R. v. Jarzebiak Date:, 2015 BCPC 46

Citation: R. v. Jarzebiak Date: 20150313 2015 BCPC 0046 File No: 4424-1 Registry: Clearwater IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. AGATHA MARTINA MARIA JARZEBIAK REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND Counsel for the Crown: Mr. Evan Goulet Counsel for the Accused: Mr. Kevin A. Walker Place of Hearing: Clearwater , B.C. Dates of Hearing: September 23, 2014 and January 13, 2015 Date of Judgment: March 13, 2015 INTRODUCTION [ 1 ] Agatha Jarzebiak is charged with impaired driving and driving with more than 80 mg of alcohol in 100 mL of her blood dating

back to April 25, 2013. Ms. Jarzebiak’s trial proceeded before me in Clearwater on September 23, 2014 and continued in Clearwater onJanuary 13, 2015. [2] At the close of Ms. Jarzebiak’s case, 19.5 months had elapsed from the swearing of the Information against her. During thattime, Ms. Jarzebiak alleges that she has suffered significant prejudice, including negative effects to her health, financial hardship, aninability to plan for the future, an inability to care for or see her adult disabled daughter and an impaired ability to make full answer anddefence. [3] Ms. Jarzebiak has applied for a judicial stay of proceedings on the basis that her right under s. 11(

b) of the Charter to be triedwithin a reasonable time has been infringed. ANALYSIS Analytical Framework [4] The Supreme Court of Canada has provided guidance for trial courts considering whether a delay in bringing a matter to trial isunreasonable and, as such, has infringed the s. 11(

b) Charter rights of the accused. In R. v. Morin, (SCC), [1992] 1SCR 771, Sopinka J. at pages 781-782, laid out the framework for analysing cases involving an alleged breach of s. 11(b): The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that somedelay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 1131). While the Court has at timesindicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 1. the length of the delay; 2. 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. … The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of theother factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion,account must be taken of the interests which s. 11 (

b) is designed to protect… (T)he period to be scrutinized is the time elapsed from thedate of the charge to the end of the trial. See R. v. Kalanj, (SCC), [1989] 1 S.C.R. 1594. The length of this period maybe shortened by subtracting periods of delay that have been waived. It must then be determined whether this period is unreasonablehaving regard to the interests s. 11 (

b) seeks to protect, the explanation for the delay and the prejudice to the accused. [5] Earlier in his judgment at pages 786-787, Sopinka J. explained that s. 11(

b) protects both individual rights and societal interests: 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. The right to security of the person is protected in s. 11 (

b) by seeking to minimize the anxiety, concern and stigma of exposure tocriminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result frompre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings takeplace while evidence is available and fresh. The secondary societal interest is most obvious when it parallels that of the accused.

Society as a whole has an interest in seeingthat the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptlyenjoy the confidence of the public… In some cases, however, the accused has no interest in an early trial and society's interest will notparallel that of the accused.

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 thisCourt recognized that the interests of the accused must be balanced by the interests of society in law enforcement... As the seriousness ofthe offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and itsinfluence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket. [6] The focus in delay cases is often institutional delay.

As a guideline, Sopinka J. concluded at page 799 that eight to ten monthsof institutional delay would not be unreasonable in the Provincial Court and this was confirmed in R. v. Godin, 2009 SCC 26 ,[2009] 2 SCR 3. [7] Institutional delay is, of course, only one factor to consider in the judicial balancing process.

The period under scrutinyremains, as set out in the first quote from Morin above, “the time elapsed from the date of the charge to the end of the trial.” History of Proceedings [8] Before considering each of the factors identified in Morin, I will first outline the history of the proceedings. [9] The Information was sworn on May 29, 2013 and the first appearance was on June 11, 2013. Because the court was not sittingover the summer months in Clearwater, the matter was set for arraignment on the next available date in Clearwater which was September12, 2013. On that date, not guilty pleas were entered by Ms.

