



COURT OF APPEAL
    FOR ONTARIO

CITATION: R. v. Pyrek, 2017 ONCA 476

DATE: 20170612

DOCKET: C61137

Laskin, Watt and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Michael Pyrek

Appellant

Margaux Peck, for the appellant

Kevin Rawluk, for the respondent

Heard: April 13, 2017

On appeal from the conviction entered by Justice Paul F.
    Monahan of the Ontario Court of Justice on June 15, 2015, with reasons reported
    at 2015 ONCJ 333, 84 M.V.R. (6th) 297.

Laskin J.A.:

A.

OVERVIEW

[1]

One Saturday night in September 2012, the appellant
    Michael Pyrek, then 24 years old, went to a party at a friends house in
    Mississauga. While there he played a drinking game called Beer Pong. He
    played his last game just after three oclock in the morning, and then left to
    get some food at a nearby McDonalds restaurant. He drove to the restaurant
    with his friend, eighteen year old Carlee Kather, who was in the front
    passenger seat.

[2]

Pyrek drove at a high rate of speed down a residential
    street he had driven many times before. When he came to a slight curve in the
    road, he lost control of his car and crashed it into a tree with such force
    that his car was wrapped around the tree. Both Pyrek and Kather were injured
    in the crash.

[3]

Pyrek was charged with dangerous driving causing
    bodily harm, impaired driving causing bodily harm and driving with excess
    alcohol in his blood (over 80) causing bodily harm. In May 2015  31 months
    after the charges were laid  after a 4 day trial in the Ontario Court of
    Justice, Pyrek was convicted of dangerous driving causing bodily harm and
    acquitted of the other two charges.

[4]

Shortly before the trial began, Pyrek had brought an
    application under s. 11(b) of the
Charter
on the ground he had been
    deprived of his constitutional right to be tried within a reasonable time. The
    trial judge dismissed his application. He gave lengthy reasons in which he
    applied the then governing framework for s. 11(b) applications established by
    the Supreme Court of Canada in
R. v. Morin
,

[1992] 1 S.C.R. 771
.
    In July 2016, over a year after Pyreks trial, in
R. v. Jordan
,

2016

SCC 27, [2016] 1 S.C.R. 631,
the Supreme Court of Canada overruled
Morin
and established a new
    framework for s. 11(b) applications.

[5]

On appeal, Pyrek submits that under the
Jordan
framework, which applies to his case because he is still in the system, the
    31 month delay was unreasonable and contrary to s. 11(b).

[6]

Pyrek also submits that, in his reasons for conviction,
    the trial judge erred in finding that the
actus reus
or prohibited act
    of dangerous driving causing bodily harm had been made out. The trial judge
    convicted Pyrek because he drove too fast. Yet in finding his speed was
    excessive, the trial judge drew two related and improper inferences: he relied
    on the consequences of Pyreks driving  his crash into the tree  instead of
    the manner of his driving, and he relied on speculation instead of firm
    evidence.

[7]

Thus the two issues on appeal are:

1.

Under
Jordan
, was Pyrek
    denied his constitutional right to be tried within a reasonable time?

2.

In finding that the
actus
    reus
of dangerous driving causing bodily harm had been made out, did the
    trial judge impermissibly infer that Pyrek was driving too fast?

B.

The issues

(1)

Under
Jordan
, was
    Pyrek denied his constitutional right to be tried within a reasonable time?

(a)

Introduction

[8]

For cases tried in the
    Ontario Court of Justice, as were the charges against Pyrek,
Jordan
establishes a presumptive ceiling of 18 months delay.
    Any delay beyond the presumptive ceiling is presumed to be unreasonable and
    calls for a stay of proceedings unless the Crown can show exceptional
    circumstances justifying the delay above the ceiling. For the purpose of
    measuring the delay in a particular case, the court must take the total delay
    from charges to trial (or anticipated trial) and deduct delay waived or caused
    by the defence to arrive at the net delay.

[9]

This case is a transitional
    case  a case that was already in the system when
Jordan
was released. Although the new
Jordan
framework applies to transitional cases, it should be
    applied flexibly because the conduct of the proceedings is now being judged
    against a framework the parties had no notice of when the proceedings began.

