Ruling on Section 11(b) Application

Ontario Court of Justice

Between: Her Majesty the Queen — and — Kisantharuby Jeeva

Before: Justice P. Harris

Reasons for Judgment released on: May 15, 2013

Counsel:

• Mr. Scott Patterson, Assistant Crown Attorney
• Mr. Dean Embry, for the Defendant K. Jeeva

BACKGROUND

[1] Kisantharuby Jeeva was charged with conspiracy to commit the indictable offence of fraud over $5000.00, as well as fraud over $5000.00 and obstructing a peace officer in respect to events transpiring on or about the 23rd day of July, 2009. These charges relate to an alleged "staged accident" and fraudulent insurance claim and a "false motor vehicle collision report." She has applied for a stay of proceedings pursuant to s. 11(b) and s. 24(1) of the Charter of Rights on the grounds of unreasonable trial delay and this application was heard on May 1, 2013, in advance of the trial date of July 9, 2013. Applications under s. 11(b) are now heard in advance of the trial date pursuant to an administrative policy in the Ontario Court designed to salvage trial time for other cases should the application succeed. I am to treat this Application as if it were brought on the actual trial date of July 9, 2013.

FACTS

[2] The facts for this purpose can be briefly stated: the defendant was arrested with 38 other individuals as part of Project Whiplash. The project targeted allegedly fraudulent insurance claims from fantasy accidents based on false injury reports from six physiotherapy clinics. These false claims were managed by the clinics and coordinated by three alleged principals in the conspiracy V. Sabapathy, P. Nadesu and R. Gunasingham. This investigation involved the review of approximately 77,000 pages of disclosure involving bank records, insurance forms, witness statements and production orders. The allegations against the defendant Ms. Jeeva were that she was the driver of one car containing four passengers that was involved in a falsely reported collision on July 22, 2009 with two other vehicles. Twelve individuals including two other drivers made claims for property and personal injuries and in respect to this one accident the insurance company paid out over hundred thousand dollars in settlement of all claims.

[3] A police accident reconstructionist concluded on January 6, 2012 that the accident reported by the defendant Ms. Jeeva and 11 others had never taken place. On February 23, 2012 all parties accused of participating in staged accidents (38 in total) were arrested. Ms. Jeeva was arrested and charged separately and remanded to April 5, 2012 with all the other defendants. Ms. Jeeva was connected to the larger conspiracy through one common insurance carrier (State Farm) and the fact she was represented by a paralegal, P. Nadesu who additionally had an ownership interest in the physiotherapy clinic which provided her with documentation as to her alleged injuries. The officer in charge of this case D.C. Stephan Nasner, who gave evidence about the history of this proceeding, was asked if the allegation against Ms. Jeeva was "complex" and he answered: "no". The three above-noted principals have scheduled their preliminary inquiry for December 2013.

CASE HISTORY

[4] Following the charges of February 23, 2012 and an initial appearance on April 5, 2012, the 38 separately charged defendants were remanded to May 17. I presume the Crown requested that all conspiracy-related defendants return to a special court because counsel for Ms. Jeeva stated: "I suppose we are all going to May 17 at 2:00 pm?" and the Crown replied: "Yes." On May 17, Mr. Scutt for the Crown announced that he was organizing the larger contingent into "groupings" and that Ms. Jeeva was one of five defendants (she had claimed to be the driver and the others were the passengers in her car) who were to be tried together. After some discussion on the record, the Crown indicated that he was hoping to set a judicial pre-trial but since two of the five defendants were not represented by counsel he proposed the case go over to June 25 at which point he would be asking to set a judicial pre-trial with or without counsel. Counsel for Ms. Jeeva indicated that he was ready to set a judicial pre-trial that day but acquiesced in the remand in order that all defendants could be represented by counsel.