Jarzebiak and her case was adjourned to fix a trial date. A time estimate ofthree hours was provided. [10] On September 25, 2013, the Judicial Case Manager scheduled a trial confirmation hearing for January 20, 2014 and trial forFebruary 26, 2014.

The original trial date was approximately nine months after the Information was sworn. [11] The parties confirmed the trial date on January 20, 2014 but on February 11, 2014, the Crown advised counsel for Ms.Jarzebiak that a material civilian witness named Craig Reiter would not be available on the scheduled trial date due to a medicalprocedure and that the Crown would, therefore, be seeking an adjournment. On February 13, 2014, Ms. Jarzebiak neither consented tonor opposed the Crown’s adjournment application and the adjournment was granted. Ms.

Jarzebiak’s case was adjourned over toFebruary 20, 2014 to fix a new date for trial. [12] On February 14, 2014, counsel for Ms. Jarzebiak emailed the Judicial Case Manager a fairly long list of his available dates forMs. Jarzebiak’s trial, including dates as early as March 3, 2014. Unfortunately, the only date the Judicial Case Manager was able to offerin Clearwater was May 27, 2014, a date on which counsel for Ms. Jarzebiak was not available due to a combination of prior trial andcompelling personal commitments. Ms.

Jarzebiak’s case was adjourned to March 6, 2014 to allow the Judicial Case Manager tocomplete her Rota past July 1, 2014. [13] On March 5, 2014, the Judicial Case Manager proposed July 29, 2014 for trial. Unfortunately, a different Crown witnessnamed Neil McRae was not available so Ms. Jarzebiak’s case went over further to March 13, 2014 to allow the Judicial Case Manager tocomplete her Rota through to the end of September 2014. Eventually, on March 11, 2014, the trial was scheduled for September 23,2014. [14] The Clearwater docket was very busy on September 23, 2014. Ms.

Jarzebiak’s case was not called until 3:32 pm. It was clearthat there would be insufficient court time available to complete the trial and I canvassed with counsel whether the case could becompleted sooner if the trial were adjourned and rescheduled by the Judicial Case Manager or if we commenced the trial and then set acontinuation date.

To minimize the inconvenience to witnesses, the Crown understandably chose to proceed. [15] The trial commenced and the testimony of the two civilian witnesses for the Crown was completed on September 23, 2014.There was insufficient time to complete the balance of the trial and Ms. Jarzebiak’s case was adjourned to fix a date for a continuation ofthe trial. On October 7, 2014, the trial was scheduled to continue on January 13, 2015. The trial resumed and the evidence wascompleted on January 13, 2015. [16] This application was made by Ms.

Jarzebiak at the close of the defence case. (I also heard submissions on the merits of the caseat that time.) [17] I now turn to consider the Morin factors. Factor 1: the length of the delay [18] In this case, the Information was sworn on May 29, 2013 and the evidence was completed on January 23, 2015. My Reasonsfor Judgment (which bring the trial to a close) are being issued on March 13, 2015. The length of the delay is, therefore, 21.5 months. This delay is sufficient to justify an inquiry into its reasonableness.

Factor 2: waiver of time periods [19] In Morin, Sopinka J. makes clear at page 790 that before embarking on a detailed examination of the reasons for delay, I mustfirst consider whether Ms. Jarzebiak has by agreement or conduct waived in whole or in part her right to complain of delay. In the wordsof Sopinka J., in order for Ms. Jarzebiak to waive her s. 11(

b) rights, the “waiver must be clear and unequivocal, with full knowledge ofthe rights the procedure was enacted to protect and of the effect that waiver will have on those rights…” [20] In this case, Ms. Jarzebiak did not oppose the Crown’s application to adjourn the trial but, in my view, the adjournment was

bound to be granted in any event. After that, counsel for Ms. Jarzebiak worked cooperatively with the Crown and Judicial Case Manager to find the earliest possible dates to complete Ms. Jarzebiak’s trial. [ 21 ] The Crown does not argue and I do not find that Ms. Jarzebiak clearly and unequivocally waived any time periods. Factor 3: the reasons for the delay, including (

