COURT OF APPEAL FOR ONTARIO
Doherty, Watt and Pepall JJ.A.
BETWEEN
Her Majesty the Queen
Appellant
and
Mylvaganam Kugathasan
Respondent
Matthew Asma, for the appellant
Adam Little, for the respondent
Heard and released orally: August 2, 2012
On appeal from the order of Justice Nakatsuru of the Ontario Court of Justice, staying proceedings against the respondent, dated July 22, 2011.
ENDORSEMENT
1The Crown appeals from the order of the trial judge staying the proceedings based on his finding that the respondent’s right to trial within a reasonable time, as guaranteed by s. 11(b) of the Charter, had been infringed. The Crown contends that the trial judge erred in law in coming to that conclusion and advances several arguments in support of that position.
2As always in s. 11(b) cases, the chronology is important and I will attempt to summarize it in a way that will make the issues necessary for the determination of this appeal apparent.
3The respondent was charged with impaired driving and “blowing over” in November 2009. He first appeared on November 18, 2009.
4On February 5, 2010, trial dates were set in the Ontario Court of Justice for January 20, 2011. On April 20, 2010, the parties agreed to move the trial date forward to November 22, 2010.
5On November 9, 2010, the respondent served a notice of motion on the Crown. The respondent indicated that he would be bringing a motion at the outset of his trial for an order quashing the information on the basis that the appearance notice compelling his attendance was not properly confirmed. As the law stood at the time, it is fair to say that the motion was an arguable one. The issue was unclear. It was, however, clear that even if the motion were successful, nothing would stop the Crown from relaying the charge and proceeding with the allegation.
6On November 10, 2010, the day after the Crown received the notice of motion, Crown counsel wrote to defence counsel indicating that if defence counsel’s motion to quash were successful, the Crown would relay the charges. Crown counsel also suggested that the motion to quash should be moved forward to some date before November 22nd so that if the motion were successful, the Crown could relay the charges and the matter could proceed to trial on the scheduled trial dates of November 22nd and 23rd. The defence was not available to argue the motion before November 22nd.
7The motion was argued on November 22nd and the defence was successful. The trial judge quashed the information as a nullity. The respondent, on counsel’s instructions, left the courtroom as soon as the trial judge indicated that the information was a nullity. He was not under any obligation to remain in the court. The Crown indicated in court on November 22nd that it would relay the charges and hopefully proceed on November 23rd, the second day that had been reserved for the trial.
8The Crown could not relay the charges and serve the respondent before November 23rd. The respondent was served on November 24th with a process returnable on December 16, 2010. The respondent did not appear on December 16th.
9There were various appearances between December 16, 2010 and February 18, 2011. On February 18th, everybody was in court ready to set a date for trial. The court offered dates in March. Unfortunately, counsel for the respondent was not available. Counsel for the respondent offered other dates in March, but there was no court space available on those dates. Ultimately, the matter got adjourned for trial to July 19, 2011.
10We see no need to revisit the trial judge’s analysis as it relates to the events before the motion to quash on November 22, 2010. We agree with counsel for the respondent that this appeal turns on whether the trial judge properly assessed the delay between November 22, 2010, when the first information was quashed and July 19, 2011, the scheduled trial date on the re-laid charges.
11The trial judge held that the time between November 22nd and December 16th, about three weeks, was the responsibility of the Crown. This was the time needed to relay the information and get the respondent back before the courts. The trial judge next determined that the almost three weeks between December 16th and January 5, 2011 was attributable to the respondent because he had failed to attend court on December 16th. The trial judge further concluded that the time period between January 5 and February 18, 2011 should be regarded as neutral and part of the inherent time requirements of the case. Most significantly, the trial judge concluded that the five months between the set date in February 2011 and the trial date in July should be characterized as institutional delay.
