Court Information
Information No.: 10-744, 10-599, 10-603
Court: Ontario Court of Justice
Citation: R. v. Timmins and Gillis, 2012 ONCJ 168
Date: February 14, 2012
Location: Orangeville, Ontario
Parties
Her Majesty the Queen
v.
Darcy E. Timmins and Alan R. Gillis
Before the Court
The Honourable Justice B. Pugsley
Appearances
- R. Fetterly – Counsel for the Crown
- D. Thwaites – Counsel for D. Timmins
- R. Allman – Counsel for A. Gillis
Reasons for Ruling
PUGSLEY, B. (Orally):
Introduction
THE COURT: Thank you for your patience. Here are the informations. Alan Gillis and Darcy Timmins jointly face a single count of assault causing bodily harm. Both defendants have brought separate applications under subsection 11(b) of the Canadian Charter of Rights and Freedoms seeking a Section 24 stay of proceedings based upon a breach of their right to be tried within a reasonable time.
I pause to note for those who are less familiar with the law, that the Charter of Rights and Freedoms is designed to be an umbrella over the laws passed by Parliament in Canada to protect individual and collective rights and freedoms, including the right to be treated fairly by the court. The defendants were initially charged separately but after approximately one month, were jointly charged, and generally proceeded together through the court system until today.
This application engages issues involving the obligations of the police, of the crown and of the courts in general, and also complications involved when one of two co-accused parties moves more quickly towards trial readiness than another.
Timeline and Initial Observations
The date of this alleged offence is April 18, 2010. The defendants first faced the sworn separate informations here, on May 27, 2010. Today is February 14th, 2012. May 27, 2010 to February 14, 2012, is a time frame involving more than 20 months. An inquiry into this inordinate delay is, therefore, required.
The charge, although quite serious, is a hybrid offence, and the crown very early in this proceeding elected to proceed by way of summary conviction procedure, the lesser of the two modes available. Other than the delay caused by the defence moving at the last minute under subsection 11(b), the trial time estimate has never been longer than one day.
The crown early on indicated that two civilian witnesses would be the sole crown witnesses. Even with two defence counsel, a one day trial time estimate appears to have been reasonable. As I advised counsel, however, the timing of this application and the need for the court to then decide this important Charter issue has today taken us to the point where, if the application is unsuccessful, the trial could not possibly end today if it began. The application ought to have been made by the defence months ago, soon after this trial date was set.
On behalf of Mr. Gillis, I'm urged to find that the total institutional delay here is not less than some 15 months. I'm urged to find significant actual prejudice here, which weighs towards a stay.
On behalf of Mr. Timmins, I'm urged to provide for 6 months of institutional delay from an alleged delay of 22 months. In the result, the delay would be closer to the 15 months urged by Mr. Gillis.
Mr. Timmins also looks to the court to find specific, as well as presumed prejudice here, founded upon the alleged unreasonable delay.
The crown submits that a proper application of the recently decided cases of Regina v. Lahiry 2011 ONSC 6780, [2011] O.J. 5071, (Justice Code in the Superior Court of Justice), and Regina v. Tran, et al [2012] Ontario Court of Appeal 18 (in the Ontario Court of Appeal) should lead me to find that the total delay here is just over 10 months for Mr. Gillis and just under 10 months for Mr. Timmins, taking the facts at their most friendly to the defence application.
Evidence Presented
Both applicants filed thoughtful and complete facta and both applicants swore affidavits setting out the effect of the delay on each of them. Mr. Gillis supplemented his affidavit by oral evidence on the application and was cross-examined by the crown. Mr. Timmins did not seek to testify on the application and the crown chose not to cross-examine him on his affidavit.
In addition, the crown called four witnesses on the defendants' subsection 11(b) applications. Five exhibits were filed.
Mr. Gillis testified as to the specific effect of the delayed proceeding on his life, including uncertainties related to his continued need to cross into the U.S.A. regularly as part of his employment. In effect, he's on tether-hooks each time he goes before U.S. Immigration, suspecting that, as a person with an outstanding charge of assault causing bodily harm, he could at any time be refused entry to the U.S.A., placing his employment in great jeopardy. He has sought, but chosen not to follow, medical advice with regard to his anxiety and sleeplessness. His employment before the first trial date did not engage as frequent cross-border travel as his current position does.
