Court File and Parties
Ontario Court of Justice
Date: 2017-07-20
Court File No.: Toronto 16-75000342-00
Between:
Her Majesty the Queen
— and —
Nishanthan Mahenthiranathan
Before: Justice F. Bhabha
Heard on: Friday, June 30, 2017
Reasons for Ruling released on: July 20, 2017
Counsel:
- D. Galiatsatos, Counsel for the Crown
- F. Bernhardt, for the applicant/defendant Mahenthiranathan
Reasons for Ruling
Bhabha, J.:
Overview
[1] The applicant Nishanthan Mahenthiranathan has a two-day trial scheduled to commence on August 17, 2017. He seeks a stay of proceedings under s. 24(1) of the Charter on the basis that his right to be tried without unreasonable delay under s. 11(b) of the Charter has been infringed. The delay from the date of the charge to the trial date, referred to as the "raw delay", is eighteen (18) months and twenty two (22) days. This is slightly in excess of the eighteen (18) month presumptive ceiling the Supreme Court of Canada established in R. v. Jordan, [2016] S.C.R. 631, for cases in the Ontario Court of Justice.
Overview of the Case
[2] The defendant is charged with a single count of sexual assault. He is thirty four years old. He is alleged to have fondled a seventeen year old boy without his consent on a Toronto Transit Commission ("TTC") subway train on the evening of December 16, 2015.
[3] The police reviewed TTC surveillance footage from the night of the incident and obtained a still image of the defendant on December 24 based on the complainant's description of the alleged perpetrator. Bulletins were circulated within the TTC and the Toronto Police with negative results. Then on January 22 the police issued a press release requesting the public's assistance in identifying the suspect. The defendant recognized his image on television and turned himself in to the police on January 26, 2016. He was arrested and held for bail.
[4] The initial application record, namely the compilation of the transcripts of the various court appearances and the affidavit of the applicant relating primarily to the issue of prejudice, does not begin to tell the whole story of what had happened by the time of the applicant's release on bail, and was else happening in the prosecution of this matter up until the trial date was set in November of 2016.
[5] I am referring to the two search warrants that were obtained, the dates they were obtained, the items seized pursuant to the warrants or otherwise, the unsealing of the warrants, the time it took to vet both of them and their ultimate disclosure to the defence. The warrants also played a role in the need for continuing judicial pre-trials, which delayed the setting of the trial dates. The parties filled in these gaps at the hearing by filing further materials to complete the record. These materials included: the two warrants marked as Exhibits 3(a) and 3(b); the unsealing orders marked as Exhibits 6 and 8 as well as copies of related correspondence.
The Search Warrants
[6] While the defendant was in custody following his arrest, the police executed a search warrant at his home. Appendix "A" to the "Information to Obtain" (the "ITO") listed four (4) items of clothing described as items the police believed the defendant wore on the evening of the alleged incident as captured on the surveillance footage. The affiant states in the Grounds to believe:
If this application is granted I intend to search for the items that I have listed in Appendix "A". I will be searching for a green t-shirt, a dark coloured jacket with a hoodie, a pair or dark coloured pants and black shoes worn by the accused from the 17th of December 2015.
I believe that these items will assist … the clothing will corroborate the victim's version of the events as well as the images viewed by the officers during the investigation … from the Toronto Transit Commission.[1]
[7] There is no mention whatsoever of any other items the affiant believed would be useful in the investigation other than the items of clothing noted above.
[8] The officers executing the warrant did in fact locate a dark-coloured jacket with a "hoodie" in a closet within the defendant's bedroom. That was one of the items that they were authorized to search for and to seize. However, in the course of the search of the defendant's bedroom, the police also seized a grey laptop in a black case that was located "on a shelf in close proximity to the closet where the …jacket was located".
[9] Some six and a half (6.5) months after the police seized the laptop, a decision was made to obtain a second search warrant to search the contents of the laptop. Appendix "A" of that warrant sets out the specific "items" to be searched: "1) internet related searches from 2015.12.17 onwards till 2016.01.25 and 2) Child pornographic material". In the Information to Obtain, the police disclosed that the laptop was previously seized in the first search in January of 2016, and where it was located. It does not appear that a copy of the first warrant, a Telewarrant, was before the Justice who issued the second warrant, a conventional warrant.