[5] On June 25 Mr. Scutt for the Crown indicated that there were approximately 35 accused in attendance in respect to Project Whiplash. At that time the grouping described as collision number 76, involving the defendant and four others, was spoken to and the Crown stated that "we're now in a position where we could set a judicial pre-trial for this group and … Those matters are now returnable August 2, at 2:00 pm. On August 2, 2012 the matter involving the group of five was spoken to again and Mr. Scutt announced that ongoing discussions had been held with all counsel and that ─ of the group of five, all but one were working towards resolution. The one matter that was proceeding to trial involved the defendant Ms. Jeeva. The Crown proposed that there be a further judicial pre-trial and that the matter should go over to September 20th for all defendants. Counsel for Ms. Jeeva remarked that they had just attended a judicial pre-trial and there had been some difficulty in coming to trial estimates because of "deciding who's being prosecuted and who's not, at this point." Mr. Scutt stated that he was "looking for a judicial pre-trial involving all the accused who were drivers of the vehicles involved… And that would be a joint trial…if they weren't resolved." All counsel then agreed to a remand to September 20th, 2:00 pm.

[6] On September 20, counsel for Ms. Jeeva complained to the presiding Justice of the Peace that a pre-trial had taken place some weeks ago at which time the Crown took the position that they were not ready to set a trial date because they could not come to a trial estimate. Counsel indicated that Ms. Jeeva is "on her own information [that] has been stalled for months and months and months." He said "We are not even ready to have a judicial pre-trial." He then asked: "When is the substantial disclosure that is…being generated….going to be provided?" Crown counsel indicated that there were recent witness statements that would be made available as soon as they could be copied and that "another judicial pre-trial could be held." A second Crown counsel advised that the video statements could be provided "either today or tomorrow" and that a judicial pre-trial in two weeks' time would provide defense counsel with "plenty of time to review the disclosure." He indicated that two individuals might be resolving their matter and that "putting Ms. Jeeva together with these individuals simply did not make sense." At that time a judicial pre-trial was set for October 12 and the case was remanded to that date.

[7] On October 12 a further judicial pre-trial was held and at the court attendance the same day, Mr. Embry counsel for Ms. Jeeva requested three weeks to consider whether or not to set a trial date and indicated that there were significant section 11(b) issues up to this date. On November 2 counsel for Ms. Jeeva and Crown counsel agreed to a two-day trial July 9 and 10th 2013 with a section 11(b) motion set for May 1, 2013. The indication on the record was that these dates were the earliest that were offered by the trial coordinator. Additionally, Mr. Embry indicated that he was available for a two day trial as early as December 12, 2012.

[8] As of the date set for trial, July 11, 2013 the defendant would have been before the Court for approximately 16 months which raises an overarching issue of reasonableness and calls for an inquiry. I propose to conduct an attribution analysis of the specific periods that constitute the total delay in accordance with R. v. Schertzer 2011 ONSC 3046.

ANALYSIS

[9] Whether delay has been reasonable is assessed by considering the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay (inherent time requirements, accused's actions, Crown's actions, limits on institutional resources), the prejudice to the accused and finally by balancing the interests that s. 11(b) seeks to protect: R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26 para 18. Accordingly, the issues under consideration will be dealt with in the above-noted order.

LENGTH OF THE DELAY

[10] As noted above the total delay to trial is approximately 16 months from March 9, 2012 when the Information was sworn and the trial date July 11, 2013. The overall period of delay is calculated from the date the Information was sworn, March 9, 2012 until the scheduled trial date, July 11, 2013. See: R. v. Kalanj, (1989) 48 C.C.C. (3d) 459 (S.C.C.).

WAIVER OF TIME PERIODS

[11] There was one express waiver by the defence of the time period October 12 and November 2, 2012. According to s. 11(b) jurisprudence, this additional preparation time requested by the defence is more properly attributed to the inherent intake functions of a case and classified as neutral for s. 11(b) purposes.

REASONS FOR THE DELAY

(a) Inherent time requirements of the case and neutral periods

[12] There are two inherent time calculations required in this case: (i) the neutral intake period; (ii) the delay required for counsel availability and case preparation once the date for trial is set.