[10]

In
    some transitional cases, the proceedings began in the trial court but were not
    completed when
Jordan
was released. In these
    cases the parties and the court itself had an opportunity to change their
    behaviour, to alter how they were proceeding, to try to comply with
Jordan
s dictates. In other transitional cases, the
    proceedings were entirely completed in the trial court when
Jordan
was released. In these latter kinds of cases, neither
    the parties nor the court had an opportunity to change their behaviour to
    comply with
Jordan
. This case falls within
    this latter category. And as the Supreme Court recognized in
Jordan
,
at para. 102 [u]ltimately, for most cases that are
    already in the system, the release of this decision should not automatically
    transform what would previously have been considered a reasonable delay into an
    unreasonable one.

(b)

The
    presumptive ceiling and the delay in this case

[11]

In
    the present case, the trial judge properly applied the
Morin
framework and thoroughly analyzed each of its
    components. He concluded that the overall delay was reasonable. Pyrek does not
    argue that the trial judges conclusion was wrong under the
Morin
framework. Instead, he contends that the
Jordan
framework compels a different result.

[12]

Pyrek
    submits that the net delay in this case is 24 ½ months, six and half months
    above the presumptive ceiling, and cannot be justified by any exceptional
    circumstances. He therefore asks that we overturn the trial judges decision
    and enter a stay. I do not agree that we should do so. Even under
Jordan
the delay is reasonable for this transitional case.

[13]

In
    the present case, in summary form, the timeline was as follows:

·

October
    2012: information sworn

·

December
    2013: 4 day trial scheduled for November 2014

·

November
    2014: trial adjourned to April 2015 because of the Crowns late disclosure of
    an expert report

·

April
    2015: s. 11(b) application argued

·

May
    2015: trial completed

[14]

The
    total delay from charge to the end of the trial was 31 months. The trial judge effectively
    found a total of approximately 8 months of defence delay: he expressly found
    7.1 months of defence delay, and the parties agree he inadvertently overlooked
    a further 28 day period or .9 months expressly waived by the defence. The Crown
    accepts the trial judges finding of 8 months of defence delay.

[15]

Of
    the 8 months of defence delay found by the trial judge, Pyrek accepts 6 ½
    months. Thus the net delay is either 23 months (5 months above the presumptive
    ceiling), or 24 ½ months (6 ½ months above the presumptive ceiling). The 1 ½
    months in dispute arises out of the adjournment of the first trial date in
    November 2014, to which I now turn.

(c)

Adjourned
    trial date in November 2014

[16]

If
    the trial had proceeded in November 2014 as originally scheduled, then either
    under
Morin
or
Jordan
the delay almost certainly would have been
    reasonable. The total delay would have been 25 months, less 6 ½ months of defence
    delay, for a net delay of 18 ½ months, just slightly above the presumptive
    ceiling.

[17]

But
    the November 2014 trial date had to be adjourned because the Crown did not
    disclose to the defence until shortly before the scheduled trial an expert
    report that the police had in its possession for two years. The Crown relied on
    three expert reports to prove the charges against Pyrek: a blood alcohol report
    disclosed to the defence in November 2012, soon after the charges were laid; a
    breath sample read-back report disclosed in November 2013, a year before the
    scheduled trial date; and a blood sample read-back report, which the Crown
    intended to use to prove the over 80 charge. It is this last report that the
    Crown failed to disclose on time.

[18]

The
    late disclosure of this blood sample read-back report caused the trial to be
    adjourned. The report itself was dated November 2012, but the police did not
    give it to the Crown and the Crown in turn did not give it to the defence until
    late October 2014, less than one week before the trial was set to start.

[19]

The
    late disclosure of the report was not deliberate; it was negligent, and the
    negligence must be attributed to the Crown even though the Crown itself did not
    get the report for two years either. Once the report was disclosed the defence
    justifiably asked for, and was entitled to, an adjournment. Without the report,
    the Crown had no admissible evidence to prove the over 80 charge. The defence
    wanted to have its own expert review the Crowns report and perhaps prepare its
    own rebuttal report.

