Court File and Parties
Court File No.: CR-24-10000066-00AP
Date: 2025-06-18
Court: Superior Court of Justice – Ontario
Style of Cause:
His Majesty the King v. Satheeskumar Kulasingam
Before: S.F. Dunphy
Counsel:
Darren Hogan, for the Crown
Nicholas Rouleau, for the Defendant Respondent
Heard at Toronto: June 11, 2025
Reasons for Decision
Introduction
[1] This is an appeal brought by the Crown from the decision of Justice J. Callaghan of the Ontario Court of Justice on September 16, 2024, staying the charge of assault causing bodily harm against the defendant pursuant to s. 11(b) and s. 24(2) of the Canadian Charter of Rights and Freedoms. The trial of this case had been scheduled to proceed on October 9-10, 2024. Had the trial proceeded as scheduled, the total delay from the swearing of the information to the completion of trial should have been 16 months and 9 days.
[2] At the core of the decision under appeal was a finding by the Learned Justice of what he described as the “unexplained delay” over more than seven months by police in providing the complainant’s statement recorded on an officer’s body-worn camera. But for that delay, he suggested, the trial might have been completed several months earlier.
[3] While the findings of fact on a s. 11(b) application are entitled to deference on an appeal such as this, the Learned Justice’s legal analysis in applying those facts and determining that the delay was unreasonable is subject to the correctness standard. At the conclusion of the hearing, I allowed the appeal, ruled that the decision of the Learned Justice should be vacated and remanded the parties to trial scheduling court to obtain the earliest possible trial date with reasons to follow. These are those reasons.
The Jordan Framework and Delay
[4] The delay from information to projected trial end was well within the 18 month Jordan ceiling. There is no real suggestion that Crown or defence failed to act responsibly or with reasonable diligence prior to the police production of the video statement. Until then, there was simply nothing about the case that conveyed a sense of urgency nor did the Learned Justice find any unreasonable delay thereafter nor was there any suggestion of a failure to take appropriate steps to mitigate the delay that he laid at the feet of police as much as reasonably possible.
[5] The explicit intention of the Jordan court in establishing presumptive guidelines was to establish the expected bounds of reasonableness for constitutional purposes so that all participants in the system would have a clear understanding of their respective roles to uphold this constitutional standard. The court did so in the expectation that instances of delay within the stated boundaries should be “limited to clear cases” and “rare”: Jordan at para. 48.
[6] Finding that a particular case could have gone faster in different conditions does not equate to a finding that it ought to have done so in this case. The criminal justice system processes large numbers of cases. It is constitutionally obliged to process all of them within a reasonable time, but that obligation is not the same as moving each as fast as optimally possible when examined in isolation. Prioritizing cases within the bounds of constitutional reasonableness to keep the system moving forward and on track is an acceptable, reasonable and indeed obligatory practice if the system is to avoid seizing up.
[7] Where, as here, a trial has been scheduled well within the presumptive Jordan timeline, the defence bears the burden of demonstrating (i) that “it took meaningful steps that demonstrate a sustained effort to expedite the proceedings” and (ii) that “the case took markedly longer than it reasonably should have”: Jordan, para. 82.
[8] In the present case, the Learned Justice erred by effectively assuming the first criterion and misdirecting himself on the second. He ignored evidence of the reason for police delay in producing the statement (the requirement to redact personal information) and assumed (erroneously) that production of the statement required no greater effort than to copy a file on a computer. He failed to consider in any meaningful way the question of whether the defence could have taken steps to advance the case possessed of the unredacted audio file or sooner than it did after it had the corrected video in hand. Finally, he erred in focusing on the need to reform or influence police procedures instead of taking an objective look at the overall progress of the case.
[9] Viewed holistically, this was not one of the clear cases for which the remedy of a stay could be appropriate. Section 11(b) applications are simply not the proper forum to seek to influence police procedures or resource allocation. All of the police delay determined to be fatal by the Learned Justice happened before any clear indication of potential Jordan jeopardy was communicated or could reasonably have been anticipated.
(i) Did the Defence Take “Meaningful Steps that Demonstrate a Sustained Effort to Expedite the Proceedings”?