[13] The pivotal issue in this case is the characterization of the 7 month period of delay from the date the information was sworn (March 9, 2012) to October 12, 2013 when all the intake procedures had been completed and the case was ready to be set for trial. The Crown's position is that the entire period of 7 months consisted of reasonable preliminary intake functions that were necessarily inherent and neutral in respect to what was a complex case in a procedural sense. The Defendant submits that having chosen to prosecute the Defendant separately ― rather than proceeding to conduct a judicial pre-trial and set a trial date following the receipt of disclosure on April 5th, the Crown unaccountably delayed the proceedings for 5.5 months to October 12th while other separately charged, individuals were dealt with, resulting in extensive additional delay. It is contended that the Crown obstructed the progress of the Defendant's charges by insisting on remands to wait for other accused to retain counsel, arrange judicial pre-trials, and undertake resolution negotiations all of which resulted in further statement disclosures. The Defendant argues that in the end she was never jointly charged with any other defendant and the ensuing 5.5 month delay was simply a function of Crown indecision as to how to proceed with her prosecution. The Defendant contends that the organization of the prosecution should have taken place in the 2 year 7 month pre-charge period and the 5.5 months of delay following the first appearance are therefore properly attributed to Crown delay.

[14] As noted in the case history above, there were several distinct intake functions that created delay in the preliminary stages of this case: (1) the period of time required to set and later attend judicial pre-trials; (2) the period of time consumed by other defendants in the same "grouping" who took time to resolve their charges and produce statements to be disclosed to counsel for Ms. Jeeva; (3) the delay that simply flows from a particular level of case complexity; (4) the delay resulting from Crown deliberations about how to move the juggernaut of 38 separately-charged individuals forward. (5) Delay from date trial set until counsel becomes available.

[15] It is important to set the theoretical framework in the cement of binding case authority referable to the five issues noted above.

(I) Judicial Pre-trials

The first disputed period of delay involves the time required to conduct judicial pre-trials. While some authorities have held that delay caused to conduct a judicial pre-trial is institutional delay (See: R. v. G. (C.R.), (2005), 206 C.C.C. (3d) 262 (Ont. C.A.)), the more recent authorities have concluded that this type of delay is part of the inherent time requirements of the case and carries neutral weight in the s. 11(b) analysis. As stated in R. v. Tran 2012 ONCA 18, 2012 ONCA 18: "a judicial pre-trial to set the trial date(s) is a reasonable and necessary case management tool in busy judicial centres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in presentation of their cases provided the court is available for a judicial pre-trial within a reasonable time." See also: R. v. Khan (2011), 2011 ONCA 173, 270 C.C.C. (3d) 1 at paras. 44-5 (Ont. C.A.); R. v. Emanuel 2012 ONSC 1132, at paras. 14-15.

(II) Actions of Co-accused

For all intents and purposes, the other individuals in Ms. Jeeva's grouping were essentially co-accused and would have been so had each and every one of them not resolved their matters. Ordinarily delay caused by the actions of a co-accused is considered neutral in the s. 11(b) analysis: R. v. Whylie (2007) C.C.C. (3d) 97. See also R. v. Sapara, 2001 ABCA 59, [2001] A.J. No. 256 at paras. 57-58 (C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No. 237. That they would have been jointly charged was a foregone conclusion. Ordinarily persons charged jointly with an offence should be tried together. A single trial for two or more accuseds generally conserves judicial resources, avoids inconsistent verdicts, and avoids witnesses having to testify more than once. Severance is rarely granted: R. v. Whylie, supra. In my view the corollary necessarily follows that accused individually charged with the same offence involving the same subject matter should be tried jointly where it is administratively feasible, to give effect to the same values.

