R. v. Lauber, 2012 MBPC 12

CITATION: R. v. Lauber , 2012 MBPC 12 Date: 20120123 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) A. L. K. Pejovic and A. S. Littman, ) for the Crown ) and ) ) ) James Harold Lauber ) M. Wasyliw, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) January 23, 2012 ) Preston P.J. [ 1 ] Mr. Lauber was arrested August 28, 2009 and charged with driving over the legal limit of alcohol in his blood. The Information was sworn on September 21, 2009. The Crown elected to proceed summarily. [ 2 ] The issue for the Court is whether Mr.

Lauber has been tried within a reasonable time and if not, what is the appropriate remedy? HISTORY OF PROCEEDINGS [ 3 ] Mr. Lauber’s charges first appeared on a Provincial Court docket in Stonewall on October 19, 2009. Defence counsel Mr. Wasyliw requested disclosure and the matter was remanded to the November sitting in Stonewall Provincial Court. The matter was again remanded for discussions to the next sitting of the rural docket court. [ 4 ] On December 18, 2009, three days before the docket day of December 21, 2009 in Stonewall Provincial Court, defence counsel advised the Crown in writing via e-mail of Mr.

Lauber’s position. Mr. Wasyliw made it clear that his intention was to set the matter down for trial. Defence counsel specifically outlined to the Crown via e-mail that the arresting officer sat in his cruiser and took notes after detaining Mr. Lauber and thus did not administer the ASD “forthwith”, thereby unduly delaying the testing process. As such, defence counsel alleged that the seizure of Mr.

Lauber’s breath samples was unreasonable and the evidence should be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms (hereinafter referred to as the “ Charter ”). [ 5 ] Defence counsel was told that a second Crown, Mr. Brennan, was to be assigned the Lauber prosecution in January, 2010. Therefore, defence counsel corresponded with the second Crown on December 21, 2009, advising Mr.

Brennan that a one-day trial was required and clearly outlining yet again the defence position, including reference to both the “forthwith” and Charter arguments. [ 6 ] Further requests were then made by defence counsel for trial dates. The Crown requested an adjournment of the matter from

the Court in January, February and March, 2010 on three separate appearances in Stonewall Provincial Court. On April 16 , 2010, the Crown still had secured no trial date and requested an adjournment of the charges to May 17, 2010. Finally, on April 27, 2010 the Crown told defence counsel that the earliest trial date available for the accused was July 25, 2011. The matter was set down on May 17, 2010 for a trial date of July 25, 2011. Thus, it took over four months, from December 18, 2009 to April 27, 2010, to secure a trial date from the Crown.

At the May, 2010 docket Court, the trial date of July 25, 2011 was set. Clearly, the Crown, Mr. Brennan, was aware of the anticipated defence at the time the trial was set. [ 7 ] Unbeknownst to defence counsel, a third Crown, Ms Littman, assumed conduct of the Lauber prosecution. Five days prior to trial, Mr. Wasyliw sent over an index to a book of case law to Mr. Brennan on July 20, 2011. Five minutes later, Mr. Brennan sent a brief e-mail to defence counsel telling Mr. Wasyliw that Ms Littman was now prosecuting the case. Ms Littman received a copy of this e-mail from Mr. Brennan.

At 4:35 p.m. on July 20, 2011, Ms Littman sent an e-mail to defence counsel asking if there was a Charter argument and whether Mr. Brennan was aware of it. The following morning, Mr. Wasyliw e-mailed Ms Littman with a copy of the e-mail he had sent to Mr. Brennan back in December, 2009. [ 8 ] The matter appeared for trial on the morning of July 25, 2011. Ms Littman requested and the Learned Trial Judge in his discretion granted an adjournment on the date of the trial after Ms Littman argued and the Judge agreed that she had not received a formal notice and application and a memorandum from defence counsel.

A transcript of the Record of Proceedings confirms that defence counsel put the Crown on notice that they planned to make an Askov motion at the “next hearing”. In other words, defence counsel would be asking the Court for a C harter remedy on the basis of delay. [ 9 ] In fact, the next hearing was a new trial date of December 19, 2011, some five months later. I heard the delay application and the trial that day. Defence counsel argued before me that the charges ought to be dismissed on the basis of unreasonable delay. I reserved on that motion which was opposed by the Crown and heard the trial evidence.

The entire trial evidence took less than two hours to hear. AUTHORITIES [ 10 ] Both parties filed a number of precedents, which are helpful for broad principles. Each decision is factually distinguishable. The timing of each relevant event in and out of Court varies from case to case: for instance, the Miller decision referenced by the Crown in its submission. In Miller, no application was made by the accused to obtain an earlier trial date and the delay application was filed just prior to trial. In this case, the application for delay was initiated on the day the original trial date was adjourned.

ARGUMENTS [ 11 ] The Crown has argued that defence counsel acquiesced to the setting of the first trial date and made no Askov motion prior to trial.

