R. v. Strilaeff Date:, 2012 BCPC 293

Citation: R. v. Strilaeff Date: 20120822 2012 BCPC 0293 File No: 21369 Registry: Castelgar IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. JONATHON CHRISTOPHER STRILAEFF REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE MROZINSKI Counsel for the Crown: K. McGee Counsel for the Defendant: J. Gelber Place of Hearing: Castlegar , B.C. Date of Hearing: July 25, 2012 Date of Judgment: August 22, 2012

[1] On July 2, 2010, an information was sworn charging Jonathon Christopher Strilaeff with driving while impaired and over 0.8,as that is commonly known, on or about May 29, 2010, contrary to ss. 253(1)(

a) and (

b) of the Criminal Code. [2] Mr. Strilaeff’s trial on these charges commenced on July 25, 2012. On that same day, Mr. Strilaeff applied for an order stayingthese proceedings on the ground that his right to be tried within a reasonable time pursuant to s. 11(

b) of the Charter has been infringed. Because Mr. Strilaeff’s delay application did not proceed until the day of this trial, the trial itself also proceeded but was adjourned dueto shortage of trial time. These are my reasons in the delay application. [3] The issue in this application is whether the 24 months and 23 days that have elapsed between the dates Mr. Strilaeff wascharged to the date for this trial on July 25, 2012, constitutes an unreasonable delay such that a judicial stay of proceedings should begranted. That in turn requires a consideration of the reasons for the delay.

In the end, the question for this Court is whether theprejudice alleged to have been suffered by Mr. Strilaeff as a consequence of the passage of time since he was charged is sufficient tooutweigh the public interest in having this case determined on its merits. [4] In deciding this question, I have considered the purpose of s. 11(

b) as that was discussed by the SCC in R. v. Morin, (SCC), [1992] 1 S.C.R. 771. There the court held at paragraphs 26 to 29 that: 26. The primary purpose of s. 11(

b) is the protection of the individual rights of accused. A secondary interest of society as a whole has,however, been recognized by this Court. I will address each of these interests and their interaction. 27 The individual rights which the

section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3)the right to a fair trial. 28 The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure tocriminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result frompre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings takeplace while evidence is available and fresh. 29 The secondary societal interest is most obvious when it parallels that of the accused.

Society as a whole has an interest in seeingthat the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoythe confidence of the public. [5] In considering an application for a stay based on delay, the court is required to balance the interests s. 11(

b) is designed toprotect against factors which inevitably lead to delay. [6] The factors which must be considered in determining whether a defendant has been denied his or her s. 11(

b) right to a trialwithin a reasonable time are also set out in R. v. Morin at paragraph 31. In determining how much delay is too much delay, the courtsmust consider: 1. The length of the delay; 2. Any waiver of time periods; 3. The reasons for the delay including: (

a) Inherent time requirements, (

b) Actions of the accused (

c) Actions of the Crown (

d) Limits on institutional resources, and (

e) Other reasons for delay; and 4. Prejudice to the accused. [7] The length of the delay in this case as calculated from the time the information charging Mr. Strilaeff was sworn to the presentis, as noted, slightly less than 25 months. The very length of this period of time warrants an inquiry into its reasonableness. [8] The next question is whether and how much of the period of delay in this case can be attributed to the actions or inactions ofMr. Strilaeff and/or the Crown and/or the time requirements inherent in bringing a case to trial.

There is also the question of institutionaldelay and how much of the nearly 25 months that have elapsed must be attributed to that factor. In this regard, I have set out achronology of events relevant to this application. The Chronology [9] After being charged with these offences on July 2, 2010, Mr. Strilaeff made his first appearance in Provincial Court on July 21,2010. He was represented by Mr. McGee, who was acting as agent for Mr. Strilaeff’s counsel, Mr. Gelber. Parenthetically, neither tookissue with the fact that on this delay application, Mr. McGee was acting for the Crown. Mr.

McGee asked that the matter go over toSeptember 22, 2010 in Castlegar as Mr. Gelber was awaiting particulars and the 22 was a convenient date for his calendar.

