R. v. Chekosky, 2014 MBPC 47

R. v. Chekosky Citation No. 2014 MBPC 47 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Adam Bergen, for the Crown ) - and – ) ) Ronald Gary Chekosky, ) Self representation, for the Accused ) ) Judgment delivered: ) October 9, 2014 FINLAYSON, P.J. INTRODUCTION [ 1 ] The Applicant accused, Ronald Gary Chekosky, is charged with a total of 4 charges under The Wildlife Act and 3 charges under The Resource Tourism Operation Act. These offences are alleged to have occurred in Manitoba between October 2010 and July 2011. There are 2 issues for the court to deal with. [ 2 ] Mr.

Chekosky, who is the Applicant accused in these proceedings, submits that his right to a trial within a reasonable period of time has been violated pursuant to

Section 11(

b) of The Canadian Charter of Rights and Freedoms . [ 3 ] If I accept the Applicant’s argument then the second issue for the court to determine is whether to grant to the accused a stay of proceedings of his charges or an appropriate remedy. [ 4 ] The Applicant first appeared in court on July 11, 2011 in relation to some of the charges before the court. At that time, the Applicant asked for a trial date to be set. The Applicant advised the court that he had matters pending before a licencing board and he wished for a trial date before August 15, 2011. The Applicant was advised that this would not be possible.

He was advised by the Crown that further charges were to be laid and accordingly his current charges were remanded to August 15, 2011. [ 5 ] The Applicant did not appear on August 15, 2014 but Crown counsel noted that he had previously had discussions with Mr. Chekosky and it appeared that he might be in the process of retaining counsel. Accordingly, the charges were adjourned to September 12, 2011. [ 6 ] On September 8, 2011 Mr. Ryan Rolston contacted the Crown seeking information relative to the charges against the Applicant. [ 7 ] On September 9, 2011, Mr.

Rolston contacted Crown’s office and requested that the matter be remanded for a couple of weeks. [ 8 ] On September 12, 2011, a new information appeared on the docket (no process) and Mr. Chekosky also appeared. The matters were adjourned to October 17, 2011 for the Applicant to determine whether he intended to represent himself or have Mr. Rolston represent him on October 14, 2011. Mr.

Rolston contacted the Crown’s office and advised that they had not yet received particulars and requested an adjournment from the October 7, 2011 remand date. [ 9 ] On October 17, 2011, the Applicant appeared in court and advised that he would be representing himself.

The Crown advised that someone from Special Prosecutions Unit would be handling the file and requested an adjournment to December 12, 2011 to have a Crown Attorney assigned. [ 10 ] The Applicant did not appear in court on December 12, 2011 and there was no explanation provided for this non-attendance. [ 11 ] In any event, on both the December date and the January 16, 2012 remand date, Mr. Rolston sought adjournment of the Applicant’s charges. In fact, on January 16, 2012, Mr. Chekosky did not even appear and Mr.

Rolston was referenced as counsel in the transcript of proceedings. [ 12 ] It was not until February 12, 2012 that the Crown advised the Court that Mr. Rolston wished to withdraw as counsel of record and a date of February 23, 2013 was arranged for that purpose.

[13] On February 23, 2012, the applicant appeared as did a representative from Mr. Rolston’s office who made an application towithdraw. Mr. Chekosky expressed concern that the matter had been before the court for many months and expressed a desire to set trialdates. [14] The Court ordered that a case management be held given the large number of charges before the court. [15] The Applicant was advised to contact the Crown to arrange for a case management date to be set. The charges were adjournedto March 15, 20112 , the first case management which was set for April 11, 2012 did not proceed.

The case management did proceed onApril 19, 2012 and a continuation of the case management occurred on May 24, 2012. [16] During this time period, the charges that were subject of the trial before me were set for hearing on April 3 and April 5, 2013,in Arborg, Manitoba.

