Her Majesty the Queen ) Todd Rambow, for the Crown ) - v. -, 2011 MBPC 51

2011 MBPC 51 THE PROVINCIAL COURT OF MANITOBA FLIN FLON BETWEEN: Her Majesty the Queen ) Todd Rambow, for the Crown ) - and - ) ) Dean Robert BYCHKOWSKY ) Greg Bauman, for the Accused ) ) Judgment delivered: ) June 29, 2011 L. ALLEN, P.J. [1] This matter came before the court on a Motion in the Provincial Court sitting at Flin Flon, Manitoba, on June 7th, 2011. TheApplicant seeks a finding that his rights under

Section 11 (

b) of the Charter of Rights and Freedoms have been violated due to unreasonable delay in the prosecution of charges of Impaired Driving and Refusal to provide a sample of breath from June 19th, 2007. [2] This case ended in an acquittal and a subsequent

summary conviction appeal, which resulted in the ordering of a new trial. While many motions of this nature are heard by the initial trial judge at or before the original trial, this motion is being made after thefirst trial and the appeal and before the second trial. This has presented a situation where the Applicant asks that the court look atelapsed time both before the original trial and after the subsequent appeal. The Crown counters by suggesting that because no complaintof delay was made before the original trial, the Applicant cannot do so now. Before looking at these arguments, I will turn my attentionto the law as it relates generally to Charter relief motions brought under

Section 11(b). [3] The Canadian Charter of Rights and Freedoms: 11. Any person charged with an offence has the right

b) to be tried within a reasonable time. 12. Any person charged with an offence has the right

c) to be tried within a reasonable time. [4] The Supreme Court of Canada in R. v. Morin (SCC), [1992] 1 S.C.R. 771 at p. 11 in the judgment of JusticeSopinka set out the factors to be considered in assessing delay. 1. The length of 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 4. Prejudice to the accused. [5] It is with these factors in mind that I set out the facts of this case. [6] After a series of docket appearances and an appearance to arrange for a trial date, the matter was heard before The Honourable Judge Gregoire on August 28th and 29th, 2008. It was not completed and was eventually concluded at a subsequent hearing which took place on April 8th and 9th, 2009. The accused was acquitted. [7] The Crown subsequently brought a

summary conviction appeal. As a result of perceived delays in advancing the appeal, a

motion was made before Justice Keyser of the Manitoba Court of Queen’s Bench, who dismissed the motion for delay. [8] The appeal successfully proceeded before Justice Abra on December 7th, 2010, with a new trial ordered. [9] On January 6th, 2011, the parties appeared in court, at which time the accused advised that he intended to bring a motion forunreasonable delay. [10] The accused advances the motion before this court on the argument that his right to be tried within a reasonable time asprotected by

Section 11(

b) of the Charter of Rights and Freedoms should include all time from the date of charge to the date of theacquittal, and from the date a new trial was ordered until the date of the hearing of this motion. [11] The Crown argues that because the issue of delay was not raised by the accused at his original trial, or at any time before thesummary conviction appeal, he cannot do so now. The Crown argues that the only relevant time frame that should be considered is fromthe date a new trial was ordered to the date of the hearing of this motion. [12] The Supreme Court of Canada in R. v.

Potvin (SCC), [1993] 2 S.C.R. 880 at p. 912 and followed in R. v.Frazer (SCC), [1993] 2 S.C.R. 866 and R. v. Gallagher (SCC), [1993] 2 S.C.R. 861, established thatSection 11(

b) rights only apply to the trial proceedings and do not apply to the appeal process following a conviction or acquittal at trial. The majority of the court, as per Justice Sopinka, quotes D. H. Doherty (now a justice of the Court of Appeal in Ontario) writing in anarticle for the Canadian Bar Association Annual Institute on Continuing Legal Education at p. 9: “Section 11(

b) guarantees a trial within a reasonable time, not a final determination of the matter at an appellate level within that time. If, however, a new trial is ordered on appeal...the constitutional clock should be rewound at the time of the order by the appellate court.” [13] It appears to me that re-winding the clock means that the constitutional clock begins afresh. The only authority that theApplicant quoted to bolster his suggestion that the time before the appeal process should be added to the time after the appeal process isR. v. Nikkel 2007 MBQB 250 , [2007] M. J.

No. 374, a decision of Justice Oliphant of the Manitoba Court of Queen’s Bench. Inthat case, in analyzing the relevant periods of delay for Mr. Nikkel, who brought a delay motion prior to a second trial (which followed asuccessful appeal of an original trial conviction), Justice Oliphant included both the time periods from charge to the first conviction andthe period from the issuance of the appeal judgment to the date of the hearing of the delay motion. In my view, this procedure is notconsistent with the Supreme Court decision in R. v. Potvin (supra) where the court quotes with approval Mr.