a) inherent time requirements of the case [ 22 ] This factor usually relates only to the time it typically takes to get from a first appearance to arraignment and recognizes that some time is required to bring the accused before the court, allow the accused to obtain and consult counsel, provide disclosure to the accused and ultimately fix a trial date. [ 23 ] In this case, Ms. Jarzebiak received circumstances at her first appearance on June 11, 2014 and was arraigned on the next available date which happened to be 3.5 months later.

This period is significantly longer than usual in a location such as Kamloops but is well within the normal range for a location like Clearwater. In my view, Ms. Jarzebiak was in a position to have consulted with counsel, entered a plea and fixed a trial date within two months of her first appearance. While two months is less than the 3.5 months it actually took to have Ms.

Jarzebiak arraigned, in my view the remaining 1.5 months relates to the limits on institutional resources in Clearwater rather than to the inherent time requirements of the case. [ 24 ] The Crown submits that the delay resulting from the Crown’s application for an adjournment due to the medical procedure which had been scheduled for Mr. Reiter must also be characterized as an inherent time requirement. [ 25 ] This issue was analysed in R. v.

Haglof , 2012 BCSC 449 by Williams J. who concluded at paras. 25-38 that delay resulting from the illness of a material Crown witness should be characterized as an inherent time requirement and not as an institutional delay. This finding was subject to the delay occasioned by the adjournment not itself being unreasonable. At paragraph 32 of his judgment, Williams J. reasoned: Of course the ultimate determination will also be informed by the delay that resulted in finding time for the case to be rescheduled and heard. As Rosenberg J.A. observed (in R. v.

A.J.W. , 2009 ONCA 661 ), if the time needed to secure a subsequent trial date was itself unreasonable, that would impact upon the characterization of the delay. (Cite added.) [ 26 ] I will keep this caution in mind when I consider whether the delay in Ms. Jarzebiak’s case has been unreasonable.

At this point, I will turn to determine how much of the seven month delay that resulted from the Crown’s adjournment application should be characterized as an inherent time requirement. [ 27 ] The seven month delay was attributable in part to the limited number of sitting dates in Clearwater, in part to the time required for Mr. Reiter to recover from his medical procedure and in part to the availability of defence counsel and the Crown witness, Neil McRae.

The combination of these factors resulted in it taking almost four weeks for the Judicial Case Manager to find a suitable date for the trial. [ 28 ] Regarding Mr. Reiter, I have not been given any details on the nature of Mr. Reiter’s medical procedure nor the length of his recovery. I have no reason to think that Mr. Reiter would have been unable to attend trial within a relatively short time following the original trial date. [ 29 ] Regarding the availability of defence counsel, he turned down the May 27, 2014 date initially offered by the Judicial Case Manager but he had good reason to do so.

The Supreme Court of Canada has held that defence counsel need not “hold themselves in a state of perpetual availability”. Provided defence counsel was not unreasonable in rejecting an earlier date, the Supreme Court of Canada has made clear that this type of delay cannot be held against an accused. (See Godin at paras. 21 to 23 .) I conclude that any delay following May 27, 2014 cannot be held against Ms. Jarzebiak. [ 30 ] Regarding Mr. McRae, though his testimony was, in my view, not critical to the Crown case, it was reasonable for the Crown to turn down the July 29, 2014 trial date to ensure Mr.

McRae could be available to testify at trial. [ 31 ] Based on my experience and the dates offered by defence counsel, it is clear to me that the trial could have been rescheduled much sooner if it were being tried in a location with greater institutional resources such as Kamloops. [ 32 ] Given the number of factors at play, it is impossible to precisely attribute the delay caused by the granting of the Crown adjournment application amongst all the contributing factors. Doing the best I can, I attribute three months of the seven month delay to inherent time requirements.

