SUPREME COURT OF Nova Scotia
Citation: Jedynak v. Halifax County Condominium Corporation No. 52, 2022 NSSC 258
Date: 20220906
Docket: Hfx No. 511600
Registry: Halifax
Between:
Stephan Jedynak, Private Prosecutor
Appellant
v.
Halifax County Condominium Corporation No. 52,
Marianne Schiffer, Trina Trecartin, Lois Whitehead,
George MacDonald, Richard Smith, Brian Sangster
Respondents
D E C I S I O N
| Judge: |
The Honourable Justice James L. Chipman |
| Heard: |
September 6, 2022, in Halifax, Nova Scotia |
| Oral Decision:
Written Decision: |
September 6, 2022
September 15, 2022 |
| Counsel: |
Stephan Jedynak, Private Prosecutor on his own behalf Richard Norman, on behalf of the Respondents, except Richard Smith |
By the Court (orally):
Introduction
[1] By Notice of Summary Conviction Appeal filed December 17, 2021, the Appellant, Stephan Jedynak appeals from the decision of His Honour Judge Borden a judge of the Provincial Court of Nova Scotia. The decision was rendered on November 15, 2021 at the Provincial Court in Halifax.
[2] The grounds of appeal are stated as follows:
1. Erred in law finding that a Private Prosecution is subject to s. 11(b) Charter limitations;
2. In the alternative, erred in law finding that a Private Prosecution period is not in its entirety a discrete exceptional circumstance under the Jordan framework;
3. In the alternative, erred in law finding that a Private Prosecution is a historical right at Common Law not preserved in Statute and as such s. 26 of the Charter, which provides that Charter rights are not absolute and should not be construed to deny other rights and freedoms, should have considered the application of s. 11(b) of the Charter in a s. 1 Oakes test, balancing competing interests;
4. In the alternative, erred finding that administrative delays where attributable to a Private Prosecution; and
5. In the alternative, erred in not permitting amendment of the information such that the offence period would have been within the Jordan framework where in the factual circumstances before the Court, there is an ongoing offence, which, pursuant to s. 369(3) of the Halifax Regional Municipality Charter each day is a separate unique offence.
[3] The Appellant seeks an Order as follows:
…the court should allow the appeal, set aside the order of stay by Judge Borden, and order a trial.
[4] On July 22, 2022, the Appellant filed a letter, Factum and two-part Appeal Book. On August 9, 2022, he filed a signed Factum and the original transcript signed by Judge Borden.
[5] The Respondents ask that the Summary Conviction Appeal be dismissed with costs. On August 17, 2022, the Respondents filed their Factum and Book of Authorities.
[6] This morning I heard oral argument from Mr. Jedynak and from Mr. Norman on behalf of the Respondents. My oral decision is based upon my review and consideration of all of the filings and oral argument.
[7] This appeal concerns a private prosecution brought by Mr. Jedynak against Halifax County Condominium Corporation No. 52 (“HCCC 52”) and some of its directors. Mr. Jedynak owns Unit 50 (the “Unit”), which is part of the condominium.
[8] In 2017, water damage occurred to the Unit. A dispute arose between Mr. Jedynak and HCCC 52 with respect to who was responsible for the damage. Among the issues in dispute between the parties was whether the damage originated from inside or outside of the Unit, who would pay for the damage, whether the damage would be repaired on its own or together with other units which needed repair, and the timing of the work.
[9] Following this dispute, in 2017 Halifax Regional Municipality (“HRM”) issued the parties an order requiring work to be done on the exterior of the Unit. HRM closed its file shortly after issuing the order.
[10] Mr. Jedynak commenced a private prosecution against HCCC 52 and its directors in relation to the 2017 HRM order.
[11] The Respondents were served with the information in or around early 2018, following Mr. Jedynak’s ex parte pre- enquête. What followed was a lengthy series of appearances and several adjournments.
Standard of Review
[12] The appropriate standard of review in s. 11(b) appeals was considered by the Nova Scotia Court of Appeal in R. v. Ellis, 2020 NSCA 78. Justice Derrick concluded at para. 85:
In assessing the trial judge’s analysis of the delay in Mr. Ellis’ case, I have applied deference to his factual findings and his categorization of the periods of delay and the allocation of responsibility for them. His ultimate determination that the net delay was unreasonable has been reviewed on a standard of correctness
[13] In so doing, the Court of Appeal followed the approach of the British Columbia Court of Appeal in R. v. Pipping, 2020 BCCA 104. This approach was outlined at para. 81 of Ellis:
92 The post-Jordan s. 11(b) framework invokes different standards of review at three different stages: (1) findings of fact relevant to defence conduct; (2) the characterization of delay and the attribution of responsibility; and (3) the determination of whether the total delay is unreasonable and the decision to impose a stay.