[10] The affiant, who was the same affiant on the initial Telewarrant, appeared to explain or justify the seizure of the laptop on the basis its proximity to the other items seized. The ITO simply states: "Based on the totality of the circumstances the laptop was seized". The affiant also made the following request: "I am asking that this search warrant of the laptop be granted for a period of 30 days as I believe it would assist in this [ongoing] investigation …"[2]
[11] As of the date of the hearing of this application, which is approximately nine (9) months after the issuance of the second warrant and six (6) weeks before the anticipated trial date, the Crown has yet to disclose to the defence: a) whether a search of the (apparently unlawfully) seized laptop was ever in fact undertaken within the thirty (30) days requested, or b) if it was, the results of any such search. The laptop, it would appear, remains in the possession of the Toronto Police Service.
Position of the Parties
Crown Position
[12] I will begin with the Crown's position since the "raw delay" is over the presumptive ceiling (appreciating that the party bearing the ultimate onus is determined by whether the "net delay" falls under or over that ceiling.)
[13] Firstly, the Crown submits that the net delay falls under the presumptive ceiling of eighteen (18) months. He submits that a period of twenty eight (28) days is attributable to "the actions of the defence" and ought to be deducted from the raw or total delay. Specifically, the submission is that the applicant did not move as expeditiously as possible in securing a legal aid certificate. If I accept this submission, then this period ought to be deducted from the "raw delay". It would bring the "net delay" to just under the eighteen (18) month Jordan presumptive ceiling and puts the onus on the defence to establish why the delay in not justifiable.
[14] Secondly, and in the alternative, the Crown submits that even if the delay exceeds the ceiling set in Jordan, under the Morin framework, once the deductions for intake (2 months); obtaining legal aid (2 months); inherent delay in setting pretrial conferences (2 months); the unsealing of the two warrants (1 month); and preparation time (1 month), the remaining institutional delay falls within the Morin framework of eight to ten (8-10) months. The calculation is as follows: 18 months and three (2) weeks minus eight (8) months = 10 months and three weeks.
[15] Finally, the Crown also submits that while there may be some evidence of prejudice arising from the charge, there is no prejudice arising from the delay in getting the matter to trial. As such, the absence of prejudice may be considered in determining what the tolerable delay would have been under the Morin regime.
Defence Position
[16] Counsel for the applicant submits that there was no action or inaction attributable to the applicant and therefore no time period should be deducted from the "raw delay" at all. In particular, the applicant submits that he acted with dispatch at all stages of the pre-trial process: firstly by consulting counsel before his arrest; secondly by consulting with a second counsel (ultimately retained) as soon as he received information about legal aid even before his second appearance; and finally, by making his legal aid application as soon as it was possible to do so.
[17] In the alternative, the applicant submits that even if the court cannot be satisfied that he acted expeditiously in making his legal aid application, the Crown was not ready to proceed in moving the matter along to the next step (with a Crown pre-trial, for example,) during this timeframe because there was substantial disclosure that was still outstanding and that the Crown continued to make further disclosure even well after legal aid was granted. The disclosure relates to the surveillance tapes referenced above. There were approximately one dozen CD's that appear to have captured the applicant and the complainant on the relevant TTC platform from different angles. The defence position is that the surveillance tapes were necessary to conduct a meaningful pre-trial. The Crown disagrees.
[18] According to the Crown, the defence had stills taken from the tapes and was therefore in a position to proceed to schedule and have a meaningful Crown pre-trial in the absence of the actual videos which were disclosed later. Finally, the defence submits that in assessing the reasonableness of the delay under Morin, the court should consider that only five and a half (5.5) months of the total delay of over eighteen (18) months took place under the former, Morin framework: the period from the laying of the Information on January 26, 2016 until the 8th of July 2016 when Jordan was released. The Crown was on notice as of July 8th of the new framework for calculating delay.
[19] I will now turn to the chronology of the proceedings.
