R. v. Mojzes Date:, 2013 BCPC 15

Citation: R. v. Mojzes Date: 20130109 2013 BCPC 0015 File No: 226076-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. GORDON JOHN MOJZES EXCERPTS FROM PROCEEDINGS RULING ON ADJOURNMENT APPLICATION OF THE HONOURABLE JUDGE P. MEYERS Counsel for the Crown: G. Harris Counsel for the Defendant: A. Asadi, Articled Student Place of Hearing: Vancouver , B.C. Date of Hearing: January 9, 2013 Date of Judgment: January 9, 2013

[ 1 ] THE COURT: This is an application for an adjournment of a trial which is set for Mr. Mojzes -- how do you pronounce, it, Mojzes? [ 2 ] MR. ASADI: Mojzes, I am sure I am massacring it myself. [ 3 ] THE COURT: Okay, you have not spoken to him, I gather? [ 4 ] MR. ASADI: I have, but -- [ 5 ] THE COURT: Okay. [ 6 ] MR. ASADI: -- I could not get it right. [ 7 ] THE COURT: This is an application by the Crown for an adjournment of Mojzes' trial. The trial currently is set for January 30th in this courthouse; the offence date is April 24th, 2012; the charge is that of drive-prohibited under the Motor Vehicle Act .

I am advised by both counsel that the Crown's current position is, should there be a finding of guilt, then the Crown will seek Mr. Mojzes to be incarcerated. [ 8 ] The history of this matter is that the alleged offence takes place April 24th, 2012, and then on June 28th, 2012, a trial date was set. The trial date was set for January 30th, 2013. Within a few days after the trial date was set, the Crown, through their method of notifying police officers as to the date for the trial, used a Form called Law Enforcement Notification Form.

That was sent out, I am told by the Crown in this case, several days after the June 28th, 2012 when the January date was set. [ 9 ] I can take Notice of the fact that the Crown Counsel in setting trial dates will have either themselves or the JCM - actually, I am not sure which one will have the dates of holidays booked by the officers as of the time the trial is being scheduled. [ 10 ] Now, Mr. Harris, which is it, is it the Crown who has that or the JCM who has the current state of affairs when the date is being set? [ 11 ] MR. HARRIS: Could you rephrase that, Your Honour? [ 12 ] THE COURT: Oh, okay, sure.

I know that when the dates are set, availability of witnesses is key. Who has that? Is that the Crown or the JCM when you punch in the police officer's number? [ 13 ] MR. HARRIS: Your Honour, the way it works is that typically both Crown and defence counsel attend at the JCM's and they seemingly have all the information with respect to judges' availability and police availability -- [ 14 ] THE COURT: So the JCM -- [ 15 ] MR. HARRIS: -- at their fingertips. [ 16 ] THE COURT: Right, so the JCM punch in the police officer's number and finds out when they are off -- [ 17 ] MR.

HARRIS: Yes. [ 18 ] THE COURT: -- so that you do not set the date. Okay. [ 19 ] MR. HARRIS: That is it, Your Honour. [ 20 ] THE COURT: All right. [ 21 ] So in that respect, on June 28, 2012, the officer who was an essential officer, was available according to the JCM record of police holidays. So a date is fixed for a time and place when all witnesses including the particular officer is available, that trial date set was January 30th, 2013. A considerable time later, the police officer advises the Crown that he has booked holidays and he is not able to come to Court.

This comes to the Crown's attention around October 12th, 2012. [ 22 ] The Crown then, after receiving the letter, write back to the officer saying, "Well, that's not good enough," essentially.

"You have to come to Court because we have a trial on January 30th, 2013." The Crown, I would assume, hearing nothing at all thereafter from the police officer, the Crown fairly would assume, "Well, the officer has been chastised and he is going to be here," but apparently that is not the case. [ 23 ] In mid-December, several months after the Crown wrote the letter to the officer, the Crown received a letter from the Court Liaison Officer, writing on behalf of the police officer and the Vancouver City Police saying, "Sorry, not so, the Collective Agreement that we have for police officers, has a stipulation in there that provided they give," I think, "four months' notice before the trial, they can book a holiday, notwithstanding a court date has been set and they will not have to come to court." [ 24 ] If we look at the date on which I am told the officer booked the holiday, he booked his holiday in September of 2012.

The trial was set for January 30th of 2012 [sic]. So, we have a situation here, where the date is set, the officer is available according to the JCM Records at the time the date is set on June 28, 2012. [ 25 ] Moving along, the officer saw fit in September of 2012 to book his holidays, he tells the Crown about it, early October 2012. Crown writes back a few days after that in October of 2012, telling him he must come. Nothing is told to the Crown until mid- December.