The Interpreter Issue
This matter was scheduled to be tried on May 19th, 2011. On that date, the crown introduced the case to the presiding judge, indicating that there were going to be two crown witnesses. The complainant, Mr. Ryan, and a taxi driver witness, Mr. Sandu. Counsel held the matter down briefly to chat, and during that chat, it was determined that Mr. Sandu, whose native tongue is Punjabi, required a Punjabi interpreter to give his evidence. The trial was adjourned. The circumstances behind that adjournment were canvassed at length by the four witnesses called by the crown on this defence application.
Detective Ralph James was the Orangeville police officer who met with and interviewed Mr. Sandu soon after the alleged offence. The complainant and both defendants had travelled together to an address in Orangeville, in Mr. Sandu's taxicab. Mr. Sandu's statement set out what he had seen there. The statement, filed as an exhibit on the application, is just over two pages long and is in the form of a narrative. Detective James testified that he was asked to take a statement from Mr. Sandu by the Officer in Charge of the investigation, and called Mr. Sandu to arrange for him to come into the police station to give a witness statement. He and Mr. Sandu spoke in English.
Detective James testified that he had, "no problem at all" communicating with Mr. Sandu in English. He asked questions of the witness and as they spoke, created the witness statement on his computer. He later printed out the statement and had the witness read it for changes and sign at the end. He stated that he had no concerns "at all" about the witness' ability to communicate in English.
A week before the hearing of the defendants' subsection 11(b) application, Detective James was alerted to the fact that he was going to be testifying on that application on behalf of the crown. He pulled the defendants' court package and found a Post-it note on the front of that package. The note was made on May 12th, 2011, one week before the first trial date by a civilian employee of the Orangeville Police Service, tasked with the readying of cases for trial. That note, (a copy was entered as an exhibit on the application), noted that a Punjabi interpreter was going to be needed on the trial date for Mr. Sandu. The source of the request was a Mr. Berger, a co-worker of Mr. Sandu, who is also a retired Orangeville Police officer.
In cross-examination, Detective James acknowledged that Mr. Sandu's interview was not video recorded, and although it was created through a question and answer format, it was typed by Detective James as a flowing narrative, and the actual questions asked and answers given were never recorded. The only notes kept of the contents of the interview was the interview statement itself.
Lori Baker works at the Orangeville Courthouse and one of her duties is to coordinate interpreters for the court matters proceeding here. When Ms Baker is absent, the group leader, Ms M.J. Mahler at the time, covers Ms Baker's duties. On May 12th, 2011, the date of the note made on the police court file, Ms Baker was away and Ms Mahler was, therefore, in charge of interpreter issues. At 2:15 p.m., the Orangeville Police sent an email to Wanda Hutzul, a courthouse employee here in Orangeville. The email indicated that Mr. Sandu needed a Punjabi interpreter for the trial, starting at 9:30 a.m., in one week. I pause to note that Ms Hutzul has no role in arranging interpreters at all.
Notes on the printed out email show that Ms Mahler immediately started to seek a Punjabi interpreter for the May 19, 2011 trial date. As Ms Baker testified, at that time there were two certified Punjabi interpreters on the register of the Ministry of the Attorney General. Ms Mahler spoke to the cell phone of Mr. R. Singh, one of these interpreters, and left a message for him. She also immediately emailed Mr. M. Arora. On the evening of Sunday, May 15, 2011, Mr. Arora replied that he was unavailable.
Ms Baker took on the task of finding a Punjabi interpreter on her return to the office on the morning of May 16, 2011, three days before the trial. No certified or conditionally certified interpreter was available for the May 19, 2011 trial date. An interpreter who was in the building that day by happenstance on other matters, is not able to interpret trial matters due to that interpreter's own health concerns. Ms Baker testified that normally a lengthy notice period is required to arrange for a Punjabi interpreter. No Punjabi interpreter was available on May 19, 2011.
Ms Baker believes that she spoke to the Crown Attorney's office about this problem before May 19, 2011.
