Court File and Parties

Court File No.: 12-12759

Date: December 4, 2013

Ontario Court of Justice Central West Region

Between:

Her Majesty the Queen

— and —

Sukhwant Bains & Jagjiwan Bains

Before: Justice Richard H.K. Schwarzl

Heard on: November 19, 2013

Reasons for 11(b) Charter Ruling released on: December 4, 2013

Counsel:

• Mr. Louis Stokes for the Crown/Respondent
• Ms. Alison Craig for both Accused/Applicants

SCHWARZL, J.:

Section 11(b) Charter Ruling

1.0: INTRODUCTION

[1] Jagjiwan Bains and his father Sukhwant Bains are jointly charged with assaulting Sumandeep Bains on October 13, 2012. Jagjiwan Bains is charged separately with a second count of assaulting Sumandeep Bains on October 3, 2012. The complainant Sumandeep Bains is the wife of Jagjiwan Bains, and the daughter-in-law of Sukhwant Bains.

[2] Both Accused claim that their right to be tried within a reasonable time as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") has been violated and they each seek a stay of proceedings on all charges.

2.0: CHRONOLOGY OF EVENTS

2.1: Arrest to Setting First Trial Date – October 13 to December 19, 2012

[3] Both Accused were arrested on October 13, 2012 and held for bail. They were both released on consent by way of a recognizance on October 14, 2012.

[4] Jagjiwan Bains' first appearance after being released was November 1, 2012.

[5] Sukhwant Bains' first appearance after being released was November 8, 2012. Initial disclosure was produced to Sukhwant Bains at that time.

[6] The next appearance for both Accused was November 15, 2012. Disclosure regarding Jagjiwan Bains was produced. Arrangements were made for a case meeting with the Crown.

[7] The next appearance for both Accused was December 6, 2012. The meeting with the Crown had not occurred prior to this date as hoped so the matter was adjourned to December 19, 2012. A meeting between the parties was held between December 6 and December 19, 2012 at which time the parties were ready to set a trial.

[8] The time between the dates of the alleged offences to that of setting the first trial date was 2¼ months.

2.2: Setting the First Trial Date to the First Trial date – December 19, 2012 to August 2, 2013

2.2.1: Setting the First Trial Date

[9] On December 19, 2012 a one-day trial was scheduled for August 2, 2013 in Courtroom 307. August 2, 2013 was the first date offered by the court to the parties. The agent for Ms. Craig informed the court that her earliest date for trial was the next day - December 20, 2012 - but was still awaiting two items of disclosure. Other than December 20, 2012 no other dates of availability for the parties were given to the court.

[10] The time between setting the trial date and the first trial date was 7½ months.

2.2.2: The First Trial Date

[11] The matter did not proceed on August 2, 2013 as scheduled. The trial was placed on a list with four other trials and a preliminary inquiry in what is locally known as the TBA ("To Be Announced") Court where trial matters are expected to be parsed out to other trial courts as time and space becomes available. Of the other matters on the docket, three trials were sent to Courtroom 103 and the preliminary inquiry was adjourned, thereby leaving on the Bains' trial and one other trial in that court.

[12] Independent of the matter being on a TBA list, the complainant, Sumandeep Bains, did not appear despite being subpoenaed. The remaining trial then commenced.

[13] The parties addressed this case after lunch when the Crown asked the Court to hear its material witness warrant application and its adjournment application. The learned trial judge told them that he was not prepared to interrupt the unrelated trial that had already started. He said he would deal with this matter at the end of the day unless it was dealt with by another court. Ms. Craig for the defence told the learned trial judge that she was opposed to any adjournment.

[14] After the first trial finished, the learned trial judge heard the adjournment and material witness warrant applications of the Crown. Ms. Craig submitted that her clients were at court all day and ready to proceed. She expressed her concerns that if the matter was adjourned the two Accused would have to wait "another several months" for their trial. The learned trial judge told Ms. Craig, "The response to that is that it wouldn't happen had [the complainant] responded to the subpoena." At 4:45 p.m. the learned trial judge granted the Crown's applications, adjourning the case and issuing a material witness warrant for Sumandeep Bains.