I attribute the remaining four months to institutional delay. [ 33 ] The total inherent time requirements consist of the two months it took for Ms. Jarzebiak to be ready to fix her trial date and three further months associated with the Crown adjournment application. I find the total inherent time requirements to be five months. (

b) actions of the accused [ 34 ] In assessing the actions of the accused, the intention is not to put blame on the accused. An assessment of the actions of the accused is completed simply to allow the court to take these actions into account when determining “what length of delay is reasonable.” (See Morin at pages 793 and 794.) [ 35 ] As noted, counsel for Ms. Jarzebiak worked cooperatively with the Crown and Judicial Case Manager to advance Ms. Jarzebiak’s case to trial expeditiously. He arraigned Ms. Jarzebiak’s claim on the earliest available date and offered a wide variety of

dates, including a number of very early dates, following the Crown’s successful application to adjourn the original trial date. As set out above, defence counsel cannot be held responsible for being unavailable on the earliest date offered after the Crown was granted its adjournment. [ 36 ] There is no hint of an intention on Ms. Jarzebiak’s part to delay the proceedings. In fact, there is every indication that she wanted her case to proceed with all haste. Ms. Jarzebiak is not responsible for any delay. (

c) actions of the Crown [ 37 ] As with assessing the actions of the accused, assessing the actions of the Crown is not intended to assign blame. As stated by Sopinka J. in Morin at page 794, “(t)his factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated.” [ 38 ] To begin, I note that the Crown worked cooperatively with counsel for Ms. Jarzebiak and the Judicial Case Manager to advance Ms.

Jarzebiak’s case to a timely conclusion. [ 39 ] As set out above, the Crown cannot be held responsible for the unavailability of material Crown witness, Craig Reiter, that resulted in the original adjournment of the trial. The transcript from the Crown’s adjournment application discloses that the Crown became aware of Mr. Reiter’s medical procedure on February 7, 2014, after the original trial date had been confirmed.

The Crown notified defence counsel essentially immediately and made its adjournment application promptly. [ 40 ] Also as set out above, the Crown reasonably turned down the July 29, 2014 trial date because Mr. McRae was not available on that date. I do not attribute any of the delay in Ms. Jarzebiak’s case to this action by the Crown. [ 41 ] Finally, Ms.

Jarzebiak submits that I take into account that it was the Crown’s choice to proceed on September 23, 2014 even though it was clear that an adjournment would be necessary and that it may be more difficult to get a continuation date before me rather than simply setting a new date before the first available judge. [ 42 ] It is true that it was the Crown that chose to proceed on September 23, 2014.

In my view, the Crown’s decision to accommodate its civilian witnesses was perfectly reasonable and, in any event, there is no evidence to suggest that the trial would have completed any earlier had the Crown chosen not to begin the trial on September 23, 2014. [ 43 ] In my view, the Crown has conducted itself entirely appropriately throughout and I do not attribute any delay to the actions of the Crown. (

d) limits on institutional resources [ 44 ] In Morin at pages 794-795, Sopinka J. defines institutional delay to be comprised of the time “when the parties are ready for trial but the system cannot accommodate them.” In reconciling the right of an accused to be tried in a reasonable time against the reality that governments do not have unlimited resources to apply to the criminal justice system, Sopinka J. writes at page 795: While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for the available resources, this consideration cannot be used to render s. 11 (

b) meaningless. The Court cannot simply accede to the government's allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice.

There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources. [ 45 ] Though most delay cases, including Morin , arise in very busy court locations, the same principles must apply to small communities.

So, while the government cannot be expected to have unlimited court time available in small communities, there remains an institutional responsibility to have sufficient court time available in small communities to try criminal cases in a reasonable time. [ 46 ] Despite the limited court time available in Clearwater, the original trial date was under the eight to ten month guideline for institutional delay set by the Supreme Court of Canada in Morin .