On consent, a copy of front of the front of the crown brief was filed as an exhibit on the application. The brief was annotated by someone in the Crown Attorney's office as follows: "May 12/11. Apparently one of the witnesses, Makham Singh Sandu, requires a Punjabi interp. Wanda at courts is trying to arrange."
Constable Jason Moore testified on the application. Prior to the first trial date he had experienced a very serious medical emergency in his immediate family and as a result, he was not able to come to the trial on May 19, 2011, although he was the Officer in Charge of this case. He did not recall speaking to Mr. Sandu at the scene and did not return to duty until roughly six weeks after the trial date.
At the request of the defendants, the hearing of this application was adjourned from February 13, 2012 until today. This was to allow the crown to call Mr. Sandu to testify as to his need for an interpreter and as to the circumstances of the taking of his witness statement by Detective James.
Mr. Sandu testified with the assistance of a properly certified Punjabi interpreter. Mr. Sandu testified that he learned English in school in India up until grade eight. He has not taken any formal English courses since he came to Canada in 2002. He is a taxi driver in Orangeville and understands English very well for business purposes, as well as 80 percent of non-business English.
He recalled giving his witness statement to Detective James soon after the date of the alleged offence. Mr. Sandu testified that he was not able to communicate with the officer completely. He would use hand gestures to try and tell the officer what he meant, for example, closing the cab door, and the officer then interpreted those hand gestures and made suggestions to Mr. Sandu of English words that he might be looking for. Mr. Sandu testified that he was able to read the witness statement when it was printed out by the officer and to understand what it said, and that the statement was a true statement of what he'd seen during the occurrence.
Mr. Sandu read out two extracts from the statement, out loud and in English, at the request of crown counsel. The crown and defence counsel also met with Mr. Sandu out of court before he gave his testimony today. The crown asked Mr. Sandu if he understood that conversation and Mr. Sandu replied that he approximately understood. He was asked if he was able to answer counsel's questions during that meeting and replied, probably, yes.
He could not recall when he spoke to Mr. Berger about having an interpreter at the trial, but did recall asking his advice about whether or not Mr. Sandu had to go to court when he'd been served with an official subpoena. He recalls Mr. Berger telling him that he had to go to court or he would be in trouble, and that Mr. Berger said he could help him out with the interpreter issue.
In cross-examination, Mr. Sandu testified that when speaking to Detective James, when Mr. Sandu did not know the words in English, he would give Detective James a clue as to what he meant by gestures, for example, closing a door, and Detective James would then say, for example, slide, that closing the door would have to be the word slide. He agreed that Detective James knew that Mr. Sandu had some difficulty communicating in English.
No one submits that the non-availability of the Officer in Charge, Constable Moore, at the first trial, bears on the delay here. Clearly, the first trial crown decided that he would proceed only using the evidence of the complainant and Mr. Sandu, and the defence had no intention to call to call Officer Moore.
Crown's Responsibility for the Interpreter Issue
The defendants, however, strongly submit that the crown knew, or should have known, that Mr. Sandu needed an interpreter well before the trial date and that the failure to organize such an interpreter until the very last minute, led to the inevitable loss of that trial date. Further, the defendants submit that the crown did not treat the obtaining of a new trial date with any priority, leading to a further delay here.
The crown submits that the inability to proceed to trial on the first trial date was one of those events that sometimes prevents a matter from proceeding and that there was no element of systemic delay present; it was simply bad luck and, by inference, was unpredictable.
Chronology of Events
A brief chronology of this matter would be as follows:
The offence date was April 18, 2010;
Informations charging the two defendants separately, were sworn on May 27, 2010;
On June 25, 2010, a new joint information was sworn;
Both defendants retained counsel;
Counsel scheduled a judicial pre-trial for August 24, 2010. On that day, Mr. Timmins' then counsel did not appear and the judicial pre-trial was adjourned to September 14, 2010;
The judicial pre-trial was started before Justice Maund on September 14, 2010, and was adjourned to be continued on October 12, 2010;
On October 12, 2010, the judicial pre-trial was completed. Mr. Timmins' then counsel advised the court that she intended to seek to be removed as his counsel of record;
Mr. Gillis' counsel advised that he was seeking an adjournment to November 9, 2010, to set a trial date, pending his review of further disclosure. On October 19, 2010, Mr. Timmins' counsel was removed as his counsel of record. A bench warrant with discretion was issued to compel Mr. Timmins' attendance before the court, and the matter was adjourned to November 9, 2010, to set a trial date;
On November 9, 2010, the defendant, Mr. Timmins, did not appear and a bench warrant with discretion was continued and the matter adjourned to November 16, 2010.
