Court File and Parties

Court File No.: 13-13513 Date: May 29, 2015 Ontario Court of Justice Central West Region

Between: Her Majesty the Queen — and — Manpreet Singh

Before: Justice Richard H.K. Schwarzl

Heard on: May 5, 2015

Reasons released on: May 29, 2015

Counsel:

• Ms. J. Methurin, for the Crown
• Mr. R. Mann, for the Defendant

SCHWARZL, J.

Reasons for 11(b) Charter Ruling

1.0: INTRODUCTION

[1] The Applicant, Manpreet Singh, was charged with domestic violence offences in October, 2013. His trial was supposed to be heard over two days in February 2015 but was postponed until May 29 and June 15, 2015. On May 5, 2015 the Applicant sought to have the charges stayed pursuant a claim that his right to be tried within a reasonable time has been violated. What follows is my ruling on this application.

2.0: CHRONOLOGY OF EVENTS

2.1: Swearing of the Information to the first Judicial Pretrial (October 18, 2013 to April 4, 2014)

[2] On October 18, 2013 the Applicant was arrested for allegedly assaulting and threatening his wife. A four-count Information was sworn including two counts of common assault, and one count each of threatening and assault with a weapon.

[3] On October 21, 2013 the Applicant was released on a recognizance. Amongst other conditions, he was ordered to live with a surety, have no contact with the complainant, and to exercise access to his children through a mutually agreeable third party or by means of a Family Court order.

[4] November 13, 2013 was the Applicant's first appearance since being released on bail. He attended court with a lawyer, Mr. Randy Baran. Crown counsel provided disclosure directly to the Applicant. Mr. Baran told the court that he was not yet retained and requested the matter go over to December 11, 2013.

[5] On December 8, 2013 Mr. Baran wrote a letter to the Crown Attorney seeking additional disclosure.

[6] On December 11, 2013 the Applicant appeared with counsel, Mr. M. Buchler. Further disclosure was provided by Crown counsel at that time. At the Applicant's request, the case was adjourned until January 8, 2014.

[7] On January 8, 2014 the Applicant appeared with counsel, Mr. Baran. Mr. Baran told the court he is still in the process of being retained. Crown counsel provided more disclosure, this time being a DVD of the complainant's statement. At Mr. Baran's request the matter was adjourned until February 5, 2014.

[8] On January 14, 2014 the Applicant's bail was varied on consent of the Crown to add another surety.

[9] On February 5, 2014 the Applicant appeared with Mr. Baran who advised the court that he is still not yet retained. He also told the court that he was still waiting disclosure of the complainant's criminal record, if any. Crown counsel told the court that should not hold up setting a trial date. Mr. Baran told the court he was still awaiting disclosure of any police officer disciplinary records and any paramedic reports. At Mr. Baran's request the matter was put off until March 5, 2014.

[10] On March 5 2014 Mr. Baran appeared on behalf of the Applicant. Mr. Baran told the court he had now been retained to attempt to resolve the matter. Crown counsel provided Mr. Baran with more disclosure. At the request of Mr. Baran the case was adjourned to April 4, 2015 for a judicial pre-trial conference, prior to which Mr. Baran undertook to meet with Crown counsel to discuss the case.

[11] On April 4, 2014 Mr. Baran appeared on behalf of the Applicant before Mr. Justice Blacklock for the purpose of a judicial pre-trial conference. However, because both parties agreed that the trial could be completed within one court day, no judicial pre-trial conference was necessary. At the request of Mr. Baran, the case was postponed again to try to resolve the matter. Mr. Baran advised the court that if the case did not resolve, he would not be trial counsel.

[12] The time between the swearing of the Information until the first judicial pre-trial date was 6 months and 15 days.

2.2: First Judicial Pre-Trial Conference to Second Judicial Pre-Trial Conference (April 4, 2014 to June 27, 2014)

[13] On the scheduled judicial pre-trial conference date of April 4, 2014 the matter was adjourned at the request of counsel for the Applicant to May 7, 2014. The case did not resolve, thus ending Mr. Baran's involvement, who returned some DVDs to the Crown Attorney's office.

[14] On May 7, 2014 current counsel, Mr. Mann, appeared on behalf of the Applicant. Mr. Mann requested the matter be adjourned for three weeks to May 28 so that he could retrieve the returned DVDs from the Crown Attorney. The court granted the adjournment and asked counsel to conduct a resolution meeting with Crown counsel in the interim.

