R. v. Bidiak, 2011 ONCJ 127

Information No. 07-805 Citation: R. v. Bidiak , 2011 ONCJ 127 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. IHOR BIDIAK R E A S O N S F O R R U L I N G BEFORE THE HONOURABLE JUSTICE B. E. PUGSLEY on February 28, 2011, in ORANGEVILLE, Ontario APPEARANCES : J. Rodger Counsel for the Crown F. Fedorsen Counsel for Ihor Bidiak FORM 2 Certificate of Transcript Evidence Act, Subsection 5(2)

I, Susan Henderson, certify that this document is a true and accurate transcription of the recording of Her Majesty the Queen v. Ihor Bidiak held at Ontario Court of Justice, 10 Louisa Street, Orangeville, Ontario on February 28, 2011, taken from Recording Nos. 101- 76/11 and 101-77/11 which has been certified in Form 1. ________________________ ___________________________ Date (Signature of Authorized Person) MONDAY, FEBRUARY 28, 2011 REASONS FOR RULING – PUGSLEY, J. : Mr. Bidiak faces a single count of driving with excess alcohol. The date of the alleged offence is June 9 th , 2007. Today is February 28 th , 2011. The defence moves for a stay of proceeding, pursuant to

Section 24 of the Charter, alleging a breach of

Section 11(

b) of the Canadian Charter of Rights and Freedoms . The Crown properly concedes that the overall delay here invites inquiry by the Court. Unfortunately, the defence

Section 11 (

b) application was brought on the day scheduled to continue the trial, rather than before today as has been the past direction of this Court. As a result, three quarters of the day that was set aside for this trial was taken up by the submissions and my decision on this application. Defence counsel concedes that if I render my decision here against the Applicant, the trial will not complete today causing further delay. And I note, it is now 3:30 and I am starting my decision. The irony of this was commented on during submissions and is apparent to

everyone. As may be divined from the total delay here, this matter has had a tortured history through the court system. The alleged offence date was June 9 th , 2007. The information was sworn on the 26 th of June, 2007, and on July 5 th , 2007, the defendant had has first court appearance in the Assignment Court. On that date, the defence requested a lengthy adjournment to prepare a toxicological report. On August 2 nd , 2007, the defence asked for an adjournment to August 30 th , 2007, to provide certain medical reports. On August 30 th , 2007, the defence asked to come back on September 27 th of that year.

On September 27 th , 2007, the Crown acknowledged having received the defence toxicological report but had not yet reviewed that report. The defence asked for October 25 th , 2007. On October 25 th , 2007, the defence advised the Court, still the Assignment Court, that a Crown pre-trial meeting had been scheduled but had had to be cancelled by the Crown and the matter was then adjourned to November 22 nd , 2007, to allow for that meeting to be re- scheduled. On November 22 nd , 2007, the defence asked for an adjournment to December 20 th , 2007, and spoke of a waiver, albeit in passing.

The matter was adjourned to December 20 th , 2007, to set a trial date pre-emptory. On December 20 th , 2007, the Assignment Court was advised by the defence that a Crown pre-trial meeting had been set for January 9 th , 2008, and that the defence would like the matter to come back on January 24 th , 2008, to set a date. No mention was made of the fact that it was pre-emptory on the 20 th of December. On January 24 th , 2008, a trial date, October 17 th , 2008, was set for a four hour trial.

The verification of trial date from the Orangeville Trial Co-ordinator disclosed that the parties were offered earlier trial dates here, all in 2008; February 1 st , February 20 th , March 12 th , August 20 th , October 2 nd and October 17 th . March 12 th and October 17 th were available to the Crown, October 2 nd and 17 th to the defence. October 17 th , 2008, was selected with a confirmation date of July 31 st , 2008.

In this jurisdiction, counsel, or a properly instructed agent of counsel, and the defendant are required to attend before the court well before trial to confirm the parties’ joint readiness for trial and that the time set aside for trial was appropriate. Confirmation dates are held in a judge’s duty court, allowing judicial input, if requested by counsel, by way of a continuing or scheduled judicial pre-trial. Orangeville is a small, two judge judicial centre which nonetheless is very busy.