On November 16, 2010, Mr. Timmins did not appear. A discretionary bench warrant was made a bench warrant for the arrest of Mr. Timmins. Mr. Gillis' matter was adjourned at his request to November 23, 2010, to set a date for his trial alone;
On November 23, 2010, Mr. Gillis scheduled his trial for May 19, 2011, marked for a one-half day trial. Mr. Timmins did not appear on that date;
On November 29, 2010, Mr. Timmins and his new counsel appeared in the assignment court. Defence counsel advised that he had just been retained and didn't know that there was a co-counsel, nor that a trial date had already been set for the co-accused. The crown invited the court to deem the bench warrant as having been executed and advised the court that the crown would not be laying a fail to appear charge. No explanation appears to have been made at that time as to the defendant's non-appearance in court. In his affidavit, Mr. Timmins states that he never knew that former counsel had applied to be removed as counsel of record and believed that she was representing him throughout;
Both defendants were together and before the court on December 7, 2010, and were both adjourned to December 14, 2010, to see if both counsel were available on the May 19, 2011 trial date, and also to confirm that the full day now required was also available to the court;
On December 14, 2010, May 19, 2011 was set as the trial date on the joint information and the matter was scheduled for a trial confirmation hearing on March 15, 2011;
On March 15, 2011, Mr. Timmins confirmed his readiness for trial. The matter was, however, adjourned for Mr. Gillis and the crown to confirm on another day;
On March 22, 2011, the crown and Mr. Gillis both confirmed their respective readiness for trial. The crown's trial readiness report leaves a box on the form with regard to the need for an interpreter for crown witnesses blank;
On May 19, 2011 the parties attended with the witnesses for this trial. Justice Nelson was the presiding judge. The crown told Her Honour that the crown would call only two witnesses, the complainant and Mr. Sandu. The crown advised that the crown was ready to proceed with the trial. Defence counsel, however, asked the court for a brief two or three minute recess to chat with the crown and they stepped out to do that. After that, the matter was held down regarding further discussion of what was described on the record as an interpreter issue. Later that day, the crown advised the court that Mr. Sandu, who was described as an essential crown witness, required the assistance of a Punjabi interpreter and that none was available that day. The crown attorney, speaking on behalf of all counsel, purported to jointly ask to adjourn the trial. The matter was adjourned to June 2, 2011, to set a new trial date;
On June 2, 2011, the matter was adjourned to June 14, 2011. On June 14, 2011, the matter was adjourned again to June 21, 2011. In each case, defence counsel cited recently received disclosure. Parenthetically it appears that this went to the medical records of the complainant;
On June 21, 2011, February 14, 2012, was selected as the second trial date here. December 6, 2011 was scheduled to confirm the parties' readiness for this trial;
On December 6, 2011, defence counsel advised the court that the defendants intended to bring a subsection 11(b) Charter application, returnable today, the trial date. Justice Maund, the presiding judge on the confirmation hearing, required that the parties seek a date before today to argue this application. On December 13, 2011, counsel advised that no earlier date was available and the trial date was, therefore, confirmed;
In January of 2012, counsel were able to reserve time on February 13, 2012, to hear the subsection 11(b) Charter application. The application was started on February 13, 2012 and continued over onto February 14, 2012, the trial date, ending today at 11:45 a.m. At that time I retired to write this decision. As I read my decision, it's now 4:09 p.m. on the trial date and no evidence on the trial itself has yet been heard.
