2014 BCSC 2451, 2014 BCSC 2451

COURT FILE NO.: M2546/05 DATE: 20070501 ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT B E T W E E N: ) ) HER MAJESTY THE QUEEN ) )) N. Golwalla, for the Respondent ) Respondent ) ) - and - ) ) ) OLEG SHYSHKIN ) )) B. Bytensky, for the Appellant ) Appellant ) )) ) HEARD: March 16, April 2, 2007 JUDGMENT [On appeal from conviction by Cooper J. on July 4 th , 2005] HILL J. TABLE OF CONTENTS

Para. No.

INTRODUCTION.................................................................................................. 1 FACTUAL OVERVIEW The Driving Conduct......................................................................................... 6 Observations of Appellant................................................................................ 12 The Defence Evidence................................................................................... 22 Challenges to Trial Court’s Reasons................................................................. 39 THE UNREASONABLE DELAY TO TRIAL APPLICATIONS Prior to Setting the Trial Date.......................................................................... 43 Setting the First Trial Date............................................................................... 51 The First Trial Date......................................................................................... 52 The Second Trial Date.................................................................................... 57 The First

Section 11(b)/24(1) Charter Application the evidence............................................................................................... 59 positions of the parties before the trial judge the Crown............................................................................................... 62 the defence............................................................................................ 66 ruling...................................................................................................... 69 Trial Evidence – April 18 th , 2005...................................................................... 71 The Second s. 11(b)/24(1) Charter Application................................................. 72 Trial Court’s References to Memory in its Reasons for Judgment....................... 80 Positions of the Parties on Appeal the rulings.................................................................................................. 81 the start point............................................................................................. 83 the overall delay.......................................................................................... 84 the period until May 12 th , 2004..................................................................... 85 delay to the trial date................................................................................... 87 loss of the first trial date and delay to the second trial date............................. 88 loss of the March 4 th , 2005 trial date............................................................. 90 the April 18 th trial date and the delay to June 23 rd .......................................... 91 the further delay to July 4 th .......................................................................... 93 conclusion................................................................................................. 94 THE COURT

INTERPRETATION ISSUE The Early Proceedings................................................................................... 95 The June 23 rd , 2005 Trial Proceedings............................................................. 99 Completion of the Trial Evidence.................................................................... 121

Para. No.

Position of the Parties on Appeal the appellant............................................................................................. 122 the respondent.......................................................................................... 124 ANALYSIS Grounds of Appeal Relating to Reasons for Judgment...................................... 125 The Unreasonable Delay-to-Trial Issue........................................................... 129 The Mis-interpretation Issue general principles..................................................................................... 151 application of principles............................................................................. 163 CONCLUSION................................................................................................. 175 INTRODUCTION [ 1 ] Oleg Shyshkin appeals his conviction for impaired operation of a motor vehicle. [ 2 ] The appeal engages three grounds of appeal: (1) alleged errors in the reasons for judgment (2) unreasonable delay to trial (3) misinterpretation by a court-appointed interpreter. [ 3 ] The latter two grounds prompted an enhanced record before this court, a process delaying the hearing of the appeal.

The s. 11(

b) Charter record at trial was properly augmented with information relating to scheduling protocols, counsel availability dates, trial coordinator trial date selection records, etc. Much of the information was seen by the trial participants or known by those practicing at the provincial court level in Halton but not otherwise committed to the written record or made trial exhibits.

The misinterpretation ground of appeal required a court order for release of court monitor tapes, review by an expert in the Russian language, and preparation of a report. [ 4 ] While the additional materials are for the most part not fresh evidence in the traditional sense, affecting as they do conduct of the trial and administration of justice issues, in the end, the parties agreed that receipt of the supplementary materials would advance meaningful appellate review. [ 5 ] For the reasons which follow, the appeal is allowed and a new trial ordered.

FACTUAL OVERVIEW The Driving Conduct [ 6 ] Cameron Boyd, an Oakville bus driver, testified to observations he made on New Year’s Eve 2003. As Mr. Boyd drove his bus back to the yard at shift’s end, he found himself behind a silver pick-up truck going north on Dorval Road. On two or three occasions, the truck changed lanes without signalling and for a time straddled the broken-line lane divider. At Dorval and Wyecroft Road, as Mr.

Boyd made a left turn he had “a quick glimpse” of the driver of the truck, he thought from a “bit of a bobbing” of the driver’s head that he might be ill, falling asleep or perhaps intoxicated. [ 7 ] Next looking in his side-view mirror, Mr. Boyd saw that the truck had moved from the centre lane of Dorval and followed him through the left turn onto Wyecroft Road. There wasn’t much traffic. Mr. Boyd saw the truck go “up and over” a cement divider or island in an S-turn in the road dividing the east and westbound lanes. The witness described the manoeuvre as both “fluid” and “awkward”.

The truck crossed the divider and entered a driveway accessible from the eastbound lane.

[ 8 ] Mr. Boyd radioed his supervisor about a possible impaired driver before returning the bus. He then returned to the location where the truck had pulled off the road. The truck was still in the parking lot where he had last seen it. There were no other cars in the vicinity of the truck. The truck moved in reverse and struck a small tree behind a parking space but not hard causing no damage to the tree before pulling back onto Wyecroft Road. Mr.

Boyd phoned 9-1-1 and, as he followed the appellant’s truck eastbound on Wyecroft Road and south on Dorval, the truck “was still going from lane to lane” – the vehicle swerved ten to fifteen times over a quarter-mile stretch. The truck: (1) cut off a few vehicles (2) had its passenger wheels go “upon the right-hand curb” two or three times. [ 9 ] Then, the truck which was in the right-hand turn lane at Rebecca Street with its signal on, swerved across three lanes and turned left onto Rebecca from Dorval. When the truck turned onto Navy Street it “narrowly missed hitting a parked taxi in the right curb lane”.

At a red traffic signal at Lakeshore Road, the truck went over the solid white stop line until its rear had passed the line. The driver reversed the truck until he was behind the line and awaited a green light to proceed. The truck went through a stop sign turning left onto Robinson Street and then north onto Thomas Street. After stopping at the intersection of Lakeshore and Thomas, the appellant drove further on toward Church Street where he was stopped by the police. [ 10 ] Halton Regional Police Const.

Smith observed the appellant’s truck on Navy, Robinson and Thomas Streets, 40 to 50 k./hr. zones, travelling at about 20 k./hr. As the appellant proceeded north on Thomas through the intersection with Lakeshore Road he pulled in front of eastbound traffic causing an eastbound vehicle to brake sharply to avoid a collision. [ 11 ] Halton Regional Police Service Const. Brunelle proceeded to the area of Dorval and Speers Road area at about 5:45 p.m. on December 31 st , 2005 in response to a report of a possible impaired motorist followed by another driver. Const.

Brunelle, together with other police cruisers, participated in stopping the appellant’s Dakota truck. Observations of Appellant [ 12 ] Approaching the pick-up truck on foot, Const. Brunelle observed some damage to the rear bumper of the vehicle. Mr. Shyshkin was ordered out of the vehicle. The appellant opened his driver’s door and attempted to exit without placing the transmission in Park. When the truck jumped forward, the appellant turned back in and stopped the vehicle. [ 13 ] After pulling his cruiser in front of the appellant’s truck, Const. Smith observed Const.

Brunelle direct the appellant out of his vehicle. At this point, Smith saw the appellant’s truck lurch forward almost striking his cruiser. The constable acknowledged that a language barrier may have been involved. [ 14 ] Const. Anderson observed the stopped truck jump forward as the appellant was about to exit his vehicle. When the appellant did step out of the truck he stumbled toward Const. Brunelle appearing unsteady on his feet. [ 15 ] As Const. Brunelle escorted the appellant toward the rear of his truck he observed a heavy odour of an alcoholic beverage on Mr. Shyshkin’s breath.

The driver’s face was red and flushed. He was unsteady on his feet, swaying, trying to stabilize himself. Although the appellant had a heavy accent, the officer perceived that his speech was slurred. His eyes were mostly shut as though in “a sleepy state”. The appellant’s clothing was unkempt. The appellant was calm and cooperative throughout. [ 16 ] Const. Smith observed that the appellant appeared to have difficulty standing – he stumbled as though losing his balance. The constable considered his observations to be consistent with a driver being significantly intoxicated by alcohol consumption. [ 17 ] Const.