The Crown submits that the accused waived any claim for unreasonable delay by “agreeing” to the original trial date of July 25, 2011 and impugns counsel with an attempt to avoid a trial on the merits as opposed to a desire to move the case along expeditiously. [ 12 ] The Crown also argues that the first trial had to be adjourned because the accused did not provide the Crown with his Charter argument in a timely manner, and therefore the Crown submits that the defence ought to bear the responsibility for the delay which resulted when the trial had to be adjourned. [ 13 ] The Crown asks the Court to attribute what amounts to a number of months prior to the trial as reasonable and necessary for preparation for the trial. [ 14 ] The Crown has argued that not all the transcripts have been provided with respect to each of the remands.

ANALYSIS [ 15 ]

Section 11(

b) must not be used as a weapon, but as a protective shield, as Mr. Justice Cory stated in the Askov decision from the Supreme Court. The purpose of this

section is to expedite trials, minimize prejudice but not to avoid a trial on the merits. In this case, Mr. Wasyliw made it clear from the outset that Mr. Lauber wanted a trial on the merits.

Furthermore, his vigorous opposition to the adjournment of the trial of the matter in July of 2011 spoke volumes of his desire to have the case heard on the merits. [ 16 ] The Godin decision directs the court to balance all factors, including the complexities of the case, the reasons for delay and the actions of the defence. [ 17 ] The Supreme Court in the Morin case gives courts guidance to determine whether there has been an unreasonable delay, having regard for the interests being protected, the explanation for delay and any prejudice to the accused.

The length of the delay [ 18 ] I conclude that the delay from the first stated desire to set the matter for trial, December 2009, to the hearing of the trial in December of 2011, a period of approximately two years, invites the scrutiny of the Court: there is an issue as to its unreasonableness. [ 19 ] I find that the Crown bears the responsibility, firstly in the delay of four months to set the matter for trial and, secondly, for not advising Mr. Wasyliw that a new Crown had taken over the prosecution. It is difficult to conclude that the first two Crowns did not have sufficient notice.

The situation may have been different for Ms Littman. The Learned Trial Judge was entitled to and did grant Ms Littman an adjournment and order counsel to formalize his Charter application. Depending on the context, the Court can and does direct counsel to file certain materials, be it in a case management context or indeed on the day of a trial. That, however, does not absolve the Crown of its responsibility to keep its own prosecutors abreast of the files they are taking over and of its responsibility to advise defence counsel of a change of Crown counsel. Mr.

Wasyliw was given no indication prior to the day of the trial that the Crown would seek an adjournment. Had Mr. Wasyliw been made aware that Ms Littman was planning to seek an adjournment on the day of trial, he may have made a delay motion on the day of the trial. It is a moot point.

[ 20 ] The Crown argues that the Court ought to declare as a reduction of the period of delay attributable to systemic or institutional delay by “four or five months” for the “intake period and time required for both sides to prepare for trial”. In the particular context of this case, I cannot agree. This one-witness case is not complicated. This matter is not one of those overly-complex cases that require such intensive preparation. This is a

summary conviction matter. The entire trial took less than half a day and the issue is one which the Court deals with on a regular basis, as do the Crowns. Was there a waiver of the delay? [ 21 ] I conclude that at no time was there a waiver of any delay. I agree that defence counsel agreed to the setting of the first trial date, but “acquiescence” to the setting of a trial date in the context of a rural court circuit does not always equate to “waiver” in the context of delay.

Unlike the conduct of defence counsel in the Barkman decision, it cannot be said here that defence counsel was responsible for much, if any, of the delay. In some instances, the court can infer that the right to subsequently allege delay has been waived by conduct. That is not the case here. Almost at the outset, defence counsel requested a trial.

Moreover, the Crown’s contention that the failure on the part of defence counsel to provide alternate, earlier trial dates being “inconsistent with a desire to move the case along expeditiously” and “consistent with a desire to avoid a trial on the merits” is simply not applicable to these circumstances and somewhat ironic. As far as the conduct of the accused is concerned, clearly this is not the case. The matter was set for trial by defence counsel and his grounds were outlined in e-mails over a year before the trial occurred.

These were not actions that would constitute anything resembling an attempt to avoid a trial on the merits. Reasons for the delay [ 22 ] As I have stated, after the defence request for a trial date, I attribute most of the delay to the Crown. Defence counsel did not provide a formal Charter application and memorandum to Ms Littman. The Learned Trial Judge, in fairness to Ms Littman’s request for formal notice, allowed an adjournment for that purpose. That does not absolve the Crown of delay in its own processes. [ 23 ] There are obvious limits on institutional resources.

The matter was to proceed in a rural court. A special sitting needed to be arranged. However, it took the Crown over four months to secure a trial date. This delay is attributable to the Crown. Similarly, the trial date was a further 14 months down the road. This delay cannot lie at the feet of Mr. Lauber. The further four and a half month delay to the eventual hearing of the matter simply added to the delay. From December 18, 2009 to July 25, 2011, a period of 19 months, the Crown is responsible for the delay. Prejudice [ 24 ] Mr. Lauber filed an affidavit in support of his application.