In mid-December 2012, the Court Liaison Officer advises the Crown about this business of the Collective Agreement and the officer will be going on holidays rather than coming to the Courthouse.

[26] The police officer in issue here, is a material witness. His name is Constable Billiers [phonetic] and he would be testifying thathe saw the Accused, Mojzes, driving his car on April 24th, 2012, in Vancouver. He checked his ID and confirmed his identity. Crownsaid that without Constable Billiers, they cannot prove their case. The Crown advised that there was another police officer in the carwith Billiers, but he is not able to duplicate the evidence of Billiers and, without Constable Billiers, the Crown's case cannot be proven. [27] The Crown is "inseverable".

That means whether the police officers or the government or Crown counsel, themselves areguilty of laches or misbehaviour of any kind, the Crown is the Crown. In practical terms, I think it is always important for a Court to bevery careful when laying blame, so that although "the Crown is the Crown," according to the law, that the Court be cautious in attributingspecific blame to a specific member of the Crown for what has happened in any given case. [28] In this case, I think clearly from what I have heard from Mr. Harris, he was on top of it, at all times.

He did nothing wrong andhe acted as quickly as he possibly could, when he became aware of certain matters. [29] However, the police did not operate, in my view, as diligently or as properly as they ought to have.

Now, again, when I say "thepolice", I do not attribute to Constable Billiers, necessarily, any personal wrongdoing because he, giving him the benefit of the doubt,probably honestly believed that if the Collective Agreement allowed him to book holidays even though Court dates were already booked,he felt legitimately, that he was able to do that. [30] The problem comes in the larger context of the police department and the Collective Agreement that the Police Union has withthe Vancouver City Police.

It is not for the Court to comment on whether it should or should not be contained in a collective agreementwhereby the officers can book holidays as long as they are four months before the trial date even when a trial date has already been set.

However, I have to deal with the facts the way they come to me and how I look at the Court System of Justice, given the particularbackground and timing on this particular case. [31] The Crown argued that an adjournment should be granted because the witness is a material witness, that we do know withcertainty, that at a future time, he will be able to come here and testify, and finally, that a replacement trial date, can be found quitequickly and indeed before one year passes from April 24th, 2012, until the new trial date. [32] With respect to the last part, I have already indicated to Crown Counsel that, without knowing what the availability of Courtsare, the availability of Defence Counsel, Crown Counsel, one cannot with any degree of certainty, say that we will get a date before toolong or at least before April of 2012.

Counsel for Mr. Mojzes indeed said their office is extremely busy and may not be able toaccommodate such an early trial date. [33] So, the whole issue of how soon a substitute trial date could be had, is really a big question mark and not enough informationhas been given to me to make that a serious consideration in whether or not to grant the adjournment. I do know in any event, whetherthe availability of an early trial date is a consideration on the issue of adjournment.

I am not at this juncture, satisfied that it is a properconsideration for granting or not granting an adjournment. [34] I only say that because when I look at the old case of Darville v. The Queen, (SCC), [1956] S.C.J. No. 82, theSupreme Court outlined some reasons which must ordinarily be established in order to entitle a party to an adjournment on the ground ofa witness not being available. At paragraph 13, the Court said: (

a) that the absent witnesses are material witnesses in the case; (

b) that the party applying has been guilty of no laches or neglect in omitting to endeavour to procure the attendance of thesewitnesses; [and] (

c) that there is a reasonable expectation that the witnesses can be procured at the future time to which it is sought to put off the trial. [35] It does not say that those are exhaustive conditions, but it is interesting that in the conditions that they did list, they did notinclude how soon another trial date could be had. [36] In this particular case, as I have said, I do not have enough information to even be able to say if it is a consideration, in practicalterms, that an early trial date could be set. It is clear that the witness is material.

It is also clear that the witness would be expected to beable to attend at some future time. [37] My concern comes with condition (b), that the party applying has been guilty of no laches or neglect in omitting to endeavour toprocure the attendance of these witnesses.

What I find here is that the Crown's system which they have adopted is in using the Formcalled, "the Law Enforcement Notification Form," which calls upon the Crown using the Judicial Case Manager's computer system toverify the availability of police officers, so that they do not set trial dates on times when the police officers are off for a whole variety ofreasons, be they annual leave, vacations, hospitalizations, or whatever. [38] The Crown rely on that method rather than having a subpoena issue to the police officers to require that they attend the trial.

