Court File and Parties

Ontario Court of Justice

Date: 2020-10-06

Court File No.: Brampton 18-10536

Between:

Her Majesty the Queen Respondent

— and —

Sukhjinder Kande Applicant

Before: Justice M.M. Rahman

Heard: September 18, 2020

Reasons for ruling released on: October 6, 2020

Counsel:

• Jelena Vlacic and Julia Bellehumeur, counsel for the respondent
• Aswani Datt, counsel for the applicant

Reasons for Ruling

RAHMAN J.:

1. Introduction

[1] The applicant, Sukhjinder Kande, is charged with assault, assault with a weapon, uttering threats, and mischief. He applies for a stay of proceedings on the grounds that there has been unreasonable delay in bringing his charges to trial.

[2] Mr. Kande was charged on September 1, 2018. His first trial, set for September 25 and 26, 2019, was adjourned because Mr. Kande was charged with new offences on the first day set for trial. Those new charges alleged that Mr. Kande threatened the complainant in this case. The Crown withdrew those charges about six weeks after they had been laid. Mr. Kande's trial is now set for two days starting on December 23, 2020. The total delay from the charge to the final day of trial is 27 months and 23 days.

[3] The parties agree that the net delay in this case is over the 18-month Jordan ceiling, although they disagree on the precise amount of net delay. They also disagree over whether the new charges were a discrete event and whether the Crown can justify the excess delay.

[4] The applicant says that there was no defence delay. The applicant argues that the net delay is the same as the total delay. Moreover, the applicant argues that his arrest on new charges does not constitute a discrete event, because those charges ought never to have been laid. He says that the foundation of those charges was weak and that the police should have consulted with the Crown before even laying them. The weakness of the charges is evident because they were withdrawn not long after they had been laid. Further, the applicant argues that the Crown took no steps to expedite the re-scheduling of the trial. Because the Crown did nothing to prioritize the new trial dates, it cannot justify the delay, even if the laying of the new charges in September is considered a discrete event.

[5] The Crown, respondent, argues that the net delay in this case is 24 months and 16 days after three periods of defence delay are subtracted. Even though the delay is over the Jordan ceiling, the respondent says that Mr. Kande's arrest in September 2019 was an unforeseen discrete event that excuses the extra delay. The respondent says that, even though the charges that led to the adjournment of the first trial were ultimately withdrawn, there is no suggestion that they were improperly laid. The respondent says that this court cannot review the decision to initially proceed with those charges, and then not proceed with them, because doing so would be an improper review of a core prosecution function. The respondent also argues that this court ought to consider that the Crown's ability to mitigate delay was hampered somewhat by the COVID-19 global pandemic. As a result, the delay in this case was reasonable and the applicant is not entitled to a stay of proceedings.

[6] These reasons explain why I find that the applicant's s. 11(b) Charter rights have been violated because the Crown cannot justify the excessive delay.

2. Calculation of Delay

[7] The parties agree that the total delay in this case is 27 months and 23 days. They disagree on the net delay because they disagree on whether there is any defence delay to be subtracted. Although the calculation of defence delay does not impact my conclusion on this application, I will address it for the sake of completeness.

2.1. Defence Delay

[8] The respondent says that there are three periods of defence delay that ought to be subtracted from the total delay:

(1) November 7 to December 12, 2018: the respondent says that the applicant is responsible for this period of 35 days because he adjourned his matter awaiting disclosure of police notes that were not necessary to move the matter forward to a Crown pre-trial

(2) September 12 to September 26, 2019: this period of 14 days was the time between when the Crown and the court were available for trial but the defence was not

(3) September 26 to November 13, 2019: the respondent says that it was ready to set a new trial date on September 26, the day the applicant got bail on the new charges, so this period of 48 days should also be subtracted

[9] Although I accept that there was some defence delay in this case, I do not accept that there was as much as the respondent argues there was. I will deal with each of the periods in turn.