Doherty’s statements aboutre-winding the constitutional clock. [14] In any event, in the case at bar the period which followed the appeal decision of Justice Abra is entirely the result of theaccused’s desire to bring this motion.

While there was a short delay in the provision of transcripts which is attributable to the courtoffice, that is a rather insignificant period and in my view, does not affect my opinion that the time frame post appeal is a result ofproceedings initiated by the Applicant and in any event, does not feature delay occasioned either systematically or by the Crown. [15] Setting aside, for the moment, the issue of whether the accused is now entitled to assert

Section 11(

b) rights as to the timeperiod which preceded his first trial, I will look at that period. [16] In R. v. Morin, 1992 , (SCC), 71 C.C.C. (3d) 1 at p. 23, Justice McLachlin wrote: “In my opinion, the task of a trial judge considering an application for a stay of charges may usefully be regarded as falling into twosegments. The first step is to determine whether a prima facie, or threshold case, for unreasonable delay has been made out. Here suchmatters as length of delay, waiver and the reasons for the delay fall to be considered. If the delay is reasonable having regard to similarcases the application will fail.

If the accused has waived his or her rights to an early trial date, the application will fail... If this threshold, or prima facie case is made out, the court must proceed to a closer consideration of the right of the accused to a trialwithin a reasonable time, and the question of whether it outweighs the conflicting interest of society in bringing a person charged with acriminal offence to trial.” [17] In this case, we begin with the date of charge, June 19th, 2007. Pleas of not guilty were entered on September 5th, 2007. A trial date was set for April 24th, 2008.

At some later point, the Crown required that the trial date be put back to August 28th, 2008, which is when the original trial commenced. The trial ran for two days, August 28th and August 29th, 2008. It was not completed and needed to be put over for continuation to April 8th and 9th, 2009. During this period, the accused waived delay from October 24th, 2008, to December 22nd, 2008. Although four months of delay can be attributed to the Crown, the trial commenced fourteen months after thecharges were laid. [18] The Supreme Court of Canada in R. v.

Kalanj (SCC), [1989] 1 S.C.R. 1594, stated that the relevant time frameto consider relating to delay is from the date the Information is sworn to the end of the trial. In this case, that time period is twenty-onemonths. Of those twenty-one months, four can be attributed to the Crown’s need to re-schedule the original trial dates. Seven of thosemonths resulted from the fact that not enough time was scheduled for the trial itself. This twenty-one month period is clearly outside therange of six to ten months which is provided as a guideline by the Supreme Court in R. v. Askov (SCC), [1990] 2 S.C.R.1199 and R. v.

Morin (supra) and accordingly, does justify further scrutiny by the court in reference to delay. In this regard, I agree withSandhu, P.J. who in R. v.

Gill and Benipal (unreported Nov. 23, 2009), Provincial Judges Court Winnipeg, said at page 6: “Guidelines are not written in stone as a purely mathematical exercise, but are provided as signposts for use by the courts in assessingwhether individual cases meet the constitutional guarantee.” [19] I also agree with Judge Sandhu when he goes on to add that in his opinion, the guidelines created by the Supreme Court are fora routine or average one-day trial for an out of custody accused.

[ 20 ] It would appear unreasonable to suggest that every time the Crown requires that a matter be re-scheduled, that the delay which results should result in a stay of proceedings. It is not unusual in trial situations that one or more Crown witnesses, often police officers with annual leave planned, are unavailable when trial dates are set. This often results in a Crown request for a re-scheduled date.

Under these circumstances, I believe that these guidelines must be flexible to determine whether the delay results from laxness on the part of the Crown, or from the normal exigencies of the prosecutorial process. In this case I am satisfied that the latter is the case. [ 21 ] There is nothing on the record to indicate that the accused objected to the original allocation of two days of trial time. Further, there is no indication that the accused objected at any point prior to this motion to delay.

The accused asks the court to attribute the delay which resulted from the need to continue the trial beyond the original two days to the Crown. In my opinion, unless there is evidence to establish that the accused objected to the time allotment, then delay which results from not setting enough time should not be attributed solely to the Crown, but is more fairly considered to be neutral in designation.

It is an unfortunate situation, but in my opinion, neither the fault of the Crown nor systematic delay. [ 22 ] The accused maintains that some delay was attributable to the fact that for some of this period, the Flin Flon court was being serviced by only one judge as opposed to the normal rota of two. There is no evidence before the court to establish that any additional delay was occasioned by the reduction in available judges. [ 23 ] The continuation of the trial took place seven months after its adjournment. Two of those months were directly waived by the accused.

