Court File and Parties

Court File No.: Toronto

Date: 2012-02-10

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Renji Santhosh

Before: Justice F. Bhabha

Reasons for Ruling (Charter s.11(b)) released on February 10, 2012

Counsel:

• Emma Haydon, for the Crown
• Roy Tofilovski, for the accused

BHABHA, F. J.:

Introduction

[1] Renji Santhosh is charged with one count of sexual assault. The charge arises in the context of a professional relationship. The defendant is alleged to have groped at the complainant's breast inappropriately and without her consent at a rehabilitation clinic where the complainant was a patient and he was an assistant to a physiotherapist.

[2] At the beginning of his trial, Mr. Santhosh brought an application for a stay of proceedings on the basis that his section 11(b) rights were infringed.

[3] After hearing submissions on the application, I ruled that the applicant had not satisfied me on a balance of probabilities that his constitutional right to be tried within a reasonable time had in fact been infringed.[1]

[4] These are my reasons for the Ruling.

Framework for Analysis

[5] The framework for the analysis on an application of this nature is well established. In the first stage of the analysis the Court must consider and make finding regarding the following four factors:

(a) The overall length of the delay, from the laying of the charge until the trial concludes;

(b) The reasons for the various periods of delay;

(c) Any waiver by the defence of any individual time periods; and finally,

(d) Any prejudice suffered by the applicant to the interests protected by section 11(b).

[6] Thereafter, the court proceeds to the balancing stage where the court considers the societal interest in a trial on the merits. See: R. v. Morin (1992), 71 C.C.C. (3d) 1 at p. 18 (S.C.C.)

[7] The second factor – the reasons for the delay - is usually the primary focus of any section 11(b) analysis. The court analyzes and determines the cause of the various periods of delay. These generally fall into the following five categories:

1. Inherent time requirements

2. Actions of the Crown

3. Actions of the Defence

4. Limits on Institutional Resources

5. Miscellaneous causes such as judicial delays

Overall Delay: (August 10, 2010 to November 17, 2011 = +/- 15 months)

[8] Mr. Santhosh was arrested and charged on August 10, 2010 and his trial was scheduled for November 17, 2011. The overall length of the delay is slightly in excess of fifteen months (15 months). It is sufficiently long to trigger or warrant an inquiry into the reasonableness of the delay.

[9] Mr. Santhosh's first appearance was on September 16, 2010, approximately five weeks after the charge was laid. He had, by that time, retained counsel. However, no disclosure was available on that date. The Crown suggested the matter go over for a "couple of weeks" and the applicant's counsel chose to put it over three weeks to October 7, 2010. On that date disclosure was provided to the defence.

[10] Counsel for the applicant put the matter over to November 4, 2010 to review disclosure and obtain instructions.

[11] On November 4, an agent for the applicant appeared and, at the Crown's suggestion, put the matter over approximately three (3) weeks to November 25 in order to conduct a Crown pre-trial.

[12] On November 25, 2010, counsel for the applicant noted that as the trial would likely take more than one day, a judicial pre-trial would be required. The matter was put over to January 4, 2011 for that purpose.

[13] On January 24, 2011, the trial date was set for November 17, 2011. One day was set.

Reasons for the Delay

Intake Period

[14] It is generally recognized and accepted that a certain period of time can and should be attributed to "intake". It is during this time that the Information is sworn; the initial disclosure is prepared, vetted, and reviewed. Counsel is retained and the possibility of resolution may be canvassed. In R. v. Lahiry, 2011 ONSC 6780, one of a quartet of cases decided by Code, J. of the Superior Court sitting as a Summary Conviction Appeal Court judge, citing R. v. Morin (1992), 71 C.C.C. (3d) 1 and R. v. Meisner (2003), 57 W.C.B (2d) 477 held that two months is a reasonable intake period even in a simple case. In a more complex case of an indictable sexual assault, a delay of up to seven months may be reasonable. See R. v. G. (C.R.) (2005), 2006 C.C.C. (3d) 262 at pp. 265 and 270 (Ont. C.A.).

[15] This is a case that falls somewhere in the middle. Although it is a relatively straightforward case with a single Crown witness, the complainant, it cannot be characterized as being in the same category as "a simple [one witness] drinking and driving case".

[16] The applicant concedes that this period is either neutral or a portion of it can be attributable to the actions of the defence. See applicant's factum at paragraphs 22-25. I agree with that characterization in general and find that the period from August 10 until November 25 (three and one-half months) should be attributed as the "neutral intake period". During this time, disclosure was prepared, reviewed and counsel sought instructions, and a crown pre-trial was held. I note that in R. v. Carreira, a factually more complex case than Lahiry, supra, the parties agreed that the neutral intake period was four months and eleven days.

The Judicial Pre-Trial

[17] The next period of delay was from November 24 to January 4, a period of almost six weeks. Because the matter was longer than a day, it required a judicial pre-trial. The record is silent as to whether this was the earliest available date, but given that the Christmas holidays fell within that period, it would not be an unreasonable assumption.

[18] The question is whether this delay is part of the "neutral inherent time requirement of the case" or whether this period of delay should be assessed as "institutional delay" since a judicial pre-trial is required by court protocol if the matter is longer than a day.

[19] The parties characterize this entire six week period of delay as "institutional delay". I disagree with that assessment.

[20] In R. v. Davidson, the third in the Lahiry, supra, quartet, Code, J. found that approximately three weeks of delay caused by the need to hold a judicial pre-trial is part of the inherent time requirement of the case. In this case, the delay was twice as long. The fact that the request fell during the holiday period should not automatically mean that a longer period of delay should be tolerated. In the particular circumstances of this case, I find that while three weeks is an acceptable delay that should be attributable as "neutral" or "inherent", the remaining three weeks can be attributable to institutional delay. See also: R. v. Turner 2012 ONSC 456 (Kelly, J.) at para 10.

