R. v. SEGODNIA, 2016 MBPC 29

CITATION: R. v. SEGODNIA , 2016 MBPC 29 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Charles Murray ) for the Crown ) and ) ) ) Justin Segodnia ) Inderjit Singh ) for the Accused ) ) ) ) Reasons for Decision delivered: ) May 24, 2016 DEVINE, P.J. Introduction and Facts Surrounding the Speeding Ticket [ 1 ] Mr. Segodnia was stopped by a police officer for speeding on October 18, 2014 and received a speeding ticket. He decided to dispute the ticket. The Court set his trial for 19 months later, on May 24, 2016. He has now brought an application to have the charge stayed because of this delay, pursuant to

section 11(

b) of the Charter , which provides that an accused person’s trial must be heard within a reasonable time. [ 2 ] Mr. Segodnia alleges that his right to have a trial within a reasonable time is breached by this excessive delay. He specifically alleges that his right to have a fair trial is prejudiced because the passage of time affects his detailed memory of the events that day, particularly, the verbatim words exchanged between him and the police officer who gave him the speeding ticket. [ 3 ] The officer used a radar gun to capture the speed of the vehicle. According to Mr.

Segodnia, the officer told him that he was driving at a speed of 76 kilometres per hour. He showed Mr. Segodnia the radar gun; it showed a speed of 73 kilometers per hour. The officer wrote the speed on the speeding ticket as 75 kilometers per hour. The officer’s notes, which Mr. Segodnia saw for the first time at the hearing of the delay motion, indicates speeds of 76, 75, 75, and 73 kilometres per hour. [ 4 ] These discrepancies and Mr.

Segodnia’s belief that the speedometer in his vehicle is slow by as much as 10%, as well as the cost of the ticket and the demerits he will get on his driver’s license, all informed his decision to plead not guilty to this matter and have a trial. [ 5 ] Cross-examination of the police officer will be important in this case. Mr. Segodnia is now concerned that his memory of the officer’s verbatim comments from over a year and a half ago is likely affected. It is for this reason he has brought this motion. Chronology of the Elapsed Time/Facts [ 6 ] Mr.

Segodnia filed an affidavit in this motion and was also affirmed as a witness so that he was able to provide additional

evidence in response to questions from the Bench. The Crown did not cross examine him. The Crown also provided evidence throughaffidavits of articling students who prosecute Highway Traffic Act offences. As well, Ms. Bettencourt, one of the affiants, attended thehearing and provided additional evidence in response to questions from the Bench. The defence did not cross-examine her on heraffidavit. [7] The police officer issued Mr. Segodnia a Provincial Offence Notice (PON), commonly known as a speeding ticket. Mr.Segodnia did not have particulars of the PON until the hearing of this motion on April 20, 2016.

At that time, he saw the back side oradditional page of the PON that contained the police officer’s notes. The notes indicated several speeds, ranging from 73 kilometers perhour to 76 kilometers per hour. The PON was filed as an exhibit to the Crown’s affidavits. [8] On November 18, 2014, a month after he received the ticket, Mr. Segodnia’s ticket was entered into the Common OffenceNotice (CON) system. This is the Provincial Court

Summary Division’s computer database used to track offence notices. [9] The PON itself directed Mr. Segodnia to respond to the Provincial Court between December 14 and 18, 2014, which he did. [10] He went to the court office at 373 Broadway Avenue on December 17, 2014 and spoke with a clerk, telling her he wished toplead not guilty and have a trial. The clerk told him he would receive a trial notice in the mail that would advise him of his trial date. [11] The Crown advised that Mr. Segodnia’s plea was received at a cashier’s wicket on December 17, 2014. The Crown stated in itsaffidavit that if Mr.

Segodnia wanted to set a trial date that day, he should have seen a Staff Justice, and, according to the Crown, he would have beentold that. Mr.