Legal Framework and Analysis
Regina v. Tran, et al, an Ontario Court of Appeal case decided just over a month ago, reminds this court as to the proper assessment of subsection 11(b) issues under the overall guidance of the leading case of Regina and Morin, decided in the Supreme Court of Canada, 20 years ago. Guided by Tran, I assess the distribution of delay here in the following fashion. First, as already noted, the overall length of delay invites further inquiry here. Second, there are no express defence waivers of delay. Third, I consider the reasons for the delay. I find those reasons as follows:
Neutral Time and Inherent Requirements
First: Neutral time or inherent time requirements of this case. Although Mr. Gillis, in particular, retained counsel quickly and Mr. Timmins soon after, neither defendant initially chose to move with great speed through the court system. The first court date was June 1st, 2010, and the requested judicial pre-trial was not completed until mid-October 2010, some four and a half months later.
On October 19, 2010, Mr. Timmins' counsel was removed as his counsel of record, stalling the immediate prospect of setting a joint trial date in this matter. After two discretionary bench warrants, a formal bench warrant was also issued, and Mr. Gillis set May 19, 2011 as his trial date, for trial alone. That date was set on November 23rd, 2010, nearly six months after the first appearance date. Mr. Timmins then resurfaced with new counsel. That counsel was able to get up to speed quickly, and was available on May 19, 2011, and so on December 14, 2010, both defendants had May 19, 2011 scheduled as their trial date for a one day trial. The actions of the parties here demonstrate that those parties collectively were not ready to set a trial date here until December 14, 2010.
I recognize that Mr. Gillis' readiness was as early as November 23rd, 2010. As jointly charged defendants, however, these parties were linked together for better or for worse and Mr. Timmins' own conduct led to his former counsel being removed as counsel of record, and ultimately, to a warrant for his arrest being issued. He then needed to retain and instruct counsel all over again, causing some further delay. Luckily, his counsel was available for the date already set by Mr. Gillis, and there was time on that day for a full day trial.
I assess May 27th, 2010 to December 14, 2010, approximately 6½ months as inherently required by this case and these parties. I agree that thereafter, one month is a reasonable estimate of the time needed for counsel to be ready for trial on this summary conviction offence and with these two, very experienced counsel.
The Heart of the Application: May 19, 2011
The heart of this application, however, lies in what happened before, on and after May 19, 2011, the first trial date. Put plainly, Constable Moore's non-attendance did not stop the trial from proceeding as scheduled. What did stop the trial in its tracks was the failure of the prosecution team to recognize that one of their essential crown witnesses could not give that essential evidence without the help of a Punjabi interpreter.
The crown submits following the reasoning in Regina v. Meisner [2003] O.J. 1948 in the Superior Court of Justice affirmed, [2004] O.J. 3812 in the Ontario Court of Appeal, that the last minute need for a Punjabi interpreter was a neutral, unpredictable event, one of those things that happens from time to time, as they say, and is no one's fault.
I do not agree with this analysis and find that from the day after the date of this alleged offence, the crown had to have been presumed to know that if Mr. Sandu's evidence was going to be needed at a trial, the issue of an interpreter was a live issue to be considered and determined one way or the other by the crown.
By Detective James' evidence in chief, Mr. Sandu had no difficulty in speaking at all and Detective James had no concerns "at all" about Mr. Sandu's ability to communicate with the crown or court. The officer, however, only had the statement itself to assist his independent recall of his interview with Mr. Sandu some 22 months before and in a case where he was not otherwise involved, and was not the investigating officer. I can give very little credence to Detective James' assessment of Mr. Sandu's English proficiency even standing alone, without Mr. Sandu's own evidence. When compared with Mr. Sandu's clear and honest testimony, however, Detective James' evidence as to the witness' need for an interpreter is revealed as wildly inaccurate.
Mr. Sandu explained, for example, having to illustrate with gestures words he didn't know, to give clues to Constable James so the officer could guess the word that he meant and add it to the statement, perhaps not a problem in creating a witness statement, but a clear demonstration that the issue of an interpreter is not just alive but urgent. Clearly, no one told the crown about this issue until the immediate days before trial or indeed, given that the crown attorney on May 19, 2011 indicated at the top of the day that the crown was ready to call the case until effectively the trial date itself. The crown had not been able to meet with the witness and the Officer in Charge was on medical leave and no one put their mind to the issue until it was too late to obtain any interpreter.
The trial confirmation report, designed to focus the minds of all counsel to trial readiness issues, specifically sets out an entry as to the need for an interpreter for crown and defence witnesses. That box was never marked in this case.
In other words, the ability of an essential crown witness to testify slipped through the cracks here.
