Court File and Parties

Court File No.: 2811 998 12 01376 00 2811 998 12 01377 00

Date: 13 October 2004

Ontario Court of Justice (Central East Region)

Between:

Her Majesty The Queen

R. Connolly, Counsel for the Crown

- and -

Navaneethan Kanthasamy

B. Brody, Counsel for the Defendant

Heard: July 30, 2013, September 17, 2013

Ruling on s.11(b) and s.24(1) Charter Application

Stone, J:

Decision

[1] Introduction

This is my ruling with respect to an Application brought by Navaneethan Kanthasamy, alleging an infringement of his right to be tried within a reasonable time, as guaranteed to him under s.11(b) of the Canadian Charter of Rights and Freedoms. In consequence of that infringement, he requests the remedy under s.24(1) of the Charter, of a stay of proceedings. In the reasons that follow I have concluded his Application should be dismissed. Certain practice issues have led me to write more-detailed reasons.

[2] The Morin Test

With respect to the question of whether Mr. Kanthasamy's right to trial within a reasonable time has been infringed or denied, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:

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
   • (e) other reasons for delay
4. prejudice to the accused

R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.) at p.13

Timeline

[3] Initial Arrest and Charges

Mr. Kanthasamy was arrested on July 15, 2012, in Whitby, and charged with operating a motor vehicle while his ability to operate one was impaired by alcohol or a drug, and while his blood alcohol concentration exceeded the legal limit. His driver's licence was immediately suspended under the Highway Traffic Act for 90 days, and he was released on a promise to appear, without conditions.

[4] Information Sworn

The information charging these two criminal offences was sworn August 1st, 2012.

[5] First Court Appearance

Mr. Kanthasamy, a qualified paralegal, chose to appear for himself on the first court appearance, August 23, 2012. He received disclosure and asked for an eight week adjournment. When that request met resistance from the presiding senior Justice of the Peace, he asked for six weeks. He stated he needed to find appropriate representation, was not familiar with this area, and was from Scarborough. His Worship suggested a four week adjournment, and Mr. Kanthasamy accepted.

[6] Counsel Retained and Crown Pre-Trial

On September 20th, counsel Mr. Mass appeared under a designation from the Applicant, said they were reviewing disclosure, and expected to conduct a Crown pre-trial. He asked for four weeks, and offered October 17, being four weeks less one day. That would result in the matter returning on a Wednesday, a day when local practice, and therefore administrative convenience, avoided dealing with O.P.P. matters. Crown counsel, who had up till then been seeking an assurance that after four weeks the defence would be ready to set a date, therefore offered five weeks' adjournment if the matter could be kept on a Thursday. Mr. Mass agreed, as did the Court.

[7] Trial Date Set

On October 25, 2012, Mr. Mass again appeared without the Applicant. He advised that the Crown pre-trial had occurred October 10, and that a trial date for one full day would be set. He stated that the first date offered by the Trial Coordinator was May 30, 2013. He also noted that he was available on six days between November 1 - 21, 2012, and in every month thereafter. May 30th was set.

[8] First Trial Date and Adjournment

On May 30, 2013, Mr. Brody appeared with the Applicant. For reasons related to disclosure and trial preparation, he sought an adjournment of the trial. Much turns on this, and the details will be gone into in detail below. However, discussion between Mr. Brody, Crown Counsel Mr. Connolly, and the presiding judge, Justice MacLean, eventually included consideration of starting the trial that day, dealing inter alia with the Crown's civilian witness, and adjourning when the evidence affected by the disclosure was reached. Counsel were sent to determine from the Trial Coordinator whether it would be faster overall to do that, or to simply adjourn the whole trial to another day before another judge. This latter course was recommended by the Trial Coordinator in light of MacLean, J's schedule and continuations. October 4, 2013 was suggested as the first available full day when both counsel could attend. Mr. Brody, on learning that, also sought and obtained a three hour slot on July 30 before me, as intended trial judge, for this application. Justice MacLean set both dates (July 30 and October 4) on May 30th. The proceedings before her will also be examined further.