93 At the first stage, the findings of fact of a trial judge that are relevant to defence conduct are afforded deference on review, and subject to a standard of palpable and overriding error: R. v. Horner, 2012 BCCA 7 at para. 70; R. v. K.N., 2018 BCCA 246 at para. 13.
94 At the second stage, first instance judges are uniquely positioned to gauge responsibility for delay: Jordan at para. 65. The determination of whether defence conduct is legitimate or illegitimate is highly discretionary, and appellate courts must show a high level of deference on review: Cody at para. 31; R. v. S.C.W., 2018 BCCA 346, leave ref'd (2019) SCC Docket 38403, at para. 38.
95 At the third stage, the ultimate determination of whether the total delay is unreasonable and the decision to impose a stay is a question of law subject to a correctness standard: K.N. at para. 13; R. v. Christhurajah, 2019 BCCA 210 at para. 113.
[14] The Appellant argues that an accused does not have Charter rights when privately prosecuted and that there is essentially no limit to the length of time a private prosecutor may take in bringing an accused to trial. The Respondents say that a private prosecutor is a creature of statute and has stepped into the shoes of the Crown or government.
[15] In his oral decision Judge Borden analyzed the delay in this case in a detailed and considered manner. The transcript reflects this beginning at the bottom of p. 11 and continuing to the conclusion at p. 18. As instructed by our Court of Appeal, I have applied a standard of correctness in assessing the trial judge’s analysis of the delay in this case. In so doing, I find no error and conclude that Judge Borden was correct in his determination that there was a delay of 23.1 months.
[16] The parties agree and I find that the question of whether the Charter applies to a private prosecution is a question of law and should be assessed on a standard of correctness.
[17] In his decision Judge Borden addressed the issue of whether the Charter applies to private prosecutions at pp. 6 – 10. In his penultimate para. he reasoned:
…I have no doubt that the Charter applies to private prosecutions. The power to prosecute is delineated in ss. 504 and 507 of the Code. Clearly, the private prosecutor is facilitated purely by Statute. In this case, the Criminal Code is what permitted the pre-enquête hearing, the laying of the information, the summonsing of the Defendants. It is a governing body that brought all the participants to this forum.
[18] I concur with Judge Borden’s analysis. As for the Appellant’s argument, respectfully, in my view it is illogical to reason that the same vehicle that gives one power to prosecute is immune to Charter scrutiny.
[19] Today Mr. Jedynak emphasized two main arguments in support of his position that his appeal should prevail:
1. that the Respondents are committing ongoing offences; and
2. that because this is a private prosecution it must be regarded as exceptional and therefore within the Provincial Court context be allowed to proceed beyond the presumptive 18-month timeline.
[20] To the first argument I find that there is no evidence before me to support such a notion. Although Mr. Jedynak tells the Court that there are ongoing infractions, I note the Respondents’ argument that they plead not guilty and that they did comply with the by-laws. Beyond these competing assertions I have no body of evidence to found a determination.
[21] As for the second argument, I am of the view that private prosecutions may present exceptional circumstances taking them past the presumptive Jordan time limit; however, there is nothing before me to support this argument in this case. For example, I have no evidence before me that Mr. Jedynak’s lack of resources accounts for some, or any of delay.
[22] Based on my review of the decision I find that Judge Borden was correct in law when he concluded that the Charter applies to a private prosecution and thus committed no error. In this regard, I endorse and adopt his reasoning along with the cited authorities in his decision. I also find favour with Mr. Norman’s spirited argument beginning at para. 18 and concluding at para. 87 of his Factum, also subsuming and rejecting the Appellant’s further written arguments.
[23] In the result, I reject the Appellant’s submissions in their entirety. The power of a private prosecutor is constrained by the Charter. The accused has Charter rights whether the prosecution is private or with the Crown. There is a limit to the length of time a private prosecutor may take in bringing an accused to trial. Here it exceeded the Provincial Court ceiling by just over five months. The private prosecutor did not establish exceptional circumstances to justify the delay beyond the provincial Court ceiling of 18 months. The stay of proceedings was the appropriate remedy. Judge Borden committed no error. Accordingly, I hereby dismiss the summary conviction appeal. In all of the circumstances I decline to award costs.
Chipman, J.