Court of Appeal for Ontario

Date: 2018-03-27 Docket: C57439

Judges: Feldman, Watt and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Kisantharuby Jeeva Appellant

Counsel

Dean Embry, for the appellant

Brett Cohen, for the respondent

Heard

March 16, 2018

Appeal

On appeal from the conviction entered on July 9, 2013 by Justice Peter A. J. Harris of the Ontario Court of Justice.

Reasons for Decision

[1] Thirty-eight defendants, plus Ms. Jeeva, were charged separately as the result of an insurance fraud conspiracy investigation, "Project Whiplash", into allegedly staged motor vehicle collisions. The charges against Ms. Jeeva were laid on March 9, 2012. Until October 12, 2012, her charges were processed together with other Project Whiplash defendants, and she had been advised from the outset that if a trial was held, she would be tried jointly with other defendants. Initially the Crown indicated, on the record, that she would be tried with the occupants of the vehicle she allegedly drove. Later, when the Crown and those other occupants were working towards a resolution of their charges, the Crown announced its intention to prosecute the various alleged drivers together. On September 20, 2012, the Crown agreed to Ms. Jeeva's first request to process her charges alone. A pre-trial was held and on July 9, 2013, the trial took place. She was convicted that day of one count of fraud over $5,000.

[2] Ms. Jeeva now appeals her conviction. She alleges that the trial judge erred in rejecting her s. 11(b) Charter application. Ms. Jeeva does not contest the proposition of law relied upon by the trial judge prior to R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 that "ordinarily delay caused by the actions of co-accused is considered to be neutral in the s. 11(b) analysis".[1] She says that the trial judge erred by applying that principle, which is confined to co-accused persons, to persons individually charged in Project Whiplash, and by treating delay caused by these individually charged defendants as delay inherent in her prosecution.

[3] We need not settle the broader legal question of whether individually charged but related defendants being processed with a view to joint trials should be treated the same as co-accused persons in characterizing trial delay. Even if we were to accept Ms. Jeeva's position that they should not be treated in the same way, there is insufficient institutional or Crown delay in this case to support a finding that s. 11(b) of the Charter was violated. The trial judge identified only two periods of neutral delay in Ms. Jeeva's case attributable to "the actions of other accused". Those two periods total 89 days. If this approximate three months of delay is not treated as inherent in the prosecution of Ms. Jeeva, and is added to the seven months of institutional delay the trial judge found, the net delay is still only approximately ten months. A ten month net delay falls within the R. v. Morin, [1992] 1 S.C.R. 771 guidelines for provincial court trials and would not be unreasonable under the pre-Jordan law in place when Ms. Jeeva's s. 11(b) application was decided.

[4] If, instead, the Jordan regime is applied, the total delay of 16 months is not presumptively unreasonable. Nor can it be said that a transitional case involving 10 months of Morin delay is one of those exceptional cases where a presumptively reasonable delay offends s. 11(b) because the case took markedly longer than required.

[5] The trial judge came to the correct conclusion. The appeal is therefore dismissed.

K. Feldman J.A.

David Watt J.A.

David M. Paciocco J.A.

Footnote

[1] In R. v. Gopie, 2017 ONCA 728, 356 C.C.C. (3d) 36, at para. 142 this court held that post-Jordan, the Crown has the burden of proving that delays caused by co-accused persons fall within the exceptional circumstances analysis.