Ruling on 11(b) Charter Issue

Court File No.: Regional Municipality of York 10-11086

Date: 2012-11-14

Ontario Court of Justice

Between:

Her Majesty the Queen Respondent

— And —

Kunaratnam Sasikaran Applicant

Before: Justice Peter N. Bourque

Ruling on 11(b) Charter Issue released on November 14, 2012

Counsel:

• J. Fuller for the Crown
• P. Connelly for the applicant Kunaratnam Sasikaran

Bourque J.

OVERVIEW

[1] The defendant brought an application under 11(b) of the Charter of Rights when this matter first came up for trial on January 19, 2012. I denied the application, and my reasons are attached as Schedule "A" to this ruling. The trial was not completed on January 19, 2012 and the matter continued on January 20, 2012. The matter was not completed on January 20, 2012. The matter was adjourned to July 25th and July 27, 2012 for another two days of trial but the matter was still not completed.

[2] Tentative trial dates were set for October 2nd and 4th 2012, but due to a previous commitment for another trial, this trial judge was unavailable to continue the matter on those days. The case has now been adjourned to February 28, 2013, and March 1, 2013 to continue and (hopefully) complete the trial.

[3] From January 20, 2012 to July 27, 2012, is a further period of 6 months. From July 27, 2012 to March 1, 2013 is a further period of 7 months. The further delay is therefore some 13 months, give or take a day or two.

[4] On its face, the total delay is approximately (14 + 13) 27 months from charge until the projected completion of the trial.

[5] Based on my previous ruling, the total institutional and Crown delay for the purposes of 11(b) was just under 10 months and I dismissed the application.

[6] I must now characterize the delay since January 19, 2012 to March 1, 2013 and balance it against the further prejudice to the defendant as set out in his new affidavit to determine whether there has been a breach of his 11(b) rights. I must also weigh the seriousness of the Crown's case.

JANUARY 19th TO JULY 25th and 27th

[7] In assessing this period of time, I must assess the original estimates of time by both counsel for the trial of this matter, and the further estimates of time. Both counsel estimated 2 days for trial. The morning of the 19th was taken up by the 11(b) motion. A half-day of trial was missed. Counsel could have brought the 11(b) motion in advance of the January 19th trial date but chose not to do so. Even if counsel had correctly estimated the 2 days to complete the matter (I will comment on that further below), the actions of the defendant made that impossible. The ending of the second day of the trail because the parties found the interpreter inadequate is also a reason why the first two days did not deal with the completion of the trial.

[8] With regard to the estimates of time, when the new dates were set on the 20th of January, the parties were requesting a further 2 days to complete the matter. The matter was not completed on those days.

[9] When the new dates were set in September, both parties were looking for a further 2 days. As a result, an original 2-day estimation has now grown to 3 days of actual time and further estimate of 2 more, for a total of 5 days.

[10] A further issue is that my schedule with other trial continuations did not allow the new date for the continuation to be set in October. Instead the matter is now over to February 28th And March 1, 2013.

[11] In terms of the extra time to complete this matter, I could not find that it was due to any actions of the Crown, other than the fact that it also thought that 2 days was sufficient to try the matter when the first trial dates were set, and potentially the loss of half-day when the interpreter was not deemed adequate to continue that day.

[12] There are many, many cases which stretch out beyond the original trial estimates of counsel. Unless there is some failure of the system to respond in an appropriate fashion in providing new dates, it is accepted that such delays are part of the inherent time requirements of a case. On reviewing the Trial scheduling sheets, there were earlier dates offered before the July 25th and 27th dates. I note that the dates of May 24, 2012 and June 15, 2012 were available to the court. For that time period from January 20th to July 25, I think the system was responsive to the situation and thus I feel that January 20th is inherent to the case.

[13] The reason that sooner dates could not have been offered after July 27th was the difficulties in this trial judge's schedule. It is in this area that I would assign 3 months of the delay to institutional factors.

[14] As set out in cases such as R. v. Tran and others, the dividing up of these time periods into minute periods is discouraged, however, I think it is my duty to attempt to do so. It is my opinion, looking at the totality of the circumstances here, that the majority of the time was caused by the failure to accurately estimate the time required to try the case. Counsel should not be faulted for an inability to accurately estimate trial time in all cases. Especially in cases such as this, where there are several discrete incidents to be covered in examination in-chief and in cross-examination, what seems like a short history from the disclosure, can turn into a long time in the witness box. In R. v. Quereshi, the Court commented on the fact that grossly underestimates of trial time can lead to neutral and inherent delays. As stated at paragraph 27:

…In making these points, Doherty J.A. emphasized that when a case is not completed within the time estimated, its continuation must recognize the legitimate demands of other cases in the system on both counsel and the court.