Iam sure in practical and costs terms, the Crown have found this system of using Law Enforcement Notification Forms, rather thansubpoenas is far less cumbersome, time-consuming, and far less expensive than using subpoenas. I am not suggesting for a moment thatif the Crown find that the Law Enforcement Notification Forms work without a hitch 98 percent of the time, they should convert tosubpoena systems for police witnesses. That is not for me to say.

That is up to the Crown to do. [39] However, in this case, what happened was that system of using the Law Enforcement Notification Form and using the JCM'scalendar of police officer availabilities, has not worked. [40] Furthermore, when the Crown attempted to rectify the problem when they found out and they found out many months after the

setting of the date -- remember the date was set June 28th, 2012, the Crown were told in October of 2012 that that officer has booked holidays and not coming - the Crown did try to rectify the situation by writing a letter to the officer saying, "Look, you can't go, we have a trial date, you have to come." [ 41 ] The officer did not have the courtesy or at least he neglected to write back to the Crown counsel in October to say, "Well, this is my excuse and I'm not coming." He does not write back at all.

Somehow or other, it sits on somebody's desk until mid-December when a letter comes back to the Crown, saying, "We, in effect, prefer to follow our Collective Agreement rather than honour our commitment to the Court." [ 42 ] In my view, the actions of the police department fall within the category that was outlined in Darville as to "neglect" in their duty to endeavour to procure the attendance of witnesses at court. If the Police Department want to sign such a Collective Agreement, that is fine, they can do whatever they want.

I have no power over that, but what I do have power over is when we fix a court date and we do everything to accommodate the availability of the officer, as we try to do for any other witness, and we notify them in writing of the trial date, and then notwithstanding that, months go by and no one at the Police Department bothers to ask if the case can be adjourned, but simply books holidays, as far as I am concerned, that is not in keeping with the proper and expected way that the administration of Justice in this province, should work. [ 43 ] The defence have argued that there is a prejudice to the Accused by having to wait for a new trial date and not have his trial on January 30th.

The Crown argue that any alleged prejudice could be dealt with by a Charter argument later on, about breaching his right to a speedy trial.

Crown may be accurate in that, that such an application could be made later; however, I do consider in this case, the prejudice of the delay, without any further evidence from counsel, other than saying that his client is facing a potential jail term and that he has been waiting since June of 2012 to have this heard, will cause prejudice in that emotional anguish and concern he will experience because he cannot really get on with his whole life until he knows what is happening here. [ 44 ] I should note that the Crown said that, "Well, we have got him an early trial date, an exceedingly early trial date, as things turned out." I do not know whether that early date was at the insistence of the Accused but certainly it was with his cooperation.

That would indicate to me, that the Accused wanted to have an early trial date. Otherwise, he could have through counsel, made sure that he did not get the trial in such a big hurry. He did not do that. [ 45 ] So, I must assume that by consenting to such an early trial, that was in keeping with his desire to have an early trial date.

To have it further adjourned, is not in keeping with what appears to be his desire that get it over with as quickly as he can and be able to get back to his normal life as soon as possible. [ 46 ] I am considering his prejudice due to the delay as a factor of prejudice to the Accused. Mental anguish and stress would naturally be caused for anybody who wanted a quick trial, but finds they cannot get it. [ 47 ] The end result is that the adjournment request by the Crown, is denied. [ 48 ] I am going to leave the trial date of January 30, 2013, open and I am not cancelling it.

The Crown will have to consider what, if anything, they wish to do in terms of taking on the Police Department as to their holiday scheduling and/or their Collective Agreement. That is between the Crown, being the Crown counsel, and the Police Department, not as between the Court and the Crown or Police. The trial date of January 30th, remains. [ 49 ] It seems to me sensible, though, for there to be some date, not necessarily a formal appearance date, but some date on which the Crown must announce, "We are staying," or that, "We are going ahead." [ 50 ] MR.

HARRIS: Your Honour, the matter could be stayed out of Court and that could be communicated to Defence Counsel, but yes. [ 51 ] THE COURT: So I will just leave it to you, as experienced Crown counsel, to, on your own, communicate with Mr. Asadi if the case will be or will not be going ahead. If it is not going ahead, rather than bring everybody back here for some -- [ 52 ] MR. HARRIS: Of course, Your Honour. [ 53 ] THE COURT: -- formality. [ 54 ] MR. HARRIS: I think that that is a -- [ 55 ] THE COURT: All right. [ 56 ] MR. HARRIS: -- more efficient way of doing things. [ 57 ] THE COURT: Okay, thank you, sir.

Thank you, Mr. Harris. [RULING ON ADJOURNMENT APPLICATION CONCLUDED]