Court and Parties

ONTARIO COURT OF JUSTICE DATE: April 18, 2024 Central West – Peel Region

BETWEEN:

HIS MAJESTY THE KING

• and -

PERIYATHA ARULALAGAN

S. 11(b) Charter Application

Heard before Justice L. Daviau on March 1, 2024 Written Reasons for Judgment released on April 18, 2024

Counsel: Mr. Thomas McCann .............................................................. counsel for the Respondent Mr. Glen Henderson........................... counsel for the Applicant, Periyatha Arulalagan

L. Daviau J:

Introduction

1November 6, 2023 was meant to be the first day of Mr. Arulalagan’s two-day trial. However, due to the trial court being stacked, there was no Justice available to hear the matter until about 2:50 p.m. However, an afternoon power outage resulted in an inability to even start on day one.

2On November 7, 2023, the trial was placed before me in H9 court. H9 could not accommodate the technology required to hear the trial. The result was a necessary change to a different courtroom, which caused significant delay.

3Not surprisingly the trial did not complete on November 7, 2023 as scheduled. A one-day trial continuation was required.

4June 17, 2024 was the first day that the Court and the parties could accommodate. Mr. Henderson continued to appear on two occasions January 16, 2024 and February 6, 2024, to try to secure an earlier continuation date. One was not available.

5The resulting delay to the projected end of the trial is 791 days or 25 months and 30 days.

Brief Summary of the Facts

6Mr. Arulalagan was arrested and charged on April 3, 2022 with impaired operation and refusing to provide a breath sample. The Information was sworn on April 19, 2022.

7Despite the availability of initial disclosure on June 13, 2022, initial disclosure was not uploaded and provided to counsel until August 9, 2022.

8Despite the receipt of the initial disclosure on August 9, 2022, a Crown Pre-Trial was not completed until November 29, 2022. The Trial Estimate form was completed on November 30, 2022.

9On December 21, 2022, trial dates were scheduled for November 6 and 7, 2023. While the Crown was available for dates offered in January 2023, having acknowledged that the defence did not receive disclosure of the police body worn video until April 2023, everyone is of the view that the first dates when the Crown and Court were ready to proceed were September 13 and 14, 2023. However, Mr. Henderson was not available and the dates of November 6 and 7, 2023 were selected.

10Had the trial completed on November 7, 2023, the total delay would have been 568 days or 18 months and 20 days. Up until that time, Mr. Arulalagan was not alleging a breach of his section 11(b) Charter right.

11On November 6, 2023, the matter appeared in a different court, however, could not be reached. The matter was held down pending availability in another court. The matter came before me sometime in the afternoon and the Court was in a position to begin the trial at 2:50 p.m. However, before Mr. Arulalagan could be arraigned an unexpected power outage resulted in an inability to proceed on that day.

12November 7, 2023 was meant to be the second day of trial, but this time we were assigned courtroom H9. The trial required technology so that the Crown could play the body worn video from the officers involved in the case. H9 was not able to accommodate that technology. While the Court clerk reached out to the trial coordinator seeking to move the trial, at 10:42 a.m. the Court was advised that there were no available courtrooms to move Mr. Arulalagan’s trial to.

13Subsequently considerable time was then spent trying to find an alternative method for the Crown to proceed with their case. After much back and forth, and an attempted use of the Zoom platform to play the videos, the Internet facilities available in H9 proved incapable of playing the videos in a satisfactory way.

14None-the-less, with no other options, the matter proceeded at approximately 11:30 a.m. when the Crown called there first witness. We proceeded until 12:20 p.m. a point at which technology was required, so we broke for an early lunch, in the hopes that the trial coordinator could facilitate our transfer into another courtroom.

15The matter was then traversed to courtroom 404, where with use of the technology the matter proceeded, but did not finish.

16A one-day trial continuation was required. The first available day for all parties was June 17, 2024. Despite Mr. Henderson appearing on two further occasions to try to secure an earlier date, one was not available.

17The resulting delay to the projected end of the trial is 791 days or 25 months and 30 days, significantly over the 18-month presumptive ceiling.