[10] The nature of “meaningful steps to expedite” will vary from case to case, but it stands to reason that such steps should be sufficiently clear and visible that other parties to the proceeding will understand when inaction is risking Jordan sanctions rather than discovering this after the fact. The Crown and indeed court system manage to Jordan deadlines which are explicitly identified and tracked at each step of the procedure. Where a different set of expectations are required to be adhered to, this should not be something learned only by surprise after any possibility of rectifying the problem has passed.
[11] The factual backdrop to this application requires some amplification to understand the error that I find the Learned Justice demonstrated in applying this first condition.
[12] The charge in this case was a single count of assault causing bodily harm arising from an altercation at a volleyball game where the accused allegedly punched the complainant in the face causing him to fall and, in so doing, to break his ankle gravely enough to have required surgery to repair it. The investigation was completed in a single day. The sworn information and arrest followed a day later with an initial remand date 30 days later in early July 2023. Defence counsel was appointed before that time and made routine requests for disclosure of, among other things, the complainant’s statement (which had been recorded by the body-worn camera of the investigating officer) and medical records. The latter are of course third-party records that involve the participation and cooperation of others not necessarily within the control of police.
[13] A summary of the complainant’s statement – presumably the officer’s own notes of the interview – had been prepared and was provided to defence. The recorded statement was not. This was because the Crown had sent the video recording to be redacted to remove personal information of the complainant for privacy reasons. The redaction process took time. Perhaps too much time – the precise reasons for this are not known. The defence re-iterated its request for this outstanding disclosure in advance of each remand date and the Crown made efforts to inquire about the status of the work each time. There was some confusion in the monitoring process. A different body-worn camera video was uploaded for the defence, but not the one containing the complainant’s statement. A preliminary CPT was held and it was agreed that the statement of the complainant was needed to further meaningful discussions.
[14] There is nothing in the record of appearances through to the end of 2023 that betrays any identification of looming Jordan issues that were on the verge of becoming irreparable. The parties appeared on November 7, 2023 and a discussion of the still-outstanding request for the recorded statement of the complainant occurred. Defence counsel offered: “I’m content to come back in three to four weeks Your Worship. That ought to allow time for a meaningful review and discussion with my friend, if it’s received soon” (emphasis mine). The Crown responded that this was a “reasonable request” and that if the disclosure “hasn’t been provided by that date, it probably is prudent to have [a] return date so that an update can be provided to the Court”. Defence counsel agreed to this suggestion. After recording the Crown’s election to proceed summarily, the matter was adjourned to December 5, 2023.
[15] At this juncture, the defence was indicating that it expected to be able to review the statement and have meaningful discussions with the Crown within three to four weeks after receiving the statement. The Crown allowed that further information about the reason for delay might be needed if it were not produced by the next appearance date. There was no suggestion that this was the “last chance” to produce the video before Jordan sanctions would be applied. It was a short, uneventful appearance.
[16] On December 5, the Crown placed its election to proceed summarily on the record a second time at the request of the defence but informed the court that the police statement was still not ready. Further inquiries were promised (and were in fact successful as the video was delivered the next day as it turned out). The matter was adjourned to January 16, 2024 without further discussion. No suggestion of irreparable Jordan harm appeared on the record on this date either.
[17] The next day, December 6, 2023, the Crown received the redacted video statement of the complainant from the body-worn camera and forwarded this to defence counsel. It was at this point that the defence noted certain redactions that had been made to the video track of the recording (the audio was unredacted). The defence inquired about the nature of the redactions which blocked significant portions of the video images from being seen. The Crown advised – responding in under an hour – that the redactions of private information of the complainant appeared to have extended to attempts to redact images of the officer’s own notebook which been neither requested nor necessary. The Crown undertook to send the video back to be re-redacted.
[18] The corrected redaction of the video was returned and delivered to the defence on January 17, 2024. No issue has been taken with the corrections made. The parties appeared as scheduled on January 16 – one day prior to the corrected video being delivered – and the matter was put over to February 20th with defence counsel indicating “if the disclosure is received in the interim, other steps can be taken, like a pre-trial or a judicial pre-trial”. The corrected video was of course delivered the next day and yet no steps to obtain or conduct a Crown Pre-Trial or Judicial Pre-Trial were undertaken by either side until the eve of that next scheduled appearance.
