R. v. Gutnik, 2023 ONCJ 274

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Gutnik , 2023 ONCJ 274 DATE: 2023 06 05 COURT FILE No.: Toronto Info # 21-75003206 BETWEEN: HIS MAJESTY THE KING — AND — Jeffrey Gutnik

Before Justice Katrina Mulligan Heard on March 6, 2023, and April 19 – 21, 2023 Judgment released on June 2, 2023 Reasons For Judgment released June 5, 2023 Minu Walia............................................................................................ counsel for the Crown Myles Anevich ................................................... counsel for the accused Jeffrey Gutnik Mulligan J.: S. 11(b)-Unreasonable Delay Reasons [ 1 ] Mr. Gutnik was charged with four counts of sexual assault and one count of assault simpliciter.

The alleged offences are said to have occurred between January 7, 2020, and June 26, 2021. The complainant first reported the allegations to police in early July 2021. From the evidence heard so far at trial, it appears that she first provided a taped statement, captured by an officer’s body camera, on or about July 6 or 9 th , 2021, and a more fulsome formal videotaped statement to police at a police station on July 13, 2021. Mr. Gutnik was arrested on July 13, 2021. The Information was sworn on July 14, 2021. [ 2 ] Mr. Gutnik’s trial proper commenced before me on April 19, 2023.

Pretrial motions were heard on March 6, 2023. It was estimated by all parties that the trial would take 2.5 days to complete thus April 19-21, 2023, were the dates initially set aside to hear this matter. The trial did not finish in the time allotted. Counsel and I estimated that 4 more days would be required. The date on which Mr. Gutnik’s trial is currently anticipated to complete is August 11, 2023. The estimated completion date is 760 days after Mr. Gutnik’s Information was sworn. [ 3 ] Mr. Gutnik argued that his right to a trial without unreasonable delay as guaranteed by s. 11(

b) of the Charter of Rights and Freedoms has been violated. He sought a Judicial Stay of his charges to remedy that violation. The Crown argued that there was no s.11(

b) breach. Its position was that the net delay in Mr. Gutnik’s case fell below the presumptive 18 month “Jordan ceiling” when delay caused by the defence, exceptional circumstances and a discrete event is subtracted from the delay calculations. The Law [ 4 ]

Section 11(

b) of the Charter guarantees that any person charged with a criminal offence has the right to a trial within a reasonable time. The framework for assessing whether an accused’s right to a trial within a reasonable time has been infringed was fundamentally revised on July 8, 2016, when the Supreme Court of Canada released its decision in R v Jordan , 2016 SCC 27 . Jordan established presumptive ceiling of 18-months in the Provincial Court, and 30-months in the Superior Court beyond which, the Court held, delay is presumed to be unreasonable, and a stay of charges required. [ 5 ] To determine whether an Applicant’s s. 11(

b) Charter rights have been infringed necessitates a four-step analysis. First the court must calculate the total delay, defined as the delay between the swearing of the Information and the actual anticipated end of trial. Next the Court must subtract any periods of time that were either waived by the defence or were caused solely or directly by the defence. The delay remaining is defined as the net delay.

If the net delay exceeds the presumptive ceiling the delay is presumptively unreasonable unless the Crown can demonstrate that the case is either particularly complex or that exceptional or discrete circumstances arose that were reasonably unforeseeable or outside the Crown’s control. To satisfy this burden, the Crown must show that they took reasonable steps to circumvent and adapt to the problems before the delay exceeded the presumptive ceiling.

The Issues [ 6 ] Both parties agree on the following: the total delay in this case is 760 days, which is well above the 18-month presumptive ceiling for a trial to complete in the Ontario Court of Justice there was no explicit waiver of any period of delay by the defence the case itself is not complex [ 7 ] The issues before me are: Whether the defence is responsible for delay in scheduling and then rescheduling the mandatory Crown Pre-Trial Whether the COVID-19 pandemic contributed to any of the delay in obtaining dates for Mr.