Anderson considered the appellant’s speech to be extremely slurred and incoherent as he was asked questions. [ 18 ] Const. Brunelle believed that Mr. Shyshkin understood the English he spoke. He arrested the appellant for impaired operation of a motor vehicle and transported him to a police facility for an intoxilyzer test. At some point, Const. Brunelle noted that the appellant’s pupils were dilated. [ 19 ] In the intoxilyzer room, the appellant was slumped in a chair. He asked for the time. He was falling asleep. [ 20 ] Asked to describe Mr.

Shyshkin’s speech in court compared to the day he arrested the appellant, Const. Brunelle responded: I can’t really describe but I’ve never spoken to him directly. It would just be muttering to translators and such. [ 21 ] At the police facility, Const. Anderson assisted in securing interpreter assistance for Mr. Shyshkin.

The Defence Evidence [ 22 ] The appellant, who operates his own business in Oakville, and resides in Stoney Creek, had been in Canada about ten years. He testified at trial with Russian interpreter assistance. Mr. Shyshkin gave this account of events for December 31 st , 2003. [ 23 ] Mr. Shyshkin drove his Dodge Ram 1500 truck to work on December 30 th . It has automatic transmission. The business had recently relocated to Oakville from Toronto. At the end of the business day, he discovered the truck had a flat tire. A repair invoice was entered as a trial exhibit.

Not having the necessary wrench fitting a wheel lug nut, the appellant elected to attempt to drive the company’s Dakota truck which did not have automatic transmission. Two of his employees used the truck. It had been years since he had operated a standard transmission vehicle. He could operate such a vehicle but “[b]adly”. The business was scheduled to be closed on December 31 st . That day is a holiday in the Ukraine and he intended to spend the day with his son. Mr. Shyshkin drove to his son’s apartment.

His son, Denys, had recently returned to Canada. [ 24 ] Denys Shyshkin testified that on December 30 th his father drove them to his (Denys’) apartment in a Dakota pick-up truck after they discovered the appellant’s own truck had a flat tire. [ 25 ] According to the appellant, he and his son talked, celebrated and drank “[a]lmost the whole night” – for a long time “[a]lmost until morning”. They spontaneously spoke of topics they had never before discussed. There had been a period of estrangement between the two after the appellant divorced Denys’ mother.

The appellant testified that they did not count their drinks. To his recall, a “big bottle of red wine and one and a half bottle[s] of whiskey” were consumed. When his son retired to bed at 5:00 to 6:00 a.m., the appellant stayed up drawing designs for his work as he had new ideas, was excited and could not sleep. He drank nothing more. [ 26 ] According to Denys Shyshkin, he and his father hadn’t really been speaking. They decided to celebrate together and to communicate and catch up. After drinking whiskey and something else, perhaps wine, to about 6:00 a.m., he went to bed.

They drank everything. [ 27 ] The appellant testified that when his son awoke later in the day they drank coffee and talked. He did not sleep or consume more alcohol. Denys Shyshkin saw the appellant’s sketches. The witness testified that his father seemed tired but not suffering the effects of alcohol consumption. [ 28 ] When the appellant left his son’s apartment at about 5:00 p.m. he considered it was “a long time” since he had consumed alcohol. He was fatigued from a sleepless night. The appellant had no plans for New Year’s evening. He intended to go straight home.

Asked if he did so, the appellant testified: A. I drove towards the highway, but then I decided that because it was a family holiday, I should buy something for the table. I should buy some gifts. Q. When you say gifts, what do you mean by gifts? A. Something nice for the table, sweets maybe. It was a holiday. [ 29 ] Mr. Shyshkin, on his evidence, decided to drive to downtown Oakville to find a nice store or boutique. He was not entirely familiar with the downtown area.

The appellant felt very tired. [ 30 ] The appellant agreed that he crossed over the divider island on Wyecroft Road in an effort to turn back in the direction of the stores. He considered the manoeuvre could be safely executed with the truck. There was no traffic around. Mr.

Shyshkin testified: I decided to check the map because I wasn’t very skilful with manual standard transmission and I wanted to be sure that I would choose the shortest way to downtown, to the downtown. [ 31 ] The appellant agreed that in backing up to turn in the parking lot of the building on Wyecroft he only “touched” the tree – “I had to use clutch and brake…I had to use different pedals and I missed some a moment, so I made some mistake”. It was dark with almost no light. There was no significant damage to the vehicle. [ 32 ] Mr.

Shyshkin explained his decision to cross a number of lanes changing from making a right turn to a left turn on Rebecca as a last moment decision. He was very tired and making the final decision to go downtown. [ 33 ] The appellant further acknowledged that his truck wheels may have gone up on a curb. He believes this occurred when he dropped his cellphone and was attempting to switch gears. Mr. Shyshkin did not dispute that he was changing lanes and although he was confident an explanation existed for his actions, in his words, “now unfortunately I don’t remember it”.

The appellant did not remember cutting off any other vehicles. Asked if he almost hit a taxi, Mr. Shyshkin’s recorded response is:

In any instance there is almost everybody might have his, almost. [ 34 ] The appellant was questioned about stopping in an intersection: Q. …Mr. Boyd’s evidence was that you stopped into the intersection and you had to reverse to get behind the white line before the light turned green again? A. Yes, I crossed the line when the light was yellow. But, I did not go into the intersection. I just moved a little bit further but then the light turned to red and I decided to stop and back up just for safety. The same topic was raised in cross-examination: Q.

Sir, when you were going south on Navy Street heading towards Lakeshore, I’m going to suggest to you that the light was red as you were approaching it, is that right? A. No it was not red. If it was red I would not go through it. Why, why should I. Q. Well, you decided to stop in the middle of the intersection, right? A. It wasn’t the middle. Q. It wasn’t in the middle? All four of your wheels weren’t across the red line or the white line? A. That’s right. I just jumped, jumped forward. If I was going to make some decision I wouldn’t stop. I would just continue through intersection.

That’s why I decided to back up. [ 35 ] The appellant agreed that he may have made a rolling stop at Navy and Robinson Streets noting that “almost everybody does so there”. [ 36 ] When it was suggested in cross-examination that his memory of December 31 st , 2003 was not “good”, the appellant replied: I regret very much that right now because it happened such a long time ago, some details were just erased from my memory. That’s why I apologize before the court for this. [ 37 ] When stopped by the police, according to the appellant, he had been driving slowly intending to park and shop.

He was surprised by the police – “It was very unexpected for me”. He saw one police officer with a gun drawn. The appellant described himself as “very emotional” as an officer opened his vehicle door and directed him to get out. The appellant agreed that his truck jumped forward with the transmission in Neutral: I just released the, the brake and when it’s a manual transmission, you have to put the brake on. I forgot to do it, but when you are at gun point you forget about things like this. He considered in this situation “anyone…would have difficulty standing”. Mr.

Shyshkin recalled that he was restrained with plastic handcuffs after being put to the ground.

[ 38 ] The Crown called Const. Brunelle, without objection, to give reply evidence that he did not put the arrestee on the ground and restrained the appellant with metal not plastic handcuffs.

Challenges to Trial Court’s Reasons [ 39 ] The trial court delivered its reasons for judgment on July 4 th , 2005 immediately following the completion of evidence and the submissions of counsel. [ 40 ] While the appellant did not submit that the verdict is unreasonable, it was argued that the trial court’s analysis was flawed. [ 41 ] In argument, the appellant advanced a primary complaint that the trial judge applied an erroneous diminished burden of proof to an element of the offence by stating that the appellant’s abhorrent driving: ...was probably due to alcohol consumption, more than mere fatigue.

