R. v. Balasubramaniam, 2024 ONCA 403

Case Summary

This is an appeal from conviction and sentence. The appellant challenged the dismissal of his s. 11(b) Charter application, arguing the trial judge erred in characterizing a 60-day period as an exceptional COVID-19 delay without evidence and in double-counting a 7-day defence delay. The Court of Appeal dismissed both arguments, affirming the trial judge's consideration of local circumstances for the COVID-19 delay and finding no double-counting. The appellant also sought leave to appeal his 6-month custodial sentence, requesting a conditional sentence. Leave was granted, but the sentence appeal was dismissed, as the Court found no error in principle or unfitness.

Court File and Parties

Court of Appeal for Ontario Date: 2024-05-17 Docket: COA-23-CR-0667

Fairburn A.C.J.O., Roberts and Trotter JJ.A.

Between

His Majesty the King Respondent

and

Eswaran Balasubramaniam Appellant

Counsel: Philip Norton and Sara Little, for the appellant Samuel Mazzuca, for the respondent

Heard and released orally: May 15, 2024

On appeal from the convictions entered by Justice Philip A. Downes of the Ontario Court of Justice, dated April 6, 2023, and from the sentence imposed on June 21, 2023.

Reasons for Decision

[1] This is an appeal from conviction and sentence. The conviction appeal focuses upon the application judge’s ruling dismissing the appellant’s s. 11(b) Charter application. The appellant maintains there are two errors embedded in that ruling.

[2] First, he maintains that the application judge erred by characterizing an “at least 60 days” [1] period as being an exceptional circumstance arising from the COVID-19 pandemic. He argues that, in the absence of evidence, such as an affidavit from a trial coordinator, it was not open to the trial judge to reach that conclusion. We disagree.

[3] The reasons well explain how the application judge, also the local administrative judge, took into account local circumstances when arriving at the conclusion that he did: that at least 60 days was accounted for by exceptional circumstances arising from COVID-19. We can do no better than those reasons.

[4] Second, the appellant argues that the trial judge double-counted a 7-day period of time that was agreed upon as defence delay. He submits that this period of time was subsumed in the at least 60 days of time accounted for by exceptional circumstances. We do not read the reasons in this way. The trial judge was careful to differentiate between defence delay and COVID-19 exceptional circumstances. As the application judge said, the delay arose from “at least 60 days on top of the seven days conceded as defence delay”.

[5] The appellant also seeks leave to appeal sentence and, if granted leave, seeks a conversion of the custodial term of 6 months into a conditional sentence order. The sentencing reasons are clear on their face. We see no error in principle in those reasons. Nor do we see the sentence as being demonstrably unfit.

[6] The conviction appeal is dismissed. Leave to appeal sentence is granted, but the sentence appeal is dismissed.

“Fairburn A.C.J.O.”

“L.B. Roberts J.A.”

“G.T. Trotter J.A.”

[1] Emphasis in original.