[15] On May 28, 2014 Mr. Mann appeared again on behalf of the Applicant. He told the court that he had met with Crown counsel that morning to discuss the case. During the hearing of this application before me, Mr. Mann told me that during his meeting with Crown counsel on May 28 he was told that the prosecution intended to lead evidence of prior, but uncharged allegations of violence made against the Applicant by the complainant. Both parties agreed a judicial pre-trial conference was necessary. The court offered May 29, June 13, 20, and 27. The Crown turned down May 29; Mr. Mann did not indicate his availability for that day. Mr. Mann declined June 13 and 20. The Crown did not indicate its availability for either of those dates. Mr. Mann accepted the next date offered by the court which was June 27, 2014.

[16] On June 27, 2014 a judicial pre-trial conference was held before Mr. Justice Cowan. During the hearing of this application before me, Mr. Mann candidly informed me that the subject of prior acts of discreditable conduct was discussed during the judicial pre-trial conference. Mr. Mann informed me that it was because the Crown said it intended to lead such evidence from the complainant that he felt the matter should be scheduled for a one and a-half day trial.

[17] The time between the first judicial pre-trial conference and the second one was 2 months and 24 days.

2.3: Setting the Trial Dates and the First Trial Dates (June 27, 2014 to February 13, 2015)

[18] On the second judicial pre-trial conference date of June 27, 2014 the parties set a trial for 1½ days. The first day for trial offered by the court was December 30, 2014 which was 6 months and 4 days into the future. The Crown accepted that date but Mr. Mann did not. The next dates offered by the court were February 13 and 17, 2015. Both dates were accepted by both parties: Trial Verification Sheet (Tab 15, Application Record).

[19] It is unknown whether or not Mr. Mann was available on any days prior to December 30, 2014. Nor is it known if he was available on any dates between December 30, 2014 to February 13 and 17, 2015.

[20] On December 8, 2014 Mr. Mann appeared on behalf of the Applicant to confirm his readiness for trial. The Crown also confirmed its readiness. No one referred to the issue of prior discreditable conduct at the confirmation hearing.

[21] The time between setting the trial dates and the first trial date was 7 months and 18 days.

2.4: The First Trial Date (February 13, 2015)

[22] The trial did not proceed on either of the scheduled trials dates of February 13 or 17, 2015. On February 13, Mr. Mann asked for, and received, an adjournment. He asked for the adjournment because he felt compelled to due to receiving a written Application Record from the Crown Attorney shortly beforehand. The application was in relation to prior acts of discreditable conduct. There was some dispute whether Mr. Mann received the materials the morning of trial or a couple of days in advance. Mr. Mann told the trial judge that on February 10, 2015 Crown counsel called him to say that the materials would be couriered to him the next day because they had mistakenly served Mr. Baran with application on February 9, 2015.

[23] Curiously to me, neither the Crown nor Mr. Mann thought to have the materials faxed to him on February 10, 2015. Whatever the actual date of service, all agreed it was only days before the trial.

[24] Mr. Mann told the trial judge that because the prosecution had served the materials in contravention of the minimum 30 days notice required by the Rules of Criminal Procedure, he wanted time to provide a detailed written reply. The Rules provide a respondent with 15 days prior to the hearing date to reply. No reply was filed as of the hearing of this Charter application, but the Defendant had until May 14 to do so.

[25] Ms. Methurin told the trial judge on February 13, 2015 that the application to lead evidence of prior acts of discreditable conduct was discussed with Mr. Mann during the pre-trial conference and that the trial time was based on everyone's understanding that the Crown would seek to adduce this evidence.

[26] When I asked Ms. Methurin why the Crown did not file its written application in accordance with the Rules, she submitted that the written application was merely a courtesy as well as an opportunity to disclose transcripts of the two video statements that the complainant had given the police within days of the alleged offences.

[27] After the adjournment was granted, the parties set two new days for trial: May 29 and June 15, 2015. The court offered March 2, 4, 12, 23, 24; April 8 and 9 before offering May 29 and June 15. The prosecution accepted all dates offered; the defence rejected the March and April dates: Trial Verification Sheet (Tab 18, Application Record).

[28] The time between the first trial date of February 13, 2015 and the subsequent dates of May 29 and June 15, 2015 is 3 months and 17 days to May 29 and 4 months and 3 days to June 15.

[29] The total time between the swearing of the Information and the second trial date is 21 months.

3.0: ASSERTED PREJUDICE

[30] The Applicant gave evidence that he was released on a recognizance of bail in October 2013. The bail order restricts his liberty in a number of ways. Of significance to this application he must live with his surety and he can only see his two young children either in the company of an agreed upon third party or by terms of a family court order.