Chronology of the Proceedings
| Date | Event | Notes |
|---|---|---|
| o/a Dec. 15/15 | Alleged incident | A's image captured on TTC surveillance tapes |
| January 26/16 | Information Sworn | The s. 11(b) – Morin and Jordan "clock" starts from this date |
| February 24/16 | 1st appearance | Initial disclosure and Crown position provided. By this time A. has consulted with 1st counsel who refers him to 2nd counsel: F. Bernhardt – trial counsel |
| March 23/16 | 2nd appearance | A's legal aid process begun. Some documents provided to LAO; Crown provides "significant quantity of surveillance videos" plus another package of disclosure |
| April 20/16 | 3rd appearance | Legal aid application still under review |
| May 18/16 | 4th appearance | Legal aid approved "this week"; counsel F. Bernhardt retained and requests June 22nd appearance to review disclosure in preparation for crown pre-trial on same date |
| June 22/16 | 5th appearance | A's counsel notes that he has requested a Crown pre-trial to be scheduled for July 22nd |
| July 08/16 | S.C.C. decision in Jordan released | Crown on "notice" as of this date as to 18 month ceiling |
| July 22/16 | 6th appearance | CPT not held - (1st request made by counsel not received by Crown's office) – A's counsel asked to make 2nd request – remanded with possibility of JPT or possible resolution |
| August 08/16 | 2nd Search Warrant sought to search laptop | Police have had possession of the laptop since January 26th – but seek authorization 5.5 mos. later. Justice grants 30 days to search laptop. Status of search still unknown |
| August 17/16 | 7th appearance | CPT completed Aug. 16th/17 and JPT set for next return date |
| September 27/16 | 8th appearance | JPT started ..."did not get too far…" additional disclosure picked up. A's counsel waiting on unsealing and vetting both of the search warrants |
| October 31/16 | 9th appearance | JPT continued. Both ITO's disclosed on this date and continuing JPT set for November 15th |
| November 15/16 | 10th appearance | Trial dates set. A's counsel explains "so it moves faster", but JPT to continue and finish the following month |
| December 15/16 | 11th appearance | JPT completed; remanded to trial date of August 17th |
| June 30/17 | 12th appearance | s. 11(b) hearing |
| August 17-18/17 | Scheduled Trial dates | Set in November 15th 2016: Nov. 15/16 to Aug. 17/17 = 9 months pure institutional delay under Morin guidelines |
[20] There is only one period of time in dispute on this application. It is the approximately one month period (28 days to be precise) between the first and the second appearances. This is the period from February 24 to March 23.
[21] Credit is due to both the Crown arguing the application and the Applicant's counsel for recalibrating their respective positions and thereby focusing their submissions.[3] They made reasonable concessions during submissions as they heard the party opposite explain their submissions, and after hearing the evidence. They displayed professionalism, civility and respectfulness that is in the best traditions of the profession and they are both to be commended for this.
[22] For example, the Crown reduced the period of delay attributable to the legal aid application process from sixty five (65) days to a period of twenty eight (28) days. This reduction also accords with the most recent jurisprudence.[4] As well, the defence, during submissions conceded that the period of approximately one (1) month that the Crown spent vetting the computer search ITO was not unreasonable.
Characterization of the 28 Day Period (February 24 to March 23)
[23] The Crown submitted that while Mr. Mahenthiranathan may not have been dilatory, he could have sped up the process by making his legal aid application as soon as possible and by assembling all the necessary paperwork in less than the time it took.
[24] It may be that another more sophisticated and "seasoned" applicant may have been able to assemble all the necessary financial and other documentation required and to submit it to Legal Aid (without Legal Aid having to ask for more documentation) in a slightly shorter timeframe than the twenty eight days it took him to complete the process. However, this relatively brief delay must be examined in light of his overall conduct throughout the prosecution as well as other relevant factors such as his limited facility in the English language, his reliance on friends to translate and assist him, and the fact that this was his very first time navigating the process.
[25] The applicant consulted with a lawyer in his own community who spoke Tamil before his first appearance. He then consulted with a second lawyer that the first lawyer referred him to. That was Mr. Bernhardt, the lawyer he ultimately retained.
[26] In all of the circumstances, is it fair and reasonable to conclude that the applicant was guilty of "dragging his feet?" The applicant's actions viewed as a whole, and in making and facilitating the processing the legal aid application, in particular, I find, cannot be characterized as demonstrating indifference to the progress of his case. Nor were any of his actions designed to cause delay. Quite the contrary. He did what he was asked to do in a reasonable timeframe especially given his personal circumstances. In making this assessment of the applicant's actions as it relates to his legal aid application, I gave particular consideration to Justice Moldaver's observations in R. v. Cody, 2017 SCC 31, at paragraph 29:
…not all delay caused by defence conduct should be deducted //…// In setting presumptive ceilings, this Court recognized that an accused's person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused's case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, at para. 65) (Emphasis added)
Calculation of the Net Delay
[27] I, therefore, find that the twenty eight (28) day period of delay in making the initial application to legal aid ought not to be deducted from the total delay. As such, the total and net delay falls above the Jordan threshold of eighteen (18) months for a case in the Ontario Court of Justice.
[28] In any event, if I am found to have erred in my assessment of the characterization of this relatively brief period, I find that the effect of any delay attributable to the defence is neutral. I make this finding in light of the Crown's lack of readiness to proceed to the next step: the Crown pre-trial process.