These were special sitting dates arranged by the Crown with the approval of the case management judge. [17] In the meantime, further case managements actually did occur on June 14 and June 25, 2012 to ensure that the Applicant hadfull disclosure relating to all the charges before the court. [18] The charges that were part of the trial before me started on April 3, 2013 and continued on April 5, 20113 in Arborg,Manitoba. The Applicant represented himself throughout the proceedings. At the conclusion of the Crown’s case, I advised Mr.Chekosky that the court would be adjourning the matter for continuation.

The court advised Mr. Chekosky that when the trial resumedhe would be given the option of calling evidence. [19] As the record of proceedings will show, the court wanted to give Mr. Chekosky the appropriate time to consider his optionsand also to ensure that he was organized and ready to proceed regardless of whether he chose to call evidence or not. [20] On November 11, 2013 the trial resumed in Winnipeg, Manitoba. At that time, Mr. Chekosky chose not to call evidence andthe Crown made his closing submission on the evidence. As Mr.

Chekosky was not organized, the court granted an adjournment to thecontinuation date of November 5, 2013, some four days later. At that time Mr. Chekosky expressed the desire to testify in his owndefence. Accordingly, the court allowed Mr. Chekosky to re-open his case to testify. [21] Mr. Chekosky testified in direct examination on November 5, 2013. I should add that Mr. Chekosky had also expressed thedesire to speak to counsel at the legal assistance office of the University of Winnipeg with respect to his interest in bringing a motion fora Stay of Proceedings based on unreasonable delay. As Mr.

Chekosky was living out of town at the time and the legal assistance officesclosed by 4:00 pm., the court did adjourn proceeding early on November 5, 2013 (before Mr. Bergen could complete his cross-examination). A further continuation date was set for January 17, 2014. At that time, the Crown completed its cross-examination, Mr.Chekosky closed his case and the matter was adjourned for Mr. Chekosky to file his Motion for Delay. [22] That, in fact, did take place and the Motion for Delay was argued on June 9, 2014. The court reserved its decision until today. THE LAW [23] In R. v.

A.D, 2007 MBCA 65 the Court limited the operation made by s. 11 of the Charter to the post information period. [24] In R. v. Morin, (1992) (SCC), 1 S.C.R. 771 the Court clarified that s. 11(

b) of the Charter’s primary purpose isto protect the individual rights of a person accused of an offence. Those individual rights which the

section seeks to protect include: 1. The right to security of person. This includes minimizing the anxiety, concern and exposure to criminal proceedings (or in this casequasi criminal proceedings in the form of regulatory offences) and stigma. 2. The right to liberty. This includes minimizing exposure to restrictions on liberty, resulting from pretrial incarceration or difficultand restrictive bail conditions. 3. The right to a fair trial.

This includes ensuring that trials occur when the evidence is available and fresh. [25] There is a secondary interest that was expressed by the Supreme Court that is adverse to the interests of the accused. Thisinterest is that those who transgress the law are brought to trial and dealt with according to the law. [26] Morin notes that as the seriousness of the offence increases, so does the societal demand that the accused be brought to trial.Speaking pragmatically, the purpose of s. 11(

b) is to expedite trials, minimize prejudice and yet insure that trials are not avoided on theirmerits. [27] The law is clear that a mathematical assessment is not the proper application to determine if a breach has been found. Theapproach is driven by the facts of each case. [28] A balancing of the interests set out are weighed and balanced by a number of factors which include: 1. The length of the delay; 2. Any waiver of time periods; 3. Reasons for delay which include;

a) inherent time requirements;

b) actions of the accused;

c) actions of the Crown;

d) limits on institutional resources;

e) other reasons for delay; 4. Prejudice to the accused. 1. THE LENGTH OF DELAY [29] The period to be scrutinized is the time elapsed from charge to the conclusion of the trial. If this period is within a certainrange, no further inquiry into reasonableness of the delay is required. • R.v. Kalanj, (1989) (SCC), 1 S.C.R. 1594 • R.v. Morin, supra [30] In the case at bar, the Crown acknowledges that the time frame is such that a review of the remaining factors is appropriate. [31] The Applicant first appeared in court in relation to an information that was sworn on May 20, 2011.

