R. v. Krzewinski Date:, 2011 BCPC 377

Citation: R. v. Krzewinski Date: 20111012 2011 BCPC 0377 File No: 181355-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BOGUSLAW KRZEWINSKI RULING ON APPLICATION FOR JUDICIAL STAY OF PROCEEDINGS OF THE HONOURABLE JUDGE M.B. HICKS Counsel for the Crown: A. Jantunen Counsel for the Defendant: P. Evans Place of Hearing: Surrey , B.C.

Date of Hearing: September 28, 2011 Date of Judgment: October 12, 2011 [ 1 ] THE COURT : Boguslaw Krzewinski is before the court charged on Information 181355, that on or about February 5 of 2010, at Surrey, British Columbia, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, he had the care or control of a motor vehicle, contrary to s. 253(1 )(

b) of the Criminal Code . [ 2 ] The Crown earlier stayed proceedings in respect of the companion charge of impaired driving. [ 3 ] Mr. Krzewinski says that his right under s. 11(

b) of the Charter of Rights to be tried within a reasonable time has been breached. He applies under s. 24(1) of the Charter for a judicial stay of proceedings. The Crown opposes the application. [ 4 ] The parties are agreed that the significant events in respect to the application occurred on the following dates: The alleged offence occurred on February 5, 2010. Mr. Krzewinski was issued a Promise to Appear returnable April 7, 2010. The Information before the court was sworn April 1, 2010. On April 7, 2010, Mr. Krzewinski appeared via counsel and the matter was adjourned to May 4 for arraignment.

On May 4, 2010 the matter was set for trial on June 6th, 2011. The trial did not go ahead on that date due to lack of court time. On June 6, 2011 the Crown stayed proceedings on the impaired driving count and the matter was then set for a half-day trial on the remaining charge. The date set was September 28, 2011 which the parties agree was the earliest date offered by the judicial case manager. [ 5 ] Prior to September 28, 2011, the defence informed the Crown that it would make this application on that date and the application was then heard.

The parties have reserved December 1st, 2011 as a future trial date in the event this application is unsuccessful. I understand that is the first date I would be available as the trial judge to hear the matter on a half-day estimate.

[6] The Supreme Court of Canada has placed the analysis of s. 11(

b) rights in the following context. The primary purposeunderlying the right of an accused to a trial within a reasonable time addresses three interests. The first is the right to security of theperson by seeking to minimize anxiety, concern and the stigma of an ongoing criminal charge. The second is the right to liberty which isthe implication of restrictive bail conditions or pre-trial detention. The third is the right to a fair trial which addresses the prospect thatthe quality and reliability of evidence may deteriorate as time passes. (R. v.

Morin, (SCC), [1992] 1 SCR 771) [7] The courts have recognized that the interest of society as a whole and respect for and confidence in the criminal justice systemare enhanced when judicial proceedings occur promptly and where the rights of accused persons, including the right to trial within areasonable time, are protected. There is also a recognized societal interest in seeing criminal matters brought to trial and resolvedaccording to law.

The courts have also recognized that not all accused persons are anxious to see the charges they face brought to trial ina timely way because they also know that deterioration in Crown evidence, or the availability of Crown witnesses, may work in theirfavour. [8] The factor that the Supreme Court of Canada has stated must be considered in the analysis on an application under this sectionare the following: 1. the length of the delay; 2. the waiver of time periods; 3. the reasons for the delay, including, first, inherent time requirement of the case; second, actions of the accused; third, actions of theCrown; fourth, limits on institutional resources, and fifth, other reasons for delay; 4. prejudice to the accused. [9] In R. v.

Morin in the Supreme Court of Canada, Mr. Justice Sopinka stated at paragraph 32: The period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. (R. v. Kalanj, (SCC),[1989] 1 SCR 1594.) The length of this period may be shortened by subtracting periods of delay that have been waived. It must then bedetermined whether this period is unreasonable, having regard to the interests s. 11(

b) seeks to protect, the explanation for the delay, andthe prejudice to the accused. He goes on further to state that an inquiry should only be undertaken if the period of delay "is of sufficient length to raise an issue as toits reasonableness." (R. v. Morin, supra at para. 36) [10] I will now address the first three factors to be considered in the analysis as identified by the Supreme Court of Canada in R. v.Morin. [11] In the present case, the period from the laying of the charge on April 1, 2010 to the first trial date was approximately 14 months.