Gutnik’s trial and, if so, whether that period of delay should be considered an “exceptional circumstance” as defined in Jordan and the cases that have followed

Whether the period between the April 21, 2023, and August 11, 2023, the delay caused by the inability to complete the trial within the time period initially estimated, should be considered a discrete event. Defence delay [ 8 ] From the evidence before me on this motion I find that Mr. Gutnik did everything possible to expeditiously work through what used to be referred to as the “intake phase” of his charges. He obtained counsel, he was diligent in requesting disclosure and the pursuit of same. Despite this, he was not provided with substantive disclosure, until approximately 6 months after being charged.

I do know initial disclosure was made available on October 29, 2021. The initial disclosure package, however, did not include a copy of the complainant’s videotaped statements. Those video statements were not disclosed until sometime in late January 2022. As such, it took approximately 6 months for Mr. Gutnik to obtain, what I find to be important first party disclosure, essential to allow him to conduct a meaningful Crown pretrial. [ 9 ] I do not agree with the Crown’s submission that a Crown pretrial could have been conducted using the police generated 1-page

summary of each of the complainant’s video-taped statements. Those 1-page summaries were disclosed on October 29, 2021. I find that disclosure of the complainant’s video-taped statements was fundamental to each party’s ability to conduct substantive Crown and Judicial pretrial meetings. Both such meetings are required in this jurisdiction to set a hearing date.

Given the time frame of the sexual assault charges as contained in the Information, without knowing exactly what the complainant had alleged, the defence would not be able to make informed decisions as to mode of trial and/or the type of evidence to be presented and neither party would be in a position to know whether s.276 or s. 278.1 Criminal Code applications would be required. [ 10 ] I don’t know why video statements taken from the complainant in early July and on July 13, 2021, took 6 months to disclose. The evidence is silent on this point.

I don’t know the actual date those statements were made available to defence. I do know that, in an email sent to the assigned Crown on Wednesday January 25, 2022, defence counsel wrote that his office had “just received” the complainant’s videotaped statements. He wrote to the Crown again on February 1, 2022, advising that the Crown pretrial meeting, scheduled for the next day, would need to be rescheduled as he was still reviewing disclosure “recently received”.

As a result, the Crown pretrial meeting was rescheduled and held on February 24, 2022. [ 11 ] The Crown argued that the defence is responsible for the 23 days of delay between February 2, and February 24, 2022. I disagree. In the circumstances of this case, the need to reschedule the initial Crown pretrial meeting was occasioned by the late disclosure of the complainant’s video-taped statements and the need for defence to review same. There was no evidence before me as to how long each video-taped statement is but from hearing the complainant at the trial so far, I assume that the statements were lengthy.

During submissions, both counsel agreed that the total running time of both statements is at least 2 hours. Presumably, defence counsel also had to meet with Mr. Gutnik to review the videos with him in order to discuss trial strategy/defence evidence thereafter. Given the short period of time between the disclosure of the videos and the first scheduled Crown pretrial meeting, it is not at all surprising that rescheduling was required. As such, this period of delay was not caused “solely by the defence or directly by defence’s conduct”.

It was the result of the unexplained late provision of vital pieces of disclosure that came into existence prior to Mr. Gutnik’s arrest. [ 12 ] While I do agree that, given the delays to date, defence counsel should have responded to the Crown’s creative suggestion to

schedule a Judicial pretrial even before conducting the Crown pretrial, I cannot find that, by not so doing, defence caused delay in the eventual scheduling of same. There is no evidence to support such a finding and to do so would be too speculative given that Judicial pretrial availability in this jurisdiction is rather fluid. In any event, and perhaps because of that reality, the Crown did not assert that any specific period of delay was caused by the defence counsel’s failure to attempt to presumptively

schedule a Judicial pretrial before a Crown pretrial had even been conducted. Frankly, I am not even sure that the parties could have scheduled a Judicial pretrial without having first conducted a Crown pretrial meeting being, as noted in R v. Meawasige 2023, ONSC 2907 , at paragraph 37 , a Crown pretrial is a prerequisite to setting a judicial pretrial and trial dates. [ 13 ] As the net delay exceeded the Jordan ceiling, the onus shifted to the Crown to demonstrate that exceptional circumstances arose that were reasonably unforeseeable or outside the Crown’s control.