[ 10 ] On September 22, 2010, Mr. Gelber advised the court that he had sought extensive particulars from the Crown following the decision of Truscott J. in R. v. Phagura , [2010] B.C.J. No. 1328 , which was released on July 2, 2010. A letter to that effect, dated September 13, 2010, was entered as an exhibit in this application. [ 11 ] As a result of his supplemental disclosure request, and particularly given the amount of disclosure sought, Mr. Gelber suggested the matter go over to October or even November, 2010. Ms. Patola, counsel for the Crown, advised that she had passed along Mr.

Gelber’s request for the Phagura disclosure to police and felt they would be able to respond in a few weeks. Judge Shupe adjourned the arraignment hearing, which he held had commenced, to October 13, 2010 to facilitate completion of disclosure. [ 12 ] On October 13, 2010, the so-called Phagura disclosure had not yet been provided and Mr. Gelber asked that the matter go over to November 17, 2010. [ 13 ] By cover letter dated October 21, 2010, the Crown indicated it provided to Mr.

Gelber the following material in response to his letter of September 13, 2010: Annual Maintenance Certificate Breath Test Log 7pg Certificate of Analyst Alcohol Standard Solution Change Cell Video/Police Radio 2 cds Log [ 14 ] On November 17, 2010, Mr. Gelber advised the court that he had received the Phagura disclosure material but had not yet reviewed it. He asked that the matter go over to January 19, 2011, for arraignment. [ 15 ] On January 19, 2011, Ms. Underwood appeared as agent for Mr. Gelber and advised that her instructions were that Mr.

Gelber was still waiting for further disclosure pursuant to Phagura. Crown asked on the record that Mr. Gelber advise them what had not been received as Crown had sent his office “quite a volume of material.” The matter was adjourned to February 23, 2011 for arraignment. [ 16 ] On February 23, 2011, Mr. Wylie appeared as agent for Mr. Gelber and advised that Mr. Gelber was waiting for the Phagura disclosure requested by letter dated September 13, 2010. Crown again advised that it had sent “a whole lot” of material to Mr. Gelber. At the same time, Crown acknowledged having received a letter from Mr.

Gelber dated January 19, 2011, but thought Mr. Gelber had been given the materials he sought. The Crown was obviously struggling to understand what disclosure Mr. Gelber was missing. The matter was adjourned again to March 16, 2011, when Mr. Strilaeff was again on notice that he had to complete his arraignment. [ 17 ] On March 16, 2011, Mr. Gelber appeared on behalf of Mr. Strilaeff and advised that he had received some Phagura disclosure which he had reviewed but was missing some material. He asked that the matter go over to April 20, 2011 to arraign. Mr.

Gelber advised he would send the Crown a letter regarding the missing items. [ 18 ] Mr. Gelber sent the Crown a letter dated March 18, 2011, in which he simply advised he still did not have a response to the extra disclosure requested. This would not have clarified for the Crown what materials Mr. Gelber was missing, which the Crown was convinced had been sent. The remainder of the March 18, 2011 letter is dedicated to questions arising out of the disclosure received. [ 19 ] On April 20, 2011, Mr. Westcott appeared as agent for Mr. Gelber and advised the court that Mr.

Gelber asked the matter to go over to May 18, as he was requesting some further information. [ 20 ] On May 18, 2011, Mr. Wyle appeared for Mr. Gelber and asked that the matter go over to June 22 as Mr. Gelber was awaiting further disclosure. As the matter had been on the list for some 300 days, a discussion ensued as to why it was taking so long to arraign. Crown advised as follows: Well I can tell the court that all the disclosure requested by Mr.

Gelber was provided and that resulted in yesterday receiving another disclosure request based on the disclosure and all I could do, because I didn’t really fully understand it all, was refer it to the person in charge of the instrument at the Castlegar detachment, and ask them to comment on the letter, and if they needed crime lab explanations, to let me know and I had to refer it to crime lab, and it’s more disclosure flowing out of the stuff already given to Mr. Gelber. [ 21 ] Mr. Gelber’s matter was put over to June 22 for peremptory arraignment. [ 22 ] On June 22, 2011, no one appeared for Mr.

