R. v. Kopalasingam

Date: 2016-07-15

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Rajaniath Kopalasingam

Before: Justice L. Feldman

Heard on: May 10, June 10, 2016

Reasons for Judgment released on: July 15, 2016

Counsel:

• K. Rawluk, for the Crown
• A. Ross, for the accused Rajaniath Kopalasingam

FELDMAN J.:

Introduction

[1] Rajaniath Kopalasingam is charged with Operation Impaired and Refuse Breath Sample. He has applied under s. 11(b) of the Charter of Rights and Freedoms to have his charges stayed on account of unreasonable delay.

[2] These are the allegations. Police received information that the applicant left a bar in Scarborough and attempted to drive out of the parking lot. Witnesses stopped the car. The applicant exhibited signs of impairment. They called the police. On arrival, the officers observed that his eyes were glazed and glossy and that a strong odour of alcohol came from his breath. The applicant was arrested and transported to the police station. There, despite 15 attempts, he failed to provide a suitable sample of his breath. He was charged, fingerprinted, photographed and later released on a Promise to Appear.

The Chronology

[3] Mr. Kopalasingam was arrested on September 8, 2014. When he made his first appearance on October 13, as he was required to do, there was no Information before the court. He was sent away.

[4] The Crown is unable to provide reasons for the failure by the police to have the Information sworn in a timely manner. Inexplicably, it was not sworn until February 24, 2015.

[5] The Crown refers to March 5 as the applicant's first appearance in court, six months after his arrest. In reality, it was his second attendance. No disclosure was provided. It is well known that police notes, as well as other documents and videos are completed on the day of arrest.

[6] The applicant was provided initial disclosure on April 10. Following six further attendances, full disclosure was made available on August 11, five months after his first official appearance, eight months after he first appeared in court on a Promise to Appear. It is difficult to understand why, but for inferred administrative laxity, the police were unable or unwilling to produce full, or at least substantial disclosure, available on the day of arrest, within a more reasonable time frame. It is of note that the prosecution made no special effort in these circumstances to provide more timely disclosure.

[7] The following sets out the chronology of attendances leading up to the provision of disclosure. On May 5, defence counsel attended unaware that initial disclosure had been provided. The matter was next adjourned on May 29 because the booking and breath test videos were unavailable, as they still were on June 16, July 7 and July 28. When the applicant appeared on August 11, he was advised that the videos were able to be picked up.

[8] Defence counsel did not obtain disclosure until September 4. He did not conduct a Crown pre-trial until October 7. A judicial pre-trial was set on November 20 for January 8, 2016. Trial dates were set for August 15 and 16.

[9] Mr. Rawluk submits that the total delay is 1 year, 5 months, 24 days, less 6 weeks of delay waived by the defence (Oct. 7- Nov. 20). He says the operative delay, including both Crown and institutional delay, is 7.5 months. Of significance, the total delay is less than 18 months.

[10] More particularly, on January 8, 2016, a trial date was set for August 16. In R. v. Lahiry, 2011 ONSC 6780, Justice Code said, at para. 31, that, "in routine drinking and driving offences, the amount of time needed to prepare for a short trial is not great". Defence counsel may have been ready to proceed in short order, but did not put his earliest available dates on the record.

[11] I am unable, in these circumstances, despite police indifference and Crown laches during the pre-charge period, given counsel's omission, to attribute the entire seven months to trial as institutional delay. Rather, I am bound by Lahiry, to subtract two months, as part of the inherent time requirements, for counsel preparation and availability where the latter is unknown. I would hold institutional delay here to be five months.

A Culture Change

[12] Following submissions on this application rooted in Morin principles [R. v. Morin, [1992] S.C.R. 771], the Supreme Court released its judgment in R. v. Jordan, 2016 SCC 27. The majority in Jordan set out a new framework for applying s. 11(b) because it felt that the Morin framework was "unduly complex", led to a system that had come to tolerate excessive delays that impacted victims' lives and diminished public confidence in the administration of justice.

[13] The court set a ceiling of 18 months for cases set in provincial court beyond which delay is presumptively unreasonable. That contemplates delay from the charge to the actual or anticipated end of trial minus defence delay. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. [paras. 46-47]

[14] Defence delay is occasioned by a clear and unequivocal waiver or when caused solely by its own conduct. [paras. 61-65]

[15] Of relevance here, where the delay falls below the presumptive ceiling, the defence bears the onus to show that the delay is unreasonable. It does so by establishing that "it took meaningful steps that demonstrate a sustained effort to expedite the proceedings" and that the case took "markedly longer" than it reasonably should have. [para. 82]

[16] Stays beneath the ceiling are to be granted only in clear cases, factoring in "tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increased complexity of most cases". [para. 83]

[17] In assessing whether the defence took 'meaningful, sustained steps', the court is to consider "what the defence could have done, and what it actually did, to get the case heard as quickly as possible". That is, acting reasonably, did the defence attempt to set the earliest possible hearing dates, act cooperatively with the Crown and court, put the Crown on timely notice when delay was at issue and conduct all applications expeditiously. [paras. 84-85]

