Ontario Court of Justice

Date: September 11, 2015

Court File No.: Brampton 14-9116

Between:

HER MAJESTY THE QUEEN

— AND —

GURSIMRAN SINGH

Before: Justice D.F. McLeod

11(b) Motion

Reasons released on: September 11, 2015

Counsel:

• Mr. Patrick Quilty — counsel for the Crown
• Mr. A. Little — for the defendant

D.F. McLEOD J.:

Introduction

[1] Mr. Singh currently stands charged with the offences of impaired driving and driving "Over 80 mgs of alcohol in 100 mls of blood" contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code. This matter is currently scheduled for trial on September 14 and 15, 2015. By way of a Notice of Application, Mr. Singh applies for a stay of proceedings on the grounds that his rights as guaranteed by ss. 7 and 11(b) of the Canadian Charter of Rights and Freedoms ("Charter") have been violated. The period of delay in this case from the date Mr. Singh was arrested on July 11, 2014, to September 15, 2015, is approximately 14 months.

The Facts

[2] July 11, 2014 – Mr. Singh was arrested and released on a promise to appear with a first appearance court date of July 25, 2014.

[3] July 22, 2014 - Information was sworn.

[4] July 23, 2014 - Counsel for Mr. Singh faxed a disclosure request to the Brampton Crown Attorney's office.

[5] July 25, 2014 - Counsel Frederick S. Fedorsen appeared on behalf of Mr. Singh and filed a designation of counsel. Initial disclosure was received by counsel, at which point he placed comments on the record indicating that he had not received the breath room DVD. Mr. Fedorsen further asserted "we wouldn't be able to move this matter forward without that. My friend is aware of the problem …". Mr. Singh's matter was adjourned to August 15, 2014.

[6] July 28, 2014 - Counsel for Mr. Singh faxed another disclosure request to the Brampton Crown Attorney's Office.

[7] August 5, 2014 - Counsel for Mr. Singh faxed a further disclosure request to the Brampton Crown Attorney's Office.

[8] August 15, 2014 - E. Crisante appeared on behalf of Mr. Singh and counsel. Additional disclosure inclusive of the breath room video, the ICAD printout, and the prisoners' log were provided to the defence. Agent for Mr. Singh also placed on the record "they believe there's some outstanding items of disclosure … specifically we need the cell video." The matter was adjourned to September 5, 2014.

[9] August 18, 2014 - Counsel for Mr. Singh faxed another disclosure request to the crown.

[10] September 5, 2014 - E. Crisante appeared on behalf of Mr. Singh and counsel. Further disclosure in the form of radio communications was provided to the agent for counsel. Ms. Crisante in part stated: "I know our … client is anxious to proceed on this matter … counsel specifically needs the cell video …". The matter was adjourned to September 26, 2014.

[11] September 8, 2014 - Counsel for Mr. Singh faxed another disclosure request to the Crown.

[12] September 26, 2014 - A. McQuaig appeared on behalf of Mr. Singh and counsel. She stated, in part: "[o]ur client is eager to proceed. We have scheduled a pre-trial for October 8th…". The crown provided a copy of the ICAD report. Mr. Singh's matter was adjourned to October 10, 2014.

[13] October 3, 2014 - Counsel for Mr. Singh faxed another disclosure request to the crown.

[14] October 10, 2014 - Counsel Frederick S. Fedorsen appeared on behalf of Mr. Singh. He advised that he had started a crown pre-trial on Mr. Singh's matter but that it needed to continue because of outstanding disclosure. Mr. Fedorsen stated, in part: "[w]e are asserting 11(b) rights on this just so the crown knows". The crown responded: "I understand my friend's position …my friend and I … had a pre-trial … with regard to the Singh matter. The holding facility DVD and a number of sets of senior officers' notes are outstanding. I'm providing that now. My friend requires those in order to determine the time estimates, this may be a matter that requires a JPT. And so I think my friend is well within his rights to assert his 11(b) rights, the crown understands …". The Singh's matter was adjourned to October 24, 2014.

[15] October 24, 2014 - A. McQuaig appeared on behalf of Mr. Singh and Counsel. Mr. Singh's matter was adjourned to November 7, 2014. This date was set in order to complete the initial pre-trial.