The Jordan Framework and Related Principles

18The applicable 11(b) framework is set out in R. v. Jordan, 2016 SCC 27. The Court of Appeal in R. v. Zahor, 2022 ONCA 449, at paras. 61-78, explained that applying the framework requires the court to identify and characterize the periods of delay. The steps are summarized below (citations omitted):

(1) Step 1: Calculate the total delay. The court must calculate the total delay, which extends from the laying of the charge to the actual or anticipated end of the trial;

(2) Step 2: Calculate the net delay. Net delay is calculated by subtracting defence delay from the total delay. There are two types of defence delay, each of which must be considered and, if present, subtracted;

(3) Step 2(a): Subtract delay that is waived by the defence. Delay that is clearly and unequivocally waived by the defence, either explicitly or implicitly, must be subtracted from the total delay;

(4) Step 2(b): Subtract delay that lies at the feet of the defence. Delay that is “caused solely or directly by the defence’s conduct” must also be subtracted from the total delay;

(5) Step 3: Compare the net delay to the applicable presumptive ceiling. The applicable presumptive ceiling is 18 months for cases tried in the provincial court. If the net delay is above the ceiling, the delay is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption by demonstrating exceptional circumstances;

(6) Step 4: Consider exceptional circumstances. These circumstances do not need to be rare or uncommon; rather, they must lie beyond the Crown’s control, in that they are reasonably unforeseen or reasonably unavoidable and, in either case, result in delay that cannot be reasonably remedied by the Crown. In general, the Crown may satisfy its onus by relying on two categories of exceptional circumstances, being discrete events and particularly complex cases.

(7) Step 4(a): Consider discrete exceptional circumstances. Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay. They engage a quantitative analysis, in that the delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the remaining delay continues to exceed the presumptive ceiling. Where the remaining delay continues to exceed the presumptive ceiling, even after accounting for discrete events that could not be reasonably mitigated by the Crown and the justice system, a stay will be entered unless the Crown can demonstrate that the remaining delay is justified in light of the particular complexity of the case.

(8) Step 4(b): Consider complexity. The remaining delay may be justified by the Crown where the case is “particularly complex”. It is worth stressing that the presumptive ceiling already accounts for the fact that criminal proceedings have become more complex over time. Therefore, in order to discharge its burden under this exceptional circumstance, the Crown must demonstrate that the case is particularly complex. Unlike the consideration of discrete events, an assessment of particular complexity engages a qualitative analysis. It demands an inquiry into whether the amount of remaining delay in excess of the presumptive ceiling is justified in light of the particular complexity of the case. For cases where the charges were laid after the release of the decision in Jordan, the analysis ends here. If the remaining delay cannot be justified based on the particular complexity of the case, a stay will be entered.

19If the remaining delay falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must show both that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and that the case took markedly longer than it reasonably should have. The Supreme Court in Jordan expressed an expectation that stays beneath the ceiling will be rare and limited to clear cases. See R. v. Jordan at paragraph 48.

20Every actor in the justice system is responsible for ensuring that criminal proceedings are carried out within a reasonable time. No party is permitted to remain passive in the face of delay. That is why defence waiver, inaction or tactics aimed at delaying a trial must be deducted from the total delay. (See Jordan at paras 63-64 and R v. Askov, [1990] 2 S.C.R. 1199 at pp. 1227-28)

21As Sopinka J. wrote in R. v. Morin, [1992] 1 S.C.R. 771: “The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits”.

22To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. This is because the Supreme Court accounted for procedural requirements in setting the ceiling. Such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions. (See Jordan at paras 65-66).

Analysis

Defence Delay

23In their factum, the Crown asserted that the defence is responsible for three periods of delay, which I will address in turn:

(1) June 13, 2022 to August 8, 2022 – 57 days (2) September 8, 2022 to November 29, 2022 – 83 days; and (3) September 13, 2023 to November 6, 2023 – 55 days

June 13, 2022 to August 8, 2022

24On June 13, 2022 counsel appeared in court and advised he was retained as counsel for Mr. Arulalagan. He was told disclosure was reviewed that day, so it should be available shortly. He advised the court he would check for the disclosure and the matter was adjourned to August 8, 2022.

25On August 8, 2022 Mr. Henderson attended and advised the court that he had not received the disclosure and that he would send another message to the virtual crown. Mr. Henderson concedes he has no record of any attempt to notify the Crown he was counsel for Mr. Arulalagan. While it is his practice to send a letter, it appears as though it was missed in this case. None-the-less, he asserts that no one took any steps to move the matter forward at this point, including the Crown, who on June 13 was put on notice that he was counsel.

26The Crown argued that counsel is obligated to put a request in writing before disclosure can be provided. Otherwise, the Crown does not know the details required to be able to send disclosure to counsel.

27The difficulty with the Crown’s position is it ignores the fact that Mr. Henderson appeared on June 13, 2022 and indicated he was counsel for Mr. Arulalagan. Further, the Crown has a constitutional obligation to provide disclosure. Once they are aware of who counsel is, surely, they too must bear some responsibility for providing disclosure.