For well over a decade, this process has been used to enable the court to husband our relatively scarce resources by making sure that matters scheduled for trial time actually go to trial, if possible. When a trial does not proceed as scheduled, there are few options for the court scheduled to hear that trial since there are rarely more than two criminal courts running at the same time in this building. Unlike other bigger court settings, we cannot draw cases from other courts on a regular basis, even assuming that the other Orangeville judge did not conduct a judicial pre-trial in that particular case.

On July 31 st , 2008, counsel’s agent and the defendant appeared before the court and confirmed that the trial would be proceeding as scheduled on October 17 th , 2008, and would not take more time than the four hours scheduled for trial. Between July 31 st and October 14 th , 2008, the defendant changed his mind about this. On October 14 th , 2008, three days before the scheduled trial date, counsel for the defendant, not Mr. Fedorsen or Mr. Little, appeared before Justice Maund requesting an adjournment of the trial.

That adjournment request was based upon an alleged uncertainty in the law caused by the passage of Federal Bill C-2 and a request that the Bidiak trial be adjourned pending definitive appeal court guidance on the Bill C-2 issues, notably, the retrospectivity of the law. The Crown did not consent to the adjournment and Justice Maund, in brief reasons, refused the motion. On October 17 th , 2008, Justice Mitchell from Hamilton attended at this courthouse to preside over the Bidiak trial.

The record suggests that defence counsel was late arriving at court and then required a delay to obtain a fax transmission sent through the court office on his behalf. Counsel advised, upon the court resuming, that a defence witness was missing and was, as counsel put it, “Not really fit to attend court this morning”. A faxed prescription pad note from a medical clinic is attached to the information to this affect, dated the morning of the trial. Counsel also revisited with Justice Mitchell the adjournment request that had been dismissed by Justice Maund some three days before.

In the event, while the parties canvassed the possibility of commencing the trial with the Crown witnesses, the defendant waived

Section

11 (

b) delay and as a visiting judge, Justice Mitchell, now I should observe fully retired, understandably did not wish to become seized of the trial. The defence also stated that their witness would not be able to attend court until “further notice”. With a clear

Section 11 (

b) waiver, the matter was adjourned at defence request to October 30 th , 2008, to seek a new trial date. Notably, although counsel’s agent had confirmed that four hours was an appropriate time trial length on the 31 st of July, 2008, defence counsel had by now advised the court on the 17 th of October, 2008, (perhaps a cynical person would say to enhance the chances of getting a complete adjournment from a visiting judge) that “this matter will in all likelihood take at least a full day”. On October 30 th , 2008, the matter was addressed in Assignment Court, once again, to select a new trial date.

In the interim however, the defendant had changed counsel, retaining Mr. Fedorsen. The matter was adjourned, at defence request, to November 20 th , 2008, with an 11(

b) Charter waiver on the record. On November 20 th , 2008, Mr. Fedorsen’s agent attended before the court in the set date court. There was considerable confusion on the part of the defence who believed that Mr. Bidiak’s matter was up for first appearance and that disclosure had not yet been provided. The defence asked to adjourn the matter to December 11 th , 2008, to allow the defence to get up to speed. On December 11 th , 2008, the defence asked to set a date for a judicial pre-trial. Dates were offered as early as the next day, but the defence selected December 19 th , 2008.

On that date, a judicial pre-trial was held before Justice Maund. This is notable since Justice Maund and I are the two resident Orangeville judges in the Ontario Court of Justice. When Justice Maund did the pre-trial, his available trial dates could no longer be considered for this defendant’s trial. After the judicial pre-trial, defence counsel stated that they were seeking a day for a disclosure motion, “a four hour at the most”, motion. That date and the date for the trial proper to continue were not set on December 19 th , 2008, due to the bad weather that day.

