R. v. Makarewicz, 2013 ONCJ 285

COURT FILE No.: Toronto Region DATE: 2013·01·09 Citation: R. v. Makarewicz, 2013 ONCJ 285 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — CHRISTOPHER MAKAREWICZ Before Justice A.E.E. Tuck-Jackson Heard on October 19, 2012 Oral Decision released on October 19, 2012 Written Reasons for Judgment released on January 9, 2013 Mr. S. Rothman ......................................................................................................... for the Crown Mr. C.

Preobrazenski ......................................................... for the accused Christopher Makerewicz TUCK-JACKSON J.: [1] As a result of an incident which is alleged to have occurred on December 27, 2010, Christopher Makarewicz faces onecount of impaired driving and one count of driving with a blood-alcohol concentration in excess of the legal limit. The information inrelation to this incident was sworn on January 4, 2011. [2] On October 19, 2012, Mr.

Makarewicz’s second scheduled trial date, he applied for a stay of proceedings, pursuant to §24 (1) of the Canadian Charter of Rights and Freedoms, on the basis that his right to be tried within a reasonable time, as guaranteed by¶ 11(

b) of the Charter, has been infringed. I dismissed that application with written reasons forthcoming. What follows are my writtenReasons for Judgment on the application. Overview of the Chronology of Events [3] The chronology of events in this matter is uncomplicated. As noted above, Mr. Makarewicz was charged on January 4,2011 in relation to an incident which is alleged to have occurred on December 27, 2010. The matter was first up in set date court onFebruary 7, 2011 at which time the Crown provided Mr. Makarewicz’s counsel with disclosure of its case against him.

The matterremained in set date court until March 23, 2011 at which time a trial, estimated to take three-quarters of a day, was set down to be heardon February 24, 2012. It is common ground between the parties that the period which commences on January 4 and concludes on March23, 2011 ought to be regarded as neutral delay, attributable to the matter’s inherent time requirements. The trial could not proceed asscheduled on February 24, 2012 as counsel for Mr. Makarewicz was recovering from hip surgery and was not in a position to representhis counsel on the day in question.

The matter was adjourned, at the request of the defence, until October 19, 2012. It is common groundbetween the parties that Mr. Makarewicz has waived any right to complain about the delay occasioned as a result of this adjournmentrequest. Overview of the Governing Legal Principles [4] As has been made abundantly clear by the Supreme Court of Canada in R. v. Morin, (SCC), [1992]S.C.J. No. 25, the general approach to a determination of whether the right guaranteed by ¶ 11(

b) of the Charter has been denied is notby the application of a mathematical or administrative formula, but rather by a judicial determination which involves balancing theinterests which the

section is designed to protect, including the right to security of the person, the right to liberty and the right to a fairtrial, against factors which contribute to delay. Sometimes those factors are inevitable and sometimes they are avoidable by one, theother, or both parties. [5] The Supreme Court in R. v. Morin, supra, has identified the following as the relevant factors for consideration in thistype of application: (1) the overall length of the delay; (2) waiver of time periods; (3) the reasons for the delay, including (

a) inherenttime requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources and, (

e) otherreasons for the delay; and (4) prejudice to the accused. [6] It bears mentioning that it is also in society’s interest that an accused’s right to trial within a reasonable time be strictly

observed. As articulated by the Supreme Court in R. v. Morin, supra, society has an interest in ensuring that the least fortunate of itscitizens who are accused of crimes are treated humanely and fairly. See: R. v. Morin, supra, at p. 8, ¶ 29. [7] The exercise of judicial weighing in this type of application must also consider society’s interest in law enforcement, anaspect of which is seeing that criminal charges are heard on their merits. As the seriousness of the offence increases, so does the societaldemand that the accused be brought to trial. See: R. v. Morin, supra, at p. 8, ¶ 30.

By “offence”, I have taken the Court to mean theunderlying allegations and not simply the legal classification of the delict. For example, an allegation of drinking and driving, as I havebefore me in this case, can embrace a variety of factual scenarios, some much more serious, from an objective perspective, than others. [8] As to the factor of prejudice, the appellate authorities have made it clear that it is prejudice arising from the delay, andnot the charge itself, which is germane to the analysis. Having said that, the Ontario Court of Appeal in R. v. Kovacs-Tatar, (ON CA), [2004] O.J.