[29] During this time-frame the Crown was still making disclosure that was both significant in terms of importance and volume. Given that the disclosure consisted of the surveillance tapes, I find that it was not realistic for the parties to have meaningful discussions based on the still images alone. The sexual assault is alleged to have taken place on the subway. It was not captured on tape. It appears the parties were captured walking relatively close together on the platform. Given the time of day of the alleged incident, and the volume of passengers on the TTC at any given time, it stands to reason that for a proper assessment of the strength or weakness in the Crown's case, it was critical for both sides to view the tapes before the Crown pre-trial to determine the proximity of the applicant to the complainant on the platform and whether there were other passengers fitting the complainant's description of the perpetrator.
[30] In the result, I find that on March 23, 2016, when the legal aid application was still being processed, the Crown was not ready to proceed to the next step: setting a pre-trial conference.
[31] As well, it was not unreasonable for the defence to request time to review the dozen or so tapes. In fact, it would have been unprofessional and even irresponsible for the defence to proceed to a Crown pre-trial and then try to make strategic decisions about the case without first viewing the videotapes.
Crown Onus
[32] Since the total and net delay is in excess the eighteen (18) month threshold, the onus is therefore squarely on the Crown to demonstrate if and why the delay is justifiable.
[33] I noted that less than one third of the raw delay occurred under the Morin framework. In fact, only the first five (5) months of the more than eighteen (18) months of delay occurred before the Jordan decision was released. Jordan had been released for one (1) month when the prosecution decided to pursue the second warrant to search the applicant's laptop; and almost three (3) months when the Crown decided to apply to have the warrants unsealed; and for four (4) months when the trial dates were ultimately set.
[34] In the circumstances, I am unable to conclude that the Crown was blindsided by the new framework and has unfairly been prejudiced by its reliance on the Morin framework.
[35] I further find that the Crown is not able to persuade me that the delay is justifiable if the court were to apply the exceptional transitional circumstance allowed for in Jordan.
Applying the Morin Framework
[36] This was not a particularly complicated case. It ought to have been completed within the eight (8) to ten (10) month Morin framework.
[37] Even with all the deductions indicated by the Crown for intake (2 months), inherent time requirements (2 months), and trial preparation (1 month), and even (reluctantly) allowing for time to vet the warrants (1 month), I find that Morin delay is closer to thirteen months, which is still outside the limitation in the old framework.
[38] Firstly, I consider the delay in getting legal aid to be neutral given that the Crown was still making significant disclosure during this time frame.[5]
[39] Secondly, I have deducted time to vet the search warrants, even though this could have been anticipated well in advance of the eight and a half month (8.5) mark in the proceedings when that process finally took place. If this is added, rather than subtracted, then the delay is closer to fourteen months.
[40] The complicating feature here was the fact that the search warrants had to be unsealed and vetted. The delay in unsealing and vetting the ITO's delayed or stalled the JPT process and ultimately hindered the setting of earlier trial dates. The Crown was on notice as of July 2016 that the Supreme Court of Canada had signalled that "the culture of complacency" would no longer be tolerated.
[41] Why the Crown waited for a period of over nine (9) months (from January 26, 2016 to late September/early October 2016) to unseal the first warrant and to vet it has not been satisfactorily explained to this court.
[42] What is even more troubling is that the prosecution/police had possession of the defendant's laptop since the date of the defendant's arrest in January 2016. Yet, it took the Crown and the police another six (6) months – half a year- to decide to obtain a second search warrant to search its contents. This added to the delay.
[43] Whether or not there would be a viable Charter challenge to the warrants and whether new charges might be laid were critically important factors for the defence to make strategic decisions and to set appropriate trial time estimates.
[44] It is therefore not open to the Crown to submit that the defence could have moved the matter along regardless of when the warrants were unsealed and vetted. It is inconceivable that the defence could have had meaningful pre-trial discussions without knowing firstly, if the warrants were potentially subject to being challenged, and secondly, if the nature of the case against the defendant was likely to change materially after the second search.
[45] As it turns out, the unsealing of the first warrant revealed that the seizure of the laptop was not specifically authorized by the issuing Justice. The ITO specified items of clothing only. Then, six months after the laptop was seized, the police sought a warrant to search the laptop. It appears they did this without disclosing to the second Justice that the initial seizure was not specifically authorized, nor was the initial warrant provided to the second Justice for review.
[46] As I have already noted, the second warrant appears never to have been executed. Almost a full year since the warrant was issued, the Crown is still not in a position to advise the court what has happened with the laptop.