[31] The Applicant testified that the delay of the trial between February and June 2015 has made it impossible for him to keep a promise made to his mother that she could live with him from February forward. This is because he must still reside with his surety and not on his own as he had anticipated.

[32] The Applicant testified that his bail restrictions have made it more difficult to maintain and cultivate his relationship with his children. However, the Applicant said that the complainant has commenced proceedings in Family Court and his access to his children has actually improved recently, having risen to from two to nine hours each Sunday.

[33] In cross-examination, the Applicant agreed that on one occasion the Crown consented to a change in his bail yet he has never since sought their cooperation in removing or modifying restrictions at any time including at or after the adjournment of the trial.

[34] The Applicant testified that these charges have created anxiety to the point where he has lost weight, suffered a sleep disorder, and mental distress that all require medical care and medication. While acknowledging that the cause of these health problems is being charged, the delay has intensified the disruption to his health and peace of mind.

[35] The Applicant testified that the delay in this trial has resulted in a loss of concentration at work. In turn, this loss of concentration has led to work-place injuries and reduced hours due his distracted mental state.

[36] Lastly, the Applicant testified that he has had to spend $4,000 more in legal bills as a result of the delay to cover both additional trial costs and the expense of bringing this application.

4.0: APPLICABLE LEGAL PRINCIPLES

[37] All persons 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 a probabilities that he was not tried within a reasonable time: R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.).

[38] The "11(b) clock" starts running once the Information is sworn. R. v. Kalanj, [1989] 1 S.C.R. 1594 (S.C.C.) at p. 1607.

[39] 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, at ¶ 32 – 36.

[40] 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. 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.

[41] With respect to the concept of "inherent time requirements" it encompasses a number of aspects including:

• (a) the intake period of the case: R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 (S.C.J.) at ¶ 27 – 30;

• (b) the court time required to try the case: R. v Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.) at ¶ 55; R. v. Purewal, [2014] O.J. No. 2824 (S.C.J.) at ¶ 93 – 94;

• (c) adjournments required to find additional court time to try the case when the initial time estimates prove inaccurate: R. v. Allen; R. v. Qureshi, [2004] O.J. No. 4711 (C.A.);

• (d) the complexity of the case: R. v. Purewal, at ¶ 97 – 99;

• (e) the need for a JPT: R. v Tran, at ¶ 33 – 37; R. v. Emanuel, 2012 ONSC 1132, [2012] O.J. No. 709 (S.C.J.) at ¶ 16, 20-21; R. v. Nguyen, 2013 ONCA 169, [2013] O.J. No. 1243 (C.A.) at ¶ 54; R. v. Konstantakos, 2014 ONCA 21, [2014] O.J. No. 156 (C.A.); and

• (f) a reasonable time to prepare for the hearing: R. v. M.(N.N.) (2006), 209 C.C.C. (3d) 436 (Ont. C.A.); R. v. Tran, at ¶ 32.

[42] 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.).

[43] Scheduling of trial time requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability: R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26 (S.C.C.). A reasonable allowance for the schedule of counsel must be made thus counsel are obliged to provide the court with their earliest available dates, so that, if need be, some accurate measure of institutional delay can be undertaken: R. v. Duhamel, 2012 ONSC 6448, [2012] O.J. No. 5392 (S.C.J.) at ¶ 47. There is no breach of s. 11(b) when the court offers a trial date within a reasonable time, but the accused refuses the offer and delays the proceeding further. Where a court offers multiple dates over a period of months, the accused is expected to accept a new date within a narrow range of time: R. v. Amyotte, [2009] O.J. No. 5122 (S.C.J.). Conversely, there will be a breach of 11(b) if the court offers only one or a very few dates.

[44] In Peel Region, the guideline for bringing a "straightforward" matter to trial in Ontario Court is eight to nine months of institutional delay: R. v. Meisner, [2003] O.J. No. 1948 (S.C.J.) affirmed, [2004] O.J. No. 3812 (C.A.); R. v. Rego, [2005] O.J. No. 4768 (C.A.); R. v. Reid, [2005] O.J. No. 5618 (S.C.J.). In Reid, Durno J stated that if the matter is somewhat more than a straightforward case, it may extend the Peel guideline to 8 to 10 months of institutional delay. In R. v. Purewal, [2014] O.J. No. 2824 (S.C.J.) at ¶ 71, Durno J reiterated that in Peel Region, the tolerable period of institutional delay for straightforward cases in the Ontario Court of Justice is at the low end of the eight to ten months. Tolerable institutional delay for more complex cases will be in the higher end of this range.