Those circumstances, the Crown submitted, comprised the delays caused by the Covid-19 pandemic and the delay caused by the need to secure further trial dates when the trial did not complete in the time originally estimated. Delay attributable to Covid [ 14 ] With respect to the Covid-19 pandemic I cannot agree with the Applicant’s assertion that the Covid-19 pandemic played no role in the trial delays he experienced.

While I agree that the Ontario Court of Justice pivoted quickly when drastic Public Health measures resulted in trials and other hearings being adjourned, the fact is that these adjournments created a backlog that put a significant burden on the criminal justice system. [ 15 ] In the circumstances of this case, quantifying the delay caused by the pandemic is an extremely difficult task.

I recognize that the cancellation of hearings had, what some courts have referred to as, a “cascading systemic impact.” Court closures and partial closures have had a ripple effect across all areas of the administration of justice. At the same time, Ministry of the Attorney General policies designed to decrease the backlog of cases to which the Covid-19 pandemic added, were focused and appear to have been quite effective. From my experience, those policies were a positive step forward when they were announced to the public on October 7, 2021.

Thus, I agree with the Respondent that my experience and the supporting materials filed in response, support the submission that the Crown, systemically, took reasonable steps to mitigate the delay.

In fact, having presided at College Park Courthouse for many years, I suggest that it could also be reasonably asserted that the need for policies such as the Ministry of the Attorney General’s Covid-19 Recovery Policy , which requires Prosecutors “to take steps to reduce the number of cases in the criminal justice system to ensure priority is given to the prosecution of serious offences”, existed prior to and will likely continue well after our collective memory of the Covid-19 pandemic has receded. [ 16 ] Though not forming part of the record, the publicly available statistics compiled by the Ministry of the Attorney General relating

to sexual assault charges at College Park Courthouse in particular, hardly assist in quantifying Covid-19’s delay in this case either.

According to those statistics, posted on the Ontario Court of Justice’s public website, for the years preceding and during the Covid-19 pandemic, the yearly average for such metrics specific to these kind of cases, such as the number of cases received, cases as a percentage of all criminal cases received, average days to disposition for cases that proceeded to trial and, cases pending at year end, fluctuate so much that discerning the exact amount of delay specific to the Covid-19 pandemic in this case, without more, is outside this Court’s and likely, counsels’ abilities. [ 17 ] Recognizing that, in this case, I am not able to put an exact number to the days of delay attributable to the pandemic but having already acknowledged the cascading effect it has had on delays in the court in general, I find that some amount of time should be deducted from net delay to account for what has been widely recognized as an exceptional event.

Though the Respondent argued that 90 days is appropriate I find, using a contextual approach, that 60 days is more accurate. In this jurisdiction, for out-of-custody trial matters, time to trial, defined as the period between the date the trial date is set and the first day of trial, should be, and prior to the pandemic was, in the range of about 10 months. That’s not aspirational. But, in my experience, it is the appropriate range given the number of criminal charges that flowed into College Park yearly and the processes required before a hearing date could be set. In Mr.

Gutnik’s case, the time- to-trial was almost exactly 12 months. As such, I attribute the extra 60 days, in this case, to delay caused by the pandemic’s ripple effects at College Park courthouse. It is worth noting in this regard that the Applicant’s trial was never adjourned or vacated due to any court closures or Public Health pronouncements.

Delay due to the Need for Further Trial Time [ 18 ] The Applicant argued that the delay caused by the improper time estimate is not a discrete event, as submitted by the Respondent, but delay caused by the Crown’s failure to properly assess their case and prepare their only witness.

The Respondent further submitted that the Crown’s failure in this regard was further exacerbated by the Crown’s reaction to the “unexpected evidence” of a supposedly uncharged offence provided by the complainant in her evidence in-chief on the second day of trial. [ 19 ] From the evidence of the complainant, I understand that she met once with the Crown and the officer-in-charge to prepare for trial. That meeting, held by Zoom on April 4, 2023, appears to have largely consisted of the complainant reviewing her formal police video statement.

