R. v. Nadarajah, 2009 ONCA 118

CITATION: R. v. Nadarajah, 2009 ONCA 118

DATE: 20090206

DOCKET: C43059 C42904

COURT OF APPEAL FOR ONTARIO

Goudge, MacFarland and Watt JJ.A.

BETWEEN:

Her Majesty the Queen

Respondent

and

Kageepan Nadarajah and Srikanthan Sivapragasam

Applicants/Appellants

Philip Campbell for the appellant Nadarajah

Gregory Lafontaine and V. Rondinelli for the appellant Sivapragasam

Michael Bernstein for the respondent

Heard: November 27, 2008

On appeal from the convictions entered by Justice Thomas Dunn of the Superior Court of Justice, sitting with a jury, dated December 10, 2004.

Goudge J.A.:

[1] The appellants were jointly charged with committing robbery with a firearm on June 25, 2001 and conspiring to commit robbery.

[2] The appellant Nadarajah brought a pre-trial application for a stay of proceedings because of unreasonable delay, which was dismissed by Justice Thomas on November 16, 2004.

[3] On December 10, 2004, following an eight-day trial before Justice Dunn, sitting with a jury, both appellants were convicted on both counts. On January 19, 2005, both appellants were sentenced to the statutory minimum term of imprisonment of four years less credit of two weeks for pre-trial custody.

[4] Both appellants appeal their convictions. The appellant Nadarajah argues the issue of unreasonable delay in his case, and the appellant Sivapragasam argues that the verdict was unreasonable in his case. Both appellants argue that, in any event, the charge in their joint trial was fatally flawed.

[5] For the reasons that follow, I conclude that the claims of unreasonable delay and unreasonable verdict must fail. However, I agree that the charge was fatally flawed. The convictions must therefore be set aside and a new trial ordered.

[6] The appellant Sivapragasam ran a jewellery store located in a mall at 2580 Shepard Avenue in Mississauga, Ontario. On the afternoon of June 25, 2001, he and Boris Zak, a jewellery wholesaler, met by pre-arrangement at the store so that Mr. Zak could show him jewellery that Mr. Sivapragasam might wish to take on consignment and sell.

[7] Mr. Zak parked his car in an alleyway at the rear of the store and entered with a duffel bag containing roughly $150,000 worth of gold jewellery. The appellant Sivapragasam inspected it and selected jewellery worth approximately $11,000. When they finished their transaction, Mr. Zak and the appellant left by the back entrance with the duffel bag containing the rest of the jewellery. Together they carried it towards Mr. Zak’s car.

[8] When they entered the alleyway, Mr. Zak noticed a man sitting on top of a wall near his car and apparently communicating with another person around the corner of the wall. He hurriedly put the duffel bag in the trunk of his car as the two men rushed towards him. Mr. Sivapragasam swore and ran away. One of the men brandished a gun and fired a shot into the trunk of Mr. Zak’s vehicle. The gun was put to Mr. Zak’s head and the two men demanded his car keys. Mr. Zak threw the keys at them and fled. When he returned several minutes later, his trunk was open and the duffel bag was gone.

[9] An eyewitness memorized the licence number of the van he saw leaving the scene with the getaway driver and the two robbers. The van was owned by the father of Kevin George who had asked if he could borrow it that afternoon. Kevin George was arrested when he arrived home with the van at about 10:20 p.m. that night. The appellant Nadarajah, who was best friends with Kevin George, was arrested eight months later, on February 21, 2002.

[10] Kevin George was prosecuted separately. The two appellants were charged together with two other co-accused, one of whom was discharged at the preliminary hearing. The other, the alleged mastermind of the scheme, Narmathan Navaratnam, absconded before the trial.

[11] At trial, it was conceded that Mr. Zak had been robbed, that a firearm was discharged during the crime, that a spent 9 millimetre cartridge casing was found on the ground next to Mr. Zak’s car and that the bullet had lodged in the trunk of his car. The real question was whether either of the appellants was involved.

[12] This outline provides the backdrop for the issues to be addressed on this appeal.

THE UNREASONABLE DELAY ISSUE

[13] The appellant Nadarajah was arrested on February 21, 2002. His trial in the Superior Court of Justice was scheduled to begin on November 8, 2004. He says that in the circumstances of this case, this delay of 33.3 months constitutes a violation of the right guaranteed to him by s. 11(b) of the Charter of Rights and Freedoms to be tried within a reasonable time. He argues that the application judge erred in dismissing his application to stay the proceedings on this basis.