While that specificinformation is not before the court, the charge is. The Crown has re-laid most of the charges against the Applicant but as I say, it isappropriate to start the clock vis a vis , the time delay frame as of May 20, 2011. My assessment is that between that date (May 20,2011) and the conclusion of the trial in January 2014, the time frame in question is 32 months. 2.

WAIVER [32] If the overall elapsed time requires further review, the trial judge must first subtract from consideration any time periodswaived by the accused. [33] In the case at bar, there is no clear or equivocal waiver on behalf of the Applicant. [34] The Applicant was self represented, as was his choice. However, waiver requires

an act of advertence. If the mind of theApplicant is not turned to the issue of waiver and is not aware of the conduct it signifies, then the conduct is not a true waiver. [35] The actions of the Applicant that fall short of waiver can still be taken into account as a factor under the “actions of theaccused” as noted in Morin. [1] As an example of lack of advertence to the act of release is quoted in R.v. Smith, (SCC), [1989] 2 S.C.R. 368: “Consent to a trial date can give rise to an inference of waiver in certain circumstances. This will not be consent to a date if it amounts tomere acquiescence to the inevitable”. 3. REASONS FOR DELAY

I) INHERENT TIME REQUIREMENTS [36] Inherent time requirements are often described as the time necessary to have a case ready for trial. In a normal proceeding forcriminal or regulatory cases, this usually includes the laying of the information, a first appearance, time to obtain counsel if requested,providing disclosure and reviewing it to determine the Crown’s case. Discussion regarding possible resolution or Case Managementmeetings can also be included in inherent time requirements depending on the circumstances of the case. [37] Inherent time requirements do not rest against either the Crown or the Applicant.

They are considered to be neutral. The morecomplicated the case, the more time is likely required for these preliminary matters. [38] The two sets of charges before the Court are provincial regulatory infractions, not criminal matters. While the nature of theoffences appears to be relatively straightforward it appears that the overall disclosure on this matter was relatively significant on perusalof the various comments and interactions between Crown counsel, the Courts and the Applicant.

This is partially explained by severalinformations that appeared on the dockets over time, some without process, while other charges were pending. [39] On October 17, 2011, the Applicant advised the Court he was representing himself, however Mr. Rolston continued to seekadjournments on behalf of the Applicant and the Applicant, for unexplained reasons, did not appear for adjournments in December 2011,January 2012 and February 2012. He did appear on the prearranged date of February 23, 2012 for Mr. Rolston’s application to withdrawwhereby he stated he had not retained Mr.

Rolston. [40] It is very difficult to determine from the evidence before the court as to when the Applicant received full disclosure on the twocharges before the Court. [41] While the emails from Mr.

Rolston discuss requesting disclosure and receipt of same in a general manner, it remains difficult topinpoint when specific disclosure was obtained. [42] The only evidence that is clear on that point is that by June 14, 2012, the Applicant had received full disclosure on all of thecharges he was facing. [43] In terms of inherent delay, the time frame from the swearing of the information on May 20, 2011 until first appearance on July11, 2011 is reasonable inherent delay considering the fact that a circuit court is involved with limited sittings of once a month. A further

period of four months for preparation for trial subsequent to that would be reasonable for both sides to prepare for trial. I find a total reasonable period for inherent delay to be approximately 5 ½ months and neutral in nature. II) CONDUCT OF THE ACCUSED [ 44 ] While the Applicant advised the Court on October 17, 2011 that he was representing himself, he did not make appearances in court, as he was obligated to do in December 2011, January 2012 and February 2012. During that time, Mr. Rolston continued to request adjournments of the Applicant’s matters.

There is nothing in the evidence to explain why the Applicant did not attend court but did attend on the agreed date for withdrawal of counsel on February 23, 2012. That date would have been communicated to him through Mr. Rolston’s office. [ 45 ] There is nothing in the evidence to suggest that the disclosure on the charges before the court was still outstanding. [2] It was reasonable for the Crown to assume that Mr.

Rolston was counsel for the Applicant, especially with the Applicant’s inexplicable non attendance in court. [3] In my view, the delays in this matter from November 12, 2011 until February 23, 2012 should enure to the Applicant. THE CASE MANAGEMENT PROCESS [ 46 ] All the charges against the Applicant appeared together before the Court on February 23, 2012.

