Court Information

Date: May 16, 2017 Information No.: 14/10742 Court: Ontario Court of Justice Location: Brampton, Ontario

Parties:

• Her Majesty the Queen (Crown)
• Tharumabala Sundralingam (Accused)

Before: The Honourable Justice J. Blacklock

Appearances:

• J. Denuono, Counsel for the Crown
• A. Alawi, Counsel for Tharumabala Sundralingam

Reasons for Judgment

Blacklock, J. (Orally):

I have before me Mr. Tharumabala Sundralingam, who is charged with an assault that is said to have arisen in a domestic context. It is alleged in this case by counsel on his behalf, that there has been a breach of his section 11(b) rights under the Charter of Rights and Freedoms.

I raised at the outset the fact that I do not have transcripts of any of the occurrences of the parties in this matter after the accused came before the court. The defence took the position that it was not complaining that they had a basis to allege a breach of section 11(b) apart from the delay in executing the arrest warrant that occurred in this case.

In light of that position, the Crown took no objection to proceeding with the 11(b) argument without the transcripts of what occurred on the dates on which there had been earlier appearances in relation to this matter.

Factual Background

This case is, in my experience, a somewhat unusual one. The record before me shows that the offence date alleged here was August 15th, 2014. The record before me shows that the complainant appeared at the police station on the morning of August 26th, 2014, to give a statement to the police making the allegations at the basis of these charges. She also provided the police with two separate addresses for the accused; one in Brampton and one in Calgary and in addition, at least one phone number.

On August 27th, 2014, the police attended before a Justice of the Peace and had the information that is now before me sworn and succeeded in having the Justice of the Peace issue process on that information in the form of a warrant for the arrest of the accused. The only steps that are currently reflected in the record before me that the police then took to bring the accused before the court was to enter the warrant on CPIC.

The accused knew nothing about the fact that the police were considering a charge, or had taken steps to swear an information against him, until that warrant was executed on him on October the 16th, 2016, approximately two years, two months after the alleged events. What triggered the accused's arrest was the fact that he was travelling through Lester B. Pearson International Airport on route to Calgary on that date, returning from Sri Lanka, and the outstanding warrant came to the attention of the Canadian border officials.

It appears from the information before me that the accused was then held for a bail hearing and released on consent on the next day on terms that he would reside with his surety.

The accused's affidavit which was filed on this motion was not challenged. It indicated that he had moved to Calgary and was residing there as of 2010. It asserted that he resided there until he became aware of these charges. It also indicated that he had since sold one business and left his position in a real estate firm in Calgary to remain in Ontario and defend these matters. This is also said to have disrupted his ability to see the three children he has, I take it, with another woman in Calgary and who still reside there.

Legal Issue: When Does Section 11(b) Clock Start?

The real discrepancy between the parties in this case, so far in the proceedings before me, is when the 11(b) clock starts to run in a case such as this.

The defence takes the position relying on certain Western authorities decided in the 1980s and 90s, that the clock starts when the information is sworn and that a delay in executing process in relation to that information is delay that can be considered under section 11(b).

See in that regard R. v. Cardinal, 1985 AJ 1099 and R. v. MacDougall, 1995 SJ 580.

And in addition, through reliance on the more weighty authority of the Supreme Court of Canada's judgment in R. v. Kalanj, 1989 1 SCR 1594.

The Crown's position relies upon reasoning set out recently by a Justice Grey of the British Columbia Superior Court in R. v. Miller, 2016 BCSC 1887.

The position advanced in that case is that the 11(b) clock only starts to run in a case like this when the information is sworn, processes is issued and, crucially on these facts, process has been served or executed, or has otherwise been brought to the attention of the accused by the authorities.

I must say I have been very attracted indeed to the views articulated by Justice Grey in Miller, supra although with some minor differences.

I would observe that an interpretation which would start the 11(b) clock at a point that the outstanding charge had been brought home to the accused by the authorities, has much to be said for it.

It seems to me that it could be argued that this view is consistent with the facts and outcome in R. v. Kalanj, supra. This interpretation is consistent with what appears to be the pre-Charter view of when a person was, in the eyes of the law, charged with an offence.

As described by Justice Dickson in R. v. Chabot, 1980 2 SCR 1985, at page 1005, and I quote:

"As the Supreme Court of the United States observed in the U.S. v. Patterson, 1893 150 U.S.R. 65, at page 68, a criminal charge, strictly speaking, exists only when a formal written complaint has been made against the accused and a prosecution initiated. In the eyes of the law a person is charged with crime only when he is called upon in a legal proceeding to answer such a charge."

It offers an explanation in addition, for the comments of Mr. Justice McIntyre in paragraphs 15 and 16 of Kalanj that he was to some extent in agreement with the comments he quoted from Mr. Justice McFarland in R. v. MacIntosh, 1988 26 B.C.L.R. (2d) 1, at page 11.

Those comments, I would observe, indicate that a combination of a sworn information and service of process is required before a person can be said to be charged with an offence.