(III) Case complexity

Case complexity can be a function of process as well as substance. In substance, this was not a complex case from an evidentiary point of view. (See comment of D.C. Stephan Nasner, supra) But it was complicated by the size and complexity of the investigation, the number of alleged co-conspirators, the inevitable delays in ensuring all had an opportunity to obtain legal representation, the need for multiple judicial pre-trial conferences, and the trial management challenges of determining the optimal size of trials of jointly-charged individuals with which to proceed. When individuals who are "grouped" for trial purposes, express an intention to resolve their charges, there is a benefit to the administration of justice and to any remaining accused by way of a reduced trial time estimate ― but the inevitable result is further delays for negotiations, additional judicial pre-trials and the production of further disclosure should the former co-accused become Crown witnesses. These activities can occur at any time in the pre-trial process, are beyond the control of the Crown and are preliminary intake functions that are simply part of the inherent time requirements of the case for s. 11(b) purposes. As Sopinka J. stated in R. v. Morin (1972), 71 C.C.C. (3d) 1 (S.C.C.):

As well as the complexity of a case, there are inherent requirements which are common to almost all cases. The [Crown] respondent has described such activities as "intake requirements". Whatever one wishes to call these requirements, they consist of activities such as retention of counsel, bail hearings, police and administration paperwork, disclosure, etc. All of these activities may or may not be necessary in a particular case but each takes some amount of time. As the number and complexity of these activities increase, so does the amount of delay that is reasonable. Equally, the fewer the activities which are necessary and the simpler the form each activity takes, the shorter should be the delay. The respondent suggests that this Court should set an administrative guideline for such an "intake period". We decline to do so on the basis of the record that is before us. The length of time necessary will be influenced by local practices and conditions and should reflect that fact. No doubt the intake period in a particular region will tend to be the same for most offences. There may, however, be a significant variation between some categories of offences, such as between summons cases and cases of arrest. This will mean that courts in a particular region will tend to hear the same evidence repeated with each s. 11(b) application. It will then become apparent that this period falls within a range of a certain number of weeks or months. A de facto administrative guideline will thus develop that will reflect conditions in that region.

According to Campbell J in R. v. Mahmood 2012 ONSC 6290:

The Court of Appeal for Ontario has concluded that a reasonable neutral period of time for such "intake" matters in Ontario can vary between two months and eleven months in duration, depending upon the nature of the case and the degree and nature of the "intake" functions that must be completed. See, for example: R. v. Morin, [two months]; R. v. Sharma, [three months]; R. v. Kovacs-Tatar, (2004), 192 C.C.C. (3d) 91 (Ont.C.A.) at para. 46-47 [four months]; R. v. Seegmiller, (2004), 191 C.C.C. (3d) 347 (Ont.C.A.) at para. 14 [five months]; R. v. Steele, 2012 ONCA 383, 2012 ONCA 383, at para. 16-17 [five months]; R. v. J.G.B. reflex, (1993), 85 C.C.C. (3d) 112 (Ont.C.A.) at pp. 115-116; Affirmed: reflex, (1993), 85 C.C.C. (3d) 112 (S.C.C.) at p. 117 [seven months]; R. v. G.(C.R.), at para. 7 [over seven months]; R. v. Ribic, at para 119-124 [over seven months]; R. v. Khan (2011), 2011 ONCA 173, 270 C.C.C (3d) 1 (Ont.C.A.) [seven and a half months]; R. v. Qureshi, at para. 27, 32, 37 [eight months]; R. v. Cranston, at para. 41-46, 52-53 [nine months]; R. v. Schertzer, at para. 71-72 [eleven months].

It is submitted that the period of approximately 7 months that it took to conclude all of the preliminary activities before a trial date could be set is a time frame that is well within the appropriate range for conspiracy charges involving multiple accused.

(IV) Crown Grouping Decision

The assumption underlying the position of the defence, (that as an individually-charged defendant, her case could have moved through the intake system quite quickly), in my view, is based on a false premise. It does not follow that ― even though the Defendant is charged with conspiracy which implies the alleged involvement of others as co-conspirators and even though she is charged (albeit individually) with 38 others facing the same or similar charges arising from the same subject matter ― she could quite properly expect to be treated separately and proceed directly to trial. This would have the effect of restricting the Courthouse to nothing but trials of individual Project Whiplash cases for an extended period of time. It is an additional non sequitur to contend that if Ms. Jeeva, at the outset, had been jointly charged with conspiracy involving the 11 others in the same accident, that the 5.5 month period of counsel retainer, pre-trial, resolution negotiations and disclosure production delays would not have taken place. In other words a logical connection is implied where none exists. It is understandable that Ms. Jeeva may not wish to be connected in any way with the other "Whiplash" defendants, but the intention was expressed on the record, to jointly charge her and the others in the same "accident" and that position was entirely supportable in law and public policy. (See para. II, above). This was a complicated case procedurally, all of the preliminary intake steps from April 5 to September 20 that resulted from these complications were inherently part of the intake process and Ms. Jeeva was never jointly charged with the others simply because they chose to resolve their charges. That she was never jointly charged with the alleged co-conspirators was just an unpredictable vagary of trial practice.