At that time the Applicant made it clear that he was self represented and as a result of the number of charges, confusion on behalf of the Applicant regarding disclosure and procedure, the judge ordered a Case Management Conference and adjourned the matter to set the date without the need for the Applicant to appear on the next remand date. [ 47 ] The Applicant did not appear at the first Case Management Conference set for April 11, 2012. The transcript appears to indicate he was not notified of that date and as a result, the Case Management Conference was adjourned and held on April 19, 2012.

On that date, a further Case Management Conference date was set and acknowledged by the Applicant on the record but he failed to attend.

As a result, further Case Management Conferences were held on June 14, 2012 and June 25, 2012 where both the Crown and the Court went to great lengths to ensure disclosure was provided, evidence and witnesses were reviewed and trial slips signed. [ 48 ] It is clear from the transcripts of proceedings that the Case Management Conference procedure was a helpful exercise as part of the pretrial process which greatly assisted the Applicant as a self represented party. [ 49 ] I consider the time frame from February 23, 2012 to June 25, 2012 attributable to inherent time requirements that would be considered neutral in nature. [ 50 ] The trial of both of the informations in question was set on June 25, 2012 and proceeded on April 3 and April 5, 2013.

This is slightly more than a 10 month period of institutional delay. [ 51 ] In Morin supra, at paragraph 50 the Court noted: “Based on the foregoing, it is appropriate for this court to suggest a period of institutional delay of between 8 to 10 months as a guide to provincial courts.” [ 52 ] On April 5, 2013, the second day of the trial, the Crown closed its case. The Applicant was not prepared to present his case.

A continuation date of November 1 and November 5, 2013 was arranged. [ 53 ] The delay between April 19, 2013 and January 17, 2014 enures to the Applicant. [ 54 ] Because the Applicant was unrepresented, the Case Management process was reengaged to assist the Applicant.

A hearing date of June 19, 2014 was scheduled at the December 12, 2013 Case Management and a further Case Management was scheduled for January 28, 2014. [ 55 ] The Crown argues that the motion before the Court has caused additional delays that ought to enure to the Applicant. [ 56 ] The Crown concedes that the Applicant ought to be free to raise any motions or arguments in an attempt to pursue their interests. [ 57 ] Initially the Applicant decided to call no evidence. However, after hearing submission from the Crown the accused changed his mind and asked the court for permission to testify.

The court granted this motion.

The accused testified on November 5, 2013 and his cross-examination was completed on January 17, 2014. [ 58 ] The cross-examination may have been completed on the November date except as I have already said, the court did adjourn proceedings early to allow the Applicant sufficient time to attend the Legal Assistance Office. [ 59 ] Subsequent to the conclusion of the trial the Applicant did file his motion with respect to unreasonable delay further to The Canadian Charter of Rights and Freedoms Act. [ 60 ] In Morin supra at paragraph 39 the Court noted that this aspect of reasons for delay should not be interpreted as placing the accused in a position of blame for portions of delay or imputing improper motives to the accused.

The Court went on: “Included under this heading are all actions taken by the accused which may have caused delay. In this

section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants etc. I do not wish to be

interpreted as advocating that the accused sacrifice all preliminary procedures and strategy but simply point out that if the accusedchooses to take such action, this will be taken into account in determining what length of delay is reasonable.” [61] In the case at bar, the Applicant was unrepresented. He raised the idea of a Charter violation after the evidence was heard andthe Crown had closed it’s case. No notice was provided to the Crown nor was any motion filed in advance. Normally, such motions arefiled and heard in advance of the calling of evidence on the trial proper.

Had the Applicant considered the motion earlier in theproceedings, the April 3 and April 5, 2013 or November 1, 2013 date could have been used to hear the matter. [62] As a result, while clearly the Court does not impute improper motives to the Applicant, the delay from November 5, 2013 tothe present enures to the Applicant. III) CONDUCT OF THE CROWN [63] The Court will make no comment on the logistical plan or lack thereof that Manitoba Conservation elected to employ inrelation to bringing these charges forward.

