reasons, the trial judge stated that the net delay of 13.5 months was agreed upon by the parties. However, as noted by the Court of Appeal in R. v. Tran, at para. 31, a reviewing court “is not bound by erroneous concessions by the Crown in allocating periods of delay”. Further, while the finding of total delay by the trial judge at 18 months, 6 days, is a finding of fact, it constitutes a palpable and overriding error. The trial judge’s analysis on this s. 11(b) application should have proceeded on an assumption that the resulting delay was approximately 11.5 months as opposed to the 13.5 month figure. It is not clear how this error occurred. Unfortunately, this mathematical error was the foundation for the trial judge’s further analysis on the s. 11(b) application.
The Jordan Analysis
[11] The trial judge correctly concluded that the delay in this case was below the presumptive ceiling and that in order to succeed on a s. 11(b) application, the accused was required to establish (i) that it took meaningful steps that demonstrated a sustained effort to expedite proceedings and (ii) that the case took markedly longer than it reasonably should have.
[12] In dealing with the first issue, the trial judge stated as follows:
Regarding point 1), the defence did take reasonable steps to expedite the proceedings. I should say, the defence took meaningful and reasonable steps to expedite the proceedings. The defence took the available trial dates offered, that were not always the earliest but were reasonably close to the earliest dates. In the first and second trial dates, given the short time between those dates the defence could not have done more to expedite those dates.
[13] In my view, the trial judge failed to give full consideration to all of the factors required under this heading as outlined by the Supreme Court of Canada in its Jordan decision.
[14] At paras. 84 and 85 of the Jordan decision, the Supreme Court states as follows:
To discharge its onus where delay falls below the ceiling, the defence must demonstrate that it took meaningful, sustained steps to expedite the proceedings. “Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider” (Morin, at p. 802). Here, the trial judge should consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible. Substance matters, not form.
To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier trial date. Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly. While the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly.
[15] This case was commenced prior to the Jordan decision and, therefore, the transition provisions of that decision apply. On the issue of defence initiative, the court states at para. 99:
- The second qualification applies to cases currently in the system in which the total delay (minus defence delay) falls below the ceiling. For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision. Since defence initiative was not expressly required by the Morin framework, it would be unfair to require it for the period of time before the release of this decision. However, in close cases, any defence initiative during that time would assist the defence in showing that the delay markedly exceeds what was reasonably required. The trial judge must also still consider action or inaction by the accused that may be inconsistent with a desire for a timely trial (Morin, at p. 802). (emphasis added)
[16] In the present case, the trial judge points to the fact that the defence took the available trial dates offered, but notes that though they were not always the earliest, they were reasonably close to the earliest dates. The trial judge does not point to any specific actions taken by the defence to move the action to trial as quickly as possible. I agree with the trial judge that on April 20, 2016 and August 15, 2016 the defence was required to accommodate adjournments caused by the lack of resources to try the case. However, I do not agree with the trial judge’s assertion that the defence agreeing to take “the available trial dates offered, that were not always the earliest but were reasonably close to the earliest dates” constitutes “meaningful and reasonable steps to expedite the proceedings”. Further it is apparent that there were other factors relating to this issue which were not taken into account. These factors included the earlier delays by the defence which appear to be inconsistent with a desire for a timely trial. These delays include the adjournments on August 28, 2015, September 28, 2015, October 26, 2015 and November 2, 2015. All of these adjournments were necessitated as a result of the defendant’s desire to obtain a toxicology opinion. The transcript on November 2, 2015 suggests that the defendant had not yet arranged for a toxicologist, although three previous adjournments were granted to allow for this. Further the trial judge does not address the fact that the s. 11(b) application was scheduled for the date of trial following the second adjournment on August 15, 2016. This is one of the factors referred to by the Supreme Court in Jordan as an indication that a defendant may not be moving reasonably and expeditiously (see para. 85). The application itself was only initiated on September 29, 2016.
[17] Taking all of the relevant factors into account I am of the view that at its highest, the defence approach in this case can be described as passive. I have concluded that the first criteria required by the defence to show that it took meaningful sustained steps to expedite the proceedings has not been met in this case.
[18] The second criteria which the defence was required to establish is that the time the case had taken markedly exceeds the reasonable time requirements of the case. The reasonable time requirements of a case as noted by the Supreme Court in Jordan derive from a variety of factors, including the complexity of the case, local considerations and whether the Crown took reasonable steps to expedite the proceedings. In the present case there is no evidence to suggest that any delay can be reasonably attributed to the Crown.
[19] At para. 91 of the Jordan decision, the Supreme Court comments that determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. The court states that trial judges should step back from the minutiae and adopt a bird’s-eye view of the case. The court further comments that this determination is a question of fact falling well within the expertise of the trial judge.
[20] With respect to transitional issues, the court in Jordan comments at para. 100 that if the delay was occasioned by an institutional delay that was reasonably acceptable in a relevant jurisdiction under the Morin framework before this decision was released, that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system.
[21] In dealing with the issue of whether the delay in this case markedly exceeded what was reasonably required, the trial judge stated as follows:
Regarding point 2), this is a transitional case, given the Jordan decision. To this extent one can look to the old framework as a factor in reaching a conclusion. This case is simple and would have attracted scrutiny under the Morin/Askov analysis, that a delay in the range of 12 months, given some time for intake, with three trial dates, and an uncertain end date, which might have made the delay even greater, in this Court’s view under the Morin/Askov analysis, this would likely have resulted in a stay.