[21] I note that in the decision of Justice M. Green in R. v. Howser [2011] O.J. 4866, he found that a similar delay in scheduling a judicial pre-trial (six weeks) which arose "given the intervention of Christmas and New Year's holiday" should be considered to be institutional delay. That decision predates Lahiry, supra, by several weeks. Given that Lahiry is binding on this court, and with all due respect to Justice Green, I am of the view that the approach in Howser no longer reflects the correct approach in assessing this type of delay.

Institutional Delay

[22] The last period of delay from the set date on January 4, 2011 to the trial on November 17 is just under ten and one-half months. The applicant in his written materials initially characterized this period as being entirely attributable as institutional delay. That position was formulated prior to the release of the Lahiry, supra, quartet of cases which were released the day before the hearing of this application.

[23] At the hearing, counsel for Mr. Santhosh, recognizing that Lahiry, supra, is binding on this court, conceded that up to two months of this delay should be attributed as "neutral" as this was the time the defence would likely have needed to prepare and make himself available for trial after setting the trial date. The record is of course silent as to counsel's availability prior to the date offered, or of his trial readiness once the date was offered.

[24] Aside from issues of trial preparation, given the number of defence witnesses anticipated, a total of two months would not have been unreasonable also taking into account the need to coordinate the schedules not only of counsel and the defendant, but also possibly as many as four defence witnesses.

[25] On these findings then, the total institutional delay is nine months and three weeks. This is calculated as follows: 15 months less 6 months and 1 week (3.5 months of intake plus 3 weeks of inherent delay waiting for a judicial pre-trial plus 2 months to prepare and be available for trial). = 9 months and 3 weeks.

Waiver and Conduct of the Applicant

[26] The applicant did not delay in retaining counsel and he and his counsel acted reasonably in setting dates and moving the matter forward. The applicant did not waive any of the delay.

Conclusion

[27] The institutional delay in this case falls squarely within the Morin guidelines, were this a simple one-witness case. This is not such a case. Although the Crown's case involves the complainant alone, the defence plans to 4-5 witnesses. The fact that this case required a full day of court time (an estimate that has already proven to be completely unrealistic) in my view takes it case outside of the Morin guidelines of 8 to 10 months.[2]

[28] In R. v. Kovacs-Tatar, (2004), 192 C.C.C. (3d) 91 (O.C.A.) at paragraph 46, a case involving an allegation of sexual assault by a health care provider, the Court of Appeal had concerns that this type of case, given the nature of the allegation and the anticipated expert evidence, could be characterized as "an uncomplicated summary conviction matter".

[29] In light of the recent decisions in R. v. Lahiry et al, supra, and R. v. Tran, supra, I find that given the nature of the charge, and the number of witnesses anticipated, the increased time required to prepare such a case, a period of twelve to fourteen months of institutional delay would not have been unreasonable.

Prejudice

[30] Given my finding that the delay is reasonable it is not, strictly speaking, necessary that I address the issue of prejudice in the circumstances of this case. Firstly, the delay is not so long that the court can infer prejudice. Where the delay is reasonable, only extreme prejudice will serve to shorten what would otherwise be considered a reasonable period of delay.

[31] Secondly, I note that the evidence of prejudice in this case was not compelling. In terms of his liberty, the defendant was released on a Form 10 and his counsel appeared on several occasions by way of designation.

[32] Thirdly, with respect to his security interest, the applicant's claim that he suffered stress and anxiety is a bare assertion that is unsupported by any medical evidence. See Lahiry, et al, supra, at paragraph 150. While he was subject to a condition that he only work while under direct supervision, the applicant's employer was able to accommodate that condition. The applicant cannot claim any logistical complications experienced by his employer as prejudice suffered by him as a result of the delay. While it may be that he lost wages initially while the issue of supervision was resolved and has not been able to develop his skills in a "normal environment", these difficulties arise from the charge itself and not necessarily from the delay.

[33] Fourth, regarding the applicant's fair trial interest, he asserts that his memory has suffered somewhat due to the passage of time. While it is true that many details of the particular visit that gave rise to this charge could have been covered in an initial or subsequent interview with counsel, this is not an unreasonable consequence of a delay of the duration in this case. I find that while there is some prejudice to the applicant in this regard, the prejudice is not so compelling as to warrant a stay.

[34] The fact that the applicant suffered embarrassment over the charges and is unsure of whether his spouse believes his denials, is prejudice arising from the charge itself and not the delay.

Balancing

[35] Finally, the charge in this case is a serious one. It involves an allegation that the applicant touched the complainant's breast under her clothing without her consent in the context of a professional and therapeutic environment. The societal interest in having such as case decided on its merits is considerable. Considering the overall period of time, and the seriousness of the offence, an allegation of sexual assault and thus a breach of trust, by a health care provider on a patient, I am satisfied that s.11(b) was not infringed. See R. v. Kovacs-Tatar, supra, at para. 62; R. v. Morin, supra, at pp. 12-13; R. v. Seegmiller (2004), 191 C.C.C. (3d) 347 at paras 21-25 (Ont.C.A.)

[36] I find that in these circumstances, there is no proper basis to find a violation of s. 11(b) and the application is therefore denied.

Released: February 10, 2012

Signed: "Justice F. Bhabha"

Footnotes

[1] This matter was argued the day after R. v. Lahiry, ONSC 6780, was released. Since my dismissal of the application, the Court of Appeal in R. v. Tran 2012 ONCA 18 has cited Lahiry, with approval.

[2] I also note that the one-day estimate did not contemplate an s. 11(b) hearing.