[15] I therefore find that the further delay in this matter which could be attributed to institutional matters is a further 3 months. That leaves a total institutional delay at approximately 13 months. Part of my reasoning here is that the court offered dates before me starting at the end of November 2012. That was a reasonable response to the continuation issue.

[16] I accept that the length of time has resulted in increased prejudice to the defendant. Some of the prejudice stemming from terms of release have been ameliorated over time by agreements by the Crown to amend release terms, but that does not totally compensate for all of the factors which have been expressed by the Supreme Court of Canada in R. v. Godin.

[17] I accept that this case not completing may have some affect on the matrimonial issues. However, it is far from clear that the ending of this case (especially not on the merits) would have an effect on the continual matrimonial bitterness and litigation.

[18] With regard to the seriousness of the case, my comments from the earlier ruling in January still stand. The Crown's case is almost entirely finished and I make no comments whatsoever about the credibility of any Crown witnesses. I accept that these are serious allegations and there is a strong societal interest in determining these issues upon the merits.

CONCLUSION

[19] Applying the legal principles that I have already set out in the previous ruling, and taking into account all of the factors, including the further passage of time and the greater level of prejudice to the defendant, I find that the further delays are due mainly to the inherent time requirements of this case, and coupling that with strong societal interest in determining this case on the merits, I find that the defendant has not convinced me upon a balance of probabilities that his right to be tried within a reasonable period of time has been infringed.

Released: January NTD, 2013

Signed: "Justice P.N. Bourque"

Schedule "A"

Bourque J.

[1] The defendant (applicant) Kunaratnam Sasikaran is charged with 6 counts of assault upon his wife (one with a weapon) and one count of assault upon his infant son.

Trial within a Reasonable Time – 11(b) Charter of Rights and Freedoms

[2] The defendant (applicant) makes an application pursuant to s. 11(b) of the Charter of Rights and Freedoms and states that his right "to be tried within a reasonable time" has been infringed. He further asks that if I find that such an infringement has occurred, then pursuant to the provisions of s. 24(1) of the Charter, the only remedy which is "just and appropriate under the circumstances" is a judicial stay of the charges against him.

Onus

[3] The onus to satisfy me that there has been a Charter breach, as alleged, is upon the defendant (applicant) on a "balance of probabilities".

Relevant Time Periods and Actions by the Parties Which Impact Upon the Issue of Delay

Date of offence: July 1, 2005 to November 15, 2010

Date of Charge: November 23, 2010

Date of Bail Hearing: November 24, 2010

1st Court Appearance: December 14, 2010 (neither counsel nor the defendant appeared, matter adjourned to December 21, 2010)

2nd Court Appearance: December 21, 2010 (Defendant's counsel asks that matter be put over to January 4, 2011 "so he can review disclosure with his client")

3rd Court Appearance: January 4, 2011 (matter adjourned to January 18, 2011 – no explanation provided on the record)

4th Court Appearance: January 18, 2011 (matter adjourned for a judicial pre-trial – defendant did not object to the judicial pre-trial – the defence had a date 10 days earlier and the court had dates 12 to 14 days earlier – adjourned to February 14, 2011 for judicial pre-trial)

5th Court Appearance: February 14, 2011 (pre-trial held – Crown re-elects with defendant consent to proceed summarily on all counts – two days of trial set – first date offered was January 2 & 3, 2012 (not available to defence) – Defence indicates on the record that it had available trial dates in every month between now and the trial date. January 19 & 20, 2012 set for trial)

1st Trial date: January 19, 2012

2nd Trial date: January 20, 2012

Total Time from Charge (and Date of Arrest) to Trial Completion

14 months

Total Intake Time Including Delay for JPT

2 months 22 days

Total Time from First Set Date to Trial Completion

[4] 11 months

Legal Framework

[5] Section 11(b) explicitly focuses upon the individual interest of liberty and security of the person. Nonetheless there is, at least by inference, a community of societal interest implicit in s. 11(b). The failure of the justice system to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community's frustration with the judicial system and eventually to a feeling of contempt for court procedures. When a trial takes place without unreasonable delay, with all witnesses available and memory is fresh, it is far more certain that the guilty parties who committed the crimes will be convicted and punished and those that did not will be acquitted and vindicated. If the recognition of both the primary individual interest and the inferred society interest is accepted as the true aim of s. 11(b), then the various factors which should be taken into consideration in determining whether there has been an unreasonable delay can be clarified and set forth in a consistent test.