Strilaeff and the Crown’s application for a warrant was adjourned to July 6, 2011, the next remand date in Castlegar. [ 23 ] On July 6, 2011, Mr. Gelber advised that he had requested further Phagura disclosure in April or May. Having checked the file that morning, he saw none but had a notation from Mr. Wylie that the Crown had indicated it would provide disclosure. Mr. Gelber added that even without the disclosure he would prefer to arraign “because we’re way into this” and entered a not guilty plea on behalf of Mr. Strilaeff to both charges.

The matter was adjourned to August 17, 2011, to fix a date for a one day trial. [ 24 ] On the disclosure issue, Crown asked that the record reflect it had answered Mr. Gelber’s last disclosure questions in a memo

dated May 18, 2011. Mr. Gelber asked Crown to resend the memo hoping that would answer his questions. [ 25 ] On August 17, 2011, Mr. Wylie appeared as agent for Mr. Gelber and fixed Mr. Strilaeff’s trial date for one day on April 26, 2012. The matter was adjourned to February 15, 2012 for the trial confirmation hearing. [ 26 ] On February 15, 2012, the parties confirmed their readiness for trial and Mr. Gelber advised he would be seeking a stay based on delay. [ 27 ] On April 26, 2012, Mr. Gelber sought an adjournment of the trial on the grounds that he had a scheduling conflict with the BC Supreme Court.

A new trial date was set for July 25, 2012 and confirmed on June 26, 2012. On that date, Mr. Strilaeff brought this application for a stay. [ 28 ] Mr. Strilaeff takes responsibility for the delay occasioned by his application to adjourn his trial and for the delay occasioned by his non-appearance at remand court in June, 2011. Other than that, Mr. Strilaeff submits that the Crown must bear full responsibility for the delay in his arraignment while he awaited the so-called Phagura disclosure. There is no question that in this case, the bulk of delay must be attributed to the near year time period it took for Mr.

Strilaeff to arraign. [ 29 ] The Crown submits that once inherent time requirements are factored out, as well as the time for arraignment, which it submits rests solely at the feet of Mr. Strilaeff, there is insufficient delay in this case to warrant any further delay analysis. [ 30 ] In support of his submission that the Crown must bear full responsibility for its failure to disclose the Phagura materials in a timely manner, Mr. Strilaeff cites R. v. Olson, [1993] B.C.J. No 3102 , a decision of Judge MacKenzie (as he then was) in which a stay was ordered on the basis of a delay of approximately thirteen months.

In Olson , Judge MacKenzie found at para 29 that the bulk of the delay was attributable to the Crown’s failure to disclose relevant material until some six days before trial necessitating an adjournment. I find that it was critical in Olson that the Crown offered no explanation for its failure to respond to many of defence counsel’s requests for particulars. I find this is a factor that distinguishes Olse n from this case. [ 31 ] In its October 21, 2010 response to Mr. Gelber’s September 13, 2010 letter, the Crown was clearly and obviously under the impression that it had met its disclosure obligations.

By his own admission, Mr. Gelber had not reviewed the disclosure package by the November 17, 2010 remand date and the matter was put over at his request to January 19, 2011. It was on that day that Mr. Gelber sent another letter to Crown which in light of the submissions in this case was oddly worded, as follows: Please be advised that following the recent decision of R. v. Phagura [2010] B.C.J. No. 1328 (B.C.S.C.) the Crown is now required to provide more disclosure than has been provided to date. Please regard this letter as our request for the following: 1.

All maintenance logs for the simulator BAC Datamaster C955071 in the same time frame; 2. The personal log of CST. Smith which documents all his breath tests conducted, transcribed from the breath test tickets of all breath tests he did on all subjects for the three month period prior to May 29, 2010;; 3. Proof of recertification or the proficiency test process for Cst. Smith including the last written exam of CST. Smith in this regard. We look forward to your timely response. [ 32 ] As written, the letter gives the impression that this is the first time the writer has sought such materials.