In fact, I find as a fact that it was due to alcohol consumption, heavy alcohol consumption that led to the driving in question, and he was impaired by alcohol. (emphasis added) [ 42 ] In addition, on matters in the court’s reasons related to adverse credibility findings regarding Mr. Shyshkin, these issues were advanced. In stating that “it’s a question of when did the drinking end, and how much Mr. Shyshkin had in his system”, it is said that the trial court improperly relied on two matters:

(1) The court stated: Now, material to this case and very important, is the fact that later on, we heard evidence from the defendant and from his son that there had been drinking. But they quit drinking according to the son, when the alcohol ran out. Now, Mr. Shyshkin himself senior didn’t say that. He said they simply quit drinking. He didn’t say that they had gone through all the alcohol. . . . The father didn’t say it was because of the fact that they finished all the alcohol that he stopped drinking. It was the son who said it was, because they went through everything he had that they quit.

It is submitted that the court improperly set up a contradiction between the defence witnesses to the appellant’s disadvantage in circumstances where no testimonial difference existed as the appellant was never asked whether he and his son drank all of the alcohol at the apartment.

(2) The court stated: And yet Officer Brunelle notices a heavy odor of alcohol on his breath. He is an experienced police officer, and he’s not an expert perhaps on this, but it’s a matter of common sense. It doesn’t seem likely that someone who had quit drinking twelve hours before would have a heavy, heavy odor of alcohol on your breath. It is argued that the court improperly took judicial notice of the relation between the strength of alcohol odour on breath and the time of alcohol consumption – a matter requiring expert evidence if in fact any correlation between the two exists.

THE UNREASONABLE DELAY TO TRIAL APPLICATIONS Prior to Setting the Trial Date [ 43 ] The appellant was arrested for drinking/driving offences contrary to ss. 253(

a) and (

b) of the Code on December 31 st , 2003. Mr.

Shyshkin was formally charged by the swearing of a Form 2 Information on January 14 th , 2004. [ 44 ] The appellant first appeared before the Ontario Court of Justice (OCJ) in Burlington, Ontario on February 10 th , 2004. A justice of the peace presided. A designation of counsel was filed. In court, Mr. Bytensky’s agent received initial disclosure and a charge screening form from a law student appearing for the Crown.

The defence requested a remand to March 2 nd in order to review the disclosure. [ 45 ] At the March 2 nd appearance before a justice of the peace, a law student appeared for the Crown and an agent for Mr. Bytensky. When defence counsel noted that Mr. Bytensky had forwarded a letter for disclosure asking for specific items, the prosecution representative indicated that “disclosure is not available in court here today”. In the circumstances, the defence asked to return on March 23 rd . [ 46 ] Before a justice of the peace, on March 23 rd , a law student appeared for the Crown and an agent for Mr. Bytensky.

The defence again raised the disclosure which had been ordered leading to the government response: A moment indulgence, Your worship. Yes, Your Worship, there was something sent to the office. There was a calibration check-sheet, certification of calibration or maintenance of record or Intoxilyzer sent on the 18 th of March to Adler Bytensky. The defence representative asked to return on April 6 th . [ 47 ] The defence forwarded its disclosure requests by correspondence dated January 16 th , February 17 th and March 16 th , 2004. On March 25 th , the Crown’s office contacted Mr.

Bytensky’s office regarding pick-up of available disclosure. Defence counsel’s staff understood from the communication that only a video was available for pick-up in Milton. As a result, the defence did not obtain the video believing that only a part of the disclosure was ready. [ 48 ] On the April 6 th return date before a justice of the peace, both parties were represented by counsel. Mr. Bytensky’s agent indicated: We received notice from our friend’s office that a video is available to be picked up in Milton and I will do that later this afternoon.

If this matter could be put over to the 27 th as I’m going to be involved in a murder prelim, I won’t be able to attend until that date, if that’s agreeable? With Crown counsel agreeing, the case was adjourned to April 27 th . After court, on the April 6 th date, the defence picked up all of the outstanding disclosure in Milton. [ 49 ] On April 27 th , before a justice of the peace, a law student appeared for the Crown and an agent for Mr. Bytensky. The defence representative stated: I’m asking if this matter could also go over to the 12 th .

We intend to have a telephone Crown pre-trial in the interim and we intend to, we believe, set a trial date on the next appearance. The case was remanded to May 12 th , 2004. [ 50 ] On appeal, evidence was received that a resolution Crown is generally available to meet defence counsel at set date court appearances in Burlington and further that telephone resolution meetings can be conducted through the Milton Crown Attorney’s office three afternoons per week. The evidence from the Crown is that the defence failed to keep May 3 rd and 10 th telephone appointments for a resolution meeting.

Setting the First Trial Date [ 51 ] At the May 12 th appearance, again before a justice of the peace, counsel appeared to set a date for trial. Defence counsel indicated that he had had a resolution meeting, it seems that morning, with a Crown counsel other than the in-court prosecutor. Defence counsel provided this information to the court: …a trial date has been located. The blue sheet is there before Madam Clerk. I believe it’s the 20 th of October for trial. For the record, of course, Mr. Bytensky did have dates earlier. However, the first available date for the Court was offered in August. Those dates

weren’t available to police. And the next available date was the 20 th of October, which is the first date that both the Court and the police officers were available. And Mr. Bytensky is available for that day as well. The ‘Request for Trial’ blue sheet referred to by counsel was obtained by defence counsel from the OCJ Trial Coordinator’s office. Crown counsel does not attend the Coordinator’s office although a police representative ordinarily does. The sheet described a trial expected to last two to three hours with ss. 7 and 10(

b) Charter applications. The earliest dates offered by the court were August 16 th and 20 th neither of which was available to the police. The trial was set for October 20 th , 2004. The First Trial Date [ 52 ] On October 20 th , 2004, the appellant’s trial did not go ahead because no Russian interpreter came to the courthouse. There was no explanation at trial or on appeal to account for the failure to provide court interpreter assistance. Attempts were made during the day, unsuccessfully, to summon a Russian interpreter. Mr.

Bytensky informed the trial judge, Baldwin J., that he spoke Russian but that his client had only a basic understanding of English. In addition, Baldwin J.’s courtroom was overbooked with two trial matters scheduled other than Mr. Shyshkin’s case. One of those trials it appears consumed the day’s trial hours. [ 53 ] Mr. Bytensky attended the Trial Coordinator’s office together with an investigating officer to secure a new trial date. On returning to the courtroom, counsel informed the court: Your Honour, we have a date of, I believe, it’s March the 4 th . The sheet will indicate that, in Oakville.

That’s ultimately the remand date. What happened after we attended at the trial coordinator’s office, the officer in charge and that’s sitting behind me, we canvassed – I think it’s fair to say, and the sheet will reflect, that there was a handful of dates that were offered. I was not available some of the dates, neither the officers nor I were available. There’s also a few dates that are shown there that I was available and the court was not available.

I think the officer will agree that when we first went through in excruciating detail, there were a few other dates that both the officers and I were available; the court was not. Madame trial coordinator did not list them initially. We tried to go back and recreate some of them, and did so, put some of them down ultimately, but there were probably a small number, three or four perhaps that we had originally looked at, but because it was after five o’clock we didn’t want to keep going through. If I’ve misstated anything the officer can certainly correct me or advise Mr. O’Marra to correct me.

The other comment I’ll make, and perhaps more importantly, Your Honour, is this, it is, of course, after five o’clock. I’ve sat here all day. Mr. Shyshkin’s sat here all day. I have a witness, civilian witness that sat here all day that I’d intended to call in my case. We’ve known, for a number of hours, that no interpreter was coming [despite] it being ordered. In the original trial scheduling she does indicate a Russian interpreter on it. I did check the court documents on the sheet when the original trial was scheduled.

I don’t see it noted on the info but I do see it noted on the – when the original trial date was set. In any event, no interpreter was here. I did – at about ten o’clock, I spoke with a front staff and told him that we needed an interpreter. Checked again at two o’clock and they said it wasn’t going to be available. I also spoke with Mr. Fedorsen, who advised me his trial was going to be going to the end of the day anyways. I tried to speak with Mr. O’Marra around two o’clock to see if we can be released because there was no interpreter and plus weren’t likely to be reached and Mr.

O’Marra did not wish to release us at that time. [ 54 ] The blue sheet records that defence counsel alone was unavailable on the following dates offered by the court: October 26-28, November 9, December 1, 2004 and February 2, 14 and 25, 2005. The blue sheet also recorded that the court had no time on December 6 and 17, 2004 and February 17, 2005 when defence counsel was available. On appeal, Mr.