Segodnia stated that he was not advised of that; he was just told his trial date would arrive in the mail. [12] The Crown advised that at that time, there were staff shortages and an increased number of people wishing to set their HighwayTraffic Act matters down for trial, so the wait in line to set a trial date would have been long. [13] The back of the ticket also indicates that if a person wishes to plead not guilty they “will be advised of the date, time andlocation of [their] trial through ordinary mail.” There is nothing on the ticket to indicate that the trial can be set at the time the persongoes in to 373 Broadway to plead not guilty.

I accept that for whatever reason, Mr. Segodnia was not told that if he wanted to set histrial date that day, he would have to see a Staff Justice. [14] The matter was then remanded by the court system to February 25, 2015 to set a trial date. The matter was remanded again bythe court to June 30, 2015. There is no explanation for why it was remanded to that date. On March 2, 2015 the trial date of May 24,2016 was set. Mr. Segnodnia was not aware of nor involved in these remands. He was sent a Trial Notice in the mail sometime shortlyafter March 2, 2015. [15] Mr.

Segodnia testified that he was ready to have a trial on December 17, 2014, the day he went to the court office and enteredhis not guilty plea. [16] It was not until March 2, 2015, two and one half months later, that his trial date was set. [17] The Crown’s evidence was that the Acting Accounting Supervisor for the Court advised there was an “extreme backlog”between November 2014 and February 2015 in setting trial dates. This was due to temporary staffing shortages, a lack of available trialdates, and an increase in the number of people wishing to set their matters down for trial.

The Court took measures including runningmultiple weekend shifts strictly to set trial dates, to help reduce the backlog. [18] There was no further communication between Mr. Segodnia and the Crown’s office or the Court for about a year, until March15, 2016, when counsel for Mr. Segodnia contacted the Crown to advise he had been retained. The next day he filed this motion seekinga stay of proceedings on the basis of unreasonable delay. The Purpose of

Section 11/The Interests Protected by

Section 11(b) [19]

Section 11(

b) is situated in the part of the Charter dedicated to legal rights, and specifically, that portion dealing withproceedings where persons have been charged with offences. 11. Any person charged with an offence has the right (

b) to be tried within a reasonable time [20] The main purpose of

section 11(

b) of the Charter is self-explanatory, to ensure that people accused of committing offences willhave a trial within a reasonable time. There is a corollary societal interest to have serious matters tried, and generally, to have all matterstried within a reasonable time. [21] Since the Charter became part of the Canadian constitution in 1982, the full texture and ambit of the rights contained in it havebeen analyzed and interpreted by the courts, most notably the Supreme Court of Canada. The leading Supreme Court cases regarding theinterpretation of

section 11(

b) are R. v. Askov, (SCC), [1990] 2 S.C.R. 1199 and R. v. Morin, (SCC),[1992] 1 S.C.R. 771. [22] In those cases, the Court confirmed that a broad and purposeful approach must be taken when interpreting any Charter section. With respect to

section 11(b), Justice Sopinka for the majority stated its dual purposes as follows in Morin: The primary purpose of s. 11(

b) is the protection of the individual rights of the accused. A secondary interest of society as a whole has,

however, been recognized by this Court. . . . 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. . . . There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway , a majority of this Court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to “a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”.

As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket. Morin , supra at paras. 26-27 and 30 [ 23 ] In her concurring judgment in Morin , Justice McLachlin (as she then was) trenchantly illustrated the problem with delays in bringing matters to trial: When trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. . . .

Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice. (at para. 86) [ 24 ] The framework for analyzing the relevant time period from charge to the conclusion of trial in a

section 11(

b) application was set out in Morin as follows: (

a) The period to be scrutinized is the time elapsed from the date of charge to the end of trial. If the period between charge and end of trial is within a certain range, no further inquiry into reasonableness of the delay is required. The length of time alone is not determinative and must be balanced against the other factors (at para. 32); (

b) If the overall elapsed time requires further investigation, the trial judge must first subtract from consideration any periods waived by the accused. Waiver may be express or implied by conduct (at para. 32); (

c) It must then be determined whether the period is unreasonable, "having regard to the interests s. 11(

b) seeks to protect, the explanation for the delay and the prejudice to the accused." (at para. 32) (

