Court Information

Ontario Court of Justice

Court File No.: Central East - Newmarket 4911-998-15-07680

Date: February 8, 2017

Parties

Between:

Her Majesty the Queen

— and —

Vinujan Gnanasubramaniam

Before: Justice David S. Rose

Ruling on Charter Application

Released on February 8, 2017

Counsel:

• Adib Nadi, counsel for the Crown
• Robert Tomovski, counsel for the defendant

Overview

[1] Mr. Gnanasubramaniam is charged with Possession of Cocaine and Marijuana for the Purpose of Trafficking from October 3, 2015. I am told this results from the seizure of a quantity of drugs found in a car driven by Mr. Gnanasubramaniam on that day. He now applies for a stay of proceedings because his right to a trial in a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms has been violated. The trial is scheduled to take place from March 13 – 16, 2017. Mr. Tomovski brought this Application on January 18, 2017.

[2] Mr. Gnanasubramaniam was arrested on October 3, 2015 along with Roshan Raveendran and Sanjeewan Sandrapalu, and brought before a Justice for a bail hearing the next day, when the Information was sworn to and he was released on Bail. His bail terms include a residence term for each and every night as well as a curfew between 11pm and 6am.

[3] Mr. Gnanasubramaniam appeared before a Justice on October 30, 2015 out of custody and was provided with disclosure. On November 16, 2015, Mr. Tomovski wrote a follow up disclosure letter to the Federal Crown Attorney asking for 11 pieces of disclosure which were not in the initial disclosure package. Four of those items were notes of the arresting officers from the incident, who searched and found the drugs in the car.

[4] On November 26, 2015, Mr. Tomovski appeared in Court on behalf of both Mr. Gnanasubramaniam and Mr. Sandrapalu. Further disclosure was given out, but it appears that it was incomplete. The follow up disclosure revealed for the first time that two of the three accused had given statements on video. On November 30, 2015 Mr. Tomovski wrote a follow-up disclosure request which asked for various items including the video statements of two of the three accused.

[5] On December 17, 2015, the case was again in 205 Court and further disclosure handed out. Mr. Tomovski indicated that he was retained by Mr. Gnanasubramaniam and Mr. Sandrapalu. Counsel for Mr. Raveendram told the court that his retainer was being held up because of a legal aid appeal. The articling student appearing on behalf of Mr. Raveendram said that disclosure was complete.

[6] On January 14, 2016, a Crown pre-trial was held. Further disclosure was handed out. Mr. Tomovski asked the Crown to "look into the prospect of conviction for one of the accused". The case was put over for that reason.

[7] On February 4, 2016, the case appeared before Tetley J. A judicial Pre-trial date of March 17, 2016 was set.

[8] On March 17, 2016, the case appeared before Chisvin J. for Pre-Trial but could not proceed. Justice Chisvin said that "…the pretrial is going over cause there's still disclosure that seem to have been made, the Crown just found out about it notwithstanding the matter goes back to last October today with respect to an ITO, and search warrants that were done on cell phones that were seized at the time."

[9] I was told in submissions that the police had seized 6 cell phones from the car on October 3, 2015. On October 21, 2015, they sought, and received Judicial Authorization to search those phones. On November 4, 2015, the police commenced their investigation of those phones to the extent that they copied the data files in preparation for analysis. None of this was known to the Crown until March 17, 2016, some 5 months later.

[10] On April 4, the follow up Pre-Trial wasn't held because Chisvin J. was not available. May 4 was selected as the continuation date. On May 4, the March 2017 trial dates was set for Mr. Gnanasubramaniam alone. All three were put to a further Judicial Pre-Trial on June 10. The cell phone disclosure still was not available on May 4, 2016. On June 10, the Crown stayed the charges against Mr. Raveendram and Mr. Sandrapalu, who apparently signed Statutory Declarations. The cell phone analysis material was disclosed on June 21, 2016, and on that day Mr. Gnanasubramaniam elected a trial in this Court.

[11] The overall delay from the time of charge to the time of the completion of the trial is October 4, 2015 until March 16, 2017, a period of 17 months and 2 weeks. Mr. Tomovski concedes that 1 week of that period is due to the Defence not being available for an offered trial date of March 6 – 9, 2017. The Defence therefore calculates the delay in the case as being 17 months and 6 days. The Crown accepts that this figure is correct but argues that the Defence was not really ready to move the matter forward because at one point, he represented two of the three accused and was seeking a Crown review of reasonable prospect of conviction on one of them, but not the other. Therefore, Mr. Tomovski had divided loyalties as regards moving the case along.

[12] In submissions, I asked the Crown why there was a delay between October 21, 2015 and March 17, 2016 for the police to tell the Crown of the existence of the cell phone search warrant and therefore expected disclosure. Mr. Nadi could provide none. In submissions, he asked me to find that the delay in providing the cell phone disclosure was not unusual or uncommon because it is not a straightforward form of investigation. A piece of disclosure was handed up in argument which showed that on November 5, 6 and 9, 2015, the seized cell phones had their data copied, presumably so that the data could then be analyzed. I was told that 2 of the 6 cell phones seized in the investigation were never examined, but given no reason.