[20]

The
    late disclosure caused a six month delay, from November 2014 to April 2015. I
    accept that jointly the defence and the court could not find an earlier
    available date. And I agree with Pyrek that the root cause of the delay was the
    Crowns negligence. Nonetheless, the trial judge allocated the six month delay
    as follows: 2.5 months to the Crown; 1.5 months to the defence; and 2 months to
    inherent delay, the latter a factor under the
Morin
framework. The trial judge made this allocation
    because the defence and the Crown, and even the original trial judge who
    granted the adjournment, mistakenly believed that once an adjournment is
    granted the entire trial had to be adjourned, instead of preserving some of the
    days already scheduled to call non-expert witnesses.
[1]
They all arrived at this
    mistaken belief because of a misreading of s. 657.3(4) of
the
Criminal Code
.
[2]
See
R. v. Ratneswaran
,
2013 ONSC
    6627.

[21]

Pyrek
    submits that even if the trial judges allocation can be justified under the
Morin
framework, it cannot be justified under the
Jordan
framework. Under
Jordan
,
only delay waived or caused solely by the conduct of
    the defence should be deducted from the total delay. This six month delay was
    not waived by the defence, and it was certainly not caused
solely
by the conduct of the defence.
    Also, the parties mistaken reading of the
Code
provision was irrelevant because even if the trial
    had started in November 2014, it could not have been completed before late
    April 2015.

[22]

For
    the purpose of my analysis, I am prepared to accept Pyreks submission and
    allocate no part of the six month delay to the defence. Under
Jordan
then, the net delay is 24 ½ months, not the 23 months
    argued for by the Crown. But I also accept the Crowns submission that nothing
    turns on whether the net delay is 23 months or 24 ½ months. The critical
    question is whether the 24 ½ month net delay warrants a stay of proceedings for
    this transitional case.

(d)

Does
    the 24 ½ month net delay warrant a stay of proceedings?

[23]

24
    ½ months net delay is 6 ½ months above the presumptive ceiling of 18 months. It
    is presumed to be unreasonable. Under
Jordan
the Crown has the burden to show exceptional circumstances to justify
    the excess delay. Exceptional circumstances are circumstances that lie outside
    the Crowns control and generally fall into two categories: discrete events and
    particularly complex cases. See
Jordan
,
    at
paras.
    69-71. The Crown acknowledges that it cannot justify the 6 ½ month excess delay
    under either category.

[24]

The
    Crowns inability to do so, however, does not end the analysis of whether the
    delay is unreasonable. For transitional cases that exceed the presumptive
    ceiling after subtracting defence delay and delay caused by exceptional
    circumstances, other considerations may show that the delay is reasonable.
    These considerations are rooted in the parties reasonable reliance on the law
    as it previously existed. See
Jordan
,
at paras. 92-98, 101-103
    and its companion case
R. v.
    Williamson
,
2016 SCC 28, [2016] 1
    S.C.R. 74, at para. 24.

[25]

Five
    considerations, taken together, justified the reasonableness of the 24 ½ month
    delay.

[26]

First,
    the defence showed no interest in moving the case along. The trial judge found
    that the defence was content with the pace of the litigation. In the 18 court
    appearances that took place in these proceedings, not once did the defence
    express a concern about getting a trial date as soon as possible. The defence
    did not even elect to be tried in the Ontario Court of Justice until nearly 15
    months after the charges were laid.

[27]

In
    contrast to the defences attitude to the pace of the proceedings, the Crown
    showed no complacence. For example, when the trial had to be adjourned in
    November 2014, the Crown and the court gave the case priority. A six month
    adjournment for a four day trial in the Ontario Court of Justice was a
    relatively short adjournment.

[28]

Second,
    the delay caused little prejudice to Pyrek. And as the trial judge found, any
    prejudice it did cause was significantly undermined by the defendants own
    conduct. Under the
Jordan
framework prejudice
    underpins the presumptive ceiling, but it is not an express factor. Under the
Morin
framework, however, prejudice was an express factor. For
    transitional cases it remains a factor to be considered in assessing the
    reasonableness of the delay. See
Jordan,
at para. 96.

[29]

Under
    the
Morin
framework, prejudice from
    delay could be actual or inferred. It addresses the question whether an accuseds
    liberty, security of the person and fair trial interests were prejudiced by the
    delay. The trial judge found that any prejudice Pyrek suffered was caused almost
    entirely by the charges themselves, not the delay in prosecuting them. He
    refused to infer any prejudice from the delay. He did find a small amount of
    actual prejudice from the delay: Pyreks seemingly increased anxiety. But as I
    have already said, he also found this prejudice was undermined by Pyreks
    conduct. The trial judges finding on prejudice weighs against Pyreks
    submission that the delay was unreasonable.