In my opinion, a five month delay is a reasonable delay for a two day continuation of a trial and is in keeping with the normal situation in these circumstances in this jurisdiction. [ 24 ] Although the net result of the need to continue this trial resulted in a total passage of time from June, 2007, to April, 2009, I do not believe that looked at in totality and taking into consideration two months of directly waived time and the need for a continuation, that this period is unreasonable in these circumstances.

I believe that the delay in this case is quite in keeping with the norm in the Provincial Courts of The Pas/Flin Flon area. Additionally, in my opinion, any delay in this matter flowed from the necessary requirements of the case. Any delay which has occurred after the appeal (except for the previously discussed matter of a short court delay as transcripts were not promptly ordered by the court), has resulted from the accused pursuing this motion. [ 25 ] As stated by Justice Cromwell of the Supreme Court of Canada in R. v.

Godin [2009] S.C.C. 26, at paragraph 18, wherein he said that an analysis of delay and the interests protected by

Section 11(

b) of the Charter : “...often and inevitably leads to minute 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, the general approach...is not by the application of a mathematical or administrative formula, but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay...” [ 26 ] It is my opinion that in “looking at the forest” in this situation, the accused has not established that his Charter 11(

b) rights have been infringed. [ 27 ] It is also my view that by not complaining of delay prior to the initial completion of the trial, the accused has foregone his rights to do so at this point.

Although the accused relies on the previously mentioned Nikkel case as to the issue of adding together delay periods, I note that he was silent as to the Crown’s reference to Justice Oliphant’s finding in that case wherein he stated at paragraph 40: “Where an accused, represented by counsel, consents to the setting of a trial date, whether the consent is given in writing or otherwise, it is reasonable to infer, nothing else having been done or said either by the accused or his or her counsel, that the period of time that elapses between the day on which the trial date is set and the date or dates of the trial is waived for the purposes of s. 11(

b) of the Charter .” [ 28 ] There is no record of counsel for the accused in this case making reference to being unhappy with agreed upon trial dates. [ 29 ] Applying Justice Oliphant’s comments as to waiver, quoted above, to this case would reduce the time frame to be considered in assessing delay to the period from charge, June 19 th , 2007, to the date when the accused’s first trial was set on September 14 th , 2007, plus four months attributable to the Crown from the original date set for April 24 th , 2008, to the new date of August 28 th , 2008.

That is a total of seven months and cannot be considered unreasonable. [ 30 ] Even if I had found that the delay was unreasonable, I would have determined that the accused did not suffer such significant prejudice as to tip the balance against society’s interest in bringing criminal charges to adjudication. In this case, the accused has not been the subject of stringent bail restrictions. [ 31 ] The accused argues that at the next trial, he will testify and his memory has been hampered by the passage of time.

I accept the Crown’s contention that the accused did not testify at the first trial and that the accused’s credibility was not the issue in this trial. It was not disputed by the accused that the central issue in dispute is whether the arresting officer could rely on the evidence of an eye witness that the accused was driving in formulating his grounds for the breath demand and/or for arresting the accused.

The passage of time will arguably have assisted the accused in that elapsed time may have dimmed the memories of the witnesses for the prosecution. [ 32 ] I also do not accept the accused’s contention that he has been prejudiced by the fact a witness, Callen Senyk, is not available for the second trial. At the first trial, Mr. Senyk was not called by the accused. It is agreed that Mr. Senyk, who was present at the first two days of trial but not for the continuation, was living out of province at the time of trial and essentially unavailable at the continuation.

He is apparently still out of province and accordingly, it is difficult to understand how the passage of time has changed this situation or prejudiced the accused. [ 33 ] Callen Senyk was a friend or associate of the accused. If the accused wanted this witness at trial, he should have subpoenaed

him. This was not done, he was not called as a witness, nor did the accused ask for an adjournment of the original proceedings to try to locate this man. Accordingly, I do not accept that the accused has been prejudiced in this regard by the passage of time. [ 34 ] While it is undoubtedly the case that the accused has suffered for the lengthy period this matter has been before the two levels of court, I am not satisfied that this prejudice is enough to overthrow society’s need to have criminal charges brought to adjudication. [ 35 ] In

summary, I am not satisfied that the accused’s rights under

Section 11(

b) of the Charter of Rights and Freedoms have been infringed, and accordingly the motion is dismissed. “Original signed by:” ____________________________ L. Allen, P.J.