According to her evidence, there were no other trial preparation meetings or discussions with the Crown assigned to this case. There was no other evidence filed by the Respondent on this issue. [ 20 ] While I understand that one might expect more in terms of witness preparation, I am not ready to make a finding that the complainant was not properly prepared for trial given the limited evidence I have on this point. I am prepared to find, however, that both counsel appear to have been at fault for the inaccurate trial time estimate made by each at the Judicial pretrial.

It is important to note that defence counsel who conducted the Judicial pretrial was not the same counsel who actually appeared at the trial and pretrial motions. The former was removed from the record after the initial trial dates were set. [ 21 ] Looking at the Judicial pretrial form prepared on April 8, 2022, I see that the pretrial judge noted that the Crown intended to call the complainant and “maybe the officer-in-charge” to make out its case. It is noted that both parties estimated that 2 days would be required to complete the Crown’s case. The defence indicated that it would be calling “0-1” witness.

Given the allegations, I assume that the Applicant would likely be the only defence witness called, if any. I say that as all 5 charges are alleged to have occurred in the privacy of the Applicant’s home with only he and the complainant present. There was no time estimate provided for the hearing of the defence witness. I do not know why.

It is obviously an error for counsel not to have allotted some trial time for potential defence evidence and submissions. [ 22 ] By the date of the Judicial pretrial both parties had had ample opportunity to watch the complainant’s two video statements and to assess her manner of reporting and recounting the allegations. Both video statements, as already noted, were lengthy. It seems that there was nothing to cause either counsel to believe that the complainant’s evidence was going to be pithy or concise. In addition, both counsel knew that the complainant needed the services of a Russian interpreter for trial.

Indeed, the Judicial pretrial form noted that a Russian interpreter was required. Both parties should have known therefore, that by virtue of that fact alone, the complainant’s evidence would likely unfold at a slower pace. Such is the reality of

interpretation. In these circumstances, 2 days of trial time was clearly an underestimation by both parties. The judicial pretrial form noted that no 276 or 278.1 applications were required, nor did it mention any s.11(

b) concerns or a possible s.11(

b) motion even though both applications were brought, properly so, when new defence counsel came onboard. I commend new counsel for voicing his concern regarding the original trial time estimate and for ensuring further trial time was scheduled. He also secured motion dates when originally, none had been scheduled.

Unfortunately, the trial still did not complete in the new time estimated. [ 23 ] Given the above, it is clear to me that neither party present at the original Judicial pretrial truly turned their mind to the actual specifics of the trial they were discussing in order to make good faith estimates with respect to trial time required. Judicial pretrial meetings are an important part of case management and need to be conducted by counsel who are engaged and prepared.

To make matters worse, at least a half day of the original trial time was lost due to the failure of Court Services, on the first day of trial, to make available a screen behind which the complainant could testify and

interpretation services ready to commence at 10:00 a.m. On the last day of trial as originally scheduled, Court Services was delayed in providing a court clerk which delayed the opening of court for approximately an hour. To be clear, none of these “institutional delays” were the fault of the Crown assigned to the case. In fact, she did an exemplary job of trying to ensure that everything would be ready to go at the start of the trial but to no avail. Her preemptory emails to Court Services went unanswered.

These delays do, however, fall at the feet of “the State” as it is the Ministry of the Attorney General who is responsible for court resources. As such, I apportion the delay in question, that being 113 days, between the defence and the Crown as 56 days and 57 days respectively. [ 24 ] I find that the “unexpected evidence” issue, in the context of these delays, really mattered little and it did not factor into my calculations given that everyone erred in their initial reaction to it.

The issue was resolved rather quickly in the end thanks to defence counsel’s suggested compromise which kept the trial moving forward. [ 25 ] Having made these findings, the following calculations apply:

Total Delay =760 days Total Defence Delay=56 days Net Delay =704 days Less 60 days -Exceptional Circumstances (Covid-19) = Remaining Delay =644 days 644 days divided by 30.417= 21.17 months [ 26 ] Given the Jordan 18 month ceiling, the s.11(

b) Charter application is granted and all charges stayed pursuant to s. 24(2) therein Released June 5, 2023 Signed: Justice Katrina Mulligan