In my view, this is not one of those unpredictable events that Meisner alludes to. In this case, the event was entirely predictable from the time Mr. Sandu walked into Detective James' presence at the police station. Mr. Sandu's own honest evidence today makes it entirely clear that in order to give evidence in court, the assistance of a Punjabi interpreter should have always been apparent.
Crown's Failure to Expedite Rescheduling
From the crown's perspective, of course, all was not necessarily lost when the trial could not proceed on May 19, 2011. The crown, mindful of the need to expedite the hearing of matters not reached on an initial trial date, could have opened up a broad base of previously closed trial dates for this matter, which should have been seen as increasingly vulnerable under a subsection 11(b) Charter analysis. This did not happen. Indeed, as I recently noted in Regina v. Collins, a decision rendered December 12, 2011, setting a new trial date in such circumstances cannot be treated as a business as usual event.
The court was unable to offer any dates to the parties between August 30th, 2011 and today for this trial. The crown had within its control the ability to offer up early dates for trial that were already booked for other, perhaps less serious or less vulnerable matters. A continued judicial pre-trial could have been arranged easily to assist in this process. Instead, the court officer attended with counsel and selected today in the usual course of events, a process that takes place on a daily basis in this courthouse, and without any apparent priority being given to this matter.
In my view, due to the defence requests to consider further disclosure, a further one month from May 19, 2011, is properly allocated to further necessary trial preparation here. Had counsel not identified this disclosure as an issue on those two dates, I would not have allocated any further defence preparation time here.
Calculation of Delay
The calculus of delay here is, therefore, as follows: Approximately 20½ months of total delay, less approximately 6½ months of neutral time or inherent requirements of the case, less 1 month preparation time to be ready for the first trial date after the date was set, less 1 month preparation time to be ready for the second trial date. The total delay for the purpose of assessing subsection 11(b) of the Charter is approximately, therefore, 12 months.
Prejudice Analysis
Fourth: I turn then to the issue of prejudice. Presumed prejudice exists for both defendants although any competent counsel, and there are certainly competent counsel here, would have taken steps to preserve the defendants' own memories soon after being retained. I am concerned, however, that the memory of the crown witness, Mr. Sandu, normally easily preserved by the existence of promptly signed witness statements, is more vulnerable than usual in this case. I say this due to the lack of clarity in how Mr. Sandu's observations were translated into a narrative format by Detective James, and due to the obvious fact that the officer glossed over as non-existent the witness' problems speaking English, problems readily apparent to counsel on May 19, 2011 and to this court today.
This, in my view, enhances the prejudice to both defendants, given that it is common ground to all parties that Mr. Sandu was the only witness who was not drunk at the time of the incident. How much of Mr. Sandu's statement was his own and how much consisted of words suggested to him by the officer in response to Mr. Sandu's gestures will never really be known. Here, the passage of time has more significance, in my view, than in many other cases where prompt witness statements are obtained.
The delay here lies beyond the Morin guidelines for such a simple case as this, albeit, slightly. In my view, however, presumed prejudice alone is sufficient on these facts to call for a stay of proceeding. Beyond this I would only observe that Mr. Gillis, in particular, has demonstrated specific prejudice. Mr. Timmins' specific prejudice is somewhat more generic but, nonetheless real to some extent, and I note as well that both defendants have been on conditions of release since their arrest, including a condition that they not consume any alcohol.
Societal Interest and Conclusion
Notably, there is a strong societal interest in having cases, particularly serious cases such as this, tried on their merits. Mr. Ryan suffered bodily harm allegedly at the hands of these two defendants. A stay leaves the issue of guilt or innocence unanswered for everyone and should be the last resort for court. Here however, through no fault of the complainant, the witness nor the defendants, the system has let them all down, and there will be no determination of the issues that bring them before this court, at least short of any civil remedy that the complainant may have here under the law of tort or negligence.
Where, as here, I find a breach of subsection 11(b) of the Charter, case law makes it clear that a stay of proceeding is the only appropriate remedy under the law. The applications are, therefore, allowed; a stay of proceeding is entered with respect to both defendants. Thank you, counsel.
Released: February 14, 2012
Justice B. Pugsley