[14] The approach required to address an issue of this kind is well known. As this court said in R. v. Batte (2000), 45 C.C.C. (3d) 498, at para. 55, it is not a mathematical exercise. Rather, the following factors must be considered and balanced in determining whether the appellant was tried within a reasonable time:

(1) the length of the delay;

(2) any waiver of time periods;

(3) the reasons for the delay including

(a) the inherent time requirements of the case;

(b) the conduct of the accused or delays attributable to the accused; (c) the conduct of the Crown or delays attributable to the Crown; (d) delays due to limits on institutional resources;

(e) any other reasons for delay

(4) prejudice to the accused.

[15] Following his preliminary hearing, the appellant Nadarajah was committed for trial on January 12, 2004. Thus, of the 33.3 months of delay, approximately 23.3 months was in the Ontario Court of Justice and 10 months was in the Superior Court of Justice. None of the delay was waived by the appellant.

[16] With perhaps one caveat, the application judge accepted the Crown’s position that only 12.6 months of the time in the Ontario Court should be found due to delay for which either the Crown or inadequate institutional resources were responsible, and that the remainder was part of the inherent time requirements of the case. Similarly, he accepted the Crown’s submission that 6.4 months of the time in the Superior Court was properly considered as either Crown or institutional delay, with the remainder being neutral. In addition, he was not satisfied that the appellant had been prejudiced by any alleged delay, and he therefore dismissed the application.

[17] The appellant Nadarajah argues that the application judge erred in characterizing a number of the periods of time making up the overall delay, in finding that prejudice had not been established, and in his ultimate conclusion that the delay was not unreasonable.

[18] The appellant acknowledges that the time from his arrest on February 21, 2002 to March 14, 2002, during which he retained counsel, had a bail hearing resulting in his release, and requested disclosure, is properly considered part of the normal intake period. However, he says that the next three and one-half months, to June 27, 2002, when disclosure was provided, is not properly attributable to intake requirements. He says that it is the responsibility of the Crown, because the essential evidence was all gathered before his arrest, and could have and should have been disclosed promptly upon request.

[19] I do not agree. The Crown’s case had some complexity. It was based largely on circumstantial evidence, including fingerprint analysis, gunshot residue testing, DNA analysis and several hundred pages of cell phone records, as well as statements from eyewitnesses. While all this was in the possession of the police before the appellant’s arrest, organizing and analyzing the information has to be allowed for, particularly the reviewing of the telephone records to identify links that might exist. Moreover, there were four accused to whom disclosure had to be made. I agree with the application judge that in this case, the time from arrest to June 27, 2002 is not an unreasonable intake period.

[20] The appellant then contests the time from July 30, 2002, when a judicial pre-trial was requested, to September 6, 2002, when it began, arguing that this is institutional delay and should not be considered as neutral, as the application judge appears to implicitly have found. The simple answer to this submission is that on July 30, 2002, counsel for the appellant was content to have the pre-trial set for September 6, 2002, because of defence counsels’ schedules and because disclosure had just been received on the previous appearance. This time would reasonably have been required to prepare for the pre-trial period. It is therefore properly considered as inherent.

[21] The third time period contested by the appellant concerns the six months from the eighth day of the preliminary hearing, July 16, 2003, when it was adjourned because of new disclosure made by the Crown, to January 12, 2004, when the appellant was committed for trial. The appellant argues that this entire six months is properly attributable to the Crown because it was due to the belated disclosure. In the alternative, the appellant says that this should be considered institutional delay, because this full six months was required to arrange just two more court days, which was all that was needed to complete the preliminary hearing and receive the ruling.

[22] On July 16, 2003, the Crown produced a new witness who offered incriminating evidence against a co-accused. Not surprisingly, the co-accused sought and was granted an adjournment to August 15, 2003. The case was unable to proceed on that day because of the devastating blackout that occurred in Ontario the day before. The matter was put over to September 3, and ultimately to September 22, to set a date for completion of the preliminary hearing. On September 22, the court was advised that while the appellant’s counsel was available all of October and all of November, save for two days, the first date available for all counsel was November 17. Since the court was not available on that date, the case was put over to November 25, 2003 when the evidence was completed. Argument took place on December 9 and reasons for committal were released on January 12, 2004.