d) The "explanations for the delay" may include: - inherent time requirements (at paras. 41-43); - actions of the accused (at paras. 44-45); - actions of the Crown (at para. 46); - limits on institutional resources (at paras. 47-58); and - other reasons for the delay (at paras. 59-60); (

e) Finally, prejudice to the accused is considered by referring to the accused's interests protected by s. 11(b), balanced with society's interest in bringing those accused of serious offences to trial (at paras. 61-64 per Justice Sopinka and at paras. 90-92 per Justice McLachlin). Morin, supra. [ 25 ] As in any motion for Charter relief, the onus is on an accused to establish a

section 11(

b) breach. This includes establishing by evidence that the delay has prejudiced him or her. Analysis of Elapsed Time 1. The length of the delay [ 26 ] The overall length of the time between the charge (October 18, 2014) and the trial (May 24, 2016) is just over 19 months. Even if this was a criminal matter, a 19 month period to get to trial in the Provincial Court would raise a prima facie issue of reasonableness. For a simple

summary conviction speeding ticket, this is even more the case. Therefore, the Court must proceed to consider the reasons for the delay. 2. Waiver of time periods

[ 27 ] Mr. Segodnia did not waive any period of the 19 months. 3. Reasons for the delay (

a) Inherent time periods [ 28 ] Some period of time is inherent to the trial process and is considered neutral in an analysis of whether the elapsed time is unreasonable. In Mr. Segodnia’s case, the Crown argued that there was an inherent and legitimate three and one half month period of time that should be considered neutral: two months for intake, one month for the court to provide Mr. Segodnia with a court date and two weeks for him to retain counsel and for counsel to

schedule and prepare for the trial. [ 29 ] The law recognizes that there is an intake period for administratively transferring offences from the police to the courts, assigning court dates for the Crown and the accused to appear, for accused persons to retain counsel, for counsel to receive and review disclosure with their client, for bail hearings and so on. A certain period of time for this intake period up to the time the accused person is ready for trial, is considered inherent and acceptable.

The amount of time that is reasonable will depend on the number of charges, the nature of the charges and their complexity. [ 30 ] In this case, it took four and one half months. [ 31 ] Mr. Segodnia testified that he was ready to go to trial on the date he entered his plea of not guilty, on December 17, 2014. He was not cross examined on this point and I accept his evidence. His evidence was that he took notes of the event and his interaction with the police officer, and he was ready to go to trial at that point. He went to the Court office as directed, between the dates provided to him on the offence notice.

The intake period for Mr. Segodnia was therefore negligible. [ 32 ] The Crown argued that Mr. Segodnia was not ready to go to trial on December 17, 2014; any accused would require a period of time to make a plea, review disclosure and understand that disclosure, obtain counsel and prepare for trial. As for disclosure, the Crown did not provide disclosure until after Mr. Segodnia brought this delay motion.

It was not until after he decided to retain counsel to bring a delay motion, in March 2016, that his lawyer received disclosure from the Crown – that is, the back side of the offence notice, containing the police officer’s notes. It was not until the actual hearing that Mr. Segodnia saw the notes for the first time. [ 33 ] The Crown cannot have it both ways. The Crown cannot fail to provide disclosure to an accused and at the same time argue that an accused is not ready to proceed to trial until he has disclosure.

It is trite law that full disclosure is required before an accused person is expected to enter a plea. Although the delay in providing disclosure did not actually contribute to the delay in this case, it may have occasioned an adjournment or a stay of proceedings had Mr. Segodnia gone to trial without a lawyer and received that relevant information only on the day of trial. [ 34 ] The Crown argued that administrative requirements for Highway Traffic Act speeding offences take a certain period of time: to process the ticket, bring it onto the court’s docket and correspond with the accused.

This was the period of time between when Mr. Segodnia entered his not guilty plea and requested a trial and when he received a trial date. He entered his plea on December 17, 2014. The trial date was sent to him on approximately March 2, 2015 and he received it in the mail shortly after. Thus the period of time was two and one half months. The Crown believed that a period of one month would be reasonable and the rest of the time should be considered institutional delay. [ 35 ] The evidence filed on this point was somewhat thin. There was no real explanation provided about what takes time.