12In reviewing the trial judge’s assessment of the time period between November 22, 2010 and July 2011, we acknowledge several important points made by counsel for both the Crown and the respondent. First, the Crown has the obligation to bring the accused to trial. The accused has no obligation in that regard. Second, nothing done by counsel in bringing the motion to quash can be criticized as improper. Third, the Crown’s decision to oppose the motion to quash on the merits and the Crown’s timely advice to counsel that it would relay the charge if the motion were successful cannot be criticized. Finally, in assessing responsibility for delay for the purposes of s. 11(b), the court does not distinguish between the respondent and his counsel. Tactical decisions made by counsel that have an effect on the progress of the proceedings are attributable to the defence.
13In our view, one has to take a practical common sense view of what was going on here. Counsel for the respondent knew that if he were successful in his motion brought at the outset of the trial on November 22nd, there would be no trial on November 22nd. Counsel also knew that if the motion were successful, it would not be the end of the matter and that the Crown fully intended to continue the litigation and had the right to do so. Counsel also took steps to avoid the possibility of the trial proceeding on November 23rd. Again, this observation is not intended as a criticism of counsel, but simply as a recognition that the steps taken by counsel inevitably had the result of avoiding a trial on November 22nd and November 23rd.
14It seems an irresistible conclusion that the motion to quash was part of a defence strategy intended to avoid a trial on November 22nd and November 23rd. Perhaps, counsel hoped to avoid a trial altogether should the Crown conclude, contrary to its original position, that it would not relay the charge, or should the Crown be unable to get the matter back to trial before s. 11(b) foreclosed a trial on the merits.
15The steps taken by the defence to bring a motion to quash the information on the scheduled trial date inevitably resulted in a delay of the trial for the time needed to reassemble the parties and, in effect, recommence the proceedings. In the context of the s. 11(b) calculus, the defence, like the Crown, must take responsibility for the delays that are the consequences of its tactical choices. We stress again that the exercise is not about criticizing defence counsel or assigning fault. It is about a realistic attribution of causes for delay in the context of considering whether the overall time period in issue is such as to result in a breach of the respondent’s rights under s. 11(b).
16The defence tactic effectively put the process back at the starting position as of November 2010. In our view, the time needed to get the parties back in the position they were in on November 22, 2010, that is ready for trial, should be attributed to the defence. On this record, the defence was available for trial in March 2011. We would characterize the period between November 2010 and March 2011 as defence delay. At best, it was neutral in the sense that it was the time inherently required to put the proceedings back on track after the information was quashed.
17Counsel for the respondent forcefully and effectively argues that even if the period between March and July in 2011 is the only institutional delay, that delay still puts this case beyond constitutional limits. He stresses that whatever the explanations, this case was in the system for almost a year and one half as of February 2011 when the defence was prepared to set a trial date in March 2011. He emphasizes that this was not a complicated case. Counsel contends that given the history of the case, the system had to give it priority as defence counsel was prepared to do, and fix a very early trial date. He submits that a trial date in July was simply too far in the future.
18There is force to these submissions. We do not, however, agree. First of all, the system was able to offer the respondent earlier trial dates. Unfortunately, counsel was not available. The fact that these dates were offered to the defence is some indication of attempts to set an early trial date no doubt in recognition of the fact that the case had been in the system for some time. Second, we do not think a period of four to five months to set a trial date for a two-day trial is inordinate even given the prior history of the case. Certainly, four to five months is not ideal. However, s. 11(b) does not demand that the system operate to that standard. We note Crown counsel’s observation that the trial date offered in February 2011 contemplated a trial delay of about half of the delay contemplated when the initial trial date was set in February 2010.
19Having regard to the totality of the time period and properly attributing the reasons for the delay between November 2010 and March 2011 to either the defence or, as neutral, we are satisfied that there was no violation of s. 11(b). The order staying the proceedings is set aside and the matter is remitted to the trial court for trial.
“Doherty J.A.”
“David Watt J.A.”
“S.E. Pepall J.A.”