[23] On the application, the Crown accepted that the 64 days from September 22 to November 25 should be considered either Crown or institutional delay. The application judge found that the period from July 16 to August 15 was occasioned by the Crown producing a surprise witness not previously disclosed to the defence. But he found that the period thereafter was properly characterized as inherent time dictated by the availability of counsel and the judge “…except perhaps October 1 to November 25” presumably because of the availability of appellant’s counsel. In the end, however, the application judge accepted the Crown’s assessment of delay in the Ontario Court including, by inference, some 64 days of the six months to be assigned to either the Crown or institutional delay.

[24] I see no error in this allocation. I agree that the 30 days from July 16 to August 15 required by late Crown disclosure is the responsibility of the Crown. I do not agree that, because of this, the Crown must accept responsibility for the entire six months thereafter. All parties and the court were ready to proceed on August 15, but were prevented from doing so by the blackout, an event completely extraneous to the justice system that necessitated further rescheduling and therefore further delay. In my view, that delay was caused by the blackout, not the Crown’s late disclosure a month earlier. This extraneous event, which obviously took everyone by surprise, cannot be said to be the Crown’s responsibility, and distinguishes this case from R. v. N.N.M. (2006), 209 C.C.C. (3d) 436 (Ont. C.A.).

[25] However, I think it is appropriate to attribute some of the further delay occasioned by the blackout to Crown or institutional factors. The appellant’s counsel was available all of October and all of November except two days. While I recognize that other counsel had scheduling problems there appears to have been no effort by the Crown to find “fast track” dates before November 25, despite the obvious problem of the passing of time. Balancing the Crown’s shortcoming with the timing complications presented by other counsel, allocating some 30 days of the time from October 1, to November 25 is fair. From then to January 12, 2004 the time was taken up with the completion of evidence, argument, and the reserving of the committal decision, and is properly categorized as neutral. Thus, for the period from July 16, 2003 to January 12, 2004, I agree with the number used by the application judge of approximately 64 days as being properly categorized as Crown or institutional delay.

[26] The fourth period raised by the appellant is from the first appearance in the Superior Court on January 24, 2004 to March 24, 2004, when the pre-trial was scheduled to begin. He argues that these two months should be attributed to the Crown because it supported several adjournment requests by a co-accused, made in a dubious attempt to get legal aid in order to retain counsel. The application judge did not deal expressly with this time frame but implicitly found it to be neutral. I agree. This was a case of multiple accused. It was appropriate that they be tried together. Some inherent delay attributable to this is to be expected.

[27] Finally, the appellant argues that 38 days from March 22 to April 29, 2004 required to obtain a pre-trial in the Superior Court, once it was requested, must be considered institutional delay. I do not agree. In this case, the appellant was in custody on other charges on March 22 and his attendance at the pretrial had to be arranged. The delay was not excessive, particularly given multiple accused. This time is properly characterized as neutral.

[28] To summarize, I find no error in the application judge attributing 12.6 months of the approximately 23.3 months in the Ontario Court, and 6.4 months of the approximately 10 months in the Superior Court, to Crown or institutional delay.

[29] The application judge found that the appellant had not established prejudice. While the appellant tendered no evidence of prejudice to his defence, his affidavit recited anxiety and stress, and adverse effects on his education and his ability to attend family events due to the delay. While this constituted some prejudice, it could not be said to be more than modest. For five months of the delay, the appellant was incarcerated on other charges. Up until that happened, the terms of his release permitted him to continue his education and participate in family events to some degree, albeit with some inconvenience to himself and those required to accompany him.

[30] Taking into account the length of delay in this case, the categorization of the periods of time that make it up, and the assessment of prejudice was the delay unreasonable? The application judge held that it was not.

[31] The Crown argues that this decision must be accorded a degree of deference on appeal. I do not share that view. This court has made clear, most recently in R. v. Cranston et al. (2008), O.N.C.A., at para. 35, that a stay imposed for a violation of s. 11(b) of the Charter is to be reviewed on a standard of correctness. While there is no doubt that the court’s ultimate task in such an application involves a careful assessment and balancing of the relevant considerations, that is done for the purpose of determining whether, in all the circumstances of the particular case, the delay has crossed the line from reasonable to unreasonable contrary to the right guaranteed by the Charter. In my opinion, that is a question of law to be reviewed on a standard of correctness.