A conviction will have a significant impact upon his career as a surveyor’s assistant. He requires a driver’s licence to conduct his work. In short, he swears that the wait for the trial has been, in his words, “excruciating”. There is no corroboration of these assertions. However, Mr. Lauber undoubtedly wanted the matter dealt with expeditiously and was denied that right. [ 25 ] Prejudice can in some instances be inferred from delay and the passage of time. There was at the outset a request by Mr. Lauber for a trial at the earliest opportunity. The passage of two years has had a prejudicial effect in this case.

I cannot conclude that Mr. Lauber has suffered little or no prejudice. In some instances, stronger or corroborated evidence of prejudice is called for. When I balance all factors, prejudice is not the deciding factor here. It is but one of the factors. Transcripts [ 26 ] The Crown maintains that all transcripts of all the various remands and court appearances on this matter must be made available for the Court’s perusal. That may well be the case in some instances.

The Record of Proceedings contained in the evidence filed by both Crown and defence contains all the relevant information for this Court to make its decision. For instance, the record shows the entry of “set for trial” as the stated event for the Stonewall docket remands. The uncomplicated nature of these proceedings does not demand scrutiny of uncontentious docket appearances. [ 27 ] It is conceded that no notice of an Askov motion was given until the day of the first trial. All relevant matters that pertain to the setting of the trial date and discussions between counsel have been set out.

The relevant transcript is that of the first trial proceeding. All these cases stand on their own set of facts. In this case, the various remands were uncontentious. The course of these proceedings is clear from the Affidavits filed by both counsel. [ 28 ] As an aside, some of the e-mails attached as part of the Affidavit evidence of the legal assistant of Mr. Wasyliw are irrelevant. It is preferable to only include correspondence relevant to the proceedings in such an Affidavit. CONCLUSION [ 29 ] Our Manitoba Court of Appeal in the George decision confirmed that the onus is on Mr.

Lauber to establish on a balance of probabilities that the delay is unreasonable. When I balance all the factors, as I must, I conclude in all the circumstances of this case that the constitutional right of Mr.

Lauber to be tried within a reasonable time has been infringed. [ 30 ] This Court must decide whether this is one of the “clearest of cases” where a judicial stay is warranted. [ 31 ] It is of concern to this Court that a delay of 18 months from a request for a trial to the actual trial followed by a further five months for the setting of a relatively uncomplicated, one-witness, drunk driving case is viewed as acceptable. [ 32 ] The matter is a relatively uncomplicated

summary conviction proceeding. These types of charges, drinking and driving offences, are of grave concern to the Court on behalf of the public. Society looks to the Court to adjudicate these matters on their merits and deal with offenders accordingly. However, society also has an interest in a trial on the merits taking place within a reasonable time. In these circumstances, almost from the outset, the actions of the Crown, the desire of Mr. Lauber to have the matter heard and resultant

prejudice to Mr. Lauber all leads to the conclusion that the appropriate remedy is a stay of proceedings. Original signed by Judge T. J. Preston P.J. APPENDIX Authorities filed by the Crown R. v. Barkman (2004), 2004 MBCA 151 , 190 Man. R. (2d) 75 R. v. Caribou (2009), 2009 MBQB 9 , 235 Man. R. (2d) 163 R. v. Djevdet, [1998] O.J. No. 3983 R. v. Franklin (1991), (ON CA), 3 O.R. (3d) 597 R. v. George (2006), 2006 MBCA 150 , 208 Man. R. (2d) 300 R. v. Godin, [2009] 2 S.C.R. 3, 2009 SCC 26 R. v. Kingwatsiak, 2007 CarswellNun 28 R. v. Lahiry; R. v. Carreira; R. v. Davidson; R. v. Shelson, 2011 ONSC 6780 R. v.

M.(T.) (2008), 2008 MBPC 48 , 235 Man R. (2d) 1 R. v. MacPherson (1999), 1999 BCCA 403 , 127 B.C.A.C. 49 R. v. McKay (2008), 2008 MBQB 106 , 227 Man. R. (2d) 244 R. v. McNeilly (2005), (ON SC), 129 C.R.R. (2d) 366 R. v. Miller (2000), 2000 BCCA 680 , 149 B.C.A.C. 161 R. v. Porter (2002), 2002 BCCA 355 , 170 B.C.A.C. 77 R. v. St. Germain (1999), (MB KB), 139 Man. R. (2d) 153 R. v. White, 2005 CarswellOnt 7885 Authorities filed by defence R. v. Askov, (SCC), [1990] 2 S.C.R. 1199 (SCC) R. v. Morin, (SCC), [1992] 71 C.C.C. (3d) 1 (SCC) R. v. Marstar Trading, (ON CA), [1999] 138 C.C.C. (3d) 87 (ONCA) R. v.

Rahey, (SCC), [1987] 33 C.C.C. (3d) 289 (SCC) R. v. Junkin, 2011 MBQB 170 R. v. Trotter, 2011 MBPC 46