2.3: First Trial Date to the Second Trial Date – August 2 to December 4, 2013

[15] After the matter was adjourned on the first trial date, the case was put over to August 8, 2013 to set a new, one-day trial. Meanwhile, on August 6, 2013 Sumandeep Bains was arrested, released on bail, and directed to attend court on August 8, 2013.

[16] On August 8, 2013 the first date offered by the court was August 21, 2013 but neither party was available that day. The next date offered was December 4, 2013 which everyone agreed to. Neither party gave any information concerning their availability at any time between the two dates offered by the court.

[17] On November 19, 2013 this section 11(b) Charter application was argued. A ruling was reserved to the beginning of the second trial date.

[18] The total time between the first trial date and the second trial date is 4 months.

[19] The total time between the dates of the alleged offences and the second trial date is 13¾ months.

3.0: POSITIONS OF THE PARTIES

3.1: The Applicants/Accused

[20] The Applicants submit that the overall time to bring this matter for trial is unreasonable in light of the entire case chronology. The Applicants submit that by offering the first trial date not sooner than over seven months into the future the Court and the Crown were obliged to see that it was reached on the first trial date. By placing this one-day matter on an overloaded trial list, the Applicants submit that there was little, if any, realistic chance of being reached on the first trial date whether or not the complainant had answered her subpoena.

[21] In addition, the Applicants submit that once the first trial date had been aborted by forces beyond their control the Court and the Crown should have provided a new trial date quicker than four months into the future.

[22] Lastly, the Applicants submit that the delay has caused prejudice to, or beyond, the point required for success in such applications.

3.2: The Respondent/Crown

[23] The Crown submits that there has been no unreasonable delay in bringing this matter to trial despite the case being adjourned on the first scheduled trial date. The Crown submits that the Applicants have failed to establish any meaningful prejudice caused by delay.

4.0: APPLICABLE LEGAL PRINCIPLES

[24] All citizens enjoy the right to be tried within a reasonable time as enshrined in section 11(b) of the Charter. It is presumed that the state has respected that right and the burden is on the Applicant to establish on a balance of probabilities that he was not tried within a reasonable time: R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.).

[25] There is no cut-off or stale date at which the length of the trial process becomes automatically unreasonable. The determination of whether a delay has been unreasonable requires an assessment of the entire time from the time of the charge to the end of the trial: R. v. Allen (1997), 110 C.C.C. (3d) 331 (Ont. C.A.), affirmed 119 C.C.C. (3d) 1 (S.C.C.); R. v. Morin, supra at ¶ 32 – 36.

[26] Some delay in bringing a matter to trial is inevitable. In assessing whether the entire time is unreasonable, courts must balance a myriad of factors identified by the Supreme Court in Morin, supra. Those factors are:

(a) The length of the delay;

(b) The waiver of any delay by the Applicant;

(c) The reasons for the delay, including:

• (i.) The inherent time requirements of the case;
• (ii.) The actions of the Accused/Applicant;
• (iii.) The actions of the Crown including the police;
• (iv.) Limits on institutional resources; and
• (v.) Other reasons for delay; and

(d) Prejudice to the Applicant caused by the delay.

[27] With respect to the concept of "inherent time requirements" it encompasses four different aspects: (a) the intake period of the case; (b) the court time required to try the case; (c) adjournments required to find additional court time to try the case when the initial time estimates prove inaccurate; and (d) the complexity of the case. The inherent time requirements of a case are considered neutral in the 11(b) analysis and are not included in systemic delay: R. v. Ferguson, [2005] O.J. No. 3442 (S.C.J.) at ¶140 – 149; R. v. Shyshkin, [2007] O.J. No. 1821 (S.C.J.). The intake period for a case represents not only the time it takes from the laying of the Information until the parties are meaningfully ready to set a trial, but also a reasonable period of time for the parties to prepare once the trial date is set: R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 at ¶ 27 – 30.