[10] I do not accept that the defence is responsible for any of the delay in the first period set out above. The respondent correctly observes that the defence is not entitled to every last piece of disclosure before setting a Crown or judicial pre-trial. However, the Crown did not press the applicant to move the matter forward and set a pre-trial date. This is not simply a matter of "protecting the record." If there is a dispute between the parties whether a matter should move forward, that dispute should be placed front and centre before the court at the time it arises. The Crown did not resist the applicant's request for more time to acquire the outstanding disclosure. I think it is fair, at this stage, to take the Crown's position to mean that the matter did not need to move forward until the defence got that disclosure. It is difficult to now assess, some two years down the road, whether the applicant's request for time to get some outstanding disclosure was legitimate or simply an attempt to rag the puck. That is especially so when there is no real evidentiary basis to allow this court to decide the issue. The Supreme Court's intention in Jordan was to simplify a trial judge's ability to calculate delay, rather than to play Monday-morning quarterback for every adjournment. In the circumstances, I do not find that it is appropriate to second-guess the defence decision to wait for the outstanding disclosure. It makes more sense to regard the adjournment as part of the intake period which is accounted for within the Jordan ceiling itself.

[11] I do accept that the defence is responsible for the second period of delay. The Jordan clock clearly stops running when both the Crown and court are ready, even if the defence is not. I cannot accept the applicant's submission that classifying this period as defence delay would be requiring the defence to hold itself in a perpetual state of readiness. The first trial dates were set nine months in advance. This is not a case where the defence was asked to be ready to proceed to trial in a few weeks. The law is clear that this period of delay is properly regarded as defence delay.

[12] Regarding the third period of delay, I would not classify the whole period of delay as defence delay. The applicant received bail on the now-withdrawn charges on September 26, 2019. He found himself facing a new set of charges based on evidence from the same complainant. Although there was nothing stopping him from setting a new trial date immediately, the practical reality for an accused in the applicant's situation (just released from custody, and facing new charges related to an outstanding set of charges) is that his circumstances have clearly changed. The applicant could reasonably have required a short adjournment before setting a new trial date on these charges. However, I cannot agree with the applicant's submission that he was entitled to wait until he received disclosure on the new charges before setting a date on these charges. The two matters were separate. The Crown had given no indication that it planned to join them. The applicant was entitled to a reasonable amount of time to re-group before setting a new trial date. However, he was not entitled to wait until he had disclosure on the newer charges to decide to set a date on these charges. I would regard two weeks as a reasonable (and generous) period for the applicant to have waited before setting a date. Consequently, I would attribute a total of 34 days during this period as defence delay.

2.2. Net Delay

[13] The total amount of defence delay is 48 days. When that amount is subtracted from the total delay, the net delay is just over 26 months.

2.3. Discrete Event

[14] The respondent argues that the new charges laid against the applicant on September 25, 2019 are a discrete event that explains and excuses the delay over the 18-month presumptive ceiling. Because the applicant was facing new allegations on the first day of his trial, the trial could not proceed that day and the applicant asked to adjourn the trial.

2.3.1. The Adjournment and Re-Scheduling of the Trial

[15] The applicant appeared in court the morning of September 25, 2019. The parties were ready to proceed to trial but the court in which they appeared was conducting another trial and was not ready to start the applicant's trial. At some point before court resumed in the afternoon after the lunch break, the applicant was notified that he would be facing new charges. When the parties addressed the matter in court after the lunch break on September 25, they informed the court that the trial would not be proceeding and that the applicant's matter should be adjourned to the following day. In the interim, the applicant turned himself in and appeared in bail court on September 26.

[16] As mentioned above, the applicant was released on bail on September 26. Because of the new charges he was facing, both sets of charges were adjourned on a few occasions until November 13, 2019. On November 13, the current trial dates of December 23 and 24, 2020 were set. This was the first date available to both the court and the Crown. When the trial date was being set, Crown counsel (not Ms Vlacic) commented that "the new trial date is so far in advance, it's outrageous so we'll get judicial input on that." The parties also set an interim judicial pre-trial date for January 9, 2020.

[17] Despite Crown counsel's comments on November 13, no judicial input or intervention was sought. And the Crown took no steps to give the scheduling of the second trial date any priority.

2.3.2. Parties' Positions

[18] The applicant argues that the new charges do not qualify as a discrete event. He says that, because the charges were withdrawn so shortly after they were laid, it is clear that they ought not to have been laid and especially ought not to have been laid on the first day set for trial. He says that the police should have sought advice from the Crown before laying the charges. He also notes that there was no urgency in charging him on the first day of trial, since the complainant herself said that the threats which were the basis for the charges occurred a month before. Alternatively, the applicant says that, even if the new charges qualify as a discrete event, the Crown did nothing to prioritize the setting of a new date. The applicant says that even though the Crown recognized that the delay to the new trial date was "outrageous" and suggested seeking judicial input, the Crown did nothing to mitigate the delay. The Crown's failure to act means it cannot justify the delay beyond the presumptive ceiling.