[9] Charter Application Hearing - July 30, 2013

On July 30, on written Notice, this Application commenced. Contrary to the language of the Application, no affidavit in support was filed. A letter from a psychologist was tendered by the defence, but had not been seen by the Crown or Court before that day. Mr. Kanthasamy testified viva voce, but without an affidavit, had to be led in-chief. My court list that day included a later-added custody matter for contested resolution, plus another sentencing. Although the court sat late, we did not formally complete Mr. Kanthasamy's cross-examination July 30th let alone finish the s.11(b) application, drawing bitter comment from Mr. Kanthasamy. Since this now became part of his assertion of actual prejudice, I note that we had more than two, but less than three hours in actual in-court action that day, plus some out-of-court time, for example consulting the Trial Coordinator. She and I agreed to take me out of pre-trials September 17 at 9:00 a.m., to give the application a further uninterrupted three hours for completion, including deliberation.

[10] Charter Application Hearing - September 17, 2013

The Applicant's bitterness and sense of not receiving adequate priority apparently abated, as he appeared almost an hour late on September 17. At 9:57 we finally got under way. Despite no interference from other cases, by 5:05 p.m. we had only completed submissions and adjourned to the trial date for delivery of these reasons. Had he appeared on time, oral reasons might well have been delivered September 17.

[11] Relevant Timelines

• Alleged offence to second trial date, July 15, 2012 to October 4, 2013: 14 months and 19 days
• Alleged offence to set-date, July 15 to October 25, 2012: 3 months and 10 days, or 102 days
• Alleged offence to first trial date, July 15, 2012 to May 30, 2013: 10 months and 15 days
• Set-date to first trial date, October 25, 2012 to May 30, 2013: 7 months and 5 days
• First trial date to second trial date, May 30 to October 4, 2013: 4 months and 4 days

Prejudice

[12] General Prejudice to Accused

In every criminal proceeding, the accused person is presumed to be innocent. Nevertheless, there is a social stigma attached to facing a criminal charge, and sometimes there are employment and other consequences even before trial. There is generally a time of uncertainty, and even fear of what could happen during, after, and as a result of, the process. The oft-quoted comment of Cory, J in R. v. Askov, [1990] 2 S.C.R. 1199 is apposite:

"There could be no greater frustration imaginable for innocent persons charged with an offence than to be denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial. The time awaiting trial must be exquisite agony for accused persons and their immediate family. It is a fundamental precept of our criminal law that every individual is presumed innocent until proven guilty. It follows that on the same fundamental level of importance, all accused persons, each of whom is presumed to be innocent, should be given the opportunity to defend themselves against the charges they face and to have their name cleared and reputation re-established at the earliest possible time."

[13] Actual Prejudice Claimed

Sometimes, beyond the inferred prejudice to every accused person, there is demonstrable actual prejudice. Bail restrictions or custody pending trial are obvious examples. The impacts on health, employment, family relationships, and finances apply. Mr. Kanthasamy says that all of these apply in his case. He has had panic attacks, insomnia, depression, shortness of breath, and outbursts of anger. He produced a letter dated July 24, 2013, referred to by counsel as a doctor's letter, on the morning of July 30th. The Applicant's area of concentration as a licenced paralegal is in accident benefits, but the requirements before he is paid for his services have led him to consider hiring another paralegal, in case the ultimate verdict goes against him. On the other hand, if the charges do not result in conviction, he has no need for such a person. In a related vein, he is anxious about whether a conviction could result in discipline or suspension by the Law Society; he has not yet contacted the Law Society, even anonymously, to find out his degree of risk. His attendance in court in the afternoon of July 30, 2013, cost him a scheduled meeting with an insurance adjuster.

[14] Impact on Family and Finances

Very shortly after he was charged, Mr. Kanthasamy became engaged, and was married two days after May 30th, 2013. His legal costs, he says, have forced him to spend the down-payment he was saving for a house for him and his wife. Family plans are on hold. He has been forced to live with his wife in his parents' home, a situation embarrassing to his marriage.