28That is not to say that the defence does not also assume responsibility for the delay. While the Crown is constitutionally obligated to provide disclosure, the Supreme Court has made it clear that all parties are responsible for ensuring that a matter moves forward in a timely fashion. Here, defence did nothing for nearly two months after the first appearance. Knowing that the disclosure had been reviewed on June 13, 2022, one would have thought they would have followed up far in advance of the next court date, being August 8, 2022.

29Both parties are responsible for the delay in getting the initial disclosure to the defence. To that end, it would seem reasonable to apportion 50% or 28 days as defence delay.

September 8, 2022 to November 29, 2022

30Despite receiving initial disclosure on August 9, 2022, a Crown pretrial was not held until November 29, 2022. The Crown asserts that within a month after receiving the disclosure the defence should have been in a position to have a Crown pre-trial. The Crown also pointed to the availability of the R1 Crown as an option to the defence for a Crown Pre-Trial on any day.

31The defence notes that on August 8, 2022 when they appeared in court, they indicated to the Court that if a Crown Pre-Trial were to be booked on that day, the earliest offered dates were late September or early October. They argued that it would then make sense that in early September, dates would have been pushed to late October or early November. Regarding the availability of the R1 Crown, counsel points out that the system would collapse if everyone used the R1 Crown, noting it exists to act more as a relief valve for dealing with issues that require immediate responses and not for run of mill matters, like Mr. Arulalagan’s.

32While I tend to agree with the defence that while the R1 Crown is available every day, it is not reasonable to expect that for most matters counsel would wait all day for a call from the R1 Crown, a call that, depending on how busy the Crown is that day, they may never get. I understand why counsel would prefer to book an appointment for a Crown Pre-Trial on a set time on a set day. That said, having received initial disclosure on August 9, 2022, 3 months and 21 days or nearly 4 months, seems like an excessive amount of time to wait to have a Crown Pre-Trial, particularly when the R1 Crown is available every day.

33The Crown has allotted one month to review the disclosure and have the Crown Pre-Trial. At the hearing of this application, the Crown revised their position to indicate that as of September 26, 2022 the defence should have been in a position to have had a Crown Pre-Trial. I agree. That would have given counsel a month and a half to review disclosure, get instructions and have a Crown Pre-Trial. Therefore, I would apportion the time between September 26, 2022 and November 29, 2022, or 65 days as defence delay.

September 13, 2023 to November 6, 2023

34The final period the Crown seeks to have allocated as defence delay is the time between September 13, 2023, the first date the Crown and court were reasonably available to proceed [1], but the defence was not available, to the first day of the original trial date, November 6, 2023 or 55 days.

35The defence disagrees, relying on R. v. Godin, 2009 SCC 29 to argue that the defence can’t be expected to hold their schedule in a perpetual state of availability. Had the trial coordinator offered a number of dates that would have been different, here, the offering of one set of dates followed by another set a month and a half later, does not signify that the defence was not reasonably available. See R. v. Bowen-Wright 2024 ONSC 293 at paragraph 45.

36I agree with counsel for the defence that Godin is still good law which can be read in conjunction with R. v. Hanan, 2023 SCC 12, [2023] S.C.J. No. 101 where the Supreme Court directs at paragraph 9 that “All relevant circumstances should be considered to determine how delay should be apportioned among the participants (R. v. Boulanger, 2022 SCC 2, at para. 8).”

37However, even in the context of Godin and Hanan, I still would attribute this time to the defence. The trial coordinator offered two blocks of dates, the first in January 2023 and the second in the fall of 2023. The first block was not reasonably available to the parties. However, I find that the second block includes both the September 2023 and November 2023 dates and was sufficiently in the future, that it can’t be said there is an expectation that the defence would have had to hold out their schedule in perpetual availability to make use of those dates. 55 days will be attributed to the defence as defence delay.

Exceptional Circumstances

38The Crown further submits that a second period, for exceptional circumstances, should be deducted from the total delay. On what was to be the first day of trial, after 2:50 p.m. when this matter was set to begin before me, the power to the courthouse failed. There is no dispute that this standing alone is an exceptional circumstance that falls far outside the control of the Crown. The dispute between the parties is whether this occasioned any delay.

39The Crown’s original position was that the power failure on November 6, 2023, in conjunction with some of the technology issues on November 7, 2023, caused all the delay in this matter and that the entire continuation period should be subtracted from the total delay. However, in submissions they revised their position to be, that only the time between the first available continuation date offered by the trial coordinator, November 14, 2023, where the defence was not available, to February 14, 2024, a date when the Crown was not available but the defence was, or 92 days should be deducted as delay in this matter.