[19] The respondent argues that the new charges were unforeseen and therefore qualify as a discrete event. The respondent says that there is no allegation of flagrant impropriety and therefore the court cannot look behind the Crown's exercise of discretion in proceeding with, and then withdrawing, the second set of charges. The respondent also says that, although the Crown took no steps to expedite the new trial dates, the delay can still be justified. The respondent argues that the COVID-19 pandemic's impact on the court is a factor to consider here because it affected the Crown's ability to take steps to mitigate the delay once the regular operation of the courts ceased in March. The respondent says that the Crown would have believed in November 2019 that it had the rest of the year for the matter to be brought forward to bump other matters.

2.3.3. Analysis

[20] Although I agree with the respondent that the new charges can be called a discrete event, I cannot agree it has met its onus to justify the delay because the Crown did nothing to mitigate the delay.

[21] First, I will deal briefly with the applicant's argument that the new charges did not constitute a discrete event. They did. There is no question that the complainant only disclosed the allegations that led to the new charges on September 25, meaning it was unforeseen. I also agree with the respondent that this court cannot go behind the Crown's exercise of discretion in deciding to initially proceed with the charges and then withdraw them. The respondent correctly observes that the exercise of Crown discretion is only reviewable where there is an allegation of abuse of process. The applicant makes no such allegation here. And the record supports no such claim anyway. The laying of charges was an unforeseen event that occasioned the adjournment of the first trial date because the applicant was facing new charges.

[22] However, simply because the new charges qualify as a discrete event does not end the inquiry. Even where unforeseen events happen, the Crown has a responsibility to take steps to minimize the delay. As the Supreme Court held in Jordan, the Crown cannot simply point to a discrete event after the fact to justify the delay. The Crown must show that it took reasonable steps to address the problem, even if those steps are not ultimately successful.

It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay.

The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).

[23] As the respondent acknowledges, there is nothing on the record to show that the Crown took any steps to address the problem of delay. This was despite the fact that Crown counsel who set the trial date acknowledged that setting a second trial date 13 months in the future was "outrageous" and called for judicial input. This is also not a matter that slipped through some cracks in a busy set date court. It was judicially pre-tried two months later. Regardless of the purpose of that judicial pre-trial, the fact that a judicial pre-trial was held meant that the matter would have come to the attention of the Crown at least once more after the date had been set. The Crown had the perfect opportunity to be reminded of the case's age and to seek judicial intervention. And yet it did nothing.

[24] Discrete events are those events that are unforeseen and outside of the Crown's control. Where delay exceeds the ceiling, Jordan makes clear that the Crown must show "that it should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control." Therefore it makes sense that, in order to rely on a discrete event to reduce the net delay, the Crown must do what is within its control to try and mitigate the effects of the delay. The Jordan framework was meant to clarify "the content of the Crown's ever-present constitutional obligation to bring the accused to trial within a reasonable time" and to motivate the Crown "to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling, should the need arise." It is open to the Crown to "bump" other matters to give priority to matters that are being unreasonably delayed. The Crown made no attempt to do that here. Even if the Crown had not done so in November when the date was set, it could have sought judicial intervention to have the matter given such priority in the four months that followed.

[25] I cannot accept the respondent's submission that the global pandemic affected the Crown's ability to take steps to expedite the trial. The COVID-19 emergency did not affect the regular operation of this court until the middle of March 2020. That was four months after the trial date had been set (and over two months after the judicial pre-trial). The Crown did nothing during those four months to try and mitigate the delay. It would be unfair to allow the Crown to rely on the hypothetical possibility that, but for the pandemic, it could have taken steps after mid-March to try and expedite the trial. In this regard, I agree with Band J.'s observation that the "only sensible approach is to assess the effect of discrete events when they have a real, not virtual, impact on the proceedings." In any event, the fact that the Crown took no steps in the four months after Crown counsel called the delay outrageous strongly suggests the absence of a pandemic would not have changed anything. Again, the Crown's onus here is only to show that it did something reasonable to mitigate the delay, even if what it did was ultimately not successful. It has not met that onus.

3. Conclusion

[26] The delay in this case exceeds the presumptive ceiling. The Crown has not met its burden to justify the delay. The application is granted and the charges against the applicant are stayed.

Released: October 6, 2020

Justice M.M. Rahman