The History Log of the ticket was filed as part of the Crown’s evidence. The log shows that the court received the PON from police on November 18, 2014. It was remanded to December 18, 2014, which is the date by which Mr. Segodnia had to enter his plea. On the date he went in and entered his not guilty plea, December 17, 2014, the matter was further remanded to February 28, 2015. The Crown was not able to explain why it was remanded to that date. On February 25, 2015 the ticket was remanded to June 30, 2015. The Crown was not able to explain that remand either.

On March 2, 2015 the trial date was set for May 24, 2016. [ 36 ] These are all administrative remands. No Crown Attorney or accused person is involved. The Crown was not able to explain the reasons for the remands. Although I accept there would be some reasonable period of time inherent in the police administratively forwarding the ticket to the court, the court receiving the ticket from the police, receiving a plea from the accused and either processing payment of the fine or setting a trial date, I had no evidence as to the work required for this to occur or the processing time involved.

The tasks appear simple. [ 37 ] The log would suggest that it took the police one month to get the ticket to the court and the court to log the ticket on its system, from October 18 to November 18, 2014. Mr. Segodnia had a further month to consider his plea, to December 18, 2014. [ 38 ] Two months of intake is a generous period of time for the police, the Court and accused persons. I am not sure persons accused of traffic offences require two months to consider their plea, nor that the police or the Court needs two months at that initial stage.

While it might be beneficial to all involved to have that intake period shortened, I received no evidence on what is actually necessary or desirable and it is outside the purview of this case to make such a recommendation. [ 39 ] As for the time that it took after Mr. Segodnia entered his plea to obtain a trial date, there is no reasonable explanation for the delay of two and a half months. I accept Mr. Segodnia’s evidence that he was not provided the opportunity to set a trial when he went to the court office on December 17, 2014. [ 40 ] Instead, he was told he would get a trial date in the mail.

The letter arrived two and a half months later, sometime after March 2, 2015. [ 41 ] The Crown filed evidence that during the period November 2014 to February 2015, the Court experienced a temporary strain on

resources due to staff shortages, a lack of available trial dates and an increase in the number of people wanting to set their tickets down for trial. The Court addressed the backlog by running multiple weekend shifts dedicated solely to setting trial dates. I accept this evidence. What I fail to understand however, is that during this same time period a person seeing a Staff Justice would obtain their trial date that day, not two and one half months later. I heard no evidence on this point.

While some delay might be explained by temporary staff shortages, certainly not that length of delay. [ 42 ] The Court and the Crown have subsequently instituted a pilot project to streamline highway traffic matters. Any person who goes in to the court office to set their matter down for trial now speaks with a Crown Attorney that day. The person receives disclosure immediately and can ask questions about their case and can discuss potential avenues for pretrial resolution with a Crown Attorney. Similarly, people who send in their “not guilty” plea by mail are called and offered the same service.

The project has shown early positive results - many cases are resolved at the front end and adequate time is scheduled for matters that do go to trial. Presumably this project will reduce the delay. (

b) Actions of the Accused [ 43 ] Mr. Segodnia did not contribute to the delay in this case. [ 44 ] While it is true that he did not contact the Court or the Crown at any point to enquire whether he could obtain an earlier trial date, it was not incumbent on him to do so.

Section 11(

b) is not a reverse onus provision. The right to have a trial within a reasonable time exists inviolate and complete when a person is charged with an offence; it does not have to be triggered or perfected by a complaint that the trial date provided is too far away. [ 45 ] The Crown invited me to find that Mr. Segodnia contributed to the delay in several ways. [ 46 ] First, he did not go to the Court to enter his plea until December 17, 2014, the day before the final due date of December 18, 2014. The difficulty with that argument is that the offence notice directs a person to “Respond between” dates, in Mr.

Segodnia’s case, between December 4 and 18, 2014. He was not invited to attend to the court anytime before December 4. I accept that he could have responded as early as December 4, 2014. This would account for two weeks in the overall delay. [ 47 ] The Crown argued that the Trial Notice notifies a person that they can contact the Crown if they wish an earlier trial date. The Trial Notice states the following, in the bottom left-hand corner: You, or a representative on your behalf, must appear as indicated above.