Bytensky’s supplementary material represents that he had fifteen (15) available dates in October, November and December as well as January and February, 2005 dates unavailable to the court or to the police. [ 55 ] On appeal, the defence maintained that the Crown refused earlier in the day to agree to adjournment to a new trial date unless the defence waived its s. 11(

b) Charter right referable to the thrown-away trial date which Mr. Bytensky declined to do. [ 56 ] In addition to setting March 4 th , 2005 as the new trial date, Baldwin J. endorsed the court record: Not reached on Oct. 20/04 (3 Impaired Driving Cases on the list). New Trial Date March 4/05. The Second Trial Date [ 57 ] On the March 4 th , 2005 trial date, the trial was adjourned. On the record, the defence took full responsibility for the adjournment on account of the late perfection of its s. 11(

b) Charter application. Although the relevant transcripts and application record were served and filed beforehand, Crown counsel only received the defence factum the morning of March 4 th . Not surprisingly, Crown

counsel required time to prepare and file a respondent’s factum. After stating that written submissions should carry the substance of the application, Takach J. adjourned the trial stating in part: I will grant a short time for oral polishing but don’t want this to turn into, as it has with some counsel, an all-day argument on 11(b). [ 58 ] When discussion turned to the length of the trial originally scheduled for three quarters of a day, the court was informed by Mr. Bytensky that because the Crown was no longer proceeding with the “over .80” charge, the trial would “be substantially shorter”. Crown counsel agreed with that assessment. Both counsel agreed that even with the s. 11(

b) application, should it prove unsuccessful, only a half-day was required. The new trial date was scheduled for April 18 th , 2005, a date when “only a sentencing” had been scheduled. The First

Section 11(b)/24(1) Charter Application the evidence [ 59 ] At the outset of the trial before Cooper J. on April 18 th , 2005, prior to argument of the s. 11(b)/24(1) Charter application, the trial judge stated that he wanted to “zero right in on” the issue of his concern that the defence never asked for an interpreter “at any time”. After Mr. Bytensky pointed out that the May 12 th , 2004 blue sheet clearly recorded the need for a Russian interpreter, the Crown elected to proceed summarily and the Charter motion proceeded. [ 60 ] Mr.

Shyshkin filed an affidavit on the delay-to-trial application deposing to the following: (1) he retained Mr. Bytensky about two weeks after his arrest (2) the anxiety and stress of being arrested and having to face the criminal charges was exacerbated by the loss of the October 20 th , 2004 trial date (3) the adjournment of the first trial date resulted in increased legal fees further heightening the appellant’s stress because of “limited financial resources” available to support his family (4) on October 20 th , in the absence of a waiver of s. 11(

b) Charter rights, the defence had to wait all day while another trial matter proceeded and did not finish (5) the appellant’s memory is less definite than at the time of his arrest or the first trial date, a matter adding to the stress of awaiting trial (6) while awaiting trial, the appellant turned down “a number of out-of-town jobs” because the jobs, some in the United States, take months to complete and he was uncertain whether he would have a driver’s licence after trial – the impact has been “significant financial loss” causing further stress since the loss of the October 20 th trial date. [ 61 ] In his testimony on the delay motion before the trial judge, the appellant, who is a blacksmith and an artist, gave this evidence: (1) his wrought iron projects can take up to a year to complete with smaller jobs lasting about two months (2) one of the projects the appellant turned down was a three-month job for a railing, main gate and 80-foot fence in New York from which he would have earned about $60,000.

US (3) for a project such as the one in New York, the appellant was the only one able to take measurements and prepare the job paperwork appropriately; he would have to be present to supervise the installation.

positions of the parties before the trial judge the Crown [ 62 ] The prosecution submitted that the defence ought to have committed to getting a trial date earlier than waiting for the May 12 th , 2004 court date. It was argued that not all the disclosure was necessary before a trial date could be selected. In any event, it was submitted, the disclosure was available by March 25 th . It is said the defence was slow in attending a resolution meeting. While it is not entirely clear from the transcript of the submissions of Crown counsel, not Mr.

Golwalla, it seems that the prosecution took the position that one should consider the general intake period, neutral in constitutional terms, to have ended on April 6 th or 27 th , 2004 at the latest and the remaining time until May 12 th to be the responsibility of the defence. [ 63 ] Crown counsel took the position before the trial judge that the loss of the October 20 th , 2004 trial date because of the failure to provide a court interpreter was the government’s responsibility and that the consequential delay to the March 4 th , 2005 second trial date was at the feet of the Crown.

The Crown calculated the systemic delay (May 12 th to October 20 th , 2004) and Crown delay (October 20 th , 2004 to March 4 th , 2005) to be about 9½ months. [ 64 ] Both parties agreed that the delay from March 4 th to April 18 th , 2005 was defence responsibility. [ 65 ] The Crown submitted that no prejudice arose from loss of business opportunity as Mr. Shyshkin had employees and was not prevented by any delay in securing and fulfilling the U.S. project had he taken the job.

In addition, it was argued that in the context of the delay not exceeding ten months there existed a public interest in the charge being disposed of on the merits. the defence [ 66 ] Mr. Bytensky maintained that the requested disclosure, including the audiotape of Mr. Boyd calling the police and the breath room video, amounted to primary disclosure essential to a reasonably informed selection of a trial date – disclosure which ought to have been available within about two months.

The defence argued that the slow pace of Crown disclosure ought to result in some government responsibility for the delay to the May 12 th date when the first trial date was set. It was further submitted that the delay from April 27 th to May 12 th to conduct a resolution meeting was institutional delay. Mr.

Bytensky did recognize the possibility of some defence delay prior to the May 12 th date – “perhaps a three-week deduction for the period in April where the defence could have moved a little bit more quickly at that point”. [ 67 ] The defence submitted that the October 20 th , 2004 trial date was lost not only because of the absence of an interpreter but also because Baldwin J.’s court-list was overbooked and another prosecution given priority by the prosecutor. In the end, the defence of course agreed with the Crown that the delay from the first trial date to March 4 th , 2005 was not defence responsibility.

At worst for defence, according to Mr.

Bytensky, there was about a ten-month delay attributable to institutional and Crown delay and at best for the defence about 11½ months of delay not the responsibility of the defence. [ 68 ] On the topic of actual prejudice, while there was no complaint about bail conditions, the defence pointed to: (1) the loss of the October 20 th , 2004 trial date with the attendant extra costs of staying in court all day on October 20 th because the Crown would not agree to earlier release and the costs of preparing and appearing for a successive trial date, the stress, and diminishment of memory of the appellant and a second defence witness (2) the loss of business opportunity and in particular the offer of a contract in the U.S. after the October 20 th , 2004 date which could not be taken because the charge remained outstanding. ruling [ 69 ] After hearing the submissions of counsel, but before the defence had an opportunity to make reply submissions, the trial judge gave his ruling: I think I can dispose of this one fairly quickly.

As you know, I decided another unreasonable delay case this morning and maybe one

cannot compare apples and oranges. In that case, there was very stringent bail conditions where for two years the applicant couldn’t drive his motor vehicle and basically had a curfew. Here, even if the delay is 11½ months I find there is not sufficient actual prejudice here. It is somewhat fuzzy. I think the applicant could have even taken a plane to New York, which is the way most people travel, and taking taxis to do the job or he could have had his employees do it.

And at that point he had not actually lost his licence, so I just find that even though there may have been some financial problems or stress or potential memory loss, it just is not enough within the case law, as I understand it, to be sufficient actual prejudice to make the time period in question unreasonabl[e] delay. That is my finding. [ 70 ] After allowing reply submissions, the trial judge stated: “I am not going to change my opinion on it”. Trial Evidence – April 18 th , 2005 [ 71 ] On April 18 th , the witnesses for trial were present.

The s. 11(b)/24(1) Charter application did not consume a great deal of time – the appellant’s evidence occupies less than seven pages of transcript, and written argument, per the earlier direction of Takach J., constituted the substance of counsel’s submissions. It is apparent from the transcript that Cooper J. decided a s. 11(

b) matter during the morning of April 18 th and that the appellant’s case commenced about fifteen minutes before the lunch break. During the afternoon, on three occasions, “unrelated” matters of unknown duration interrupted the Shyshkin trial. Only the in-chief testimony of the first Crown witness, which began after 4:00 p.m., was completed. On the subject of selecting a trial continuation date, Mr. Bytensky stated that he had a number of dates available including the same week, the following week and throughout the weeks up to June.