[45] A guideline is neither a bright line nor a hard-and-fast rule: R. v. Amyotte, supra; R. v. Ratneswaran, [2013] O.J. No. 5037 (S.C.J.). Section 11(b) Charter applications must be assessed on a case-by-case basis as opposed to applying the guidelines as though they were legislated limitation periods. A deviation of several months in either direction from the guidelines can be justified by the presence or absence of prejudice: Morin, supra at ¶28; R. v. Kovacs-Tatar, [2004] O.J. No. 4756 (C.A.); R. v. Apolinario, [2007] O.J. No. 4788 (S.C.J.) at ¶ 138 – 140. Where the delay is on the edge of what is constitutionally tolerable, the issue of prejudice will be important to the outcome: R. v. Campagnaro, [2005] O.J. No. 4880 (C.A.).

[46] 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 the Applicant is out of custody.

[47] Prejudice to an Applicant 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), 2010 ONCA 689, 104 O.R. (3d) 32 (C.A.). However, prejudice will not usually be inferred unless the delay is "substantially longer than can be justified on any acceptable basis": R. v. Smith, [1989] 2 S.C.R. 1120 at p. 1122; R. v. Lahiry at ¶ 147. Moreover, prejudice which results from the inherent time requirements of the case or the actions of the accused is to be accorded no weight: R. v. Ignagni, 2013 ONSC 5030, [2013] O.J. No. 3531 (S.C.J.) at ¶ 74.

[48] 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.

[49] The focus of the prejudice inquiry is on prejudice caused by the delay, not from being charged: R. v. Rahey (1987), 33 C.C.C. (3d) 289 (S.C.C.); R. v. Pusic (1996), 30 O.R. (3d) 692 (Gen. Div.); R. v. A.K. and A.V., [2005] O.J. No. 1405 (C.A.) at ¶ 157; R. v. Patel, [2014] O.J. No. 2777 (S.C.J.) at ¶ 93.

[50] Significant prejudice can be caused by having to pay for additional counsel fees where the trial is not reached or completed due to reasons beyond the Applicant's control: R. v. McBride, [2012] O.J. No. 1077 (O.C.J.); R. v. Kamboj, [2013] O.J. No. 5478 (O.C.J.).

[51] 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 Applicant's 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 domestic violence offences are serious.

5.0: ANALYSIS

5.1: Reasons For Delay

[52] From the swearing of the Information on October 18, 2013 to June 27, 2014 when the first trial dates were set was 9¼ months. It took this long for the parties to be ready to schedule a trial for several reasons: (a) the Applicant did not retain Mr. Baran until March, 2015; (b) between March and May, 2015 Mr. Baran attempted to resolve the case on behalf of the Applicant; (c) when the case could not be resolved, the Applicant hired trial counsel, Mr. Mann; and (d) a judicial pre-trial conference was scheduled and held within a reasonable time once it was agreed one was necessary.

[53] I find that during this period, the Applicant was content with the pace of litigation and he appeared to be in no rush to move the matter toward trial. I would assess all of this 9¼ month period as neutral time.

[54] When the parties were finally ready to set a trial date, they agreed the matter would take one and a-half days for trial for a straightforward domestic violence case. A significant consideration in assessing the trial time was the knowledge of the Applicant that the prosecution intended to lead evidence of prior discreditable conduct based upon information contained in two statements given by the complainant to police. DVDs of these statements had been given to the defence earlier on in the proceedings. Mr. Mann had discussions with Crown counsel regarding this issue twice: first during a meeting between the lawyers on May 28, 2014 and second during the pre-trial conference conducted on June 27, 2014.

[55] The first date offered by the court was December 30, 2014, which was some six months into the future. The Crown was available that day, but it was rejected by the Applicant without any reason being provided either at that time or in the hearing of this application. Nor is there any information as to whether or not the defence was available prior to December 30. The next two days offered by the court were February 13 and 17, 2015 which were accepted by all parties. There is no information whether or not the defence was available between December 30, 2014 and February 13, 2015.

[56] The time between setting the trial and the first trial date was 7½ months. Of this time, I assign one month as neutral preparation time for both parties. I attribute one month as further neutral time for not knowing when, if at all, the defence was available in between any of the dates offered. I describe the remaining 5½ months of this period as delay caused by limitations on institutional resources.