The Adjournment of May 30, 2013

[15] Practice Issues and Responsibility for Adjournment

Important issues of practice arise in what led up to, and can be considered to have resulted from, defence counsel's position that he could not complete the trial on the first trial date scheduled, and that an adjournment was required. He plainly blamed the need for adjournment on the Crown, because of a police officer's actions or, rather, inaction and high-handedness. In the final reply portion of his closing argument, he described the Crown's argument as "ridiculous," in blaming defence counsel for an adjournment and not conducting a trial where there was late disclosure. In my view, had counsel sought and obtained an adjournment on May 30 to meet his own high standards of preparation, and had proceeded with the trial on the second date October 4, no further need to scrutinize "fault" for the adjournment would have arisen. His decision, on May 30, to not only seek an adjournment but then also to seek to bar the Crown from ever proceeding with its prosecution, requires an analysis of whose action or inaction caused the resulting delay. Bringing a s.11(b) application opens a scrutiny, under a bright light, of the actions of all participants in a prosecution.

[16] Disclosure History and Facts

This was not as clear a fact situation as a failure of the arresting officer to disclose his notes until the trial date, thus precluding the defence from bringing a Charter application. The salient facts are these:

• August 23, 2012, on a first appearance, disclosure was given
• No request for further disclosure was given by Mr. Mass of Mr. Brody's firm before that experienced counsel set the trial date
• There is no dispute that disclosure included seven pages of handwritten notes from O.P.P. Constable Lone, the arresting officer; a photocopy of those notes are filed on the application as Exhibit 4
• I need not consider drawing the reasonable inference, reasonable in light of the contents of argument before me, that disclosure also included the typed synopsis and arrest report of the officer for use on any guilty plea
• It is apparently common ground that Constable Lone's handwriting in Exhibit 4 is difficult or very difficult to read
• Ms. Spence of Mr. Brody's office was able to read the notes well enough to conduct a Crown pre-trial, and advise the Crown that a Charter application under section 8 and 10(b) would be brought at trial. The pre-trial notes were read to Justice MacLean on May 30
• I can read P.C. Lone's notes without much difficulty, but am aided by my knowledge of local street names like "Taunton", local landmarks like "Wal-Mart Plaza," and inferred knowledge of short forms like "dyu" for "do you understand?", "obs" for observe, and "dl" for driver's licence. Counsel Peter Connolly's name is fairly clear. The officer's penmanship is, however, challenging in places
• Mr. Brody picked up the file to prepare for trial six weeks before May 30. That is his normal practice
• Mr. Brody could not read P.C. Lone's notes
• By fax of April 22, Mr. Brody caused a letter to be sent to the Durham Crown's general office address (as opposed to a specific Crown counsel). The letter mentioned the full name of the Applicant, charges, "NCD" (sic) May 30, 2013, courtroom (a trial courtroom), and asked for "the following disclosure: a typed copy of P.C. F. Lone's notes. (Written ones are illegible)."
• By fax of May 1, an identical letter was sent by the Mass Law Clerk to the Crown's office, except this one was headed, in bold, "2nd Request for Additional Disclosure"
• On May 6, a Crown Legal Administrative Assistant faxed a reply that the typed copy had been requested. "However given the late request we are unable to ensure these can be provided"
• On May 23, 17 days later, and one week before trial, Mr. Brody's Law Clerk wrote by fax to the Crown's office complaining that they had attempted twice to request disclosure and not been successful. She further complained that it took the Crown two weeks to notify them that they might not receive the notes. She adds "It is our position that we gave ample time to your office to disclose the requested item"
• The Crown sent two notes to P.C. Lone on May 28, at 9:48 a.m. and 1:48 p.m.
• The typed notes, amounting to three pages single-spaced, were sent to the Crown's office at 7:45 a.m. on May 29th. They reached Mr. Brody's office at 8:00 a.m. May 29, but Mr. Brody was in court that day. He says the notes were in his hands at 5:00 p.m., May 29. The trial was to start at 9:30 a.m. May 30
• Exhibit 1 on this application is a partially redacted note from Constable F. Lone seeking to explain why the typed notes were not provided sooner. The first issue was his days off. Then, he wrote the following:

"When the request was received on the 6th of May I was speaking to my court officer to confirm this never before (in my 15 yr career) a request for notes typed for a criminal trial. I have never had anything like this before; my court officer was going to confirm if this was required? Once the 2nd request was sent on the 28th of May the notes were typed and forwarded. I hold the position of supervisor when my immediate supervising Sergeant is off consuming much of my shift."(sic)