No. 4756 (C.A.) at p. 9, ¶ 33 has recognized that what was initially prejudice from being charged maybecome prejudice caused by institutional delay due to a delay beyond the guidelines. Furthermore, as noted in R. v. Morin, supra, at p.14, ¶ 62, “action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court mustconsider” in evaluating the degree of prejudice, if any, suffered by the accused.

In particular, “inaction may…be relevant to assessing thedegree of prejudice, if any, that an accused has suffered as a result of delay.” One example of action or inaction which is relevant to theassessment of specific prejudice is whether an accused puts the Crown on notice, on a timely basis, of the prejudice he or she issuffering. See: R. v. Vertlib, [2006] O.J. No. 660 (Sup. Ct.) at ¶ 27 – 28, and 41, upheld on appeal by the Ontario Court of Appeal andreported at [2008] O.J. No. 1223 (C.A.). [9] In R. v. Morin, supra, the Supreme Court set an eight- to ten-month guideline for reasonable delay.

The Courtemphasized that this guideline is neither a limitation period nor a fixed ceiling on delay. Deviations of several months in either directioncan be justified by the presence or absence of prejudice. See: R. v. Morin, supra, at p. 16, ¶ 76. [10] The Supreme Court of Canada, itself, endorsed such a deviation in the Morin decision. That case involved a total delay of14 ½ months. The Court allotted approximately two months for the case’s inherent time requirements. The balance, namely 12 ½ months, was attributed to institutional delay. Ms.

Morin faced an allegation of operating a motor vehicle while her ability to do so wasimpaired by the consumption of alcohol and with a blood-alcohol concentration in excess of the legal limit. There was no suggestion thatas a result of her driving she caused any property damage, let alone injury. She alleged no specific prejudice attributable to the delayincurred. The Supreme Court, faced with a delay that fell two months beyond the upper end of the guideline it had established, concluded, that Ms. Morin had not established a violation of her ¶ 11(

b) Charter right. [11] More recently, the Supreme Court of Canada in its decision, R. v. Godin, 2009 SCC 26 , [2009] S.C.J. No. 26 atp. 5, ¶ 5, made it clear that even where the guideline has been “substantially exceeded”, that, in and of itself, does not make the delayunreasonable. Put another way, where the impugned delay falls relative to the eight- to ten-month guideline established by the Court isbut one factor relevant to the determination of whether an accused person has established a violation of the ¶ 11(

b) Charter right. If theimpugned delay falls well beyond the guideline, that will not be determinative of the application. The Court’s decision in R. v. Godin,supra, clearly endorses as correct the Court’s earlier direction as to the approach to be taken to these applications. In this regard,Cromwell J., who authored the unanimous decision in R. v. Godin, supra stated at p. 7, ¶ 18: The legal framework for the appeal was set out by the Court in Morin, at pp. 786-89.

Whether delay has been unreasonable isassessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account thereasons for the delay, the prejudice to the accused, and the interests that s. 11(

b) seeks to protect. This often and inevitably leads tominute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important,however, not to lose sight of the forest for the trees while engaging in this detailed analysis.

As Sopinka J. noted in Morin, at p. 787,“[t]he general approach…is not by the application of a mathematical formula but rather by a judicial determination balancing theinterests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.” Application of the Law to the Facts Overall Length of Delay [12] The overall length of delay in this matter is approximately 21.5 months. The Crown has conceded that this quantity ofdelay is of sufficient length to raise an issue as to its reasonableness and merits further scrutiny.

Waiver of Timer Periods: [13] Any period of delay in relation to which an accused has waived his right to complain is removed from the total delay thatis subject to judicial scrutiny. As it was put in R. v. Morin, supra, at ¶ 37: If the length of the delay warrants an inquiry into the reasons for delay, it appears logical to deal with any allegation of waiver beforeembarking on the more detailed examination of the reasons for delay.

