R v Bartulovic

R. v. Bartulovic

2009 ONCJ 554
Ontario Court of Justice — Justice Douglas B. Maund | November 12, 2009

Background

Dragan Bartulovic was charged with impaired driving and driving over 80 mg% on September 28, 2008, in Caledon. His lawyer immediately retained counsel and received disclosure at the first court appearance on November 3, 2008. The case was set for trial on August 12, 2009 — nine months later. But there was a problem: defence counsel had requested the 911 tape recording back in November 2008, and the Crown still hadn't provided it.

At a confirmation hearing in June 2009, defence counsel raised the missing 911 tape issue again. The Crown promised to follow up but didn't. The night before the August trial date, the Crown frantically transcribed and delivered the 911 tape to defence counsel. The trial judge ruled that proceeding immediately would violate Bartulovic's right to make full answer and defence, so the case was adjourned to November 17, 2009. By then, thirteen and a half months had passed since the original incident.

Issues

1. Whether the delay from charge to trial violated Bartulovic's Charter right to trial within a reasonable time under s. 11(b)
2. How much of the delay should be attributed to institutional/Crown responsibility versus defence scheduling

The Section 11(b) Analysis

Justice Maund found that twelve months of the total delay was "institutional delay" — meaning the court system and Crown were responsible, not the defence. The Crown argued that some of the early delay was the defence's fault because counsel wasn't available on certain dates. But the judge rejected this argument, noting that the Crown was also unavailable on those same early dates. As the judge put it: "it is simply not logical for the Crown to take issue with the availability of the Defence in this very early period after the trial date was set when the Crown was unavailable to proceed."

The Crown's mishandling of disclosure made things worse. The 911 tape had been requested in November 2008 but wasn't provided until August 2009 — the night before trial. This forced an adjournment and added three more months of delay. The administrative guidelines suggest eight to ten months maximum delay, but this case hit twelve months of institutional delay alone.

Key Takeaway

Crown disclosure failures can kill a case, even when the underlying charges are serious.

Courts will count disclosure delays against the Crown when analyzing s. 11(b) applications. If you're missing key evidence and the Crown is dragging their feet, document your requests and consider bringing an 11(b) application if the total delay approaches or exceeds the guidelines.