Rather, the matter was adjourned to January 8 th , 2009, to set the day for motion and trial. On January 8 th , 2009, two dates were to be set, the motion date and the trial date. Instead, only the motion date was set for December 10 th , 2009. The issue of the trial date was put off to be considered on April 30 th , 2009. Eight dates were offered by the court for the disclosure motion from as early as January 29 th , 2009, to December 10 th , 2009. None of those dates, save the last date, were available to the defence. One half day was set for the motion at the request of counsel.

On April 30 th , 2009, the matter was spoken to. Counsel did not seriously put their minds to securing a trial date for the timeframe after the disclosure motion, relying instead on the hope that a comprehensive decision in another court would come down before December 10 th , 2009, such that the motion date could be converted into a date to continue the trial. Without demur by the Crown, September 17 th , 2009, was scheduled to be spoken to to provide an opportunity for the law to be clarified in the interim.

On September 17 th , 2009, it was conceded that there was no clarity forthcoming on the disclosure issue, and December 10 th , 2009, was simply confirmed for the motion. No one thought to

schedule the trial date which would in any event be necessary regardless of the success or failure of the disclosure motion. On December 10 th , 2009, the defendant pled not guilty and the trial commenced before me with the motion scheduled for four hours, “at the most”, and set for half a day. The motion was not completed on that date. Instead it was adjourned to February 5 th , 2010, to continue for a further five hours, one hour more than the entire motion was to take, “at the most”. Three earlier dates were available to the Crown and the Court but not to the defendant.

Also on December 10 th , 2009, the long delayed trial date to continue the trial proper was scheduled for September 27 th , 2010. Dates in April, June and August were available to the Court for what was now set as a one day trial.

I recapitulate that the original time trial estimate, including all motions, was to be four hours. The Crown was available to attend the April and August dates but the defence was not. When September 27 th , 2010, was set for the continuation of the trial, the defence complained about the delay and the Crown offered to backfill the Bidiak matter if that would help. On January 4 th , 2010, my wife learned that her breast cancer, in remission for eight years, had metastasized. She died less than five months later.

I was not available to continue the motion on February 5 th , 2010, and the defence motion was adjourned to the 29 th of June, 2010. Five earlier dates were made available to counsel by the Court, only the last was available to the defence. In retrospect, I would not have been available until the last week of May, 2010, in any event. On June 17 th , 2010, counsel appeared before me to confirm the trial date and also the date to continue the defence disclosure motion. Both were confirmed as ready to go. On June 29 th , 2010, defence counsel was ill and the matter could not proceed.

Rather than canvass dates for the ultimate trial of the matter to continue, the day set for the trial to continue was converted into a day to hear the completion of the defence motion, including live evidence from the Crown expert and argument. On September 27 th , 2010, the motion was completed including evidence and submissions and I reserved my decision to November 18 th , 2010. In the interim, February 28 th , 2011, today, was scheduled to continue Mr. Bidiak’s trial. February 28 th , 2011, was the first date offered to counsel after November 18 th , 2010, and was the date selected.

On November 18 th , 2010, I dismissed the defence motion for added disclosure. The matter was then adjourned to today to continue the trial. Between the start of this year and today, the defence decided to bring the

Section 11 (

b) application. That matter was made returnable today on the trial date instead of before. As already alluded to, more than half of today, now more than three quarters of today, has been taken up with the argument of this motion and a recess to complete these reasons over a much extended lunch hour. The defence submits that not less than 12 months and 5 days of the total delay, which they calculate as more than 44 months, is attributable to systematic or institutional delay.

I am urged that I can inflate that by a few more weeks if I accept two further defence submissions related to one, the Crown intake delay after a defence toxicological report was produced to the Crown in 2007, and, two, the inherent time I should have taken to produce my decision on the defence disclosure motion in a speedier fashion. While the Crown material accepts a delay of just over 12 months, the Crown in submission sought to exclude from calculation all delay occasion since the first trial date, October 17 th , 2008.