If by agreement or other conduct the accused has waived in wholeor in part his or her rights to complain of delay then this will either dispose of the matter or allow the period waived to be deducted. [14] As noted above, it is common ground between the parties that Mr. Makarewicz has waived the right to complain aboutthe delay occasioned during the period between February 24 and October 19, 2012. Accordingly, approximately eight months of delayare deducted from the impugned period which will be the subject of further analysis. The Reasons for the Delay: (

A) Inherent Time Requirements of the Case [15] As noted in R. v. Morin, supra, at page 10, ¶ 41 ff:

All offences have certain inherent time requirements which inevitably lead to delay. Just as the fire truck must get to the fire, so musta case be prepared. The complexity of the trial is one requirement which has often been mentioned. All other factors being equal, themore complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins…The inherentrequirements of such cases will serve to excuse longer periods of delay than for cases which are less complex.

Each case will bring itsown set of facts which must be evaluated… As well as the complexity of a case, there are inherent requirements which are common to almost all cases. The respondent hasdescribed such activities as “intake requirements”. Whatever one wishes to call these requirements, they consist of activities such asretention of counsel, bail hearings, police and administration paperwork, disclosure, etc. All of these activities may or may not benecessary in a particular case but each takes some amount of time.

As the number and complexity of these activities increase, so does theamount of delay that is reasonable. Equally, the fewer the activities which are necessary and the simpler the form each activity takes, theshorter should be the delay… [16] There are two periods of delay that are properly attributable to the matter’s inherent time requirements. [17] As noted above, it is common ground between the parties that the period of time between January 4 and March 23, 2011is properly attributable the case’s inherent time requirements.

During this approximately two-and-three-quarter month period, Mr.Makarewicz received disclosure of the Crown’s case against him, his lawyer had a pre-trial conference with a member of the Crown’sOffice and, having considered his options, Mr. Makarewicz ultimately instructed his counsel to set a trial date. [18] Furthermore, it is common ground between the parties that, in accordance with the appellate authorities R. v. Morin,supra, and R. v. Lahiry, 2011 ONSC 6780 , [2011] O.J. No. 5071 (Sup.

Ct.), the delay seemingly attributable to limits oninstitutional resources between March 23, 2011, the date upon which the first trial date was fixed, and February 24, 2012, the date of thefirst scheduled trial, ought to be reduced by six to eight weeks in acknowledgement of the reality that the parties would require thatperiod of time to actually prepare for trial. [19] Accordingly, the period of time properly attributable to the case’s inherent time requirements is approximately four-and-a-quarter months. (

B) Actions of the Accused [20] It is common ground between the parties that no delay is attributable to the actions of the Crown. (

C) Actions of the Crown [21] It is common ground between the parties that no delay is attributable to the actions of the Accused. (

D) Limits on Institutional Resources [22] It is common ground between the parties that the period of delay between March 23, 2011 and February 24, 2012, lessapproximately six weeks to account for the case’s inherent time requirements as identified above, is properly attributable to limits oninstitutional resources. Accordingly, a delay of approximately nine-and-a-half months is explained by this branch of the analyticalframework. (

E) Other Reasons [23] There are no other reasons for the delay in this case. Prejudice to the Accused: [24] By way of his affidavit, marked as Ex. 2 on this application, and his viva voce evidence, Mr. Makarewicz alleges thefollowing prejudice which he claims is attributable to unreasonable delay in this case. [25] Mr. Makarewicz is 29 years of age. He is trained as an engineer. He is employed as the manager of North Americanoperations for Jaga Canada Climate Systems Inc. His company has projects throughout North America, necessitating Mr. Makarewicz totravel to the United States for business.

He also operates his own business in the Greater Hamilton area where he purchases andrenovates residential properties. [26] Mr. Makarewicz claims that he has felt stress regarding the uncertainty of the outcome of his charges which hasinterrupted his sleep patterns. To combat these symptoms, he has taken over-the-counter sleep remedies. However, his symptoms havenot reached a level where he has had to seek help from his family physician or other professional.