[30]

Third,
    although this case was not sufficiently complex to meet the requirement of
    exceptional circumstances under
Jordan
, for transitional cases moderate complexity bears on the reasonableness
    of the delay. See
Jordan
,
at para. 97 and
Williamson
,
at para. 26. This case was of at least moderate
    complexity. The trial judge found: on the spectrum of drinking and driving
    cases, this case is towards the more complicated end. That finding was
    reasonable. Pyrek was charged with three indictable offences, each involving
    bodily harm; the trial was expected to last four days; the Crown intended to
    call between 10 and 12 witnesses; the defence intended to bring a
Charter
application; and conflicting expert evidence was a
    real possibility.

[31]

Fourth,
    also relevant for transitional cases is whether the delay exceeded
Morin
s guidelines for institutional delay. See
Jordan
,
at para. 100. Under the
Morin
framework, institutional (and Crown) delay was a relevant
    factor. The guideline for that kind of delay in the Ontario Court of Justice
    was eight to ten months. On the trial judges finding, institutional and Crown
    delay was 11 ½ months, only slightly above the guideline.

[32]

Finally,
    in
Jordan
itself, at para. 98, the
    court categorized the kind of transitional case in which the delay would warrant
    a stay, and the present case is far removed from that categorization. The court
    said: if the delay in a simple case vastly exceeds the ceiling because of
    repeated mistakes or missteps by the Crown, the delay might be unreasonable
    even though the parties were operating under the previous framework. The
    present case was not simple. The delay did not vastly exceed the ceiling.
    And the delay was caused by an isolated act of Crown negligence, not by
    repeated mistakes or missteps.

[33]

For
    these reasons, under the
Jordan
framework for transitional
    cases the 24 ½ month delay did not deny Pyrek his constitutional right to be
    tried within a reasonable time. I would therefore not give effect to Pyreks
    submission on this first issue.

(2)

In
    finding the
actus reus
of dangerous driving
    causing bodily harm was made out, did the trial judge impermissibly infer Pyrek
    was driving too fast?

[34]

The
actus reus
and
mens rea
of dangerous driving are well established. The
actus reus
or the prohibited conduct is driving a car in a manner
    dangerous to the public that results in bodily harm. The
mens rea
,
or the required degree of fault, is exercising a standard
    of care that is a marked departure from the standard of care a reasonable
    person would observe in the accuseds circumstances. See
R. v. Hundal
, [1993] 1 S.C.R. 867;
R. v. Beatty
,
2008 SCC 5, [2008] 1 S.C.R. 49; and
R. v. Roy
,
2012 SCC 26, [2012] 2 S.C.R. 60. In
Beatty
, Charron J., writing for the majority at para. 46,
    stressed that to establish the
actus
    reus
of
    dangerous driving, it is the
manner
in which the motor vehicle
    was operated that is at issue, not the consequences of the driving (emphasis
    in original).

[35]

In
    the present case the trial judge found that the
actus reus
was made out solely because of the speed at which
    Pyrek was driving. According to the trial judge, Pyrek was driving too fast,
    much faster than the posted speed limit of 50 km/hr. But the trial judge had no
    evidence of Pyreks actual speed. Pyrek argues that contrary to
Beatty
the trial judge inferred excessive speed from the
    amount of damage to Pyreks car. And Pyrek argues the trial judge compounded
    this error by a second error; he relied on speculation instead of evidence to
    infer that Pyrek was driving too fast. In support of his argument Pyrek points
    to para. 216 of the trial judges reasons:

I cannot say with certainty precisely what speed Mr. Pyrek was
    driving but that does not prevent the Court from making a finding of dangerous
    driving in the circumstances. He was driving well over the speed limit in my
    view. I believe that Ms. Kathers original evidence that he was driving 80 to
    100 km/h was correct. I believe Ms. Kather was wrong when she said in cross
    that perhaps he was only going 60 km/h. I consider that he would have had much
    better control of his vehicle at only 60 km/h. The damage to [the] vehicle was
    consistent with a high rate of speed although the Court recognizes that there
    was no expert evidence on this point and the most that can be said is that
    common sense suggests that the greater the speed, the greater the damage.
    Standing alone, the damage to the vehicle, is of limited value. As I have said,
    it does not matter that his precise speed cannot be precisely determined.