The process of determining institutional delay from the extensive fact situation I have just cited, is understandably a daunting process and illustrative of the fact that a

Section 11(

b) violation is by its nature fact driven, and while guided by appellate case law, is adaptable to the jurisdiction and the circumstances of each case. It is trite law to note that there is no form of limitation period wherein a

Section 11(

b) violation will be said to be automatic, anymore than there is a fixed floor at which a court will never be able to find such a violation. I start by observing, as I believe I am entitled to observe, that Orangeville is a unique judicial jurisdiction in the Greater Toronto Area. There are two resident judges, Justice Maund and myself. While we are assisted by regional resources from time to time, such resources cannot be easily planned for long in advance. The area encompassed by the Orangeville Criminal Court includes the Town of Caledon, making up the top one third of Peel Region, and the County of Dufferin.

There are two O.P.P. detachments with duties ranging from suburban to rural areas, including the hamlet, village or town, however you describe it, of Bolton, which is essentially an outgrowth of the City of Brampton. There are two separate municipal police forces as well.

At the 2006 census, I believe that our criminal catchment area approached 120,000 persons and it has grown since. In about mid-2003, the judicial compliment here was increased to two judges. In addition to providing criminal court service to Dufferin-Caledon, I also am the primary family court judge for Dufferin County at this level of court. Brampton judges supplement our court on a one day a week basis each week to allow me to be the family court case management judge here, therefore, this arrangement does not reduce our criminal court compliment, nor does it increase it.

I have sat here as a family court judge since the Fall of 2002 and on a full-time basis since 2003. I am the local administrative judge at Orangeville for the Ontario Court of Justice. Prior to my appointment to the bench in the winter of 2002, I had a practical and fully criminally involved law practice in Orangeville starting as a student and continuing as counsel since 1980. All this is in aid of counsel understanding that I am intimately aware of the past and present status of criminal law as practiced in this court in Orangeville. As I indicated to Mr.

Little during his thorough submissions, large swaths of the delay since Mr. Bidiak’s arrest lie at the feet of the defence. In his submissions, Mr. Little expressly concedes this (although not in the blunt terms permitted to me) by taking as a starting point the 12 months and 5 days he says is clearly institutional delay on this record.

I would continue my characteristic bluntness by observing that it is hard to accept the defendant’s assertion that he was ever less than accepting of the most leisurely possible process of his case through the legal system rather than pressing on to a trial with the speed he now says he wanted. His previous counsel is presumed to have acted pursuant to the instructions of the defendant when he chose to pursue discussions with the Crown from July of 2007, at the latest, to January of 2008, without setting a trial date.

Further, the defendant, having confirmed solemnly on the 31 st of July, 2008, that the matter would be proceeding to trial on October 17 th , 2008, including legal argument, instead chose to move three days before trial to adjourn that trial in aid of waiting for a definitive appellate decision on the Bill C-2 issues. On the trial date, the defence fell over themself trying to avoid even starting the trial, albeit, a defence witness, apparently a Carter defence witness, had been taken ill the morning of the trial and the matter was ultimately going to be adjourned on that basis in any event.

A very broad waiver of delay was made by the defendant on October 17 th , 2008, which broad waiver sent ripples down the months in the form of both sides taking a somewhat lackadaisical approach to delay in the face of the legally interesting legal arguments that they knew were pending. Along the way, the four hour trial became a motion to last four hours, “at the most”, which then started and needed a second day with a further five hours and a subsequent reserve pending my decision which held that the defence motion, the subject of many many months of delay, had simply no basis in relevance.

And in the end, the four hour trial became a full day trial, now more than bisected by a three quarter day 11(

b) motion, such that further delay is now inevitable if the motion is unsuccessful. I repeat, because I must, Orangeville is a small two judge court location. We rely upon counsel to accurately assess time requirements and to confirm solemnly those time requirements before a judge for the benefit of this defendant and all other users of the court. When a trial goes down on the day of trial in Orangeville, there is often no other court for that trial judge to assist and the time is simply wasted.