[16] November 7, 2014 - Counsel Frederick S. Fedorsen appeared on behalf of Mr. Singh and set the matter down for a judicial pre-trial scheduled for December 2, 2014, which was the first date offered by the clerk of the court.

[17] December 2, 2014 - A. McQuaig appeared on behalf of Mr. Singh and counsel. The Singh matter was adjourned to December 5, 2014 for a JPT because of a scheduling conflict precipitated by the office of Mr. Fedorsen.

[18] December 5, 2014 - Counsel Frederick S. Fedorsen appeared on behalf of Mr. Singh and conducted a JPT with Justice Currie. The Singh matter was set for trial on September 14 and 15, 2015. When Mr. Singh's trial was set on the record, Mr. Fedorsen stated, in part: "11(b) rights have been asserted all along in this matter. The earliest date that was offered to us was September the 8th and 9th, and as Your Honour had indicated before they are now done in pairs of two. On every single date that was offered we were available, we finally took the … dates as indicated previously. In terms of availability, both Mr. Little and myself have all kinds of availability, virtually in every week from today, starting – all the way through to these dates, we have all kinds of availability. In terms of ability to do the trial, Mr. Little would be available if we had a date literally tomorrow – I'll say, today is Friday, at the very most in two days he would be ready to proceed with this trial and I think everybody knows that. So I'm putting that on the record for the purposes of 11(b), we're asserting rights. We're ready, willing and able, and if there are earlier dates we'd like to know them".

Law and Analysis

[19] The factors relevant to an assessment of the reasonableness of pre-trial delay are set out in R. v. Morin, (1992), 71 C.C.C. (3d) 1 (S.C.C.), at para. 31:

1. 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 defendant;
   • (c) Actions of the crown;
   • (d) Limits on institutional resources; and
   • (e) Other reasons for delay; and
4. Prejudice to the defendant.

[20] It is trite law that a stay of proceedings is the only appropriate remedy in those cases where the s. 11(b) hurdle of "unreasonable delay" is crested: R. v. Thomson, 2009 ONCA 771, 248 C.C.C. (3d) 477 (Ont. C.A.), at paras. 9-10.

[21] In Morin, the primary purpose of 11(b) is the protection of the individual rights of an accused by seeking to minimize the anxiety, concern, and stigma of exposure to criminal proceedings. There is however a secondary societal interest which is to see and ensure that members of its citizenry are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public. Martin J.A. in R. v. Beason, 36 C.R. (3d) 73 (Ont. C.A.) wrote, "trials held within a reasonable time have an intrinsic value. The constitutional guarantee enures to the benefit of society as a whole and, indeed, to the ultimate benefit of the accused…" (p.96). In some cases, however, the accused has no interest in an early trial and society's interest will not parallel that of the accused.

[22] The length of the process has caused increased stress and concern with respect to qualifying permanent residence status.

I. Length of Delay

[23] For the purposes of section 11(b), I calculate the length of delay from the date Mr. Singh's information was sworn to the end of the trial. In this matter "the clock" began to run on July 22, 2014. The matter was eventually set down for trial to begin on September 15, 2015. Thus, the total length of delay is approximately 13 months 24 days.

II. Waiver of Time Periods

[24] In my estimation the dates between December 2nd and December 5th of 2014 should be considered explicit waivers on the part of the defence.

III. Reasons for the Delay

[25] I am next required to scrutinize the reasons for the delay in this case. In Morin, in explaining how the reasons for delay should be catalogued and assessed, the Supreme Court identified a list of relevant variables, including the (a) inherent time requirements of the case; (b) actions of the accused; (c) actions of the crown; (d) limits on institutional resources; and (e) any other reason for the delay.

(a) Inherent Time Requirements

[26] In the case of R. v. Allen, Justice Doherty writes when addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete that case. R. v. Morin, supra, at p. 16. Those time requirements can include adjournments necessitated by the need to find additional court time when time estimates prove inaccurate. The case goes on further to state the inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b) calculus. The recognition and treatment of such inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on the court's resources. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

[27] In keeping with the stance taken by R. v. Allen, this court is of the opinion that the time period from October 28, 2012 to March 31, 2013 – 5 months and 3 days – should be considered as neutral time.