The delay from the Crown’s February 13, 2014 adjournment application to the commencement of trial on September 23, 2014 was, however, mostly due to the limited court dates available in Clearwater. If more court dates were available, I am confident that a much earlier date could have been found.

The delay from September 23, 2014 to January 13, 2015, resulted from there being insufficient court time on September 23, 2014. [ 47 ] In all, the institutional delay consists of 1.5 months of the 3.5 months it took to move from first appearance to arraignment, the five months it took to get from arraignment to the original trial date, four of the seven months it took to get from the February 13, 2014 adjournment of the trial to the September 23, 2014 trial date and the four months that elapsed from the commencement of the trial to the completion of the evidence on January 13, 2015.

The total institutional delay is, therefore, 14.5 months. (

e) other reasons for delay [ 48 ] The only other cause of delay in completing Ms. Jarzebiak’s trial, is the two months it has taken me to complete these Reasons for Judgment. Two months is longer than I normally take when I reserve judgment but I happened to have greater writing commitments in the last few months than is typically the case. This is not anyone’s “fault” but it is important at this stage for me to attribute all of the delay to the appropriate cause. Factor 4: prejudice to the accused

[ 49 ] As set out in Morin , there are three types of prejudice to consider, namely prejudice to the security of the person of the accused, to the liberty of the accused and to the ability of the accused to make full answer and defence. In this case, Ms. Jarzebiak was not placed on any bail conditions and does not assert any prejudice to her liberty. Rather, Ms. Jarzebiak asserts prejudice to her security of the person and her right to make full answer and defence. She does not rely on an inference of prejudice. She filed an affidavit to establish prejudice. [ 50 ] I will begin by assessing the prejudice to Ms.

Jarzebiak’s security of the person. [ 51 ] Ms. Jarzebiak is 64 years old. She has a number of health issues, including diabetes and an ulcerated oesophagus. The proceedings have caused her significant stress and anxiety. She believes that the proceedings have also affected her health. Ms. Jarzebiak attributes an increase in her blood sugar, a weight loss of 20 pounds and a return of her ulcers to the stress and anxiety she has experienced. Though no medical evidence was provided in support of Ms. Jarzebiak’s assertions, I accept that Ms.

Jarzebiak’s heighted level of stress and anxiety has negatively affected her already compromised health. [ 52 ] Ms. Jarzebiak submits that her security of the person has been negatively affected in other ways. [ 53 ] Ms. Jarzebiak lives on a $1,081 monthly disability pension. She does not live in Clearwater and her trips to Clearwater to deal with these charges has cost her over $200 per trip which I find has constituted a significant hardship to Ms. Jarzebiak. The delay, however, only required Ms.

Jarzebiak to make one additional trip to Clearwater so the financial hardship associated with the delay itself has been modest. [ 54 ] Next, Ms Jarzebiak has an adult daughter with special needs who was driving in the car with her at the time of her arrest on these charges. Her daughter was taken into care and is now residing in Victoria. In addition to these proceedings, Ms. Jarzebiak was subjected to a 90 day administrative driving prohibition. At the end of the administrative prohibition, Ms.

Jarzebiak could not afford the course the Superintendent of Motor Vehicles required her to complete to get her licence back so she remains without a driver’s licence. Without a driver’s licence, she has not been able to satisfy the responsible Ministry that she can care for her adult daughter and she has not been able to travel to Victoria to see her daughter. [ 55 ] Not having a driver’s licence has also affected Ms. Jarzebiak’s mobility and quality of life. She says, and I accept, that every day without her driver’s licence is a constant reminder of these proceedings which adds to Ms.

Jarzebiak’s stress. [ 56 ] The Crown correctly points out that Ms. Jarzebiak’s daughter was not taken into care and Ms. Jarzebiak did not lose her licence because of the delay. Nevertheless, given her limited financial resources and the risk that she would be prohibited from driving as a result of the present charges, Ms. Jarzebiak has been unable to put a plan in place to regain her driver’s licence. The reality is that Ms. Jarzebiak has been unable to plan for her future and for her daughter’s future until the present charges against her have been dealt with and this has been very stressful for Ms.