However, these same materials were sought in Mr. Gelber’s letter of September 13, 2010 and as late as February 23, 2011, the Crown was still clearly of the view that it had provided this material. In the March remand appearance, Mr. Gelber advised the court he would provide the Crown with a letter outlining what disclosure remained outstanding. That letter, as I have noted, did nothing to clarify what documents were missing from the Crown’s disclosure package. Nonetheless, by May 18, 2011, the Crown confirmed that all of the disclosure requested by Mr.

Gelber had been provided and Crown was then working on a supplemental request for disclosure based on supplemental disclosure. [ 33 ] Even despite not having received or at least reviewed that disclosure, Mr. Gelber concluded Mr. Strilaeff’s arraignment on July 6, 2012. [ 34 ] Mr. Gelber also submitted that in addition to the documents that were not disclosed by the Crown in a timely manner, he received late in the day cds containing video footage at the RCMP detachment office. The Crown submits that it provided those cds to Mr.

Gelber’s office in its first disclosure package under cover letter dated October 21, 2010, following Mr. Gelber’s letter of September 13, 2010. Mr. Gelber maintains he did not receive that material. Nonetheless, the Crown’s cover letter with its disclosure references the cds and on balance I accept that they were sent and perhaps misplaced. [ 35 ] The delay in this case is not attributable to lack of court time. Once Mr. Strilaeff arraigned, he obtained a trial date within eight months – a time well within the Morin guidelines. The question is why it took Mr.

Strilaeff so long to arraign and to which party, the Crown or Mr. Strilaeff, the delay ought to be attributed. [ 36 ] Mr. Gelber submits, as I have said, the delay is solely attributable to the Crown’s failure to disclose. In my view, in light of the Crown’s many statements that it had disclosed all of the materials requested by Mr. Gelber and did not understand what other documents he was seeking, the delay cannot be attributed solely to the Crown. The record in this case shows at best a desultory effort by Mr. Gelber to obtain supplementary disclosure based on Phagura . [ 37 ] To begin, it was Mr.

Strilaeff’s application to adjourn his arraignment hearing to September 22, 2010 after his first appearance on July 21, 2010. Nowhere does the record reflect any urgency on his part. On the September 22 remand date, Mr. Gelber sought to put the matter over for several months acknowledging that he had just asked for Phagura disclosure and acknowledging that it would take

some time. The Crown indicated disclosure could be done sooner and Judge Shupe accordingly put the matter over for one month. The matter nonetheless went over to November 17 at the October remand as the Crown had not yet disclosed. However, by October 21, 2010, the Crown had sent its disclosure package. On November 17, 2010, Mr. Gelber had yet to review it and asked that the matter go over to January 19, 2011. On that date, Crown was mystified as to what documents Mr. Gelber’s agent maintained were missing. Mr.

Gelber’s letter of January 19 set out three documents but as I have noted drafted the letter as if it were a supplementary demand. [ 38 ] On the February 23, 2011 remand the Crown again maintained that it thought it had provided the documents listed in Mr. Gelber’s January 19 letter to him further to his letter of September 13, 2010. [ 39 ] For whatever reason, Mr. Gelber chose not to arraign but rather to continue to adjourn the arraignment hearing over until July 6, 2011, when he arraigned on behalf of Mr.

Strilaeff even without having seen documents he thought might have been missing from his disclosure package. [ 40 ] I have sympathy for Crown’s submissions that at any point in this process it was open to Mr. Gelber to arraign on behalf of Mr. Strilaeff and bring an application for disclosure. To paraphrase Justice Brown in R. v. Purchase , 2012 BCSC 208 , at para 162 , Mr. Strilaeff’s failure to seek timely relief from what he now alleges was the Crown’s failure to disclose lessens any degree of prejudice he now alleges to have suffered arising from this delay.

Moreover, in my view, it goes to the very question of the reason for delay in this case which is that Mr. Strilaeff simply did not instruct his counsel to move quickly to arraign and get a trial date but rather was content with the pace of things as they dragged along. [ 41 ] I do not agree with Mr. Gelber’s submission that there was no need to bring an application for disclosure as the Crown kept insisting it would provide documents. The record clearly shows that the Crown had determined it had provided the documents requested.