[28] The court's view is that neutral/intake time should be from July 22 - September 26, 2014 – 2 months and 7 days – which represents the date the information was sworn to the first date when the applicant was ready to set a date for trial.

[29] The defence's position with respect to delay centres around the timing of disclosure. The defence further suggests that in order for critical decisions to be contemplated the defence must avail themselves of all crucial disclosure materials and in so doing allow for greater certainty with respect to trial estimates.

[30] Further, the defence postulates that in order to make full answer and defence the crown's disclosure obligation must be satisfied at least with respect to disclosure that defence deems relevant and necessary in the circumstances.

(b) Actions of the Accused

[31] I have reviewed all of the transcripts with respect to this matter dating back to the first appearance on the 25th of July, 2014. In my estimation the dates between December 2 and December 5th of 2014 should be considered explicit waivers on the part of the defence which totals 3 days.

(c) Actions of the Crown

[32] Defence submits that the lack of disclosure can be directly linked to the delay in this matter and that such delay should be placed on the crown's side of the ledger.

[33] Justice Green in R. v. Seeveratnam [2010] OJ No. 2815 at para. 48 indicates that the key evaluative considerations are the potential materiality of the delayed disclosure, its bearing on the important forensic choices, and, if discernable, whether counsel's conduct in requesting the material sought is bona fide or designed to engineer delay.

[34] In the case before me I conclude that although it can be argued the defence from time to time can engineer delay, my reading of the transcripts coupled with the submissions of counsel do not suggest an attempted "filibuster." At each and every occasion it would appear that comments were placed on the record that defence was waiting for and expected to get the disclosure of certain evidence early in the process.

[35] Further, this court found as a fact that the delay in providing disclosure did not stop the defence from conducting a crown pre-trial as well as setting a judicial pretrial. These actions, in this court's estimation did not appear to be those of counsel who was attempting to lay in wait and allow the process to implode on itself.

[36] It is also noteworthy that the crown does not provide any substantive justification for the delay in the disclosure. This is of import because such rationale in certain instances could provide the court with a guidepost from which to determine where fault should appropriately be laid.

[37] Disclosure is fundamental to counsel's ability to properly advise and represent an accused. It is expected and it is reasonable that counsel would review all the crown disclosure before providing any advice to an accused as to whether to plead guilty or not. R. v. Malik [2014] OJ No. 355 p.22

But as result of counsel's failure to review or consider the videotape evidence, there was no consideration at all of whether there was a breach of Ms. Malik's Charter rights and, if so, what the appropriate remedy might be in the circumstances of this case - a stay, the exclusion of evidence or no remedy. R. v. Malik [2014] OJ No. 355 p.30

[38] This court attributes crown delay as follows: September 26 – October 24, 2014 (28 days).

(d) Limits on Institutional Resources

[39] December 5, 2014 – September 15, 2015 (9 months 11 days)

Prejudice to the Accused

[40] Mr. Singh has filed an affidavit which forms part of the application record. Mr. Singh has outlined his background as well as the adverse impact the delay in this matter has had on him personally.

Conclusion on the Total Apportionment of Time

[41] Based on the analysis above, it is the applicant's position that the total delay in bringing the applicant to trial should be apportioned in the following manner:

• Waiver = 0 days
• Intake/Inherent time requirements = approximately 2 months 5 days
• Actions of the crown = 29 days
• Actions of the defence = 3 days
• Institutional Delay = approximately 9 months and 22 days

[42] It was the intention of the defence to embark on a charter application with respect to this matter. Such an application would have to be brought with the requisite amount of notice and as such defence, although able to set a trial date, would have to take into account that 30 days' notice would have to be given to the crown's office in order for them to prepare a response. As a result, it is submitted that the total crown and institutional delay in this s. 11(b) application is approximately 11 months and 16 days.

[43] After looking at all of the factors as they are found in Morin, as well as balancing the individual and societal interests that are impacted by 11(b) of the Charter as well as the actual prejudice that has been occasioned by the delay in this case, I am satisfied that the defendant's section 11(b) Charter right to be tried within a reasonable time has been violated. Accordingly, I am granting his application and ordering a stay of the proceedings.

Released: September 11, 2015

Signed: "Justice D.F. McLeod"