[47] The timing of the second warrant, especially in light of circumstances under which the laptop was originally seized, and the absence of any information regarding the execution of the second warrant is not only concerning to the court, but it demonstrates, I find, that the Crown was not at all sensitive to the issue of delay. It also demonstrates that the Crown failed to critically examine the strengths and weaknesses of its case even after the Supreme Court of Canada signalled that a sea change in attitude towards delay was called for.[6]
[48] Surely the police would have consulted the assigned Crown before obtaining the warrant. Or alternatively they were acting on the Crown's instructions or advice. It seems that the case management Crown failed to turn his or her mind to the circumstances under which the laptop was originally seized before making a decision six (6) months after the fact to obtain yet another warrant to search its contents. The irony of the timing of that decision coming one month after the release of Jordan is telling.
[49] Submissions were made by the Crown on this application about the reasonableness of the defence position in delaying setting the trial date on account of unanswered question about the search warrants. But for the second search warrant, the delay while unsealing order was obtained and vetted might have been negligible. There would have been only one unsealing order and only one ITA to vet, not two. I therefore find that is not open to the Crown to argue that seeking the second warrant is neutral and of no moment in the calculation or assessment of the delay.
[50] The Crown's actions post Jordan relating to obtaining the second warrant speak loudly as to whether the Crown's office understood the import of the message Jordan was meant to send. In this case Jordan appears to have no impact on the many decisions the Crown made from July 2016 until the trial date was set ultimately set in November 2016.
[51] It must be noted that that disclosure is still outstanding in this case as it relates to that second search warrant. This is unacceptable.
Issue of Prejudice
[52] Lastly, I will briefly address the issue of prejudice under the Morin framework, although it has no impact on my Ruling.
[53] I agree with the Crown's submission that the applicant cannot point to specific prejudice resulting from the delay. Much of the prejudice set out in his affidavit and as explained in his viva voce evidence, I find, arose as a result of the charge, not the delay:
The loss of his job. This was likely from having been held for bail and missing work in the week following his arrest. That is unfortunate, but he was unable to persuade me that it was a result of any delay per se, as opposed to other reasons;
The difficulty in finding employment. The applicant was released on bail. His bail conditions were varied to allow him to use the TTC to look for jobs. On the evidence I heard, his inability to find work appears to be related to the availability of jobs he is suited to, not the delay in getting this matter to trial;
The broken engagement. It seems to have come about as a result of his fiancée's family's need for certainty in the eight (8) month period following the charge. He understood that they were not willing to wait indefinitely for the matter to conclude. Even if he had had his trial within a constitutionally tolerable time, the engagement was in jeopardy. On the evidence, this appears to have been a consequence of the charge, not the delay;
The stigma of media coverage. The applicant's image appeared on television on one occasion in the initial stages of the investigation. This, I find, was the result of the charge, and, not the delay.
[54] The court however recognizes that having a charge hanging over one's head does not get easier over time. I take notice of the fact of having to wait over eighteen (18) months on a charge as serious and as stigmatizing such as this cannot be taken lightly. This type of inherent prejudice as time goes on may, in the appropriate case, tip the balance.
[55] In the particular circumstances of this case the issue of prejudice arising from delay, or the absence thereof, did not move or tip the balance. The reason is this: on my calculation of the institutional delay on the Morin framework, the delay falls several months outside the ten (10) month upper limit and therefore a stay would have been ordered even under that calculus without the need to consider the impact of any prejudice "to tip the balance" on way or the other.
Conclusion
[56] In the result, for the reasons set out above, I find that the delay in this case is not reasonable and cannot be justified under either the old (Morin) or the new (Jordan) frameworks. The application is therefore allowed. The proceedings are stayed. The trial dates of August 17 and 18 will be vacated.
Released: July 20, 2017
Signed: Justice Bhabha
Footnotes
[1] See: Appendix "C" to the "Telewarrant to Search" issued January 25, 2016 marked as Exhibit 3(a) on this application
[2] See: Information to Obtain dated August 8, 2016, Appendices "A" and "C" – Exhibit 3(b)
[3] The Crown's factum initially calculated the net delay at 16.5 months.
[4] See R. v. Jordan, supra, at paras. 63-66 to effect that "defence actions taken to legitimately respond to the charges do not constitute defence delay." See also R. v. Park, (2016) SKPC 137 at paras. 34-38
[5] I note that the police had access to the surveillance footage as early as January and were able to provide stills to the media, yet it took another two (2) months for them to provide these to the Crown.
[6] My reference to "the Crown" refers to the Crown in the institutional sense of the word. It is not meant to reflect negatively on Mr. Galiatsatos who is new to the College Park crown attorney's office and who had no responsibility for the carriage of this matter, nor to Mr. Giovanazzo whose role, I understand, was limited to the preparation of the Crown's factum in response.