Although the Trial Coordinator offered June 16 th to complete the trial, June 23 rd was scheduled to complete the trial – the date “the remaining Crown witnesses [were] available”. The Second s. 11(b)/24(1) Charter Application [ 72 ] The defence filed a successive delay-to-trial motion returnable before the trial judge on June 23 rd , 2005. Mr. Bytensky stated on the record that the delay of concern with respect to s. 11(

b) of the Charter “run[s] to the end of the trial”. Cooper J. exercised his discretion to first hear all the trial evidence. [ 73 ] On June 23 rd , Mr. Boyd’s testimony was completed, three police officers gave evidence and the defence called Mr. Shyshkin who testified through a court interpreter. [ 74 ] On about ten occasions during his testimony, the appellant expressed a lack of recall. At one point, in the cross-examination taking place almost a year and a half after his arrest, this exchange occurred: Q. So, your memory isn’t so good from that night, is it or that evening? A.

I regret very much that right now because it happened such a long time ago, some details were just erased from my memory. That’s why I apologize before the court for this. [ 75 ] Toward the end of the afternoon of June 23 rd , Mr. Bytensky informed the trial judge that the evidence of his last witness, who was present, would last ten to fifteen minutes. The trial judge concluded, without disagreement, that the trial would not finish that day since, apart from the remaining witness’ evidence, the s. 11(b)/24(1) Charter application and trial submissions were outstanding. Mr.

Bytensky stated that he was prepared to return the following day. Crown counsel was also available the next day. That date was not, however, available to the court. [ 76 ] In the end, the court and the parties agreed to the need for a further half day of court time. The Trial Coordinator provided July 4 th and July 25 th as the earliest available dates. While reporting that he was available on July 4 th , Mr. Bytensky stated that he was prepared to attend anywhere in Ontario “to get it done faster”.

The trial judge remanded the appellant to July 4 th to complete the trial. [ 77 ] The trial recommenced at 11:34 a.m. on July 4 th , 2005. After Denys Shyshkin’s testimony and reply evidence from Const. Brunelle, the court entertained the submissions of counsel on the trial proper. [ 78 ] After the lunch break, without the calling of evidence, submissions were made on the s. 11(

b) issue. Mr. Bytensky emphasized the additional legal fees after April 18 th , the delayed start on April 18 th due to other scheduled matters on the court docket, the further delay to July 4 th , and the stress of added delay for “a simple, relatively straightforward impaired driving case, with no expert evidence”. As well, the defence stressed that having seen and heard the appellant’s evidence, the effect of delay on memory was observable in a case where credibility was “very much a live issue”. The defence calculated the institutional/government delay at about 14 months.

Crown counsel submitted that the appellant “had to endure extra legal fees”, that the proceedings had slowed with the court interpreter assisting two defence witnesses, and that the June 23rd and July 4th dates were “relatively early” trial continuation dates. The “prejudicesuffered at the hands of the applicant” did not justify a different result from the first ruling. [79] Without a recess, the trial judge dismissed the defence application and gave reasons convicting the applicant. The Charterruling follows: The original application, under

Section 11(

b) of the Charter, was heard on April 18th, of this year, and it was dismissed. I found therewas insufficient prejudice at that time. The application was renewed, and the onus is on the applicant. There have been a lot of different dates for trial, but there were very complex factors, as the Crown has pointed out, and it wasn’t justyour run of the mill drinking and driving case. And I find, even with increased legal fees for the delay, there is still insufficientprejudice.

And also, in addition to that, I find the facts of this case are very serious, and I do take to mind what the Crown has just saidabout Bernshaw, reported in (SCC), 95 C.C.C. 3d, 193; decision of Justice Cory, about the seriousness of drinkingdriving cases as well. And the case of Regina v. Kovacs-Tatar of (ON CA), 2004, O.J. No. 4756, a decision of theOntario Court of Appeal; a panel consisting of Justices Weiler, Rosenberg C.R.G. and Pardu, a decision of the court.

And at pagethirteen of this decision, the court indicated: There are societal interests in insuring that an accused is tried within a reasonable time, to minimize the prejudice to the accused, andinsure they are treated humanely and fairly. Morin, at page twelve. But, there’s also a societal interest in insuring that accused are tried on their merits, as Sopinka A.J. at pagethirteen of Morin: As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial.

And I treat the facts in this case as very serious, and an atrocious case of impaired driving, and that’s another factor that I take intoconsideration in not allowing the defense application. Trial Court’s References to Memory in its Reasons for Judgment [80] In the court’s reasons for judgment, reference was made to Mr. Shyshkin’s lack of recall: He seems to remember certain parts and other parts, he doesn’t. . . . In cross-examination, I found that he was not a convincing witness. I thought the Crown did an excellent cross-examination. Hecouldn’t recall certain things. “It was a long time ago”, he said.

Now, Mr. Bytensk[y] in the renewal argument said that perhaps it wasbecause of the passage of time, but it seems to me, that he remembers some things and forgets others. A lot of it was due to impairmentby alcohol, in my opinion. He said; “I’m sure there’s an explanation, but I can’t remember it now”. He does not remember cutting offtraffic in the opposite lane.

Positions of the Parties on Appeal the rulings [81] Mr. Bytensky submitted that the reasons of the court in its two delay-to-trial rulings failed to undertake any Morin analysisincluding identification of relevant constituent periods of delay and responsibility for those delays. [82] The respondent agreed that the court’s reasons were

summary with conclusory analysis only. That said, the Crown relies on thecorrectness of the result and the court’s findings of a lack of sufficient prejudice. the start point [83] Relying on R. v. Seegmiller (2005), (ON CA), 191 C.C.C. (3d) 347 (Ont. C.A.) at 351 (leave to appealrefused [2005] S.C.C.A. No. 64), the appellant submitted that the start point for calculation of delay to trial is the arrest date. TheCrown, relying on R. v.

Morin (1992), (SCC), 71 C.C.C. (3d) 1 (S.C.C.) at 13, identifies the swearing of the informationas the start point for constitutional assessment of delay. the overall delay [84] Both parties agreed that the overall delay to the completion of the trial warranted constitutional review in the trial court. the period until May 12th, 2004 [85] Mr. Bytensky submitted that the prosecution was not a complex case and that primary or critical disclosure ought to have beenavailable within the first two months which period would amount to neutral intake time.

According to the defence, in drinking/drivingcases, the station video and a police audiotape of a citizen’s reports of a defendant's driving conduct inevitably constitute critical disclosure. Pressed in oral argument, Mr. Bytensky accepted that the April 6th to 27th period might be considered defence delay. Counsel characterized the April 27th to May 12th period as institutional delay awaiting a mandatory resolution meeting. [86] Mr.

Golwalla, prepared in the end to accept that, in the circumstances of this case, the videotape and audiotape could be considered primary disclosure, noted that both were available by March 25th, 2004 – 2 months 1½ weeks after the information wassworn.

The respondent argued that because the defence was tardy in picking up the disclosure and in availing itself of one of the flexible options for a resolution meeting, the appellant was responsible for the delay between April 6th and May 12th. delay to the trial date [87] Both parties accept that the entire 5 month/1 week-delay from the set date appearance (May 12th) to the October 20th, 2004 trialdate is systemic or institutional delay. loss of the first trial date and delay to the second trial date [88] The appellant submitted that the Crown was responsible for the thrown away trial date when, on October 20th, 2004, thegovernment failed to produce a Russian interpreter, the court had overbooked the date with three impaired driving trials, and, theprosecution gave priority to another trial which began and did not finish.

Mr. Golwalla accepts that the Crown is responsible for the appellant’s trial not commencing on October 20th and the consequence of a further delay to trial. [89] Mr. Bytensky’s primary position is that the whole of the delay to the March 4th, 2005 trial date is, as conceded by Crown counsel before Cooper J., the responsibility of the Crown on account of what occurred on October 20th.