[57] The trial was adjourned on the first trial date because the Crown failed to serve its written notice of application regarding prior discreditable conduct within the time prescribed by the Rules. This late filing is something for which the Crown must be held responsible. However, I also find that the Applicant was partially responsible for the delay as well. The defence was not caught off guard in any way, shape, or form by the application. They were well aware of the nature, scope, and basis of the application when the trial was first scheduled. In fact, the trial time was arranged by the parties with full knowledge and expectation by the Defendant of the application. A past discreditable conduct application is not unusual in domestic violence cases, the legal principles and authorities being well known to all counsel. The evidentiary application was based upon materials disclosed to the defence prior to setting the trial dates. I would have expected the defence to have prepared for the evidentiary application as part of its overall trial preparation whether or not formal written notice was given above and beyond the informal oral notice given months earlier.

[58] The time between the adjourned trial and the second of the two rescheduled trial dates was 4¼ months. When the trial was rescheduled, the Applicant turned down seven dates offered by the court within the next two months. He offered no information as to his availability on any dates other than those offered by the court. Without this information, it is impossible to say what portion of this time is as a result of institutional delay and unavailability of the defence. Therefore, of the 4¼ months between the first and subsequent trial days, I assess one month as having been caused by actions of the Crown, one month as having been caused by actions of the Applicant for not accepting any of seven earlier dates offered by the court, and the remaining 2¼ months as being the result of institutional delay.

5.2: Prejudice

[59] In this situation some, but not much, general prejudice has occurred due to delay. The vast bulk of the general prejudice in this case arises not from delay, but from being charged in the first place. Furthermore, until the first trial date was set, the Applicant appeared well satisfied with the slow pace. I do not find any inordinate general prejudice caused by delay in the case at bar.

[60] Specific prejudice to the Applicant derives from two main sources: first, the enhanced anxiety caused by not having his trial when it was first scheduled and second, from the wasted and additional legal costs associated with having to attend on new trial dates. In the first instance, I find the anxiety claimed could have been greatly reduced, if not eliminated had the Applicant taken steps between June 2014 and his first trial date to prepare for an evidentiary application he knew as coming. Furthermore, the anxiety of not seeing his children is not caused by any delay, but rather by restrictions imposed in the course of civil litigation with his wife. The Applicant's access to his children is in fact greater now than at any earlier time since being charged. The anxiety suffered by not being able to live with his mother could well have been mitigated by seeking a variation to his bail either with the consent of the Crown or by bringing a bail review, neither of which was done. I find it significant that for nearly half the time this case has been in the system, the Applicant was content with the pace of litigation, which materially undermines the specific prejudice he asserts. The additional legal costs and indeed most of the anxiety caused by the adjournment in February could have been avoided or substantially mitigated (a) by being prepared for application which the Applicant knew about well before being served in writing or (b) by accepting dates offered as early as three weeks from the original trial date.

[61] After considering all of the evidence, I do not find any significant specific prejudice caused by delay.

[62] In balancing all of the circumstances and weighing them against society's interest in proceeding with a trial on its merits, I find only minimal prejudice (either general or specific) to the Applicant in this case.

6.0: CONCLUSIONS

[63] For the foregoing reasons, I apportion the delay over the entire 21 months of this case as follows:

Category	Duration
Inherent Time Requirements or other Neutral Time	10¼ months [1]
Actions of the Crown	1 month [2]
Actions of the Defence	1 month [3]
Limitations on Institutional Resources	7¾ months [4]
TOTAL	21 months

[64] In assessing whether or not the overall delay in this case was unreasonable, I have taken into account the following:

• (a) the Applicant was content with the pace of proceedings for a substantial amount of time;
• (b) there was significant neutral time;
• (c) the combination of Crown actions and institutional delay totaling 8¾ months kept this case within acceptable boundaries of reasonable delay;
• (d) any prejudice to the Applicant caused by the overall delay was slight; and
• (e) the allegations are serious and favour a trial on their merits.

[65] Balancing all of the circumstances and the reasons for delay, I find that the Applicant has failed to demonstrate that his right to be tried within a reasonable time as guaranteed by section 11(b) of the Charter was probably violated in this case. The application is dismissed and this trial will proceed as scheduled on May 29 and June 15, 2015.

Original signed by The Honourable Justice Richard H. K. Schwarzl

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice

Footnotes

[1] 9¼ months between being charged and setting the first trial dates plus 1 month for not knowing when or if the defence was available at any time between June, 2014 and February, 2015.

[2] For the Crown not bringing their written notice of application with the time prescribed by the Rules.

[3] For the Applicant turning down multiple new trial dates offered after the first trial date was adjourned.

[4] 5½ months between the original set date and the first trial date plus 2¼ months between the adjourned trial and the second of the rescheduled trial dates.