[6] As the seriousness of the offence increased, so does the societal demand that the accused be brought to trial: R. v. Morin at p. 13. This applies not as a separate analysis of the 11(b) issue but is applied throughout the analysis.

[7] To decide whether s. 11(b) has been infringed, the court must balance these individual and societal goals with the length and causes of delay. In Morin, the Supreme Court of Canada set out the framework for this judicial balancing. Four factors must be considered:

1. The length of the delay;
2. Waiver of time periods;
3. The reasons for the delay, including:
   • (a) inherent time requirements of the case;
   • (b) actions of the accused;
   • (c) actions of the Crown;
   • (d) limits on institutional resources; and,
4. Prejudice to the accused.

[8] In R. v. Godin, 2009 SCC 26, the Supreme Court of Canada revisited and confirmed the R. v. Morin analysis. As stated at paragraph 18:

18 …It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. As Sopinka J. noted in Morin, at p. 787, "[t]he general approach ... is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay."

[9] The Court went on to restate: "…that the prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice". The court went on to say:

37 It is difficult to assess the risk of prejudice to the appellant's ability to make full answer and defence, but it is also important to bear in mind that the risk arises from delay to which the appellant made virtually no contribution. Missing from the analysis of the majority of the Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforward case to trial. As noted already, prejudice may be inferred from the length of the delay.

38 Moreover, it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant's ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b) violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanations for why it occurred.

Analysis

Length of Delay

[10] In this case the total length of delay from charge until attendance for the completion of the trial is 14 months. In my opinion, this length of time requires an inquiry into the reasonableness of the delay.

Waiver of Some or All of the Time Periods

Inherent Time Requirements of the Case

[11] This is a matter for which the Crown is proceeding by summary conviction. The police investigation was complete by the time of the laying of the charge. The Crown and defence agreed that the trial would take no more than 2 days. The Crown's case is essentially the evidence of one witness, the complaint, although there are at least 2 other civilian witnesses. There are 7 total counts of assault which span a large time period. Allegations of domestic assault are serious matters for which an appropriate period of time should be taken to complete the case. Because of the number of incidents, this leads inexorably to a longer estimate of trial time. Where a case requires more than a day of trial time, the court must take into account that there must be a corresponding increase in the inherent time requirements of the case throughout its process through the courts.

[12] There have been no Charter application (other than the one for delay) filed. It is a type of case which is routinely dealt with in the Ontario Court of Justice in this jurisdiction.

[13] There is therefore no reason in the time requirements of the case that the time frame as suggested in R. v. Morin should not be complied with; that is, an institutional delay period of between 8 and 10 months. Because of the greater time required for this case and the greater inherent time requirements, I believe that the tolerable delay would be on the higher side of the Morin guidelines.

[14] I also note the recent decision of the Ontario Court of Appeal in Regina v. Tran, 2012 ONCA 18. While not disturbing the 8 to 10 month period of delay as set out in R. v. Morin, it does adopt the reasoning of Justice Code in R. v. Lahiry, 2011 ONSC 6970, and stands for the proposition that the delay is only calculated from the time that the parties are ready for trial. This is sometime after the day that the trials date is set. In Tran, an 8 month period from set date to trial, was reduced to 3 months.

[15] On the record, when the trial date is set, the counsel for the defendant indicates that he has trial dates available in every month between the set date and the trial date. This would reduce the institutional time delay back by about a month.

[16] The factors to be considered are the time needed to prepare for the trial and at what point the defence counsel's schedule would allow this two day trial. R. v. Morin was a non-complex case of impaired driving and the court assigned a one month period of preparation. The more complex case of impaired driving causing bodily harm, over 80 and obstruct police, in R. v. Sharma was assigned a 3 month period of preparation.

[17] The Crown suggests, in his brief that a two month period of preparation should be allocated in this case. The Crown in his oral submissions agrees that a one month period in total could be considered by the court.

[18] The application of a guideline will be influenced by the presence or absence of prejudice. If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions, or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact.

Actions of the Accused

[19] There are no actions of the defence which has appreciably extended the delay. The acceptance of the first trial date offered would have shortened the period of delay by ½ a month.