Counsel’s alternative is that promoted by the Crown for the first time on appeal that some sharing of responsibility for the post-October 20th delay is reasonable given the number of dates the court and Crown were available in the gap to March 4th. Mr. Bytensky argued that defence counsel with abusy

schedule cannot reasonably be expected to immediately shoehorn a three quarter-day trial into a set professional schedule. Both counsel acknowledged that Crown responsibility to February 2nd, 2005 and defence responsibility from that date to the March 4th trialdate would not be unfair. loss of the March 4th, 2005 trial date [90] Both parties agreed that the loss of the second trial date to April 18th, 2005 was the responsibility of the defence.

the April 18 th trial date and the delay to June 23 rd [ 91 ] Mr. Bytensky argued that the appellant’s trial ought to have started and finished on the April 18 th , 2005 trial date. The case only started just before lunch and was interrupted from time to time by other court matters.

The suggestion was that the case would have been completed had it commenced at the beginning of the normal court day. [ 92 ] Crown counsel submitted that with a s. 11(b)/24(1) Charter application, four prosecution witnesses, and two defence witnesses testifying through an interpreter, and closing submissions of counsel the time required for trial had been mis-estimated.

In effect, it is argued that the trial could not have been completed on April 18 th and in these circumstances, the delay to June 23 rd , 2005 was inherent in the process and neutral. the further delay to July 4 th [ 93 ] The parties, it seems to me, ultimately agreed that this final period of delay to complete the trial was inherent in the process and therefore neutral. conclusion [ 94 ] Mr. Bytensky repeated the case for actual prejudice as raised at trial noting that the trial judge did not find an absence of prejudice and that delay in the neighbourhood of 14 months was constitutionally offensive.

Counsel relied on the delay causing the appellant’s memory difficulties. Mr. Golwalla responded that the delay of concern, about 11 plus months by his calculation, together with the trial court’s not unreasonable finding of insufficient prejudice, did not violate s. 11(

b) of the Charter . THE COURT

INTERPRETATION ISSUE The Early Proceedings [ 95 ] On May 12 th , 2004, the first trial date of October 20 th , 2004 was set. On May 12 th , the presiding judicial officer was presented with the Trial Co-ordinator’s “blue sheet”, entitled ‘Request for Trial’, upon which was endorsed “INTERPRETER: Russian”. [ 96 ] On October 20th, 2004, no Russian interpreter appeared throughout the entire day up to 5:00 p.m. Defence counsel, Mr. Bytensky, informed the court that he spoke Russian and, it appears, undertook the responsibility of interpreting for his client about the problem and the delay.

The assigned trial judge, Baldwin J., set a new trial date of March 4 th , 2005 stating “A Russian interpreter will be ordered”. Baldwin J. endorsed the court file to state: “Russian Interp. Required – Not here although ordered today”. The court clerk noted on the Information, “Russian Interp. Required”. [ 97 ] On March 4 th , 2005, the trial was adjourned to April 18 th , 2005. Ms. M. Wastle appeared as the Russian interpreter. The transcript refers to the interpreter being sworn without inclusion of the text of the oath.

At the conclusion of the day’s proceedings, the court interpreter indicated she would be available on the return date. On the ‘Confirmation of Date’ form a reference appears, “Russian Interp. Confirmed”. [ 98 ] At the commencement of the trial before Cooper J. on April 18 th , 2005, Ms. Wastle appeared as the Russian interpreter. The transcript of this date states “Swearing of Interpreter not required”. Without more transcribed, it appears that the parties were content that the interpreter having been sworn on March 4 th , a re-swearing was unnecessary. On April 18 th , Mr.

Shyshkin testified on the pre- trial s. 11(b)/24(1) Charter application. Paragraph 16 of the appellant’s affidavit filed on the delay-to-trial motion stated that: “This Affidavit has been translated to me by Mr. Bytensky from the English language to the Russian language prior to me signing it”. After the stay motion was denied, the first Crown witness, C. Boyd, testified in-chief before the trial was adjourned for continuation on June 23 rd , 2005. No complaints were made regarding the court interpreter’s assistance. At the end of the day, Ms.

Wastle informed the court she would not, on account of set vacation plans, be available on the return date. Cooper J. stated on the record that a Russian interpreter would be required for June 23 rd . The June 23 rd , 2005 Trial Proceedings [ 99 ] At the outset of the June 23 rd , 2005 trial continuation, there was discussion of preliminary matters occupying a page and a half of transcript, all without the swearing/affirmation of a court interpreter. It is unknown from the appeal record whether the interpreter, Mr. A.

Medjidov, assisted the appellant before he was affirmed in these terms: CLERK OF THE COURT: Do you solemnly affirm that you are capable of translating and will translate, to the best of your skill and ability, in this proceeding from English to Russian and Russian to English?

COURT INTERPRETER: Yes, I do. The court interpreter did not, it seems, interpret for the appellant the affirmation itself. [ 100 ] Except when the appellant himself testified, the court interpreter provided simultaneous

interpretation for Mr. Shyshkin. Seated beside the appellant, in whispered

interpretation, at most a few words behind the English speakers in the courtroom, the interpreter converted the English spoken to Russian. While the English proceedings were taperecorded by the court monitor, the simultaneous

interpretation for the appellant was not recorded in any manner. On June 23 rd , simultaneous

interpretation was provided for the remainder of Mr. Boyd’s evidence as well as the testimony of Consts. Brunelle, Smith and Anderson which completed the prosecution case. No complaint was made as to the quality of the

interpretation during this phase of the trial. [ 101 ] Mr. Shyshkin was the first defence witness. The court interpreter switched to consecutive

interpretation standing beside the appellant while he was in the witness box. There were no overlapping voices in the courtroom – when an English speaker stopped speaking, Mr. Medjidov would convert to Russian for the appellant, and, after the appellant’s responses in Russian the interpreter converted to English. The entirety of the consecutive

interpretation was taperecorded. In the ordinary course, only the English track of the taping was transcribed for the appeal. On appeal, the Crown accepted the accuracy of evidence filed from D. Genis, proficient in the English and Russian languages, who audited the trial tapes of Mr. Shyshkin’s testimony, noting inaccuracies in the English to Russian and Russian to English court

interpretation. The expert recorded seventeen (17) areas of concern during the appellant’s testimony which occupied only 44 pages of transcript. The discrepancies, described more particularly below, have been parenthetically lettered as excerpts A through Q. [ 102 ] Near the outset of his in-chief examination, the appellant stated that he had been in Canada nearly ten years. In response to an in-chief question as to what he did with his son on December 30 th , 2003, the transcript records this answer: I decided to stay with my son. It was New Year’s Eve.

I haven’t seen him for a long time and I wanted to talk to him. The newly accepted English text of the appellant’s response in Russian is: Somehow I decided to stay. Decided to stay with my son. I have not seen him in a long time. Well, it was a New Year Eve and well, I wanted to talk with him a little bit. While the defence on appeal does not suggest the discrepancy is itself consequential, it does provide context for the transcript-recorded observation of Mr. Bytensky: I want to make sure because Your Honour, my problem is I speak Russian and I, I heard his answer in Russian slightly different.

So, I’ll ask the question again. [ 103 ] Shortly after, still during in-chief examination, the appellant was asked: “you were drawing something for pleasure or for business or both?” with the transcript recording a response of: My business is my pleasure. Yes, for business but I didn’t do it at the same time. The accurate English text of the appellant’s answer in Russian is: My business is my pleasure. Yes, for business, I do it at the same time. [ 104 ] Three questions later, the transcript records this exchange: Q. Okay. Did your son sleep the whole day or did he sleep some part of the day?

A. No, just part of the day. Then he woke up. He had coffee and we were talking again. The actual response correctly translated to English is: No, only part of the day, he woke up, we ate something, drank some coffee of course… [ 105 ] A short time later, as recorded in the transcript, this evidence was given: Q. When you left your - - when you made a decision to buy something nice and you said you knew that there was some stores. Did you know how to get there? A. Very approximately. I just had map and I had to find this place by map. The corrected response reads: Very approximately.