[36]

I
    do not accept Pyreks argument. In his careful and thorough reasons, the trial
    judge accurately set out the
actus
    reus
of
    dangerous driving at para. 200:

The Supreme Court of Canada has given guidance to trial courts
    on what is required to make out the offence of dangerous driving. The
actus
    reus
will be made out where the trier of fact [is] satisfied beyond a
    reasonable doubt that, viewed objectively, the accused was, in the words of the
    section, driving in a manner that was dangerous to the public, having regard to
    all the circumstances, including the nature, condition and use of the place at
    which the motor vehicle is being operated and the amount of traffic that at the
    time is what might reasonably be expected to be at the place: see
R. v.
    Beatty
,
[2008] 1
    S.C.R. 49
at para. 43
. When determining
    whether the
actus reus
is made out the Court must examine the manner
    in which the motor vehicle was operating not the consequences of the driving.
    Accordingly, where death or injury occurs for example, that has no bearing on
    the question of whether dangerous driving has occurred. The consequences of the
    driving may inform an assessment of the risk involved but it does not answer
    the question of whether or not the vehicle was operated in a manner dangerous
    to the public (see
Beatty

at para. 46).

[37]

And
    at para. 211 the trial judge found that the
actus reus
had been proved because Pyrek was significantly
    exceeding the speed limit:

[It is] my view that the
actus reus
of the offence of
    dangerous driving is made out. This follows from the fact that in my view Mr.
    Pyrek was most certainly exceeding the speed limit [of] 50 km/h by a
    significant amount. He was driving on a residential Street that he knew well.
    He lost control of his vehicle and could not keep it on the roadway. Finally,
    when he lost control of the vehicle and it left the roadway, his inability to
    control the vehicle continued such that his vehicle collided with a tree. It
    took the presence of the tree to cause an abrupt stop to the vehicle. While it
    was the middle of the night and there could not have been many people around,
    it was a residential area and it is reasonable to infer that there would be
    others out in their vehicles or walking in the neighbourhood. In the
    circumstances, the
actus reus
for dangerous driving is made out.

[38]

At
    para. 216, on which Pyrek relies, the trial judge was observing that although
    he could not determine Pyreks precise speed, on the evidence he accepted, his
    speed was well over the speed limit. The trial judge cautioned himself that the
    evidence of the damage to the car was of limited weight. The trial judges
    reasons as a whole, especially the paragraphs to which I have referred, show he
    correctly focused on Pyreks manner of driving.

[39]

Also,
    the trial judge was not speculating about Pyreks rate of speed. He had
    Kathers evidence which he was entitled to accept. In addition to Kathers
    evidence in chief about Pyreks rate of speed, which the trial judge referred
    to at para. 216, he had her evidence that during the drive she freaked out
    and twice yelled at Pyrek to slow down. Finally as she and Pyrek lay injured in
    the wreckage of the car, he turned to her and confessed he had fucked up.

[40]

The
    trial judge did not err in finding the
actus reus
of dangerous driving causing bodily harm
had been made out. I would
    not give effect to Pyreks arguments on this second issue.

C.

conclusion

[41]

On
    the two issues Pyrek argues on his appeal I would hold first that he was tried
    within a reasonable time, and second that the trial judge correctly found the
actus reus
of driving causing bodily harm had been established.
    I would dismiss the appeal.

Released: D.W. June 12, 2017

John Laskin
    J.A.

I agree. David
    Watt J.A.

I agree. C. W.
    Hourigan J.A.





[1]

Monahan J, who
    tried the case in 2015, was not the judge who mistakenly adjourned the entire
    trial in November 2014.



[2]

This section reads:

If notices not given

(4) If a party calls a person as an expert
    witness without complying with subsection (3), the court shall, at the request
    of any other party,

(a) grant an
    adjournment of the proceedings to the party who requests it to allow him or her
    to prepare for cross-examination of the expert witness;

(b) order
    the party who called the expert witness to provide that other party and any
    other party with the material referred to in paragraph (3)(b); and

(c) order
    the calling or recalling of any witness for the purpose of giving testimony on
    matters related to those raised in the expert witnesss testimony, unless the
    court considers it inappropriate to do so.


