R. v. Gusberti, 2012 MBPC 1

CITATION: R. v. Gusberti , 2012 MBPC 1 Date: 20120104 IN THE PROVINCIAL COURT OF MANITOBA (Stonewall Centre) IN THE MATTER OF: The Criminal Code of Canada BETWEEN Her Majesty the Queen ) Deborah Carlson, Respondent ) for the Crown ) and ) ) Daniel Victor Gusberti ) Mark Wasyliw, (Accused) Applicant ) for the (Accused) Applicant ) ) ) Reasons for Decision delivered ) January 4, 2012 ) Guy P.J. ISSUE [ 1 ] Has the Applicant’s right to a trial within a reasonable time pursuant to

section 11(

b) of the Charter been infringed?

HISTORY OF PROCEEDINGS [ 2 ] The history of these proceedings is as follows: • Information laid November 4, 2009: • Count 1 – operating a motor vehicle while impaired; • Count 2 – operating a motor vehicle having consumed more than 80 milligrams of alcohol. • First appearance on December 21, 2009 in Stonewall Provincial Court - remanded to January 18, 2010. • On January 18, 2010 matter remanded to February 22, 2010 on Crown’s request to review and discuss with defence counsel. • On February 17 th Crown advised defence they were proceeding and the matter was adjourned from March 22, 2010 to April 19, 2010 to May 17, 2010 for the purpose of providing a trial date.

On May 17, 2010 a trial date was set for August 29, 2011 in Stonewall Provincial Court as the earliest date available.

• Correspondence indicates that defence counsel requested a trial date from the Crown on January 18, 2010. • On February 22, 2010 defence counsel requested a trial date if the Crown intended to proceed on the charge. • Correspondence from that point on dealt with trying to set a trial date in Stonewall Provincial Court. ANALYSIS [3]

Section 11(

b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonabletime. The primary, but not exclusive, purpose of s. 11(

b) of the Charter is to protect three individual rights: (1) liberty, by seeking to minimize the time spent by an accused person in pre-trial custody or under restrictive bail conditions; (2) security of the person, by seeking to minimize anxiety experienced by a person awaiting trial, as well as the stigma of exposure tocriminal proceedings; and (3) a fair trial, by attempting to minimize the deterioration of evidence necessary to enable the accused to make full answer anddefence. (See R. v.

Morin, (SCC), [1992] 1 S.C.R. 771 at 786.) [4] In Askov, (SCC), 1990 2 S.C.R. 1199, and Morin, the Supreme Court of Canada developed the factors to beweighed and balanced in determining whether there had been an infringement of s. 11(b). These include: (1) the length of the delay; (2) any waiver of time periods; (3) the reasons for the delay, including: (

a) inherent time requirements of the case; (

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. [5] As well, the interests of the accused must be balanced with the interests of society in law enforcement. The societal interest inhaving cases disposed of on their merits must be considered before concluding that a stay is warranted. As the seriousness of the offenceincreases, so does the societal demand that the accused be brought to trial. In this case the charge is impaired/over .08.

LENGTH OF DELAY [6] The overall length of the delay in this case is of sufficient length to raise an issue as to its reasonableness and a deeper inquiryis justified. [7] The Information was laid November 4, 2009 and the trial date of August 29, 2011 set and the evidence heard and completedon that date, a total of 21 months. WAIVER OF DELAY [8] There was no waiver of delay in the facts of this case. REASONS FOR THE DELAY

A) Delay that is inherent in the proceedings [9] The Crown argues that November 4, 2009 until March 22 of 2010 should be characterized as inherent delay attributable tointake procedures. [10] As the case law indicates, the unreasonable delay in such cases cannot be determined on some mathematic formula. I note thatboth in January and February the defence requested a trial date but no trial date was obtainable till April and set May 17, 2010. [11] The matter was a

summary conviction proceeding requiring one day for hearing.

B) Delay attributable to the accused [12] I can see no action on the part of the accused that contributed to the delay. Defence requested a trial date as of January 18,2010. [13] In R. v. Smith, (SCC), [1989] 2 S.C.R. 1120, Justice Sopinka was of the view that the obligation lies on the

Crown to bring a case to trial. He said (at page 1136): ...Admittedly an accused’s conduct must be taken into account in assessing the prosecution’s explanation for delay. There is noobligation, however, on the part of the accused to press the case on, which relieves the Crown of its obligations under s. 11(b).