We do not have the luxury of bad time estimates and late trial collapses as in such centres as Brampton or Newmarket where many courts are running on any given day and can assist each other. The result is a system here where trials are scheduled on a real-time basis. With respect, it ill behooves counsel to complain when delays occur because of counsel’s own poorly considered time estimates which cause matters to not conclude. The Charter gives the defendant the right to have his trial within a reasonable time. To return to my earlier point, each case is determined on its own merits, and Mr.

Bidiak’s case is no exception. Guidelines set out in other cases, even from the highest court in the land, are guidelines only, and guidelines from cases in Brampton and Newmarket, busy but also judge plentiful jurisdictions, have little bearing on this two judge jurisdiction, particularly when one judge has made it unavailable because of his role as a pre-trial judge.

I also note that the defendant repeatedly refused earlier dates when offered these by the court, including dates available to the Crown, in spite of the defendant’s evidence as to the detrimental effect this delay has had upon his life. Rather, the defendant’s actions from the start speak louder than his words. He was content to adopt a leisurely pace through the litigation and to advance, at great delay, a defence application which was found to be groundless.

Even today by moving on his trial date, months after the last court appearance, the defendant has successfully acted to continue to block the timely continuation of his trial. I want to be clear that the defendant may choose to bring any and all Charter and/or legal applications what he wishes to bring on the advice of counsel. The Court will hear all such matters. What we are dealing with is, however, a little like the proverbial story of the patricidal child throwing himself on the mercy of the court as an orphan.

The defendant having moved at a turtle-like pace through the courts, now seeks to cherry pick from that delay weeks and months sufficient to make up a magic number at which the court will say enough, the overall delay is such that a stay is warranted. Courts and judges are not taxis which can be flagged at will for the benefit of a particular litigant. We will hear all arguments but in the fullness of time and the defendant cannot accede to seemingly endless delay and create further delay by completely inaccurate time estimates and by rejecting early dates and then claim to be an orphan.

Nothing in the actions of the defence, as opposed to his words, from the start suggest that this defendant has ever sought a speedy or even normally fast trial on the merits. Had he done so, he could have at least started his trial on October 17 th , 2008, some two and a half years ago. I find no added Crown delay from the Crown’s consideration of the defendant’s toxicological report in the summer of 2007. This only shows that the strategy of counsel then was to resolve the case, if possible, rather than to seek a trial. This is borne out by the repeated and lengthy delays created by the defence that year.

I find no delay applicable to the time I needed to determine the defendant’s disclosure motion, and such a submission, in the context of this case, November 4 th versus November 18 th , is in any event without merit. As the Crown said, my decision took the time it took. Notwithstanding the Crown’s concession set out in Mr. Fetterly’s factum, I do not accept that there is institutional delay here as high as 12 months and 5 days. Rather, I attribute all the delay after October 17 th , 2008, to the inherent needs of this trial as framed by the defence.

I observed in submission that there was no longer any such thing as a simple over 80 trial. This case is an example, and by far not the longest, of the complexity involved in a fully formed and executed defence presented post Bill C-2. As I said a minute ago, the defendant may of course advance every legal and/or Charter argument he wishes to advance, but not to then claim that this should be guided by case law on a so called simple four hour over 80 case in a well stocked judicial centre. I find here that the total institutional delay was that between the 24 th of January, 2008, and October 17 th , 2008.

This is well within the guidelines, even in a well serviced area with multiple assisting courts. I must, however, in addition, look to what prejudice has been caused by this delay. As to specific prejudice related to this defendant, there is no prejudice demonstrated by him beyond that created by the charge itself. The defendant’s evidence on prejudice was gutted in his cross-examination by the Crown and in any event, stands against his pervasive and repeated choices made to avoid an early trial here and to extend the length of his trial once it was started.

The inferred prejudice caused by the delay here stopped on October 17 th , 2008, the day when a wide ranging waiver was made and when the defendant’s decision to avoid a timely trial was consummated. In the event, the defendant’s application is dismissed as no

Section 11(

b) Charter right has been breached.