[32] I conclude that, in all the circumstance of this case, the application judge was correct in his ultimate assessment. The delay was not unreasonable. This was not the simplest of cases. It necessarily involved multiple accused. The charges were serious. The delay in the Ontario Court is only modestly in excess of the guidelines set for institutional delay by the Supreme Court of Canada. In the Superior Court that guideline was not exceeded at all. And the appellant could be said to suffer only limited personal prejudice. In my opinion, the appellant’s s. 11(b) rights were not violated. This ground of appeal must be dismissed.

THE UNREASONABLE VERDICT ISSUE

[33] The appellant Sivapragasam brought a motion for a directed verdict which was dismissed by the trial judge. He now appeals, arguing that his conviction on both counts was unreasonable. In particular, he says that there is a complete lack of evidence to support the inference that he was part of an agreement to rob Mr. Zak or that he was a party to the robbery. The question, then, is whether the verdict against this appellant on these charges is one that a properly instructed jury acting judicially could reasonably have rendered.

[34] In my opinion the question must be answered in the affirmative. The evidence is clear that Mr. Zak was robbed. Indeed that was agreed at trial. It is equally clear that it was a planned and carefully executed robbery. The gunman and his associate knew exactly where to be, when to be there, and what to take. The only issue is whether the circumstantial evidence was such that a reasonable jury, acting judicially, could be satisfied that the appellant’s participation was the only reasonable conclusion available.

[35] Mr. Zak’s visit to the appellant’s store was not routine. The appellant asked him to bring all the jewellery he had received. Only the appellant knew the precise time of Mr. Zak’s visit, because he had arranged it and then re-arranged it. Only the appellant and Mr. Zak knew what the green duffel bag contained when the appellant helped to carry it to Mr. Zak’s car. Following the robbery, Mr. Zak understood from what the appellant said that he had called the police. He had not. Taken together, this evidence would allow a reasonable jury acting judicially to conclude beyond a reasonable doubt that the appellant was part of the conspiracy to rob Mr. Zak and was a party to the robbery that took place. This ground of appeal fails.

THE DEFECTIVE CHARGE ISSUE

[36] Both appellants also argue that, in any event, the trial judge’s charge to the jury was fatally flawed, both in respect of the conspiracy charge and the robbery charge. For the reasons that follow, I agree. The convictions must be set aside and a new trial ordered.

[37] While the instructions to the jury need not follow a particular detailed formula and must be looked at as a whole, those instructions must fulfill the purposes for which they are given. In a well-known passage in R. v. MacKinnon (1999), 132 C.C.C. (3d) 545 (Ont. C.A.), at para. 27, Doherty J.A. said:

By the end of the instructions, whatever approach is used, the jury must understand:

• the factual issues which had to be resolved;

• the law to be applied to those issues and the evidence;

• the positions of the parties; and

• the evidence relevant to the positions taken by the parties on the various issues.

[38] Turning first to the two conspiracy counts, particular care must be taken in this context, because of the three-step process the law requires the jury to follow. First, they must decide beyond a reasonable doubt whether the conspiracy existed, based on all of the evidence. Secondly, they must decide on a balance of probabilities whether each accused was a member of that conspiracy, based only on the evidence directly admissible against that accused, such as his own acts, or omissions directly admissible against him. If the answer to that is yes, the third step is to decide beyond a reasonable doubt whether that accused was a member of the conspiracy.

[39] It is important that the charge assist the jury to understand not only the legal test but also the evidence that is available to be used at each step of the process. That is particularly true at the second step where the evidence directly admissible against the particular accused must be disentangled from the balance of the evidence. In the seminal case of R. v. Baron and Wertman (1976), 31 C.C.C. (2d) 525 (Ont. C.A.) Martin J.A. put it this way, at pp. 545-6:

As a general rule, it would be desirable for the trial Judge to then refer the jury to the principal evidence admissible directly against each accused from which they may find that such accused was a party to the conspiracy but the jury should be instructed that it is for them to say if the evidence has this effect. [Emphasis in original.]