The Law

[13] It is fair to say that the law governing the application of s. 11(b) of the Charter was re-written when the Court handed down its decision on July 8, 2016 in R. v. Jordan, 2016 SCC 27. The case at bar is therefore a transitional one insofar as it straddles the release of Jordan.

[14] The revamping of s. 11(b) of the Charter was brought about for a number of reasons, one of which was a "culture of complacency". As Moldaver J. put it:

As we have observed, a culture of complacency towards delay has emerged in the criminal justice system (see, e.g., Alberta Justice and Solicitor General, Criminal Justice Division, "Injecting a Sense of Urgency: A new approach to delivering justice in serious and violent criminal cases", report by G. Lepp (April 2013) (online), at p. 17; Cowper, at p. 4; P. J. LeSage and M. Code, Report of the Review of Large and Complex Criminal Case Procedures (2008), at p. 15; Canada, Department of Justice, "The Final Report on Early Case Consideration of the Steering Committee on Justice Efficiencies and Access to the Justice System" (2006) (online), at pp. 5-6). Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to ever-increasing delay. This culture of delay "causes great harm to public confidence in the justice system" (LeSage and Code, at p. 16). It "rewards the wrong behaviour, frustrates the well-intentioned, makes frequent users of the system cynical and disillusioned, and frustrates the rehabilitative goals of the system" (Cowper, at p. 48).

[15] In Jordan, the Court resorted to a new bright line approach for analysing s. 11(b) cases. If the case takes longer than 18 months to come to trial in the provincial court, or 30 months when the case is tried in the Superior Court, the delay is presumptively unreasonable. Gone is the multi-pronged analysis from R. v. Morin, [1992] 1 S.C.R. 771 and its progeny. For cases already in the system, or transitional cases the Court sought to avoid what happened when Askov was released, namely cases being stayed en masse. That result undermined the integrity in the administration of justice. The Court in Jordan therefore provided guidance on how to deal with transitional cases where the overall delay is under the presumptive ceiling of 18 months. In those cases a stay will be appropriate if the defence has shown initiative and the overall time required is markedly longer than what is reasonably required. The Defence need not have shown taking an initiative to expedite matters, because that was not required under the Morin jurisprudence in effect at the time. That said, according to Moldaver J, "…in close cases, any defence initiative during that time would assist the defence in showing that the delay markedly exceeds what was reasonably required" at par. 99.

[16] After the release of Jordan, our Court of Appeal added gloss to the s. 11(b) test in R. v. Coulter, 2016 ONCA 705 by saying that if the net delay is under 18 months, as here, there are two questions which need to be asked.

If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings ("defence initiative"); and (2) the case took markedly longer than it reasonably should have. Absent both of these two factors, the s. 11(b) application must fail (Jordan, para. 82).

[17] The record before me is quite complete. Mr. Tomovski wrote disclosure letters right after disclosure was given out which show that the disclosure was reviewed and missing material identified and requested. This identified that the first batch of disclosure handed out was missing core material in the form of arresting and seizing officer's notes. The second disclosure letter identified that the Crown had yet to disclose two accused's videotaped statements, which weren't referred to in the first batch of disclosure. I find that Mr. Tomovski's request that the Crown undertake an assessment of its reasonable prospect of conviction as regards Mr. Sandrapalu did not delay matters. What is striking on the record is that the Crown did, in fact, stay the charges against Mr. Sandrapalu about 6 months later. This is not a case where the proceedings were delayed because the defence made an unreasonable request or a request for something that was not going to happen.

[18] I also take into account that Mr. Tomovski set a trial date for Mr. Gnanasubramaniam in the absence of his two co-accused more than a month before the charges were stayed against those co-accused. Mr. Tomovski could easily have delayed setting a trial date until it was a certainty that only Mr. Gnanasubramaniam was proceeding to trial. The fact that Mr. Gnanasubramaniam set a trial date before the charges were stayed against the other accused is evidence of the defence moving matters along swiftly.

[19] For these reasons I therefore have no difficulty in finding that the Applicant has established that the defence showed a sustained effort to expedite the proceedings.

[20] As regards to the second prong of the transitional test, is a 17 month 6 day time to trial markedly longer than it should have been? In this jurisdiction the time to trial for a 2 – 4 day trial is about the same. Last year, because of judicial resources, it was about 10 months after it was ready to be listed for trial. One day trials are becoming exceptional, and much shorter times to trial can be offered for such cases, however there is increasing judicial skepticism that a one day trial is just that. For that reason, one day trial requests require a judicial pre-trial, but two day trial requests do not.

[21] I am left with a case which took over 17 months to come to trial when I, as a sitting judge in Newmarket, would expect it to be more like 13 or perhaps 14 months. I find that this difference is markedly longer than it should have. While stays are rare, the result here is that the Applicant has established a violation of his rights under s. 11(b). The stay is granted.

[22] I cannot leave this case without commenting on the fact that the police waited 5 months before telling the Federal Crown of the existence of a cell phone search warrant and therefore the police intention to investigate cell phone data. No reason for this delay was given. What Moldaver J. identified as a culture of complacency is just this - no communication between the police and the Crown about a significant part of the case for several months. Jordan commands all criminal justice participants to communicate meaningfully and frequently about cases so that the presumptive ceilings are not broached.

Signed: Justice David S. Rose

Released: February 8, 2017