[28] Inherent time requirements include the rescheduling of trials not held due to unforeseen reasons: R. v. Meisener, [2004] O.J. No. 3812 (C.A.).

5.0: ANALYSIS

5.1: Reasons for Delay

[29] The length of the delay from the date of the alleged offences to the second scheduled trial date in the case at bar is 13¾ months. Both parties agree that the total delay is sufficiently long enough to require an assessment of whether the Applicants' section 11(b) Charter right has been violated.

[30] Neither Applicant has waived any time in this case. No actions by either the Applicants or the Crown contributed to any delay.

[31] This case is not unduly complex and is appropriately estimated to take a full court day. Logically, to accommodate full day trials, dates deeper into the court calendar must be considered when compared to shorter trials.

[32] To this point, there have been no adjournments to find additional time to try the case as the trial has not yet commenced.

First Time Period: October 14 to December 19, 2012

[33] The delay between October 14 and December 19, 2012 was caused by inherent time requirements, to wit: intake. The parties were not ready to set a trial date in this 2¼ month period.

Second Time Period: December 19, 2012 to August 2, 2013

[34] The 7½ month delay between setting the trial date on December 19, 2012 and the first trial date of August 2, 2013 was caused by three reasons, two involving inherent time requirements and one of institutional delay.

[35] Of the two inherent time requirement reasons, the first reason is the complexity of the matter which the parties agree will take a full day, thereby requiring dates deeper into the court calendar to be considered. The second reason is reasonable preparation time for the parties. The fact that the defence was ready on December 20, 2012 for trial despite outstanding disclosure does not detract from a fair period for both sides to prepare once a date has been set.

[36] The third reason for delay in this period is limitations on institutional resources. The first date offered by the court for a one-day trial was August 2, 2013, over seven months away.

[37] Taking into account the reasons for delay between December 19, 2012 and the first trial date of August 2, 2013 I apportion two months to inherent time requirements[1] and 5½ months to limits on institutional resources.

Third Time Period: August 2, 2013 to December 4, 2013

[38] The four month delay between the first trial date and the second trial date was caused by two factors: limitations on institutional resources and the failure of the complainant to answer her subpoena on the first trial date.

[39] I do not accept the submission made by the Applicants that the delay on the first trial date was caused by an overloaded trial list. All but two matters were sent to other courts or adjourned and a trial did in fact take place that day, albeit not this one. It is unknown whether the Applicants' trial would have been the first to proceed had the complainant been there. What is certain is that this trial could not take place on August 2, 2013 in the face of the unanticipated non-compliance with a subpoena by a central witness. It was not the fault of the Court, the Crown, or the Applicants that the complainant failed to appear. Her absence was beyond the control of anyone but her. Relying on R. v. Meisener, [2004] O.J. No. 3812 (C.A.), a reasonable delay in rescheduling the trial was three months. Therefore I apportion three months delay to "other" reasons which must be considered as neutral.

[40] In these circumstances, I apportion one month of the four month delay to limitation on institutional resources for the period between the first and second trial dates.

[41] The total delay caused by limitations on institutional resources in this case is 6½ months[2], well within the guidelines of eight to ten months for the Region of Peel.

5.2: Prejudice to the Applicants caused by the delay

5.2.1: General Prejudice

[42] Section 11(b) of the Charter is designed to guard against prejudicing a person's rights to (i) liberty, (ii) security of the person, and (iii) to make full answer and defence: R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26 (S.C.C.). In the case at bar, it is only the second and third rights that must be assessed given that both Applicants are out of custody.

[43] Prejudice to these rights can be inferred the longer the overall delay. Delay, in and of itself, can be expected to have a detrimental effect on a fair trial: R. v. Godin, supra; R. v. Brace (2010), 104 O.R. (3d) 32 (C.A.).

[44] Conduct of the Applicant which is inconsistent with a desire for a timely trial is something that the court must consider in evaluating the degree of prejudice, if any, suffered by the accused: R. v. Morin, supra, at ¶ 62. In this case, there is nothing to suggest that either Applicant has been content with the pace of this litigation. The Applicants, like the Crown, appear to have moved this matter forward with reasonable diligence.