A defendant seeking the earliest possible trial date would have moved quickly to explain to the Crown exactly what was missing. [ 42 ] I do not find on the record in this case that the delay from Mr. Strilaeff’s first appearance on July 21, 2010, to January 19, 2011, when Mr. Gelber advised the Crown what documents he was missing can be attributed to the Crown. Even then, Mr. Gelber knew as late as March 18, 2011 that the Crown took the position it had met its disclosure requirements. Mr.

Gelber knew the Crown was unable to ascertain which documents it had not sent and in March he undertook to provide the Crown with some clarification. His March 18, 2011 letter did not clarify matters on the face of it but nonetheless on the evidence it appears that whatever may not have been disclosed in relation to the September 13, 2010 request was no longer an issue by May 18, 2011. Even then, Mr.

Strilaeff did not arraign until July 6, 2011. [ 43 ] It was never clear on this evidentiary record whether the Crown provided additional documents between March 18 and May 18, 2011, in relation to the September 2010 disclosure request. However, assuming this was the case, I find in the circumstances that the Crown must bear responsibility for a two month delay from March 18, 2011 when Mr. Gelber advised by letter that the Crown was wrong to have concluded it had provided all of the documents he requested in September, 2010. I find Mr.

Strilaeff must bear responsibility for the delay from his first appearance to March 18, 2011, and from May 18, 2011 to July 6, 2011 when he finally arraigned. [ 44 ] When these two months are extracted from the time period, it is apparent that institutional delay in this case from the date of the swearing of the information to the time of Mr. Strilaeff’s trial date, excluding inherent time requirements of two months, is just slightly less than 12 months. Mr.

Strilaeff must bear responsibility for the adjournment of his April 26, 2012 trial date and I credit him with no further delay time following that adjournment. [ 45 ] The 12 month delay is outside the Morin guidelines for trials in Provincial Court and as such I must consider prejudice. As noted above, prejudice in this application must be examined by reference to the individual rights s. 11(

b) of the Charter is intended to protect; those being the right of life, liberty and security of the person. Given the nature of these charges, Mr. Strilaeff’s minimal release conditions, and the fact he made no personal appearances on this matter before his trial this July 25, 2012, in my view the only right that could arguably be at issue is Mr. Strilaeff’s right to security of the person. [ 46 ] I find nothing in this record, particularly given the delay attributable to the Crown or other institutional delay, on which to base a finding that Mr.

Strilaeff has been prejudiced in his ability to make full answer and defence. [ 47 ] In R. v. Morin , the court held that the right to security of the person is protected be seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. In some instances, when delay is not so extreme, the defendant bears the onus of proving prejudice. Where the delay is lengthy, prejudice can be inferred. In this case, given the delay is only a few months over the Morin guidelines for a trial in the provincial court, Mr. Strilaeff bears the onus of proving prejudice. [ 48 ] Mr.

Strilaeff filed an affidavit setting out various areas of concern given the time it has taken these charges to proceed to trial. He has averred that the stress associated with the uncertainty in this case has causes a recurrence of shingles.

Secondly, the delay has affected his work in that he has been unable to commit to certain responsibilities in the long term without knowing whether he will be convicted, and has missed out on a position simply because the case has not been resolved regardless of outcome. [ 49 ] In considering prejudice arising out of delay it is also relevant to take into consideration any action or non action by an accused with is inconsistent with a desire for a timely trial. In this case, I have found that the non-action on the part of Mr.

Strilaeff to move this matter to an early trial was cause for much of the delay. [ 50 ] I do not doubt that Mr. Strilaeff has been inconvenienced by this protracted process and his job may well have been affected. However it seems to me that any reasonable person in these conditions would proactively seek an early trial date. In this case, there is a noticeable lack of concern with the pace of the litigation.

As such, I infer no more than a nominal prejudice as a result of the passage of time. [ 51 ] When that nominal prejudice is balanced against the interest of society in seeing criminal charges disposed of on their merits, I

find there is no basis on which this court can order a stay of proceedings based on delay. [ 52 ] For these reasons, Mr. Strilaeff’s application for a judicial stay of proceedings is denied. ______________________________ The Honourable Judge L. Mrozinski