If you intend to appear to request a new trial date, please notify the Crown at (phone number). [ 48 ] The notice does not state that a person wishing an earlier trial date should contact the Crown. The notice directs a person to appear in court on the date of their trial. Where the accused wishes to adjourn the trial date, he or she should contact the Crown in advance. It does not contemplate a call to receive an earlier trial date.

This argument was recently rejected by this Court in Grant , where Judge Harvie stated, But the information in the Trial Notice is equivocal at best, and falls far short of the type of communication referenced in Morin , supra, where the Crown Attorney’s office had sent a letter to local trial counsel stating in part [i]f you wish to move up any of your cases up or feel that any of your clients are suffering prejudice as a result of delay please give Audrey or I a shout and we’ll try to locate an earlier date. Thank you for your cooperation. [Emphasis added] R. v.

Grant , 2016 MBPC 27 at para. 28 [ 49 ] The Crown also argued that Mr. Segodnia waited until late in the day to file this motion. He did not retain counsel until February or March, 2015. He brought the motion immediately thereafter. (

c) Actions of the Crown [ 50 ] The Crown did not contribute to the delay. (

d) Institutional Delay [ 51 ] The most significant delay in this case was institutional. As early as 1990 When the Supreme Court of Canada decided the case of Askov in 1990, the Court set out guidelines to assist courts in determining what period of time was reasonable for a matter to get to trial. The Court determined that for provincial court trials, matters should be set down within eight to ten months from the time that the parties are ready for trial. [ 52 ] In this case, Mr. Segodnia was ready for trial on December 17, 2014. His trial will be approximately 17 months later, on May 24, 2016.

[ 53 ] Although the Crown suggested in his brief that I divide the 17 months between institutional delay and inherent delay on the basis that Mr. Segodnia did not establish when he was ready for trial, evidence at the hearing of the motion was that he was ready for trial on December 17, 2014. Although, as it turns out, he did not have important disclosure at that time, he was ready to proceed with what he did have, and he cannot be faulted for not having disclosure that the Crown did not provide to him. [ 54 ] This delay is more than twice as long as one would expect for a simple speeding offence.

Although the Crown argued, as it also did in the Grant case, that an increase in numbers of matters being set down for trial and scarcity of resources are at play, there was little or no specific evidence to support these generalities. Moreover, reliance on this argument cannot be used to justify a continuing backlog and delay of Highway Traffic matters. As Justice Cory stated in Askov , The right guaranteed by s. 11(

b) is of such fundamental importance to the individual and of such significance to the community as a whole that the lack of institutional resources cannot be employed to justify a continuing unreasonable postponement of trials. (at para. 56) [ 55 ] I take note that the Crown and the Court are addressing the problem by with the pilot project, the “4A Project”, that began on February 8, 2016. The project comes too late for Mr. Segodnia though. The existence of the pilot program, while laudable, cannot preclude Mr. Segodnia’s Charter rights. It cannot give the Crown a transitional period during which

section 11(

b) rights are suspended. Justice Sopinka rejected the idea of a transitional period in Morin , where he stated, “It appears to me undesirable to impose a moratorium on Charter rights every time a region of the country experiences unusual strain on its resources.” (at para. 52) [ 56 ] Recently, this Court has decided several motions involving unreasonable delay in Highway Traffic Act photo-radar cases: R. v. Grant , supra ; R. v. Zhang , (11 March 2016) Winnipeg (unreported) (Man. Prov. Ct.); and R. v.

Urbanik (28 July 2015) Winnipeg (unreported) (Man.Prov.Ct.) The overall periods of time from the date of the offence to trial were 14 months in the case of Urbanik , from July 2015; 18 months in Zhang and 18 months in Grant . In all three cases, the judges of this Court denounced the excessive periods of time taken to bring these simple highway traffic offences to trial. In Grant , Judge Harvie suggested a reasonable time to bring photo radar tickets to a conclusion is four to six months. [ 57 ] It is trite that the guidelines developed by the Supreme Court in Askov , Morin , and upheld more recently in R. v.