(V) Counsel Availability for Trial

Finally, it is notable that recent case authorities do not accept that the period between the date the trial is set and the trial date is entirely institutional delay. As Simmons J.A. in R. v. Tran 2012 ONCA 18 observed:

[32] Second, parties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them. See Morin, at pp. 791-2, 794-5, 805-806. See also Lahiry, at paras. 25-37, citing Morin, R. v. Sharma, [1992] 1 S.C.R. 814, R. v. M.(N.N.), (2006), 209 C.C.C. (3d) 436 (C.A.), R. v. Schertzer 2009 ONCA 742, 255 O.A.C, R. v. Meisner (2003), 57 W.C.B. (2d) 477 (Ont. S.C.), and R. v. Khan, 2011 ONCA 173, 2011 ONCA 173, 277 O.A.C. 165.

[16] To conclude, the above case authorities require the following allocations: March 6th, 2012 to April 5th, 2012 ― inherent delay for counsel and disclosure; delay to May 17th, 2012 ― inherent due to Crown deliberations as to how to organize case into manageable proportions; delay to June 25th, 2012 ― inherent due to actions of other accused who were slow to retain counsel; delay to August 2nd, 2012 ― inherent as all defendants wait for pre-trial; delay to September 20th, 2012 ― inherent as actions of other accused create delay with resolution discussions and production of statements; delay to October 12, 2012 ― inherent as defendant waits for judicial pre-trial; delay to November 2nd, 2012 ― inherent as defence considers position; delay to December 12th, 2012 ― inherent as defence counsel not available for trial.

ALLOCATION OF PRELIMINARY ACTIVITIES

[17] On the basis of the section 11(b) jurisprudence set out above in respect to the five different purposes served by delay from the date the charges were sworn to the first date counsel was available for trial ─ March 9th to December 12th ─ I have determined that this entire period (with the exception of a three week period of delay waived by the defence from October 12 to November 2, 2012) constituted inherently neutral preliminary intake. For greater clarity I have prepared the following table:

March 6th, 2012 to April 5th, 2012: neutral intake; counsel retained and disclosure received;

April 5th, 2012 to May 17th, 2012: neutral intake ─ organizational complexity; determining optimal size of groupings to proceed as separate trials;

May 17th, 2012 to June 25th, 2012: neutral intake; delay due to actions of other accused in same "grouping" who had not yet retained counsel;

June 25th, 2012 to August 2nd, 2012: neutral intake; delay due to time required to conduct a judicial pre-trial;

August 2nd, 2012 to September 20th, 2012: neutral intake; delay due to actions of other accused in same "grouping"; all other accused in defendant's group were "working towards a resolution" and pending the outcome of these negotiations, any trial estimate was impossible without knowing how many accused were proceeding to trial;

September 20th, 2012 to October 12, 2012: neutral intake; delay due to time required to conduct a judicial pre-trial;

October 12th, 2012 to November 2nd, 2012: defence delay; defence to consider position;

November 2nd, 2012 to December 12th, 2012: neutral intake; defence not ready for trial;

[18] Total period of neutral intake March 9th, 2012 to December 12, 2012 (less defence delay from October 12th) = approximately 8 months; according to judicial decisions on the subject of neutral intake periods, it would not be unusual for a "project" case involving 38 defendants facing conspiracy charges to require a neutral intake period of 8 months to complete all preliminary steps in what could fairly be described as a relatively complex case at least from a procedural standpoint. One of the conclusions in R. v. Schertzer, 2009 ONCA 742 is applicable to this case: "Plainly, this is a complex case. The inherent requirements of such a case will serve to excuse longer periods of delay than for cases which are less complex."