I will limit my comments to the conduct of the Crown. [64] There is nothing to suggest from the evidence that the Crown added to the delay in this matter. There is no evidence to suggestthat disclosure was delayed as it relates to the informations in question. While the Crown sought an adjournment from October 17, 2011to December 12, 2011 for a prosecutor to be assigned, such an adjournment was not unreasonable and was occurring in conjunction withMr. Rolston’s requests for adjournments.

The Crown must also bear the responsibility of failing to notify the Applicant of the firstscheduled Case Management Conference scheduled for April 11, 2012. That Case Management Conference was rescheduled for a weeklater. [65] The Crown actively sought to move the matter forward in a number of ways. It sought out special sitting days. The Crownsought agreement of Mr.

Rolston to concur with “no process” informations being placed on the docket to avoid the delay of service. [66] The Crown met personally with the Applicant after the Case Management Conference of June 14, 2012 to ensure that theApplicant had full disclosure and then sent out an email confirming the charges and the evidence that would be called. The Crownattempted in the Case Management Conference to group sets of cases to avoid duplication of trial dates in a manner that was reasonableand endorsed by the Case Management judge.

IV) LIMITS ON INSTITUTIONAL RESOURCES [67] In considering if the delay is a reasonable one, the Court notes that a circuit court

schedule was involved in setting hearingdates in this matter. It is a normal course that the jurisdiction in question has only monthly court sittings and those special sittings mustbe arranged for cases requiring more than one day for hearing, either in that jurisdiction or with consent, in the City of Winnipeg ifavailable. R. v. McKay, 2008 MBQB 106 , 227 Man.R. (2d) 244.

V) ANY OTHER REASON FOR DELAY [68] There are no other discernable reasons for delay in the case at bar. 4) PREJUDICE TO THE APPLICANT [69] Prejudice, as it relates to s. 11(b), and unreasonable delay envelopes the protection of the individual relative to three interests. 1. The right to liberty; 2. Security of the person; 3. The ability to make full answer and defence. [70] The Applicant has not been detained in custody and has not been subject to any bail conditions. There is no evidence to suggesthis liberty interest has been affected. [71] The Applicant chose to testify at the trial of this matter.

There is no evidence to suggest that his right to make full answer anddefence has been affected. [72] The only issue before the Court relates to the Applicants argument relative to his interest of security of person. [73] There is no sworn evidence relating to the Applicant’s allegations regarding this interest, however, in his Motion Brief, heargues that he sold his business interest, fixed assets, building and land related to Big Antler Lodge and Outfitters on April 13, 2011.

Hewas unable to finalize the sale as the Transfer of Operating Authority was delayed for 340 days. [74] As a result, the Applicant advises he was threatened with a law suit regarding the sale. The applicant did not log travel orexpenses but estimates he made 30 to 40 trips to Winnipeg to finalize the transfer with authorities. The Applicant advises he madeapproximately “twenty-plus” appearances in court. [75] He estimates a direct cost of $12,000 for all of these trips and appearances. He has suffered embarrassment during jobinterview for related positions as he had to admit his pending charges.

He suffered financial stress and emotional stress. [76] In R. v. George (2006), 2006 MBCA 150 , 208 Man.R. (2d) 300 the Manitoba Court of Appeal confirmed the need fordetailed evidence regarding allegations of prejudice by quoting R .v. Martin, 2000 BCSC 1043: “Complaints about the time and cost of having to defend oneself as a result of a criminal charge may be universally shared by accused

persons. They are not what one would describe in most cases as extraordinary. In conducting the balancing process outlined byMcLachlin J in Morin, I am of the view that something more than the mere statements of prejudice are required to establish seriousprejudice.

For example, evidence of business statements showing a decline in revenue, or a doctors report outlining the symptoms ofstress or anxiety experienced by an accused after being charged with a criminal offence, or the significant legal fees an accused paid todefend himself would have to be produced and causally linked to allegations of prejudice in order to establish actual prejudice caused bythe delay.” [77] The evidence presented here does not meet the standard set out in Martin and adopted by George. [78] There is no doubt that the circumstances the Applicant found himself in were difficult and seemingly unfair considering he hadsold the business in question, however, it does not rise to the necessary proof required nor did the delay affect the fairness of the trial. [79] The Crown also raises the conduct of the Applicant as it relates to the fact that he did not protest the April 2013 trial dates nordid he bring his Charter motion in a timely fashion.