He also claims that, as a result of thestress, he has put on approximately 40 pounds, though acknowledged in cross-examination that his inability to access a gym by car endedonce his 90-day administrative licence suspension had been lifted. [27] As particularized in ¶ 11 of Ex. 2, Mr. Makarewicz claims that the delay in concluding this matter has, effectively, put hiscareer aspirations on hold. For example, he feels that a successful application for certification as an engineer has been thwarted by reasonof the ongoing existence of his outstanding charges.

However, during cross-examination, he conceded that he was never told that heought not to apply for the certification. He simply assumed that the pre-condition that the applicant “be of good character” would barhim from applying. [28] As particularized in ¶ 12 of Ex. 2, Mr. Makarewicz claims that the delay in concluding this matter has resulted in aprolonged inability to enter the U.S. on business and, in the result, has required his employer to incur significant costs to hire anotherengineer to travel south of the border on Mr. Makarewicz’s behalf.

However, it became clear during cross-examination that while theoutstanding charge has made border-crossing more time consuming and, arguably, embarrassing because he is subjected to secondary

searches he is, nonetheless, still able to cross into the United States for business. [ 29 ] Finally, though ¶ 8 of Ex. 2 asserts a claim that Mr. Makarewicz is worried that a loss of memory about the impugned events will impair his ability to advance his defence, during oral submissions, Mr. Preobrazenski abandoned his client’s claim in relation to this branch of prejudice. [ 30 ] As indicated above, action or non-action by the accused which is inconsistent or consistent with a desire for a timely trial is something that the court must consider in evaluating the degree of prejudice.

On the one hand, it is evident that Mr. Makarewicz wished this matter to proceed quickly. He retained counsel in advance of his first trial date. The case did not linger in set date court. When the matter was set down for trial, it was noted for the record that defence counsel had earlier available trial dates than that offered by the Court. He put the Crown on notice in February 2012 that he wished relief for an alleged violation of ¶11(

b) of the Charter . On the other hand, Mr. Makarewicz did elect to request an adjournment of his trial in February 2012 as opposed from seeking other counsel to represent him when Mr. Preobrazenski was unable to do so. This choice was by no means unreasonable, but is, nonetheless relevant to the analysis I must undertake on this application. Conclusion [ 31 ] I will now turn to my balancing of the relevant factors. [ 32 ] As noted above, limits in institutional resources account for approximately nine-and-a-half months of the 21.5 months of delay in this matter.

This time frame falls within the eight- to ten-month guideline established by the Supreme Court of Canada. [ 33 ] I have been mindful of the nature of the allegations in this case. I am given to understand that on December 27, 2010, the police stopped Mr. Makarewicz on the Gardiner Expressway in Toronto for speeding 161 kph in a posted 90 kph area. Further investigation, which involved an “F” reading on an Approved Screening Device, led to his arrest for drinking and driving offences.

I am given to understand that, ultimately, testing indicated that his blood-alcohol concentration at the time of driving ranged between 166 and 177 mg%. If Mr. Makarewicz were to be found guilty of driving “over 80”, these readings would, by operation of the Criminal Code , have to be regarded as an aggravating factor on sentence.

I am, however, mindful that there is no allegation of a collision in this matter. [ 34 ] Assuming that the prejudice outlined above is, in some way attributable to unreasonable delay, as distinguished from the fact of being charged, I am of the view that, on the face of the record before me, it is minimal. It is not of such a nature or severity that it would favourably contribute to a decision to stay criminal proceedings, particularly where the impugned delay attributable to limits on institutional resources falls within the guidelines established by the Supreme Court of Canada. I also cannot ignore that Mr.

Makarewicz chose to have his trial adjourned for eight months instead of finding other counsel to stand in for Mr. Preobrazenski. This factor must be taken into account in assessing Mr. Makarewicz’s claims of alleged prejudice attributable to unreasonable delay. [ 35 ] In my respectful view, Mr. Makarewicz has not established a violation of ¶ 11(

b) of the Charter . For the above reasons, the application is dismissed. Released: January 9, 2013 Signed: “Justice A.E.E. Tuck-Jackson”