I had to look at the map, I had to orient by map. [ 106 ] After the following question and interpreted answer, this exchange transpired: CROWN COUNSEL: And let the record show, Your Honour, that the witness corrected the interpreter’s English response. THE COURT: Yes, I so note that. He did do that. So, I take it from that he speaks some English. MR. BYTENSKY: Well, in fact, Your Honour he corrected it, but if I may just interject, I don’t want to give evidence, but the interpreter said it correctly and Mr.

Shyshkin thought he must have, he must have heard it wrong because what he said to try to correct the interpreter, the interpreter got right. THE COURT: It sure looked that way. MR. BYTENSKY: I don’t know how much English… THE COURT: Well, I just - - he’s been in Canada for 10 years. He must know some English. MR. BYTENSKY: Correct. Sure, there’s no doubt he speaks some English. [ 107 ] A couple of minutes later, still in in-chief examination, Mr. Bytensky stopped mid-question having heard the court interpreter, in Russian, switch the word “right” to “left”. Counsel stated: “No, I’m sorry Mr.

Interpreter just mis-translated” prompting this lengthy exchange: THE COURT: …see you can’t really.

MR. BYTENSKY: …if I can re-ask the question because I… THE COURT: …no, you can’t really give evidence on that. I know that, I know from before you speak Russian but you’re correcting the interpreter and it’s really awkward to accurately assess the evidence. MR. BYTENSKY: …you’re right. I’ve done it intentionally before the witness had a chance to answer. So, if I can just have the opportunity to re-ask the question. I’m an officer of the court, Your Honour and I don’t want… THE COURT: …no, I know you’re not – I honestly believe that you’re not tipping off the witness.

I honestly accept that, but what you seem to be saying is that the interpreter is not interpreting accurately. MR. BYTENSKY: He just - - I can indicate as an officer of the court, the interpreter said, in Russian, that you were going to turn left and then you turned right, which is of course is backwards from my question. My question, you were going to turn right and then you went to turn left. THE COURT: If I were the Crown I’d be on my feet as well, for this type of thing. MR.

BYTENSKY: I, I don’t wish to have a miscarriage of justice because if he’s answering a different question than the one he, he thinks he’s being asked… THE COURT: But, you’re counsel. Your role is really as counsel, not interpreter and it’s making a bit awkward, Mr. Bytensky. There is a separation of those two functions. MR. BYTENSKY: You’re absolutely right, Your Honour. You’re absolutely right. THE COURT: I know what your difficulty is because you understand and speak Russian. But, you really are acting as counsel. MR.

BYTENSKY: Well, I’ll take my guidance from the court, Your Honour, and I appreciate everyone’s concerns. My difficulty is if I know that the question has been mis-interpreted, the only other alternative is to, you know, if there’s a conviction to order the audio tape and go through the process and that’s one that I really would wish to avoid, especially concerning that nothing really turns on this point. THE COURT: No, I’m not - - I just think that if I were the Crown, I’d have some concerns about it. Anyway, what were you going to say, Mr. Moeller [Crown counsel]?

CROWN COUNSEL: Your Honour, what I was going to say I appreciate that Mr. Bytensky can speak some Russian as he’s indicated. We don’t know what level of Russian he can speak. That’s Mr. Interpreter. He’s here from the government in order to interpret. We’re all playing from the same level playing field. We have to accept what Mr. Interpreter says and does. He’s been sworn in as the interpreter. THE COURT: And I don’t speak Russian either and I think that’s what the Crown’s saying is absolutely correct, Mr. Bytensky. MR. BYTENSKY: I, well…

THE COURT: …you can, you can maybe even re-phrase the question and maybe it’ll be, it’ll turn out differently and I think we’ll give you a little leeway because of the language difficulty, but you really can’t correct the interpreter. MR. BYTENSKY: All right. In fairness, Your Honour, I was only restating the evidence of Mr. Boyd at that stage. It wasn’t asking any kind of separate question. That’s… THE COURT: All right. Let’s carry on the best we can without acting as an interpreter, okay? MR. BYTENSKY: All right. [ 108 ] Two questions later, this evidence was given: Q. Okay, please explain why it happened. A.

I, yes I would, uh…yes I would explain that I was very tired and I was going to drive home but at the, - - and that’s why I was going to, I was going right, but then at the last moment and I think I made a mistake there because I was very tired, I changed my mind and I decided to go back to the downtown. The corrected answer reads: I actually was very tired and I felt it and at some point I decided that probably I will not go to downtown, I will take Rebecca to the right, that road was familiar to me, and through the [T]hird [L]ine I will return to the highway and will drive home.

But at the last moment I decided that probably I needed to go downtown. Probably, it was my mistake. [ 109 ] Later, during in-chief testimony, the transcript records this evidence: Q. Okay, now when the police officers were around you and did you see them come out of their vehicles? A. It was a long time ago. I cannot exactly tell how they were getting out of the cars. But, I do remember that they were near my car. One was here, one was there. I do remember that.

The corrected response reads: How they exited cars…it was a long time ago, I cannot say definitely now but they were yet they were around my car here and here, I remember one policeman clearly. [ 110 ] In cross-examination, the transcript records this evidence: Q. And they bring you those gifts because they know you like alcohol, correct? A. No, I can explain. There are some companies which give as gifts exactly the same kind of whiskey or something else to all other, other companies or people. I have a list of these companies. If you need, I can give it to you. The corrected response is: A. No, I can explain.

There are companies that bring the same bottle of whiskey to everybody, each year, to everybody

else that uses [their product]; I can even name them, and telephone numbers, everything, if this is required, should you have questions. [ 111 ] The next relevant exchange is: Q. But, it caused damage to your car that you still haven’t fixed, right? A. It’s not such significant damage that I would fix it. The accepted accurate response is: Well, this is not a kind of damage worth fixing. [ 112 ] In further cross-examination, this evidence is recorded in the transcript: Q. Well, sir, it was a significant amount of contact with the tree to cause damage to your motor vehicle, correct? A.

Any contact with anything would cause some damage to the car. But, I just think that if I would hit the car strong, strong enough I would just break it. The corrected answer reads: A. Well, any contact with anything would cause damage to the car. But if I hit that little tree hard, I think that I would have broken it. [ 113 ] The next relevant exchange involves a mis-interpreted question. The transcript records the prosecutor’s English question in this way: Q.

Sir, I’m going to suggest to you that when you were driving south on Dorval in the Speers area, you cut off a few vehicles and those vehicles had to put on their brakes. Do you remember that? This question of Crown counsel was incorrectly interpreted in Russian for the appellant in these terms: Q. I have to say that when you drove south on Dorval when you reach the intersection with Speers, there were other cars on the intersection, that had to put on their brakes abruptly. Do you remember that? According to Mr. Genis, the appellant seemed puzzled by the question.

The response recorded in the transcript reads: To tell the truth I don’t remember. But, I think there is a traffic light. It shouldn’t happen there. The actual answer of the appellant was: To tell the truth I don’t remember. But, I think there is a traffic light. It could not have happened there. [ 114 ] About a minute later, mis-interpretation again occurred in a companion question and answer. The prosecutor’s question, set out in the transcript, reads: Q.

And sir, then as you were approaching Rebecca Street, you had your right hand signal turned on because you said you want, you were thinking about going home again?

What Mr. Shyshkin heard in Russian was: Q. And when you were approaching Rebecca Street, you had your right hand signal turned on, you were driving in the right lane, because you were thinking about going home? The transcript records this answer: A. I felt very tired. I, I realized that this car is not very comfortable for me to drive and I decided that I turned to Rebecca because I decided that maybe for me it’s better at that time to drive home. The correct response reads: A. I felt very tired.

I, I realized that I really want to sleep, and that the car, uncomfortable for me, might cause difficulties in the future. And I turned to Rebecca, thinking that maybe it would be better to go home. [ 115 ] The transcript records this exchange: Q. But you almost hit him, right? A. In any instance there is almost everybody might have his, almost. The correct answer reads: A. There is no such thing as “almost”. “Almost” can always happen. Anybody might have “almost”. [ 116 ] The next relevant exchange reads: Q. It wasn’t in the middle? All four of your wheels weren’t across the red line or the white line? A.