[45] Prejudice to the Applicant must be balanced with society's interest in adjudicating matters on their merits: Morin, supra at ¶ 26 – 30; R. v. Seegmiller, [2004] O.J. No. 5004 (C.A.); R. v. Kporwodu, [2005] O.J. No. 1405 (C.A.). This balancing of the Applicants' interests and society's interest in a trial on the merits is even more important where the charges are serious: R. v. Seegmiller, supra. No one would doubt that crimes of domestic violence are serious.

[46] In this case some, but not much, general prejudice has occurred due to the overall length of the delay.

5.2.2: Specific Prejudice

[47] Both Applicants claim specific prejudice. They both complain that they have had to incur financial hardship due to additional legal costs arising out of having to schedule another trial date. They both assert that their access to Jagjiwan Bains' children has been unduly prejudiced by the delay. Sukhwant Bains stated that his ability to travel to India has been prejudiced by the delay. Lastly, Jagjiwan Bains has stated that his immigration status and legal costs related thereto have been prejudiced by the delay.

[48] I am not persuaded that there is much specific prejudice suffered by either Applicant on account of delay. In his conditions of bail, there was no restriction of Sukhwant Bains's contact with his grandchildren. For Jagjiwan Bains, his access to his children was restricted to being arranged through a third party or by means of a Family Court Order. On the evidentiary record before me, it is clear that Jagjiwan Bains has made few, if any, efforts to secure a third party to facilitate access, nor has he taken any proceedings in Family Court.

[49] Sukhwant Bains's claim that he cannot travel to India is unfounded. He is required to reside with a surety, but there is no restriction at all on travel. With the Crown's consent, he has already gone to India for over two months while awaiting trial. There is no suggestion that Sukhwant Bains's ability to travel has been adversely affected at all by any trial delay.

[50] Jagjiwan Bains stated that because he was charged, his immigration file is under review and that he has incurred costs in connection thereto. However, this is not caused by delay, but by being charged. I find no specific prejudice to Jagjiwan Bains' immigration status that was caused by delay.

[51] I do find, however, that specific prejudice has been suffered by both Applicants by the additional legal fees to conduct the trial. While this prejudice is real, I do not find that the prejudice of having to pay more money to legal counsel in this case means that the Applicants' section 11(b) Charter rights have been violated. This is because the delay resulting in extra legal fees was caused by the unforeseeable event of the complainant's absence on the first trial date.

6.0: CONCLUSIONS

[52] For the foregoing reasons, I apportion the reasons for delay over the entire 13¾ month period as follows:

Inherent Time Requirements[3]: 4¼ months

Limitations on Institutional Resources[4]: 6½ months

Other Reasons[5]: 3 months

TOTAL: 13¾ months

[53] In assessing whether or not the overall delay in this case was unreasonable, I have taken into account the following: (a) both parties have acted reasonably and with due diligence; (b) the institutional delay is well within what is reasonable for Peel Region; (c) the first trial date was postponed for reasons beyond the control of the parties and of the Court; and (d) while there is prejudice to each Applicant, it is not inordinate or unreasonable in all of the circumstances.

[54] Balancing all of the factors in this case, I find that the Applicants have failed to demonstrate that their right to be tried within a reasonable time as guaranteed by section 11(b) of the Charter has probably been violated. The application is dismissed.

Original Signed by Justice R.H.K. Schwarzl

Richard H.K. Schwarzl,

Justice of the Ontario Court of Justice

Footnotes

[1] One month to account for the length of the trial being one full day and one month to allow both parties to prepare.

[2] 5½ months when the first trial date was set and one month when the second trial date was set.

[3] 2¼ months for the intake period plus 2 months to account for the complexity of a one-day trial and for trial preparation by both parties.

[4] 5½ months between set date to first trial date plus one month between first trial date and second trial date.

[5] This delay was caused by the unforeseeable absence of the subpoenaed complainant on the first trial date.