The process of arraignment and the fixing of that first trial date occurred expeditiously. The inherent time requirements of the casetotalled approximately one month. Thus, the relevant period of delay to the first trial date is 13 months. Neither party contributed to thatperiod of delay. Both parties agree it is solely reflective of the period during which institutional resources were not available toaccommodate this one-day trial. [12] On June 6 of 2011 the trial did not go ahead because court time was not available to accommodate it.

The trial was re-set on thatdate, now for a half-day, to September 28th, 2011. This was the first available date. Neither party contributed to that additional periodof approximately 3.5 months of delay, and it reflects limitations during that timeframe on institutional resources. [13] As of September 28, 2011 the total period of delay due to inadequate institutional resources totalled about 16.5 months. OnSeptember 28 of 2011 the trial itself did not go ahead. It had been set for the morning, reflective of the half-day estimate. It was movedinto this court from another court which could not accommodate it.

At the point it was moved, I am informed it would not havecompleted during the remaining time period that morning. In any event, the parties did not anticipate the trial itself would proceedbecause counsel for Mr. Krzewinski informed the Crown of his intention to bring on this application. [14] If I rule in favour of the Crown and deny the defence application, the trial will proceed before me on December 1st, 2011, bywhich point the delay will have extended an additional two months.

If I treat that added period as institutional delay, the total period ofdelay at issue is then 18.5 months. [15] The Supreme Court of Canada has suggested eight to ten months as a guideline period for institutional delay in the ProvincialCourt. The period of institutional delay in this case exceeds that guideline, and therefore an inquiry is justified. [16] The fourth factor to be assessed in addressing the defence application is prejudice to the interests of the accused protected by s.11(b), that is the three general interests referred to earlier as set out by the Supreme Court of Canada in R. v. Morin.

Prejudice may beinferred from the length of the delay, or actual prejudice may be established based on the specific circumstances of the case. In R. v.Morin, Mr.

Justice Sopinka stated at para. 61: In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right isseriously undermined. [17] The defence in this case argues that I should infer prejudice at the point the matter was adjourned for lack of court time to a newtrial date on September 28, 2011, at which point, as I have stated a moment ago, 16.5 months of institutional delay had elapsed.

Byfurther extension, the defence says that inferred prejudice to the accused is compounded because he must use that trial date to argue thismotion, thus further compounding the inference of prejudice by an additional two months to December 1st when the matter would beheard again.

[18] The determination of unreasonable delay is to be assessed on the facts of each case; it is not a concept which can be reduced to amathematical formula. The guideline period identified by the Supreme Court of Canada provides a starting point in the analysis, but thatanalysis is contextual, the facts of the specific case must be assessed in light of the factors and interests identified in R. v. Morin. Thereis no presumption that prejudice must be inferred wherever delay passes a particular point in time.

It may be inferred, based on thecircumstances of the case, the prejudice may be inferred even in the absence of specific prejudice, based on the length of the delay. (R.v. Godin 2009 SCC 26 , 2009 SCJ 26 (SCC)) [19] In addition to arguing that I should infer prejudice, Mr. Krzewinski also asserts actual prejudice. In an affidavit filed in supportof his application, Mr. Krzewinksi asserts actual prejudice under what I have grouped as four general headings. They are the following:

a) That he incurred added legal costs.

b) That the charges have caused anxiety, stress, sleeplessness, embarrassment and tension which have impacted on his family and beenexacerbated the delay in resolving the charges.

c) The prospect of a driving prohibition has created uncertainty for his employment and impacted work and family planning.

d) Conflict has arisen because he has been unable to travel to Poland to assist in caring for his mother who is ill. [20] Mr. Krzewinski was cross-examined by Crown counsel on his affidavit. In respect to the issue of increased legal fees, althoughthere might be some simple logic to the line taken by Crown counsel that Mr. Krzewinski should negotiate with his counsel on thebilling for a second trial date, bearing in mind that the time actually required on the first trial date was minimal, the reality is that the dayset aside by counsel was lost. I accept that preparation is then required for any subsequent date.