That’s right. I just jumped, jumped forward. If I was going to make some decision I wouldn’t stop. I would just continue through the intersection. That’s why I decided to back up. The answer, accurately interpreted, reads: A. That’s why I decided to back up. I just went past the line. If I was going to break the rule, why would have I backed up? I would have stayed where I was, or went through the intersection. [ 117 ] Still in cross-examination, this evidence is recorded in the transcript: Q.

So, that’s why you went south on Navy, passed Lakeshore, down Robinson, up Thomas, past Lakeshore again heading towards Church. You’re driving in circles sir, weren’t you? A. Yeah, that’s right because when I was going south on Navy I was in the middle lane and I could not stop there so I had to go up again to make the turn. I was just looking for the spot to park and there is no other way and that’s where I was stopped and arrested. The correct response reads:

A. Right, because when I drove from Navy to Lakeshore, I happened to be in the middle lane where I approached the intersection, and I was not able to turn left. So I drove down, past Lakeshore, and in order to get back I drove by and made a turn, and was looking for a spot to park and they arrested me. I was driving 20 km [per hour?] (Inaudible) [not?] necessary to catch me in such a manner. [ 118 ] The final passage of note records this evidence: Q. So, you did have a store in mind. You did some work at St. Jude downtown Oakville. You know the area don’t you? A.

By that time I’d been in downtown just maybe twice and I just like this place. It looked European. I[t] was very beautiful. So, I just remembered it and I don’t know how to tell. I don’t know downtown Oakville well, but I just remembered this place. The correct answer reads: A. In downtown, I had been in this place, at the most, two times, no more. But I remembered this place, it was very beautiful, it was European, it was like from fairytale. I don’t know downtown, unfortunately. It would be good if I had known it.

But I wanted there because I knew that I would definitely buy something there. [ 119 ] At the conclusion of Mr. Shyshkin’s testimony, Mr. Bytensky again raised his concerns of mis-interpretation: MR. BYTENSKY: Just for the purposes of the record, because I don’t want it - - should it be necessary at any future purpose to refer to this, I don’t want it to be said that I stayed silent. I appreciated Your Honour’s remarks regarding me not playing witness on

interpretation issues throughout… THE COURT: …uh-hum. MR. BYTENSKY: …the proceedings and after your comments, I did not rise during the testimony and the cross examination of my client, but there were at least two instances that I caught, there may have been three, I wasn’t sure about one of them, which I don’t believe the interpreter, is not competent, I’m not suggesting that but there were, for whatever reasons, mistranslations about some matters that I wanted noted that I did believe I observed and if it becomes ever necessary there’s always an audio tape that can be ordered.

But, I just wanted to put that on the record without getting into further detail unless Your Honour wishes to hear from me for further details. THE COURT: No. [ 120 ] After July 4 th , 2005 was selected for the trial continuation, defence counsel asked that the record note that a Russian interpreter would again be necessary. Without seeking submissions on the point, the trial judge asked: “And the Russian interpreter will be - - will you be available, sir?” The interpreter was available for the return date. Completion of the Trial Evidence [ 121 ] On July 4 th , at the outset of the trial continuation, Mr.

Bytensky requested that the court interpreter be re-sworn to which the trial judge responded: “No, we don’t need him re-sworn”. As the final defence witness, Denys Shyshkin, gave his brief evidence, the court interpreter provided consecutive English/Russian

interpretation for the witness while the appellant listened to the witness’ answers in Russian and the interpreter’s

interpretation of the English questions. Position of the Parties on Appeal the appellant [ 122 ] In oral argument, Mr. Bytensky submitted that the appellant’s s. 14 Charter right to court interpreter assistance, as

described in R. v. Tran (1994), (SCC), 92 C.C.C. (3d) 218 (S.C.C.), had been breached in this case. In taking theposition that constitutionally protected linguistic rights were not honoured, counsel also stated that justice had miscarried in the sense that“justice was not seen to be done” in the way the trial court dealt with the

interpretation issue. [123] Leaving to the side what is said to be significant compromise of the appearance of justice, Mr. Bytensky accepted thatdemonstrated misinterpretation errors could only reasonably call the verdict into question if they affected vital interests of the appellantat trial. Counsel advanced the following submissions:

(1) Timely objection was made at trial but counsel’s attempts to ensure correct

interpretation were simply “rebuffed” bythe trial judge. Re-examination of the appellant to attempt to correct misinterpretation errors was tactically not a reasonable option giventhe trial court’s stated position, an understandable desire not to alienate the trier of fact, and the risk of apparent inconsistencies emergingin re-examination referable to

interpretation problems but perhaps appearing to relate to Mr. Shyshkin’s credibility as a witness.

(2) While a number of the demonstrated errors in consecutive

interpretation amounted to technical incorrectness only, ahandful of the interpreter’s mistakes not only fell below the s. 14 Charter standard but also were capable of affecting a fair trial in a casewhere the appellant’s credibility was crucial.

(3) Although counsel considered at trial that the court interpreter was competent but perhaps having an “off-day”, thenumber of errors and the degree of departure in accuracy in some instances, together with the interpreter certification concerns raisedafter the appellant’s trial in R. v. Sidhu (2006), (ON SC), 203 C.C.C. (3d) 17 (Ont. S.C.J.), raise competencyconcerns.

(4) The error rate found in the consecutive

interpretation of the appellant’s testimony makes it statistically inevitable thaterrors occurred during the more difficult process of the unrecorded simultaneous

interpretation of the four Crown witnesses riskingconstructive exclusion of the appellant from his own trial. the respondent [124] Mr. Golwalla accepted that the trial judge could have held a qualification voir dire relating to the court interpreter onceMr. Bytensky raised concerns of misinterpretation. Crown counsel noted however that at the time of trial the interpreter was a certifiedinterpreter and the Sidhu case had not been decided. Counsel submitted the following:

(1) Recognizing that the constitutional standard of court

interpretation is not perfection, only two or three of themisinterpretations are worthy of consideration in terms of their potential impact on the fair trial.

(2) None of those demonstrated misinterpretations were sufficiently relevant to the trial judge’s determination of theappellant’s credibility or any other essential issue at trial to place the verdict in doubt.

(3) Misinterpretation errors had to have occurred during simultaneous

interpretation for the appellant the effect of whichcannot now be measured. ANALYSIS Grounds of Appeal Relating to Reasons for Judgment [125] As to the trial judge’s reference to the appellant’s unusual driving being “probably” due to alcohol consumption, reading thecourt’s reasons as a whole, I am satisfied that the court did not in the end apply a civil burden of proof to elements of the offence. Thecourt is presumed to know legal principles as elementary as the standard of persuasion upon the prosecution (see R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 (Ont.

C.A.) at 203-4) and with three references to reasonable doubt in the course of thereasons, it cannot be said that there is legal misdirection.

[126] The trial court’s reference to an apparent discrepancy between the appellant and his son as to why they stopped drinkingamounts to a misapprehension of evidence. This mistake as to the substance of the relevant evidence on the point was a significant steptoward disbelief of the appellant. [127] Further, the court improperly took judicial notice that a heavy odour of alcohol on a driver’s breath meant that he hadconsumed alcohol within the past twelve hours.

This impermissible finding, in the absence of evidence, served to erode the confidenceof the trier of fact in the appellant’s account that his driving conduct was not caused by alcohol consumption. [128] In a case where the appellant’s credibility was instrumental to his defence, these two errors of law, together with thequestionable reply evidence relating to the type of restraints placed on Mr.

Shyshkin at the time of his arrest, a collateral fact rule issueto which no one made reference at trial or on appeal, put in question, despite the abundance of evidence pointing toward impairedoperation of a motor vehicle, the integrity of the verdict. In light of the appellant’s testimony explaining his driving conduct, I am unableto say that had these factual errors not occurred the verdict would necessarily have been the same.

The Unreasonable Delay-to-Trial Issue [129] Ordinarily, the reasons for judgment in an unreasonable delay-to-trial application address the relevant factors or framework inMorin and the responsibility, such as it may be, for constituent parts of the overall delay. The parties correctly agree that the two rulingsin this case provide virtually no sense of the trial court’s analysis excepting statements regarding prejudice. Because of theunsatisfactory nature of the rulings in facilitating appellate review, this court is itself obliged to examine the causes of

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