(b) Actions of the accused

[19] There was one waiver of trial delay for the period of time from October 12th, 2012 to November 2nd, 2012 while the defendant considered her position. According to case authorities, this period is more properly considered as a preliminary pre-trial activity and essentially a neutral intake period.

(c) Actions of the Crown

[20] There are no delay periods to be attributed to the Crown. Within approximately 2 months of the date the Information was sworn, (by May 17th) Crown counsel had organized the proceedings into separate "groupings" of accused who were to be tried together. In virtually every s. 11(b) case authority, the first two months of the proceeding are allocated as neutral intake based on the need to conclude the inherent requirements which are common to almost all cases: R. v. Morin, supra.

(d) Limits on Institutional Resources

[21] The limits on institutional resources are well known in the Ontario Court of Justice, where even today, some twenty-two years after the first Supreme Court of Canada decision on s.11(b) of the Charter (R. v. Askov, [1990] 2 S.C.R. 1199) trial dates are routinely being set on dates in the future which are within and often at the upper end of the guidelines as outlined in that decision ─ and are potentially in constitutional jeopardy should the cases require any further delay. The systemic delay in this case is the period from December 12, 2012 to July 11, 2013, a period of 7 months. This is a relatively short period of time to trial for this jurisdiction and while not ideal, it represents a reasonably encouraging trend.

(e) Other reasons for the delay

[22] All delay in this case has been covered in my analysis under other headings. Counsel has not argued for the attribution of delay to any other factor in this case.

[23] The total delay attributable to the Crown directly or pursuant to its responsibility for systemic or institutional delay is 7 months.

PREJUDICE

[24] In the end result, I am satisfied that the defendant has suffered a modest degree of actual prejudice to her security interests as a result of trial delay in terms of the financial costs of a considerable number of court appearances. As well, a relatively modest degree of inherent prejudice can be inferred in respect to this Applicant as a result of the general stress, anxiety, vexations and vicissitudes of 7 months systemic delay in having these pending criminal accusations concluded.

BALANCING

[25] The final consideration involves a balancing of the problems that the delay has caused the Applicant and society's interests in having charges concluded on the merits. It is well accepted that society's interests in a trial on the merits increases as the seriousness of the charges increases. It must be acknowledged that the charges before the court are relatively serious as all criminal charges are, but even more so in respect to an indictable allegation that a large number of individuals, acted in concert to defraud an insurance company and obstruct a police investigation. The exercise of balancing competing interests is described by McLachlan J. in concurring reasons in R. v. Morin, supra:

The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in that persons charged with offences are brought to trial against the accused's interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.

[26] As noted above, the total delay directly attributable to the Crown or pursuant to its overall responsibility for systemic delay is 7 months. This trial delay is below the Ascov/Morin guidelines of eight to ten months by one month. I have determined that the actual and inherent prejudice to be inferred with respect to the Applicant should be characterized as modest. It follows that the amount of delay that is "tolerable" in this case must be closer to the upper end of the range given the modest level of actual and inferred prejudice to the Applicant particularly having regard to the fact that there were no real trial delay impacts on her liberty or fair trial interests (see R. v. G.(C.R.), [2005] O.J. No. 3764 (C.A.)). Consequently, this means that trial delay somewhat closer to 10 months would be "tolerable" in this case, and 7 months delay would therefore be well within constitutionally acceptable levels in view of the modest degree of actual and inferred prejudice.

[27] In balancing all the considerations, the amount of the delay, the reasons for the delay, the prejudice to the defendant arising from the delay, I am satisfied on a balance of probabilities that the defendant has not established that her interests and society's interest in a prompt trial outweighs the interests of society in a trial on the merits in this case for the above-noted reasons.

[28] Accordingly, I have concluded that the defendant's section 11(b) rights have not been breached and the application will therefore be dismissed.

P. Harris J.

May 15, 2013