Actions of the Crown

[20] Notwithstanding that the defence say there was a problem with disclosure that was not reflected on the record. The intake period (under 3 months) was not at all unusual. The matter was not, in my opinion, delayed because of any disclosure issues.

Limits on Institutional Resources

[21] The Crown has not brought to my attention any limits on institutional resources in this jurisdiction.

Other Reasons for the Delay

The Delay to Have a Judicial Pre-Trial

[22] It is the practice in this jurisdiction to have judicial pre-trials upon the request of the counsel, and in any event a judicial pre-trial is normally held where the estimated length of trial is more than a judicial day. The question arises whether this is a delay which is inherent to the trial process, or is this part of the institutional delay? There has been conflicting judicial opinion on this subject.

[23] It does not seem at all unreasonable that in cases longer than a day, a pre-trial is held to see if trial time can be shortened, or indeed the matter settled with a saving of precious trial time. If held within a reasonable period of time and not further adjourned to the fault of the Crown, then I believe that such a period of up to a month should be considered inherent rather than institutional delay. In this case, the transcript discloses that the defence offered a date of February 4 and the Court responded with dates of February 1st and 2nd and 14th.

[24] I believe that the recent decision in R. v. Tran approves a reasonable time for a judicial pre-trial as inherent delay. I realize that there has been conflicting Court of Appeal pronouncements on this point, but I feel as this is the latest word from the court, then I am bound to accept it.

[25] The delay, in my opinion, from January 18 to the pre-trial dates is within a reasonable time frame and thus would be inherent and not institutional delay.

Prejudice to the Accused

[26] The defendant has filed an affidavit which sets out the prejudice that he has suffered as a result of the delay. He testified and was cross-examined by the Crown. In addition to the expected additional emotional pressures, costs of counsel and the preparation for trial, he relates that in this particular matter he has also suffered the additional prejudice:

• He was restricted by the bail terms from seeing his children. I note however that an exception was made for a family court order. Such an order was obtained and by August 2011, it was expanded to access away from a visitation centre and into a home of the defendant's family. I accept this as extra prejudice, but it was actually ameliorated as time went on. I must also consider whether the existence of the criminal proceedings would have affected his estrangement from his home and family. I am informed that the matrimonial issues are being vigorously litigated. It is not a case where his spouse seeks his return to the matrimonial home.

• The defendant was out of his home and this caused him psychological hardship and made his work more difficult.

• He was unable to attend some social activities in connection with his employment and was and is under a disciplinary cloud until the results of this case are known.

• In doing his work as a real estate agent, he has been compromised in terms of his travel (must stay 500 metres from several locations) and in terms of time as he must be in his residence between midnight and 5:00 a.m. With regard to the latter, I accept that some "bidding wars" may indeed be compromised by the fact that he cannot stay late.

[27] I accept these items as an augmented prejudice above the normal, and that it increases somewhat as time increases. However, notwithstanding all of the difficulties, his is seeing his children and is occupied in his chosen profession.

[28] I accept that this additional prejudice, while most of them arise from the charges, do increase over time. He has been able to ameliorate some but not all of these issues. I would not rate the prejudice as "extreme". It is more than minimal.

[29] I have already cited the excerpts from R. v. Godin, which restates the prejudice resulting naturally from a situation where the guidelines in R. v. Morin are exceeded by a significant amount.

[30] I am also aware of the seriousness of this matter. It is not just a single allegation of spousal assault. The allegations show a significant duration of abuse against the defendant's spouse and child. While I am mindful that the Crown is proceeding by summary conviction, and the allegations do not bespeak bodily harm, I must take into account the increased wish to have these matters determined upon their merits.

Conclusion

[31] Based on all of the factors set out above, the length of the delay in this matter which is attributable to institutional delay is approximately 10 months. This is just within the Morin guideline.

[32] While trial judges like me cry out for more assistance to reduce delays in court, which do not seem to have changed one iota in over 15 years, I do not think that the Court of Appeal has endorsed any reduction in the R. v. Morin guidelines.

[33] I have set out the prejudice to the defendant from the delay and do not minimize it. However, this case by its extra charges and length is subject to some inherently longer requirements and the same charges, on its face, increase the seriousness of the matter.

[34] Balancing all of these factors as required, I accept that it is a close run thing, but I am not prepared to find that the defendant has established on a balance of probabilities that his right to be tried within a reasonable period of time has been infringed.

[35] The application is dismissed.