[19] The defence cannot discharge its burden to establish a clear case to discharge the presumption of reasonableness that attaches to the Crown’s management of a trial by taking routine steps in a routine manner:
Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly. While the defence might not be able to resolve the Crown’s or the trial court’s challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly. (Jordan at para. 85 – emphasis added)
[20] As I have noted, January 16 appearance was the first date where the tone of defence comments might have been suggestive of a looming Jordan risk. That video was produced the next day. It took more than a month for the defence to request dates for a Crown Pre-Trial and a further month before the task of coordinating calendars produced a date where both sides could appear on March 20. None of this two-month period figured into the calculus of the Learned Justice in granting a stay – the reasons focused almost exclusively on what was described as 7.5 months of unexplained police delay. There is simply no telling what trial dates might have been available for a 1.5 day trial had defence counsel made it a priority to get those dates fixed without delay as soon as the recording was in hand.
[21] The Learned Justice made three findings of fact concerning the statement each of which were plainly at variance with the facts on the record of the case before him.
[22] First, he found that the statement produced on December 6 was “a video statement without any video” (at para. 11). In fact, the entire recording was produced. The video portion of the recording may have been over-redacted – a fact the Crown immediately conceded in undertaking to have it fixed. It was, however, a redacted video statement not a video statement without any video and none of the audio was affected at all.
[23] This distinction is not mere semantics. The defence bore the burden of rebutting the presumption of reasonableness which applies to the Crown’s actions where the delay is within the presumptive time. The reasons of the Learned Justice treated the absence of an unredacted video as a complete bar to making meaningful progress in the case without any discussion of the ability of the defence to proceed with the unredacted audio on December 6, 2023. That error effectively reversed the onus that belonged upon the defence who was required to demonstrate why progress could not have been made without the corrected video. Neither logic nor common sense would appear to support such a conclusion – the video in question contained a statement to police days later and not a recording of the incident itself. It was recorded on a body-worn camera and subject to all of the limitations of the medium. There is no indication that this recording was expected to be introduced into evidence at trial. Nothing in the record suggests that the demeanor and facial expressions of the complainant – if indeed these were captured – were required to gain a proper understanding of the case to be met in what the Learned Justice described as a “simple, straightforward case”.
[24] None of these comments are intended to question the importance of timely and full compliance with the Crown’s Stinchcombe obligation so much as to place the pragmatic bars to forward progress of the case itself in the spotlight. Not every last piece of evidence need be produced to enable forward progress to be made and it was the defence that ought to have borne the burden of making a clear case why the redactions of a portion of the video images materially impaired its ability to move forward to conduct a meaningful Crown Pre-Trial within three or four weeks as defence counsel suggested could be done on November 7, 2023.
[25] Second, the Learned Justice found that the absence of the video prevented the Crown from “fulfilling her duties as a minister of justice: to assess the case for reasonable prospect of conviction (RPC) and to determine if the prosecution was in the public interest” (at para. 28). With respect, there is simply no basis on the record to conclude that the Crown pressed forward with this case through multiple appearances including making a formal election to proceed summarily on the record on November 7, 2023 and again on December 5, 2023, without having performed a review of the evidence sufficient to satisfy itself on those two points. It is simply absurd to suggest that the absence of video to a recorded statement of the complainant – an ingredient that was almost invariably lacking in almost every prosecution from Confederation until the very recent past – somehow prevented a meaningful analysis of a “simple, straightforward” case by either side.
[26] Third, the Learned Justice found that no reason for the delay in producing the video statement had been provided. In fact, the reason had been provided and was plainly stated on the record in the correspondence exchanged between Crown and defence on December 6:
“The videos were sent back for redactions of personal identifiers and I see that redactions were also made to redact out the Officer’s notes. I cannot see a reason why this was done as you cannot see anything on the Officers note pad. I will ask that this be removed and sent back to us so we can provide to you”.
[27] The production of the video was not a simple copy and paste task. The redaction of personal identifiers was to remain, the redaction of the officer’s notepad was not. It may not have been a complex job, but it required human attention and judgment. The high volume of video evidence processed by police that the Learned Justice took judicial notice of and the fact that the second redaction was requested on the eve of the Christmas holidays offers a further obvious explanation for at least some of the time taken to perform the work in December and early January.