[40] In this case, the conspiracy issue was not without difficulty, in particular, whether the evidence sufficiently demonstrated that either appellant was a member of the conspiracy. Although they were tried together as co-conspirators, they were not alleged to have ever met, spoken to, or known each other during the life of the conspiracy. The evidence was entirely circumstantial. In respect of the appellant Nadarajah, it was of four kinds: eyewitness evidence (which did not identify him), fingerprints, DNA analysis and cellular telephone records. Mr. Nadarajah gave evidence offering an innocent explanation of the fingerprints, the DNA and the phone records. In respect of the appellant Sivapragasam, who did not give evidence, the evidence of his participation consisted of the evidence of Mr. Zak and cellular telephone records.

[41] In these circumstances, a careful review of the principal evidence directly admissible against each appellant to show his membership in the conspiracy was required to assist the jury at step two of the process. It was also important that the charge outline the evidence relevant to the positions taken by each appellant concerning the issue at each step in the process.

[42] The charge did neither. The review of the evidence with respect to conspiracy was cursory at best. There was no attempt whatsoever to assist the jury with the evidence that was available to be used against each appellant at each step of the three-step process. Nor was there any assistance given to the jury relating the relevant evidence to the positions taken by each of the appellants. It left the jury with an insufficient understanding of the facts as they related to the relevant issues they were required to decide.

[43] The deficiencies in the charge concerning robbery were twofold. First, as to the law, it resulted in confusion. The evidence clearly suggested that the Crown’s case was that the appellant Nadarajah was one of the two principals in the alleyway who actually robbed Mr. Zak and the appellant Sivapragasam as the inside man aided or abetted the robbery and hence was a party to it pursuant to s. 21(1) of the Criminal Code.

[44] The charge however did not proceed on this basis. It did not distinguish between the appellants in describing how a person could be found to be a party to the offence by actually committing it or by aiding or abetting another to do so. Both routes to conviction were left to the jury for both appellants.

[45] In addition, the charge explained the common purpose route provided by s. 21(2) of the Code to finding a person to be a party to the offence of robbery. The trial judge appears to have understood this to be part of the Crown’s theory. His understanding was not without foundation, given the submission of Crown counsel, even though there was no view of the evidence that could have sustained this theory.

[46] Following the charge, the jury asked about the questions posed to them by the trial judge concerning armed robbery. This resulted in a recharge reiterating the common purpose route to participation in the robbery. Defence counsel then began to question whether this was appropriate, given the evidence. When the Crown raised similar doubts, the trial judge recalled the jury and told them that common purpose probably did not apply, but rather the Crown’s case was that the appellants had each participated directly in committing the robbery. No mention was made at this stage of aiding or abetting.

[47] This produced another question the next day from the jury asking for a review of the principles of law with respect to participation in a crime, which the trial judge and counsel took to be seeking further advice on the issue of being a party to the offence of robbery.

[48] The resulting recharge reiterated the explanation in the original charge of how a person could be found a party to the offence by directly committing it or aiding or abetting another to do so. The recharge made clear that either concept could be applied to either appellant.

[49] The trial judge once again made reference to the concept of common purpose, indicating he had “corrected himself” on that issue. He concluded this recharge by recognizing the confusion that all this must have created:

Now I hope I haven’t further confused you, but I hope that’s of assistance. Perhaps it is. Some shaking of heads. If it isn’t, then no doubt I will hear from you.

[50] In addition to creating confusion about the law, the charge failed to give the jury any understanding of the evidence relevant to the issues to be decided on the robbery charge for each appellant. This mattered because their positions were quite different. There was little if any evidence that could permit the conclusion that Mr. Sivapragasam directly committed the robbery, or that Mr. Nadarajah aided or abetted others to do so. Nor did the charge attempt to refer the jury to the principal evidence relevant to the positions taken by the appellants on these various issues. The charge thus provided the jury with inadequate assistance both as to the law and the facts concerning the robbery charge against each appellant.

[51] These deficiencies require that the convictions of both appellants on both charges be set aside and new trials directed. Given this conclusion it is unnecessary to deal with the other issues raised by the appellants that if successful would lead to the same result.

[52] The appeals are allowed and a new trial is directed.

RELEASED: February 6, 2009 “STG”

“S.T. Goudge J.A.”

“I agree J. MacFarland J.A.”

“I agree David Watt J.A.”