The trial judge comments subsequently that the Jordan analysis does not sanction delay beyond what would have been acceptable under the prior guidelines.
[22] At the conclusion of his decision, the trial judge states in relation to the suggestion that Jordan does not sanction a delay beyond what would have been acceptable under the prior guidelines,
I agree with that. It is not an aspirational target. This is a simple case. The matter should have been tried on one of those earlier trial dates. In the circumstances, I find that the Applicant has proven a breach of the 11(b) right on a balance of probabilities, and in the circumstances a stay is granted.
[23] In my view, the trial judge has failed to consider a number of relevant circumstances in reaching his conclusion that the delay in this case markedly exceeds what was reasonably required. The first concerning issue is the fact that his consideration was based on an erroneous calculation of the net delay, as has been outlined above.
[24] A further concern is that the trial judge appears to have proceeded on the basis that because the trial had been adjourned on two previous occasions the time the case took to trial markedly exceeded what was reasonably required. The trial judge was well aware that the two adjournments were caused by a lack of court space and judicial resources. He states in his decision,
The defence was blameless for this delay, as for the first trial date and for that matter, the Crown was also blameless in both cases. The problem was lack of court space. All agree that at the time, the compliment of judges in this jurisdiction was about 25 percent below the usual compliment.
[25] While the trial judge appears to recognize that a shortage of resources might have been a significant factor in the delays which occurred here, he does not go on to assess how the shortage of resources resulting in institutional delay might have affected the reasonable time requirements of the case which is one of the transitional considerations which is to be taken into account under the Jordan framework. It is an important contextual factor. It is also significant that of the approximately 6 month delay caused by the 2 adjournments, it was the first adjournment which occurred prior to the release of the Jordan decision which was responsible for almost 4 of the 6 month delay caused by the 2 adjournments. In dealing with these transitional issues in Jordan, the Supreme Court noted, at para. 94, that it will take time for these incentives to shift the culture in jurisdictions where prolonged delays are the norm. As well, the Court stated that the administration of justice, “cannot tolerate a recurrence of what transpired after the release of Askov, and this contextual application of the framework is intended to ensure that the post-Askov situation is not repeated.”
[26] As previously noted the Supreme Court comments that if the delay was occasioned by an institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework before their decision in Jordan was released that institutional delay will be a component of the reasonable time requirements of the case for cases currently in the system. Of significance, the Supreme Court also comments, at para. 101, “We note that given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system.”
[27] The Crown acknowledges that coming back for multiple trial dates would have previously been relevant to the issue of prejudice under the Morin criteria. However, under the Jordan analysis, prejudice no longer plays an explicit role in the s. 11(b) analysis, although it informs the setting of the presumptive ceiling: see para. 54.
[28] The Crown has submitted that the number of scheduled trial dates is not the test under the Jordan framework. It is indeed unfortunate that this case was adjourned on two occasions as a result of lack of court resources. While these adjournments do affect the length of time it took to get the case to trial, I accept that the number of trial dates is not to be considered in isolation under the Jordan framework. Institutional limitations are a current reality in our court system. These were recognized by the Supreme Court, especially in relation to transitional cases. The test under s. 11(b) is ultimately related to the time the case took to get to trial taking into account the factors set out by the Supreme Court in Jordan.
[29] The trial judge in this case suggests that the delay would have resulted in a stay under the Morin/Askov analysis. He does not give a detailed analysis as to how he reached this conclusion. In my view, this conclusion is suspect if one proceeds on the assumption that the relevant delay was approximately 11.5 months as opposed to the figure of 13.5 months which was the basis for the trial judge’s analysis. Under the existing case law, courts will routinely attribute a neutral intake period in the Ontario Court of Justice in drinking and driving cases of a 2 month period: see R. v. Lahiry, 2011 ONSC 6780, at para. 19. Applying this analysis would suggest that after accounting for “neutral” time this case would have been within the 8-10 month range specified in the Morin decision.
[30] In any event, it must be recognized that the Supreme Court in Jordan set up a new framework for considering s. 11(b) applications. I do not agree that the Jordan analysis necessarily rules out a delay beyond what would have been acceptable under the prior guidelines. I agree that the Morin/Askov analysis may be relevant in considering whether the case took markedly longer than expected, but do not accept that it is determinative of that issue or the application itself.
[31] Taking all of the relevant factors into account, I have concluded that the defence did not meet its obligation to establish that the case took markedly longer than it reasonably should have. As noted by the Supreme Court in Jordan stays under the ceiling are to be limited to clear cases. In my view, this is not one of those cases.
Conclusion
[32] Based on the above analysis and with great respect to the trial judge, I conclude that the trial judge was in error in staying this case pursuant to s. 11(b) of the Charter. I therefore direct that the stay be set aside and a new trial ordered. I do note, however, that in her submissions, the accused reported serious health problems. She also filed an affidavit at the time of the s. 11(b) application which describes the stress and effects this case has had on her which the Crown may consider in reviewing whether a further trial should take place.
Justice M. McKelvey
Date: September 12, 2017