The reality is that the loss of a trial dateis simply not a neutral event for purposes of legal costs incurred to see the matter concluded. I accept that Mr. Krzewinski wasprejudiced by virtue of added legal costs arising from the lost trial date. The extent of that prejudice has not been quantified. [21] The second issue addresses the continuing anxiety and stress which flows from failure of this matter to be resolved on the firstdate. In paragraph 15 of his affidavit, Mr. Krzewinski sets out the particulars of stress he has suffered.

Elsewhere in the affidavit herefers to the tension which has arisen in his marriage and that this has affected his extended family. Mr. Krzewinski was not cross-examined on these symptoms. I accept that he has suffered anxiety, stress and embarrassment which have now been prolonged by reasonof the failure of the trial to proceed. [22] The third area of concern relates to Mr. Krzewinski's employment and financial circumstances. In his affidavit, Mr. Krzewinskistated that he is employed as a building manager for the Metro Vancouver Housing Corporation, overseeing 200 townhouses in Surrey.

His duties include rent collection, transporting supplies, maintenance and other tasks assigned him. A term of his employment requiresthat he hold a Class 5 driver's licence. At paragraph 20 of the affidavit he stated: The prospect of a driving prohibition for one year and the significant likelihood that this will cause my employment with MVHC to beterminated has caused me great concern. This concern, he says, has delayed his family's plans to acquire a larger home due to financial uncertainties. [23] In cross-examination, Mr.

Krzewinski stated that he was assisted by co-workers during the three-month administrative drivingprohibition which flowed from the initial investigation. Those co-workers did any required work-related driving for him. He said he hadnot spoken to his employer to see if he would in fact lose his job if he could not drive for a year, nor has he checked with his co-workersto see if they would assist him during the prohibition period as they had earlier done. [24] This is not, strictly speaking, a form of prejudice which arises from the delay of his trial. It is an implication that would flowfrom conviction.

It is always present. The possibility that a prohibition might be imposed is what has been delayed in terms of itsresolution. The implication which might give this possibility some relevance is Mr. Krzewinski's assertion that his family has delayedplans to move to a bigger house for fear he might not be able to finance a mortgage, but there is inadequate information to allow thiscourt to evaluate the implication of this potential prejudice. For example, did the family have a specific plan? Had it been set inmotion?

Was there a property in mind, or was this a notion which had not yet moved into an active planning stage? The lack of anymore information giving substance to the bare assertion means it should be given little weight in this analysis. [25] In paragraph 8 of his affidavit, Mr. Krzewinski stated that he is also self-employed as a subcontractor, primarily in the area ofkitchen and bathroom renovations.

At paragraph 21 he stated that "The prospect of a driving prohibition has impacted my ability toaccept contracts in my subcontracting business." He goes on to say that without a driver's licence he would not be able to carry on aprofitable business. He then stated, "Accordingly, I am unable to accept contracts that would extend past my original trial date of June 6,2011, and again, past my trial date on September 28, 2011." He says this has had a financial impact on his family. [26] In cross-examination, Mr.

Krzewinski made reference to a contract offered to him in February 2011 to support the assertion;however, he was unable to provide any details about this offer, its possible start date, or end date, so I am unable to evaluate this againstthe timeframe to the first trial date which was not the subject of a challenge for delay. Beyond this, Mr. Krzewinski was unable to pointto any details of contracts lost or efforts to obtain work within the parameters of the relevant trial dates. There is an assertion ofprejudice in the affidavit, but on cross-examination it is not reliably supported. [27] In paragraph 22 Mr.

Krzewinski asserts that he has: Concrete plans to start a general contracting company; however, this has had to be put on hold until after these charges have beenresolved due to the necessity of being able to drive to carry on a profitable business in this field. In cross-examination, Mr. Krzewinski said he was thinking about re-starting a business in this field but had not taken any preparatorysteps. In my view, this does not amount to "concrete plans." I conclude that Mr. Krzewinski may have a notion to enter the field but this

notion has not moved to a concrete plan. [28] I conclude that the potential for loss of employment or employment opportunities, and any resulting loss of financial stability, isnot well-established on the whole of the evidence before me. There is that possibility, but the likelihood of that occurring is uncertain. Mr. Krzewinski has not taken steps to determine if he could continue to be employed by working an alternative arrangement with hisemployer, perhaps utilizing co-workers as was previously done.