Jarzebiak. [ 57 ] Turning to Ms. Jarzebiak’s right to make full answer and defence, Ms. Jarzebiak makes more than a bald assertion that the passage of time has affected her memory. Ms. Jarzebiak has provided evidence that she is on a number of medications which affect her logical thinking and make her forgetful. Delay will generally affect any person’s ability to recall events accurately. I accept that this is even more pronounced in Ms. Jarzebiak’s circumstances. [ 58 ] It is impossible for me to say whether Ms.

Jarzebiak could have recalled additional information if her trial proceeded on the original date or whether that information would have helped her case. What I can say is that the delay has certainly not helped Ms. Jarzebiak defend herself. Conclusion on Delay Argument [ 59 ] As set out in Morin , I must now consider the length and causes of the delay and determine whether the delay is “unreasonable” having regard to the interests of the accused and society to have criminal trials concluded promptly and the interest of society to have criminal allegations tried on the merits. [ 60 ] Ms.

Jarzebiak’s case was a relatively straightforward impaired driving case that consisted of two civilian and two RCMP witnesses. The case proceeded in Clearwater where the court sits infrequently. There was no blameworthy conduct on the part of any party in creating the overall delay of 21.5 months.

The delay was due partly to the inherent time requirements of the case (including a medical procedure required by one Crown witness), partly to the limited number of court dates available in Clearwater, partly to the availability of a second Crown witness, partly to the availability of defence counsel and partly to the time required for me to prepare this decision. No single source of delay is egregious or unusual but the overall delay must be considered in the context of the interests s. 11(

b) is designed to protect. [ 61 ] I begin by considering society’s interest in having Ms. Jarzebiak tried on the merits. [ 62 ] The allegation against Ms. Jarzebiak that she was driving with her disabled daughter while impaired is serious. While society has a significant interest in having Ms. Jarzebiak tried on the merits, the seriousness of the circumstances is tempered to some degree by Ms. Jarzebiak’s blood alcohol readings (which Ms.

Jarzebiak challenges) of 100 and 110 mg of alcohol in 100 mL of her blood being only slightly above the legal limit and the absence of any injury to person or property. [ 63 ] I next consider Ms. Jarzebiak’s interest and society’s parallel interest in having Ms. Jarzebiak tried promptly. I will focus on the prejudice to Ms. Jarzebiak caused by the overall delay in her case. [ 64 ] Because of Ms. Jarzebiak’s compromised health, poor financial position, inability to plan for the future and inability to regain custody of - or even see - her daughter, Ms.

Jarzebiak has experienced an extraordinary degree of stress and anxiety as a result of the delay in completing her case. The prejudice to Ms. Jarzebiak’s security of the person has been very significant because of her unique personal circumstances.

[ 65 ] There is also evidence to establish some degree of prejudice to her right to make full answer and defence. [ 66 ] In all the circumstances, I find that the prejudice to Ms. Jarzebiak outweighs society’s interest in having her tried on the merits. The overall delay, while explainable, has had an extremely prejudicial impact on Ms. Jarzebiak. I find the delay to have breached Ms. Jarzebiak’s right under s. 11(

b) of the Charter to be tried within a reasonable time. [ 67 ] I should add that because of the unique and severe prejudice to Ms. Jarzebiak, I would have reached the same conclusion even if Ms. Jarzebiak’s readings had been higher or I had been able to deliver my decision on January 13, 2015. In short, the result is driven by the 19.5 month delay from the time the Information was sworn to the completion of the evidence in Ms.

Jarzebiak’s trial and the extraordinary prejudice she has suffered as a result. [ 68 ] Under s. 24(1) of the Charter , the appropriate remedy in all of the circumstances is for me to direct a judicial stay of proceedings and I do so. _____________________________ L.S. Marchand Provincial Court Judge