[28] Between December 6, 2023 and February 18, 2024 Defence counsel had the full audio statement and, after January 17, the final corrected video track of the statement as well. Through this entire time frame – December 6, 2023 through February 18, 2024 – no steps of any kind were taken by the defence to advance the case, meaningful or otherwise.
[29] On February 18, 2024, defence counsel reached out to arrange a CPT on the eve of the next scheduled court appearance. It is to be recalled that the defence volunteered on November 7 that three to four weeks “ought to allow time for a meaningful review and discussion with my friend” (emphasis added). There was clearly no urgency devoted to advancing the case towards readiness for trial in that entire time frame and the leisurely pace demonstrated by both sides in sorting through calendar conflicts while arranging for what became the March 20, 2024 Crown Pre-Trial is not suggestive of any additional degree of urgency animating efforts on either side in that time frame either.
[30] To be clear – I am not in any way suggesting that either side needs to be singled out for condemnation or blame in the chronology that preceded that March 20, 2024 CPT. I am simply highlighting that there is a considerable difference between “meaningful” steps to expedite and both parties proceeding in the usual and ordinary course leading to scheduling a trial in a conventionally reasonable time frame. This case was significantly more the latter than the former.
[31] The Learned Justice wrote that adopting a “bird’s eye view of this case, I can only conclude” that the defence “has taken meaningful steps to move the case forward”. He rejected the idea that counsel could have sought an earlier JPT finding that had a JPT been set “prior to the statement being received …[it] would have had to be adjourned until the statement was received”. That finding appears to be quite entirely inapplicable to the state of affairs between December 6, 2023 and March 20, 2024. The Learned Justice also noted the cooperation of defence counsel in setting the trial date on May 1, 2024 despite the lack of medical records or the recording of the 911 call.
[32] I find none of these stated reasons for the finding of the Learned Justice can withstand scrutiny. He did not consider or address the two month span of time between receipt of the corrected video and the Crown Pre-Trial despite the defence having advised on November 7 that three or four weeks would suffice for this. There was no consideration given to the prospect of having a Crown or even Judicial Pre-Trial being scheduled following a review of the audio recording before the corrected video was received on January 17, 2024. Scheduling a trial without waiting for “every last piece of evidence” is not evidence of meaningful steps to expedite but simply evidence of defence counsel doing its duty. There is no evidence the third-party medical records were in police or Crown possession prior to their delivery. The record on why the 911 call recording was not produced until June 2024 is unclear, but its potential relevance to the process of setting a trial date seems rather strained.
[33] In my view, none of the evidence before the Learned Justice met the bar of discharging the defence onus to establish a sustained effort to expedite proceedings.
(ii) Did the Defence Discharge Its Burden of Showing that “the Case Took Markedly Longer than it Reasonably Should Have”?
[34] The reasons of the Learned Justice focused quite intensively upon the “inexplicable delay by the police to provide the video statement of the complainant”, noting the “exponential” increase in video disclosure since the advent of body worn cameras, in-car video, booking videos, cells video, cellphone video to which could also be added third-party surveillance video from buildings and doorbells. The reasons noted the fact that such evidence “is significantly more time-consuming for the parties” to review than paper records of the past were, concluding that efficient processing of cases requires that “police must provide this important disclosure and soon as possible following completion of an investigation” failing which “cascading impacts that further exacerbate delay” would result in the “clogging of our case management courts”. His reasons proceeded to take judicial notice of the exponential increase in video disclosure and the failure of police procedures to cope with this development, concluding (at para. 49) that “it is imperative that police address the delay in providing video disclosure in this case and other cases currently before the court” since “without a serious and dedicated effort to develop a process to ensure timely disclosure of video evidence, more cases are at risk of being stayed”.