I can understand that he would have some anxiety over that prospect,but in order to establish that it constitutes a head of legitimate prejudice to be evaluated on this application, the likelihood that it would infact occur must be established more solidly than is done here. [29] The final aspect of prejudice asserted in Mr. Krzewinski's affidavit relates to his inability to travel to visit his mother who fell illin 2011. He said this arises from the financial situation occurring as a result of the charge and the trial. He says this has created conflictwithin his extended family.

Although the assertion is made, no detail has been provided allowing me to assess how Mr. Krzewinski'sfinancial circumstances prevent his travel to Poland. For example, there is no information respecting the cost of such a trip, or how longhe might remain in Poland. Perhaps travel to Poland prior to the original June 6 trial date might have been impractical, but there is noexplanation why the trip could not have been made prior to the September 28th date. How Mr.

Krzewinski was prejudiced in hisinability to travel to Poland by reason of the delay is not explained beyond the bare assertion. [30] To be relevant to the analysis under s. 11(b), the prejudice asserted must impact one of the three interests of the accused inobtaining a trial within a reasonable time. The liberty interest of Mr. Krzewinski is not relevant here; he has not been subject torestrictive bail, nor has any other aspect of this interest been asserted. He has made no specific assertion that the quality or reliability ofthe evidence has or will deteriorate. I conclude Mr.

Krzewinski argument revolves around his assertion that he has suffered inferred andactual prejudice to security of the person by virtue of anxiety, stigma and concerns for these ongoing proceedings. [31] The courts have accepted that the impact on family, social, work life, legal costs and the uncertainties of outcome and sanctionsare contemplated within this interest. In this context, I have found that he has incurred additional legal fees by virtue of the loss of thefirst trial date, although this interest is somewhat tempered by the absence of any indication as to how that impacts his financialcircumstances.

I have also found that he has suffered stress and anxiety manifested in various ways asserted in his affidavit. Stress andanxiety over pending criminal charges is not unexpected. It is the prolonging of that state by virtue of delay that triggers consideration ofthis issue under s. 11(b). To a degree, this stress is attributable to the possible implications of a conviction to his employment andfinancial security; however, that is tempered in the analysis because Mr. Krzewinski has not taken steps to determine whether in fact hewill lose his employment if a conviction occurred. [32] I note Mr.

Krzewinski has acted consistent with a desire to resolve the matter in a timely way. I could not conclude, and there isno evidence to suggest, that he is one of those persons who have sought to delay the process in order to seek an advantage. [33] I consider the relevant time period to be assessed here as extending to the pending December 1st trial date. The period ofinstitutional delay at that point will be 18.5 months approximately. That is a period about double the guideline. [34] Judge Raven of this court conducted an analysis of cases in her recent decision in R. v.

Horner (2011 BCPC 211 , 2011BCPC 0211) earlier this year. She found impaired driving trials are routinely set with 13-to-15-month institutional delay. She inferredprejudice by virtue of a 20-month institutional delay in that case. In R. v. Hummerston (Surrey Registry #17344 Sept. 21st, 2011), JudgeBall of this court declined to infer prejudice in a case also involving a 20-month period of institutional delay.

There are cases going bothways in the 15-to-20-month timeframe of delay period in the Surrey courthouse. [35] This simply highlights, in my view, the importance of the analysis of the factors at play in each individual case. Certainly fromthe cases provided to me, at 19 to 20 months the inference of prejudice to be drawn has generally been strong. Judge Gulbransen inferredprejudice at 19 months in a case called R. v. Matson (2010 BCJ 2309). [36] Here, Mr.

Krzewinski faces an 18.5-month institutional delay during which he has established some actual prejudice, and I amalso prepared to infer prejudice. [37] In assessing the impact on Mr. Krzewinski's interests and the security of his person, I consider the collective weight of thosevarious heads of prejudice. I conclude that his interests in a timely trial in what I take to be a relatively straightforward prosecution mustoverride the community interest in a prosecution of this matter on its merits. I conclude his right under s. 11(

b) of the Charter to be triedwithin a reasonable time has been breached, and there will be a judicial stay of proceedings entered. (RULING CONCLUDED)