This approach also respects the scope of the precise language used by Justice Lamar when he was speaking for a clear majority of the court in R. v. Carter.

It also permits a reading of the applicable Supreme Court of Canada authorities in a greater degree of harmony. It furthermore has the effect of starting the 11(b) clock when the interests protected by that section are truly, fully engaged. In addition, it has the benefit of keeping the courts out of an analysis of what could be said to be part of the investigative process in the context of assessing 11(b) claims. As in many cases, locating the accused can be seen as part of the investigative process.

I would add that such an interpretation of Kalanj would not leave the accused without remedy in this kind of case.

Alternative Remedies for Pre-Charge Delay

As pointed out by Justice MacIntyre in Kalanj, other provisions of the Charter, such as section 7 and 11(b), and the Common Law, protect accused persons like the accused who, it could be argued, have experienced a degree of unfairness in the pre-charge phase of the criminal process.

Interestingly enough at paragraph 21 in Kalanj, Justice MacIntyre makes certain comments that would appear, arguably at least, to have application to the circumstances of this case. He states, and I quote:

"It has been considered that special circumstances could arise which in the interests of justice would require some consideration of pre-charge delay because of prejudice which could result from its occurrence. In my view however, the exceptional cases should be dealt with by reliance on the general rules of law and where necessary, the other sections of the Charter. This approach would take account of and meet concerns caused by they possibility of pre-charge delays. Delays which occur at the pre-charge stage are not immune from the law outside the scope of 11(b). The Criminal Code itself in section 577(3) and 737(1), protects the right to make full answer in defence should it be prejudiced by pre-charge delay. Section 455.1 provides for a prompt swearing of an information where an appearance notice has been issued or an accused has been released from custody under 452 or 453. As well, the doctrine of abuse of process may be called in aid and as early as 1844 the Common Law demonstrated that it was capable of dealing with pre-information delays. Baron Alderson in R. v. Robins, 1844 1 COX C.C. at 114, in a case where nearly two years have elapsed from the alleged commission of an offence before a complaint was made to the justices said:"

"I ought not to allow this case to go further. It is monstrous to put a man on his trial after such elapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, he may be able to bring forward his servants and family to say where he was and what he was about at the time, but if the charge be not preferred for a year or more, how can he clear himself? No man's life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial."

His Lordship then directed the jury to acquit the prisoner.

In addition, given the broad wording of section 7 and the other Charter provisions referred to above, it is not my view, necessary to distort the words of section 11(b) in order to guard against any pre-charge delay. In my view the concerns which have moved the court to recognize the possibility of special circumstances would justify a consideration of a pre-charge delay under 11(b) will thus be met.

Court's Conclusion on Section 11(b) Clock

Not withstanding all of these concerns, which I must say, push towards Justice Grey's interpretation in Miller, I do not feel free to take this approach in this case.

I have read and re-read Kalanj and with some regret, I have come to the conclusion that if one looks at that decision as a whole it is clear that Justice MacIntyre could not help but have been alive to the fact that his comments start the 11(b) clock at the point the charge is laid and process issued at the latest; not when process was ultimately executed upon the accused.

The dissenting judgments in this case clearly draw attention to this distinction and while Justice MacIntyre does not expressly say he's reversing Carter, he does expressly qualify its effect and at page 1610 of his judgment he recognizes that it might be said that the approach he is taking in Kalanj is a departure from some of the earlier judgments of the court.

Nonetheless, Justice MacIntyre's view in Kalanj represent the majority of the court at that time and that being the case, it seems to me that I am bound to follow the last word out of the Supreme Court of Canada on this issue which I view as the holding of Justice MacIntyre in Kalanj.

The 11(b) clock in my view, in this case, started when the information was sworn and process issued at the latest. As such applying the analysis currently applicable to me and also binding on me, in R. v. Jordan, the applicable delay in this case is well in excess of 18 months and the Crown has not satisfied me that any exceptional circumstances exist here justifying the delay.

It must be borne in mind that in this case the police appear to have had clear information as to the accused's whereabouts. Had there been any evidence that the police did anything to have the accused come before the court, other then simply put the warrant on CPIC and leave it there for in excess of two years other arguments might have been open to the Crown with respect to exceptional circumstances in this case.

On this record however, none of this is available to the Crown and as a result there will be a finding of an 11(b) breach here and a stay of the charges.

End Ruling

Certificate of Transcript

FORM 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

Evidence Act

I, Sharon Hancock, ACT, certify that this document is a true and accurate transcript to the best of my ability of the recording R. v. Tharumabala Sundralingam, in the Ontario Court of Justice held at Brampton, Ontario, on May 16, 2017, taken from Recording No. 3111_409_20170516_091143__30_BLACKLJA.dcr, which has been certified in Form 1.

Date: June 1, 2017

Transcriber: Sharon Hancock ACT ID: 4787503351 Phone: 1-855-443-2748 Email: shancock@vptranscription.com

This certification does not apply to the Rulings, Reasons for Judgment, Reasons for Sentence and/or Charge which was/were judicially edited.