• Mr. Brody never did file a Charter application by May 30, even a late one. Under the Rules he should have given 30 days written notice, and the Crown should have replied
• The Charter application prepared after July 30 alleges breaches of sections 8, 9 and 10(b), although the s.9 allegation appears simply an aid to the s.8 allegation of breach
• Mr. Connolly advised Justice MacLean he was prepared to waive a written Charter application and could proceed that day
• Mr. Brody told MacLean, J and me that it is not his practice to proceed to trial without proper preparation. He also stated to me it could be professional malpractice to proceed knowing only one third of the arresting officer's words
• Mr. Brody never sought help from Ms. Spence or Mr. Mass of his office to read the handwritten disclosure. He never asserted he asked anyone else for help
• Although MacLean J, during discussions and her ruling on permitting the adjournment, used the words "entitled" to an adjournment, she never in my view did so with the implicit or explicit finding of malfeasance by the Crown. She did suggest that P.C. Lone should be told to type his notes for disclosure, but I find she was careful not to make a finding of fact or law to assign fault for alleged resulting delay. That experienced judge properly left that question open. While at one point she challenged Mr. Brody on whether he was making his adjournment application with clean hands, she made no finding there either.

It is trite law that an accused person, applicant on a s.11(b) application, is marked with the actions of his counsel. As was recently said, in a different context and in obiter, in a Court of Appeal endorsement in R. v. Richard Stephen, 2012 ONCA 411, at paragraph 7:

"Defence counsel are agents of their clients and it is they who must accept responsibility for their counsel's conduct."

Application of the Morin Test

[17] Analysis of Delay Factors

(1) Length of Delay

The total length of this proceeding, from the charge to the end of the trial, anticipated for October 4, 2013, is 14 months and 19 days. This delay falls outside the R. v. Morin guideline, and calls for an inquiry.

(2) Waiver

Waiver by the accused, to amount to waiver, must be clear and unequivocal, with full knowledge of the rights protected and the effect of the waiver. There are overtones of waiver on August 23, 2012 and May 30, 2013, but those dates are more properly considered under other headings.

(3) Reasons for Delay

Inherent Time Requirements

The period of 102 days from charge to set-date is longer than a more-appropriate 90 days. However, in that time, Mr. Kanthasamy represented himself to receive disclosure, he retained counsel, and counsel relatively quickly reviewed disclosure, set and held a Crown pre-trial, and was ready to set a trial date. The Crown for its part made apparent full disclosure, pressed counsel to be ready to set a date, and conducted the pre-trial. It is true that they proposed adjourning an extra eight days to October 25 for administrative efficiency, but Mr. Mass properly made no objection. The first 102 days were all neutral intake time and part of the inherent time requirements of the case.

Institutional Resources

Oshawa court was one of the Askov jurisdictions. Morin (supra) was an Oshawa case. In the case at bar, a trial date was available on May 30, 2013, just over seven months after the set-date, and ten and one-half months after the alleged offence date. The local resources, while still having room to improve, could accommodate Mr. Kanthasamy's matter within a reasonable time, subject only to the appropriate time here being shorter because of prejudice. The time between the first and second trial dates adds four months and four days to the overall time (fourteen and two-thirds months) and time after the set-date (eleven and one–third months). In my view, the institutional resources responded very well to the need for another full day, with summer and vacations in the equation.

Crown Actions

On Crown actions there is some merit in Mr. Brody's argument that it was not for P.C. Lone to second-guess a specific Crown request for disclosure of typed notes. Assuming he spoke to his court officer on May 6, it was not open to him to not act on the disclosure request until the Crown's two emails of May 28. It was not the court officer who was responsible for requesting the typed notes, the court officer had no status to overrule the request from the Crown's office, and it was not the court officer's job to prepare the new disclosure. If there were days off, supervisory duties in the absence of the Sergeant, or a lack of administrative support, or any doubt, silence was not an option. A number of people could have been spared a great deal of work if Constable Lone had typed his notes. What follows in the next paragraph does not change that.

Defence Actions

However, on defence actions, I find that Mr. Brody must take ultimate responsibility for the adjournment. He failed to take reasonable steps to read or understand the full notes of the officer which were in his firm's hands since at least September 20, 2012. He may well have had trouble reading the notes on or before April 22, requested a typed copy, and then lulled himself into thinking the burden was now on the Crown. However, he knew by May 1st that he was now in default to file his Charter application. Yet he still had full disclosure. When he finally had the typed notes in his hands at 5:00 p.m. May 29, he should simply have had to confirm there were no surprises, and to compare the typed and handwritten notes to see if the officer's story was shifting. Again, this was not true last-minute or new disclosure. And not all true late disclosure warrants an adjournment: R. v. Walker, 2013 SKCA 95.