[18] As well, the defence need show that the time the case has taken 'markedly exceeds' the reasonable time requirements of the case. These factors may include complexity of the case, local considerations and whether the prosecution took reasonable steps to expedite the proceedings. Trial judges are to use their own knowledge of the jurisdictions in which they preside, including how long a case of that nature takes to get to trial. This is not a matter of precise calculation but rather a question of fact well within the experience of the trial judge. [paras. 87-91]

[19] For cases currently in the system, the framework is to be applied 'flexibly and contextually' mindful of the parties' reliance on the previous state of the law. [para. 105] In this regard, it is to be noted that defence initiative was not expressly required in Morin. In close cases, however, any defence initiative would assist it in this analysis. [para. 99]

[20] Finally, given the level of institutional delay tolerated under the previous approach, including 8-10 months as a guideline for drinking and driving cases, the court indicated that for matters currently in the system, a stay of proceedings below the ceiling will be difficult to obtain. [para. 101]

Pre-Charge Delay, Disclosure and Intake

[21] The pre-charge delay in this case is unexplained and unacceptably long. Nonetheless, despite jeopardy, following arrest, to the liberty and security interests of the applicant, he or she is not considered "charged" and the s. 11(b) clock does not commence until the Information is sworn: R. v. Kalanj, [1989] S.C.J. No. 71, at paras 16-18. I am bound by Kalanj.

[22] There has been some pushback in more recent authorities, given the Charter interests at stake on arrest, to the unfettered discretion of the police to determine when an accused is "charged" for the purpose of s. 11(b). In R. v. Swaminathan, 2015 ONCJ 394, [2015] O.J. No. 3883 (Ont. C.J.), Crewe J. pointed out that upon arrest, the accused had an obligation to attend court and in his view was therefore entitled to disclosure of the evidence, setting in motion the clock on the "intake" portion of the overall delay, ordinarily treated as neutral in the s.11(b) calculus. I agree with the implication of my colleague that the police and Crown need be efficient and accountable in meeting its obligations in this regard.

[23] Justice M.G. McLeod was of a similar view in R. v. Hashmi, [2016] O.J. No. 1116 (Ont. C.J.), where he asserted that the four weeks between arrest and the date the Information was sworn ought not to be treated as neutral. In this, he relied on a strong statement from Green J. in R. v. Duszak, [2013] O.J. No. 5015 (Ont. C.J.) that delay on the part of the police in swearing the Information "defers the commencement of s. 11(b) protection for an accused and, further in Justice McLeod's words, is "inconsistent with the public interest in seeing that criminal matters are dealt with in an efficient and effective way". [Hashmi, para 33]

[24] Of significance, in this regard, Justice Green went on to say that neither the police nor the Crown can "rely on such self-created delay to suspend the provision of disclosure or their own obligations to ensure compliance with s. 11(b). Nor can they effectively manipulate the s. 11(b) framework to expand the window of justifiable intake". [para. 49]

[25] For these reasons, Justice Green recommended a judicial response to such delay. He said, at para. 34, that the court should take this period into consideration in determining the length of time required for intake, bearing in mind Justice Code's allocation of approximately two months for intake purposes.

[26] Importantly, as well, Justice Green pointed out the obvious, that is, that producing disclosure in these uncomplicated cases, as here, is not difficult. As he notes, virtually all the essential disclosure was in the possession of the authorities at the time of the accused's release from custody. [para. 29]

[27] In the case at bar, full disclosure was not available until 5 ½ months after the swearing of the Information, 10 months after the applicant's first actual appearance in court. As expressed earlier, this is unacceptable and is to be discouraged.

[28] It would appear that late provision of DVD copies of the videotapes caused the bulk of the delay. In R. v. Farry, [2010] O.J. No. 1977 (S.C.J.), Justice Trotter expressed frustration with such delay. He said, at paras. 11-12:

This type of delay, which is caused by the police, is a common occurrence in the Ontario Court of Justice. In our digital world, in which data is so easily shared, there is no good reason why a copy cannot be produced in a very short time…it should have been available by the first appearance date (which was over a month following the arrest). Meaningless appearances are routinely made in the Ontario Court of Justice while everyone waits for the police to make copies of what transpired in the breathalyzer room. These needless appearances clog the already busy courtrooms in this province. This is unacceptable…it is important that this evidence be available at the earliest opportunity.

[29] The intake period, part of inherent time requirements, provides a reasonable opportunity for counsel to be retained and for the prosecution to provide essential disclosure. Two months is considered a reasonable intake period in simple drinking and driving cases: Lahiry, at para. 22.

[30] In this uncomplicated, routine case, producing disclosure is not difficult. There is no reason it could not have been produced in one month. Nonetheless, I am mindful that counsel did not make his first appearance until May 5, although he was no doubt retained prior to that date. In the circumstances, I would attribute two months to intake, leaving the Crown responsible for 3 ½ months of delay in meeting its disclosure obligations in full.

Is a Stay Warranted in these Circumstances?

[31] On this evidence, I would attribute 8 ½ months to Crown and institutional delay, well within the Morin guideline, closer to the lower end. Even were it otherwise or just above the guideline, I would be obliged to consider whether the delay 'markedly exceeds' the reasonable time requirements of the case. It does not. The Supreme Court observed that for cases currently in the system, a stay of proceedings below the ceiling will be difficult to obtain.

[32] The application will be dismissed.

Released: July 15, 2016

Signed: "Justice L. Feldman"