40The defence maintains that while the power failure in and of itself is an exceptional circumstance it was not the reason for any of the delay in this matter. Rather, all the delay was the result of the Crown’s failure to give Mr. Arulalagan’s matter any priority on either November 6 or 7, 2023. Further, the defence asserts that it is unreasonable to expect that they would be available on the one further day offered only a week after the matter was expected to conclude, particularly in light of the defence not being responsible in any way for the adjournment.

41I agree with counsel for the defence. While there is no doubt that the power outage is an exceptional circumstance, I do not find it contributed to the delay in this matter. What caused the delay in this matter is the Crown’s failure to make this matter a priority. Despite being scheduled for 2 days, on November 6, it was 2:50 p.m. in the afternoon before we were ready to begin. The power outage meant that nothing could be accomplished, and the matter was set to return the following day. The following day, after I gave a judgment in another matter, the Court was ready to address Mr. Arulalagan’s matter at 10:30 a.m., however, the Crown had not even tested the equipment they required to call their case. When testing was complete, it became patently obvious the technology was not sufficient to allow the Crown to call their case.

42While there may be a desire to call the failure of technology an exceptional circumstance outside of the control of the Crown, and I leave open the possibility that this could arise in another case, in the circumstances of this case, I am unable to do so. On November 7, 2023, this matter was scheduled in H9. H9 is a courtroom whose resources are woefully inadequate for any matter that requires the use of technology. Knowing the issues with H9 and understanding what was required to call their case, the Crown, could have made the decision to prioritize this case over another matter that occupied a courtroom with the appropriate technology. That did not occur. Rather, an hour was lost testing equipment, before the Crown was even able to call their first witness. Even then, the witness gave only 50 minutes of evidence, before coming to a point where the Crown required technology to play the body worn video evidence. The court then took an early lunch at 12:20 p.m. to 1:45 p.m., to see if something could be done to rectify this issue. Luckily, a courtroom with appropriate technology resources freed up, and we were able to move into 404 to complete the day.

43However, despite the move, in total, only about 3 hours and 35 minutes of court time was used for a matter that was scheduled for two full days.

44In this context, whether the power outage caused 90 minutes or two hours to be lost, does not matter. Five and a half hours of trial time, for a matter scheduled for 2-days is not sufficient. [2] Even without the power interruption, this case would not have completed, and an adjournment would have been required.

45While I find the power outage to be an exceptional circumstance, it caused no delay in this matter so none will be deducted from the total delay.

46Further, I find that the time between the first offered continuation date of November 14, 2023, and the next offered date of February 14, 2024, where the Crown was not available, should also not be attributed to the defence.

47As I have already indicated above, I am of the view that Godin is still good law. Reading Godin in conjunction with Hanan at para. 9, R. v. Boulanger, 2022 SCC 2 at para. 8 to 10, and recently the decision of Harris J. of the Superior Court in R. v. A.C., 2024 ONSC 1603, at para. 19 to 23, to expect counsel for Mr. Arulalagan to be available for the one day offered, only a week following the anticipated end of trial is unreasonable. Further, counsel was able to make themselves available on the next offered date in February 2024, yet the Crown was not.

48The defence having no responsibility for the delay and who was able to make themselves available for a day in relatively short notice, should not be penalized for the short comings of others. This is particularly so since the Crown has not done anything to prioritize this matter and ameliorate the delay occasioned by the adjournment.

49None of the delay from November 7, 2023 to the next trial date will be attributed to the defence.

Conclusion

50From the total delay of 791 days, the following will be deducted:

(1) 28 days will be deducted for the late receipt of initial disclosure; (2) 65 days will be deducted for the late Crown Pre-Trial (3) 55 days will be deducted for a later trial date (in the first instance).

For a net delay of 643 days or 21.10 months. [3]

51The Application is granted, a stay will issue.

Released: April 18, 2024

Justice L. Daviau

1The trial coordinator offered, and the Crown was available for a date in January 2023, however, the Crown acknowledges that the officers body worn camera footage was not provided until April 2023, therefore the Crown could not have been in a position to proceed until after April 2023.

2It is of note that in the three and a half hours used, the Crown had only called one witness to testify in chief, the defence has not yet commenced their cross-examination.

3The formula used to calculate months from days is number of days divided by 30.417. This is the formula the Court of Appeal applied in R. v. Shaikh, 2019 ONCA 895, 148 O.R. (3d) 369, and R. v. Charity, 2022 ONCA 226, 412 C.C.C. (3d) 356.