What was counsel to do next? Some counsel, based on their six-week-old review of the rest of the disclosure and case, without any malpractice or second-rate work could and would have conducted the trial the next morning, unless an obstinate Crown insisted on his or her rights to written Charter notice. If they genuinely needed more time to prepare, they would take responsibility for their part in not being ready and seek an adjournment. This case smacks too much of a tactical decision to set up a s.11(b) application, as a sure way of winning the case. That is not what was intended or anticipated on April 22 or May 1 when the letters were sent, but an opportunity seemed to present itself. The alleged illegibility then took on a role and image much greater than the reality.

Mr. Brody had a right to take a subjective view of the situation and act upon it. However, once he brought the present application, his subjective view became objectively reviewable.

Mr. Brody had acquired concessions by the Crown to proceed without a written Charter application, the nature of which had been known to the defence since at least the October 10, 2012 pre-trial. He had acquired the opportunity to start the rest of the Crown's case, probably upsetting the Crown's normal witness order, knowing that P.C. Lone could now be tested after and in light of all the other Crown evidence, or he could be held over to another day. This was the advantage he could get, and possible penalty for Constable Lone, for Lone's obstinance in not getting his notes typed. But Mr. Brody, in a transcript running 45 pages before Justice MacLean, ensured he took an adjournment and s.11(b) application instead. The May 30 adjournment was a considered and unnecessary defence action which could easily have caused more delay than only four months and four days.

Constable Lone's inaction with his notes did not cause, but indirectly permitted the defence to cause, that delay. Given the timely full disclosure, and on my view of Exhibit Four, his inaction was not a chargeable Crown action that caused the delay, and should not be charged on a contributory fault basis.

Prejudice Analysis

Prejudice is asserted somewhat unusually here. Despite Mr. Brody's best efforts to persuade to the contrary, the Applicant's evidence is of two levels of prejudice. Before May 30, 2013, Mr. Kanthasamy was nervous and upset, and concerned about his future as a paralegal and as the owner of a paralegal business. However, he was dealing with it; as he knew he had to. It appears he had an action plan if he was found guilty, and would not have to worry about it at all if found not guilty. He was saving for a marital residence. He had not had such actual prejudice as his fiancée leaving him because of the charge, nor any similar business loss. He was coping. His court appearances were limited to August 23, 2012 and May 30, 2013. His legal fees should have been the going rate, so to speak, as there seems to have been nothing requiring expensive experts or novel defences. He was not seeing his psychologist.

After May 30, his situation changed. To his defence strategy had been added the unreasonable delay argument, plus a second trial date. I accept that his legal costs rose, probably dramatically. The three-hour time estimate for July 30 was far off the mark, so another full day was consumed September 17. I do not know if he had to pay Dr. Balasingham for counseling, or Dr. Azadian after the referral. His wife was living with him at his parents'. I accept these. With respect to worries over Law Society sanctions if he is found guilty, he should contact the Law Society anonymously and find out.

The concern with respect to his counseling is that everything in the psychologist's letter is a recitation of symptoms told to him by Mr. Kanthasamy. The only diagnostic element is in effect to say that certain described symptoms are consistent with depression and anxiety. If Mr. Kanthasamy has suffered all the symptoms stated, the adjournment of May 30 has cost him dearly.

However, the adjournment came from defence actions. The extra difficulty and cost experienced by the Applicant does not shorten the required time to the first trial date, and did not relate to it. It may be unusual to be able to say that one level of prejudice existed to one point in the case, and another level at another stage, but that is what happened here. The defence decision to adjourn the May 30 trial date has negatively affected Mr. Kanthasamy, but he chose to cause that delay.

Conclusion

[18] Dismissal of Application

The applicant having failed to establish an infringement of his right to have his trial within a reasonable time, the Application is dismissed. The trial set for October 4, 2013 will proceed.

Counsel Notified: September 20, 2013

Ruling Filed: October 4, 2013

D.M. Stone, Justice