C) Delay attributable to the Crown [14] No delay is attributable to the individual Crown.

D) Limits on institutional resources [15] The 17 months from March 22, 2010 to August 29, 2011 is institutional delay in the sense that the trial date was the earliestavailable for the Stonewall Provincial Court to hear this case. [16] A factor to be taken into consideration is the fact that this rural circuit point takes place once a month unless a special sitting isset. Local circumstances therefore must be taken into consideration. [17] In the words of Sopinka J., in dissent in the result, in R. v.

Conway, (SCC), [1989] 1 S.C.R. 1659 (at page1713): ...A crowded trial calendar is not the accused’s fault and it should not be charged against his constitutional right. [18] R. v. Barkman (T.K.), 2004 MBCA 151, 190 Man.R. (2d) 75 at paragraph 22 held that systemic delay, whether caused byinadequate resources or otherwise, weighs against the Crown.

E) Other reasons for delay [19] No other reasons are alleged in this case for the delay. PREJUDICE [20] In Rahey v. R., (SCC), [1987] 33 C.C.C. (3d) 289 (S.C.C.), the Court said (at para. 22): As regards the security of the person, I am of the view that, in the context of s. 11(b), the concept of security of the person should not berestricted to physical integrity. Rather, it should encompass protection against "overlong subjection to the vexations and vicissitudes of apending criminal accusation" (Anthony G. Amsterdam,"Speedy Criminal Trial: Rights and Remedies" (1975), 27 Stan. L. Rev. 525, at p.533).

These vexations and vicissitudes include stigmatization of the accused, loss of privacy, stress and anxiety resulting from amultitude of factors, including possible disruption of family, social life and work, legal costs, and uncertainty as to the outcome andsanction. [21] These factors may be present in most criminal prosecutions but in this particular case the accused’s affidavit indicates factorssomewhat unique to his circumstances. [22] The accused argues that being a third year medical student a conviction would have a significant impact on his career withrespect to entry in a residency program where his chances may be diminished in getting into his residency of choice. [23] More significantly, in my view, with respect to the prejudice such lengthy proceedings may cause is the fact as a result of beingcharged he has had to disclose his arrest and court status with faculty members, the College of Physicians and Surgeons and admissionsstaff.

The accused has had to repeat this process on a number of occasions and keep them apprised of his court status. He has beensubjected to full drug screens including blood and urine testing and been made to take several counselling sessions to ensure that hismental health has not deteriorated. This is above the usual stigmatization for being charged due to his unique circumstances (seeAffidavit of Daniel Gusberti).

Of course the delay associated with the charges has augmented his prejudice. [24] It is still the law that prejudice can be inferred from delay alone and is most likely to be inferred where the accused’s actionshave not contributed to the delay. It is not irrebuttably presumed to be so. It only permits an inference. [25] Despite Justice Sopinka’s comments in Smith, inaction by the accused to press for an earlier trial date may mitigate against thepurported prejudice suffered by the accused.

Therefore lack of complaint can be relevant to the issue of prejudice. [26] In this case it appears despite asking for a trial date at an early opportunity, the second court appearance, this was the only dateavailable due to institutional resources and thus accepted.

SOCIETAL INTEREST [27] In Morin, McLachlin J., as she then was, said (at page 812): Where the accused suffers little or no prejudice, it is clear that the consistently important interest of bringing those charged with criminaloffences to trial outweighs the accused’s and society’s interests in obtaining a stay of proceedings on account of delay, because theconsequences of the delay are not great. On the other hand, where the accused has suffered clear prejudice which cannot be otherwiseremedied, the balance may tip in the accused’s favour and justice may require a stay.

CONCLUSION [28] The only question that must be answered is whether, in all the circumstances, the constitutional right of the accused to be triedwithin a reasonable time has been infringed.

[ 29 ] The computation of 17 months is only one factor to be considered. [ 30 ] A judicial stay should only be granted in the clearest of cases. [ 31 ] It is concerning, as expressed in earlier cases, that delays of this nature seem to be viewed as acceptable.

For example, in realizing the time that had passed prior to the date being set and then considering the August 29 , 2011 trial date, no effort was made to priorize a relatively simple, one-half day impaired driving case, such as requesting a special sitting. [ 32 ] This, in light of what I find to be actual prejudice to this accused in the circumstances of this case. [ 33 ] In considering all of the circumstances the result is one of those clearest of cases that call for a judicial stay. Original signed by Judge J. P. Guy P.J.