The Crown suggests that his actions weaken his argument regarding prejudice and isinconsistent with a genuine concern regarding the progress of the action. [80] The Court finds the case at bar different from R. v. Pearce, 2012 MBQB 71 where the court found that had the stress of thedelay been as significant as argued, the application for a stay would have been pursued earlier than a week prior to trial. [81] The Applicant found the entire court process confusing. That is clear from the transcript of proceedings relative to severalremand dates and at the Case Management Conferences.

The Court does not find evidence that the Applicant ever maliciously attemptedto delay the process.

Since he chose to represent himself, he was often very overwhelmed. [82] The Applicant’s lack of complaint relative to the setting of the April 2013 trial date appeared to be based in mere resignation. [83] In relation to the timing of his Charter motion, the Applicant had noted on the record, at least twice, once during anappearance on July 11, 2011 in relation to an information not before the court and again on February 23, 2012 that delay issues wereimportant to him in a way which suggested Charter concerns. [84] The Applicant, in choosing to represent himself, did not have the legal knowledge or tools to effectively mount a timelyapplication.

This does not however, change the Court’s assessment as to how the delay should be apportioned. [85] The Court agrees with the Crown however, that the delay in the case at bar is not significant enough to warrant an inference ofprejudice in any event. [86] The Crown argues that actual prejudice to the Applicant is only relevant if that prejudice is caused by unreasonable andunjustified periods of delay. [87] The Crown argues that the Crown is not responsible for the bulk of the delay in this case. [88] In discussing if the decision in R. v.

Godin (2009) 2009 SCC 26 , 245 C.C.C (3d) 271 SCC had altered the law inMorin, supra, Code J noted at paragraph 127 in R. v. Faulkner, 2013 ONSC 2373 as follows: “In my view, the reasoning in Godin is entirely consistent with Smith, Askov and Morin as to the legal meaning of prejudice in the s.11(

b) context. It refers to the harm caused to liberty, security of the person and fair trial interests by overly long periods of unjustifieddelay. It does not refer to the inevitable prejudice to these interests caused by justifiable and necessary delays and it certainly does notrefer to prejudice to these interests caused by the accused’s own actions. Professor Coughlan’s suggestion that legally relevant s. 11(b)prejudice can emerge from the “total time taken” to bring the case to trial would require a radical rewriting of the s. 11(

b) case law. Itwould also turn s. 11(

b) into a sword, rather than a shield, which is exactly what the skeptics and critics of s. 11(

b) have always feared.No matter how much of the delay was necessary or justified, or was caused by the accused, the prosecution would still have to be stayedif the overall length of the delay prejudiced the accused’s interests.” [89] In summarizing the state of the law in relation to how prejudice is linked to the reasons for delay, the Court in Faulkner notedat paragraph 121: “...All delay causes prejudice in a broad general sense but the legally relevant form of prejudice that carries real weight in the s. 11(b)analysis is the prejudice caused by unreasonable and unjustified periods of delay.

Prejudice resulting from the accused’s own actionscarries little or no weight and prejudice resulting from the inherent needs of the case carries neutral weight. In other words, when thedelay is caused by the accused or when the delay is required by the inherent needs of the case, these reasons can justify or excuse anyresulting prejudice as Cory J and Sopinka J put it in Askov and in Morin.” [90] The Court concurs with the Crown’s argument that it was not responsible for the bulk of the delay in this case.

The Court’searlier analysis of the time frames involved suggest that there are no unreasonable or unjustified periods of delay. Delay resultedprimarily as a result of the inherent needs of the case and the actions of the Applicant. [91] I find that that the Applicant’s right to be tried within a reasonable time pursuant to

section 11(

b) of the Charter has not beeninfringed. Original signed by: FINLAYSON, P.J.