Godin , 2009 SCC 26 , were developed for criminal matters. Just by way of illustration, the charges in those cases were conspiracy to commit extortion ( Askov ), impaired driving ( Morin ) and sexual assault, unlawful confinement and uttering a death threat ( Godin ). The Crown cannot rely on the eight to ten month guideline set for criminal matters, in the highway traffic context. The Crown candidly asserted during the hearing of this motion that speeding offence trials usually take about 15 minutes. They are generally very simple matters.

In establishing guidelines, the Supreme Court cautioned that they are just that, guidelines. For matters such as these, unless there is specific evidence justifying a longer period, one would expect trials to be completed well under the guideline of eight to ten months. 4. Prejudice [ 58 ] Before determining whether an offence that has been significantly been delayed should proceed to trial, the Court must consider what if any injury the delay has caused to the accused person’s liberty, security of the person or fair trial rights.

This is measured by the prejudice to the accused. [ 59 ] Prejudice may be inferred from the length of the delay alone, but usually the accused must provide evidence of actual prejudice to one or more of the interests

section 11(

b) is designed to protect: liberty, security of the person or fair trial rights. [ 60 ] Although very concerned about the delay in photo radar ticket trials, Judges Stewart and Carlson dismissed the applications in Urbanik and Zhang as the applicants in those cases were not able to show prejudice. However, the tipping point was reached in Grant , last week. In that case, Judge Harvie found prejudice.

First, on the basis that an accused receiving a photo radar ticket is usually not aware of the circumstances of the offence until they receive a ticket in the mail six weeks later, thus only triggering an investigation by the accused at that point. Secondly, the prejudice inherent in such a lengthy delay has greater impact on the accused than the Crown, whose case is entirely on documentation created by the photo radar cameras.

It does not depend on the diminished memory of any witnesses, unlike the accused’s defence, which does depend on her memory of the events. [ 61 ] In this case, not only is the delay excessive, but Mr. Segodnia has also demonstrated prejudice to his right to have a fair trial. [ 62 ] It is apparent that cross-examination of the police officer about the several different readings and notations concerning the speed Mr. Segodnia was travelling will be central to the trial. Although Mr. Segodnia took notes of the event, he did not take verbatim notes.

He reasonably fears his memory may have faded over the intervening 19 months. 5. Balancing [ 63 ] The ultimate determination in a

section 11(

b) application is whether the interest of the accused and society in a prompt trial outweighs the interest of society in trying the charges. It is not difficult to balance the interests at stake in this case and to determine that a stay of proceedings is the just and appropriate remedy. As early as Askov , Justice Cory stated that “the longer the delay, the more difficult it should be for a court to excuse it.” (at para. 50) The Crown has not convinced me this excessive delay can be excused. [ 64 ] Mr.

Segodnia has been prejudiced by the delay and this very simple matter should have been decided within the first few months of the charge. It is in society’s interest to have these matters speedily decided. [ 65 ] There was nothing aggravating or unique about this speeding offence that necessitates its prosecution notwithstanding the lengthy delay and the prejudice to Mr. Segodnia. Mr. Segodnia was driving otherwise normally at 8:23 in the morning over the Disraeli

Freeway in Winnipeg. It was not a construction zone. It was not a school zone. There was no evidence of adverse driving conditions or otherwise unsafe conditions. The Crown’s evidence, which is equivocal, had him driving somewhere between 73 and 76 kilometres per hour in a 60 kilometre zone. A stay of proceedings in this relatively non-serious matter is outweighed by Mr. Segodnia’s right to have a fair trial in a timely fashion, and society’s right to have it heard in a timely fashion. [ 66 ] Highway traffic matters lingering in the courts and gathering dust are in no one’s interest.

Public confidence in the prompt and fair administration of justice requires a stay of proceedings in this case. [ 67 ] Mr. Segodnia’s right to have a trial within a reasonable time protected by

section 11(

b) of the Charter has been breached. The offence of speeding is stayed pursuant to section 24(1) of the Charter. Original Signed by DEVINE, P.J.