[35] It is clear to me that the reasons of the Learned Justice demonstrated here the same error our Court of Appeal described in the case of R. v. S.A., 2024 ONCA 737 at para. 35, requiring only the substituting of “more resources devoted to police processing of video evidence” for “all judicial vacancies had been filled”:
First, the focus was erroneously placed upon whether this and other cases could have been heard more quickly if all judicial vacancies had been filled. But the legal question was not whether the case could have or should have taken less time if there had been more judicial resources. As the Supreme Court explained in K.J.M., at para. 107, “the issue is not whether the case should reasonably have been completed in less time.” Rather, the issue is “whether the case took markedly longer than it reasonably should have”: K.J.M., at para. 107 (emphasis in original).
[36] The criminal justice system is a dynamic system with multiple participants: administrators, Crown legal, defence, correctional, judicial to name but a few. The Jordan court recognized that “resource issues are rarely far below the surface of most s. 11(b) applications”: Jordan at para. 117. Shepherding cases through the system in a reasonable time is always an exercise in crisis management. Justice system participants must constantly MacGyver solutions to do more with less. Administrators must anticipate rates of resolution, last minute changes of counsel or illness, and balance the risk of overbooking against the risk of idle resources. Crown law offices must be prepared to switch assigned counsel on short notice sometimes to keep things moving or else swap assigned trial dates with colleagues to accommodate unexpected changes in personnel or priorities. Defence counsel must arrange for agents to attend routine scheduling hearings and make educated guesses about which cases are likely to resolve or which cases will run shorter or longer than expected when fixing trial dates. Correctional authorities must juggle staffing shortages and short and long term road construction impacts on their transport schedules and arrange expanded video facilities from scratch when demand for these explodes.
[37] Section 11(b) applications – intended as noted to be rare and reserved for clear cases – are not the forum to prod, poke or compel a particular allocation of resources from public officials or judicial system participants. Judges are woefully ill-equippedto make judgements about the public policy trade-offs needed to remedy perceived systemic problems. In the world of public administration, limited resources is a way of life and ill-informed attempts to plug the dike in one place risks opening bigger holes in another.
[38] The referee’s job is not to instruct the quarterback on the best play to move the ball down the field but to decide when a catch was out of bounds. The judicial role in considering s. 11(b) applications is to examine the evidence and to consider whether, viewed as a whole, the progress of the case has taken “markedly longer than it reasonably should have” and not whether a particular step in a dynamic process viewed in isolation could have been completed more swiftly. An unexpected delay here may be compensated for by actions there to speed the same case up in other ways. Jordan dates pop up at every stage in the process and all justice system participants are constantly measuring progress against them. Trial dates assigned to a particular Crown office by administrators can get traded to move one case up the priority ladder while another may be moving sufficiently smoothly to push it down a rung. As the Court in S.A. noted (at para. 41), in “the real world, where resources are in fact finite, this is precisely the way that the administration of criminal justice must operate, with a view to meeting the constitutional requirements of each individual case within the context of the system as a whole”.
[39] There was nothing in the progress of this case that “compelled a sense of urgency, such as if the respondent had been a young person or this matter was a re-trial” (S.A. at para. 44) until after the statement had been provided when there was limited if any opportunity to take any curative actions.
[40] I fully appreciate the Learned Justice taking notice of local conditions and experience and indeed giving voice to frustration at the pace at which police procedures are adapting to what the Learned Justice himself acknowledged to be an exponentially growing category of police responsibility. However, the task remains one of assessing the overall progress of the case including what steps are taken overall to compensate and bring the overall system in line with constitutional expectations.
[41] The exponential increase in demand for video disclosure is comparatively recent and is clearly taking some time to be digested. Resources may indeed need to be re-allocated or fresh resources applied. However, the reasons in this case failed to reflect any appreciation for the fact that the video evidence in question required scarce human resources to review the video, to make judgments and then to apply technical skills to redact. Human error required that process to be repeated. In comparing the time required in this case to other cases not requiring review and redaction of video evidence, the Learned Justice compared apples to oranges and applied the wrong standard.
[42] This was simply not a clear case warranting a s. 11(b) stay.
[43] For the foregoing reasons, the appeal was granted, the order staying the proceedings was vacated and the matter remanded back to trial scheduling court for a new trial date to be set.
Signature
S.F. Dunphy
Date: June 18, 2025
Endnotes
[1] R. v. Jordan, 2016 SCC 27
[2] R. v. Stinchcombe, [1991] 3 S.C.R. 326
