Court Information

Ontario Court of Justice

Date: November 9, 2017

Between:

Her Majesty the Queen

— AND —

Savitri Ramsunahi

Before: Justice Kate Doorly

Heard on: October 19 and 31st, 2017

Reasons for Judgment released on: November 9, 2017

Counsel

C. Coughlan and C. Moore — for the Crown

A. Rowell — for the accused Savitri Ramsunahi

DOORLY J.:

Application for Stay of Proceedings

[1] Ms. Ramsunahi has applied to have the charge of Over 80 against her stayed because of unreasonable delay.

[2] She was arrested on April 2, 2016 and the information sworn on April 4, 2016. A one day trial is scheduled for November 16, 2017, which is 19 ½ months after her arrest.

[3] The applicant submits that the delay is over the presumptive ceiling set out in R. v. Jordan, 2016 SCC 27. This is a transitional case, having entered the system just three months before the Jordan decision.

[4] The Crown takes the position that defence delay, once subtracted from the overall delay, results in a net delay of 16 months, below the 18 month ceiling. The defence submits that the net delay is 18 ½ months.

[5] The issues before me are:

(1) What is the net delay? Specifically, what delay is attributable to the defence? And,

(2) If I find that the net delay is 18 ½ months, has the Crown satisfied me that the officer's unavailability on the first trial date was an "exceptional circumstance?"

[6] In this case, for the following reasons, I find that the overall delay is 18 ½ months and that the Crown has not rebutted the presumption of unreasonableness.

Summary of the Proceedings

[7] The accused made her first appearance on May 12, 2016. On January 18th, 2017 she set July 20, 2017 for trial.

[8] On July 20, 2017 – 15 ½ months after she was charged – the Applicant appeared for her trial. That morning, Crown counsel advised the court that the arresting officer had chosen not to attend because he had been charged with a serious criminal offence two days earlier. The officer had been investigated by the SIU for a number of months. The Crown had just learned about the situation on the morning of trial and the Crown applied for an adjournment, which was granted.

[9] Justice Crewe, who granted the adjournment, directed that a new judicial pre-trial be held as he anticipated that there would potentially be new disclosure arising from the new charge. He was concerned that the time estimate for trial might change.

[10] On August 15, 2017, another judicial pre-trial was conducted. The one day time estimate was confirmed. The Crown advised that the defence would have to bring a third-party records application for disclosure relating to the charges against the officer. Later that day, a second trial date was set.

[11] A "Verification of Trial Date" was filed at the time. It indicated that the following dates were available to the Court and Crown, but not the defence:

• August 22, 24, 28.

• September 8, 18 - 21, 25, 26, 28

• October 6, 24, 26, 27, 31.

• A date of October 19, 2017 was also set for the 11(b) application for 2 hours.

• November 16, 2017 was set for the second trial.

[12] When setting the dates, the Crown advised that he was willing to set this matter on top of other matters in September, as he believed the trials set on those dates were going to collapse.

[13] In terms of the third-party records application, the Crown noted that the issue was being litigated on a similar matter on August 25th and that it might have some bearing on counsels' positions. Mr. Moore, for the Crown, asked that if a records application was going to be brought, that the defence advise by the end of the month (August). Further, he advised that the Crown was prepared to take short service on the s. 11(b) set for October 19th.

[14] Ms. Rowell noted that because of pre-scheduled vacation and other trial dates, November 16th was the earliest possible date available to her for trial.

Position of the Parties – How Much Delay Should Be Attributed to the Defence?

[15] Ms. Rowell, for the Applicant, concedes that the one month period from October 27 to November 25, 2016 should be counted as defence delay, as four weeks were required for the accused to complete her retainer.

[16] Accordingly, both counsel agree that 18 ½ months is the starting net delay, subject to further deductions arising from defence unavailability.

[17] In terms of the multiple trial dates offered on August 15, 2017, Ms. Rowell submits that the defence unavailability should not be counted against her.

[18] First, she argues, the August dates were unrealistic, given the possibility of a third-party records application and that other parties might seek standing on that issue. Further, the September dates were also unrealistic as the matter was being set on top of other matters – there was no actual time available. It was a gamble.

[19] And finally, counsel argues that R. v. Godin, 2009 SCC 26 has not been specifically over-ruled by Jordan and that counsel need not hold themselves in a state of "perpetual availability." (see para. 23)

[20] The Crown acknowledges that given the third-party records issue, the proposed August 22nd date was not likely realistic. While it would not be fair to start the "clock" on August 22nd, he argues that at some point defence counsel needed to become available and some part of that period should be deducted as defence delay.

[21] He argues that Jordan sets bright-lines and that "Defence will have directly caused the delay if the court and Crown are ready to proceed, but the defence is not." See Jordan at para. 64.

[22] Further, the Crown notes that it acted responsibly by trying to secure very early dates, agreeing to schedule this matter on top of other trials and agreeing to short service of materials.

A Further Complication

[23] At the time the s. 11(b) application was argued on October 19th, the hearing date for the third-party records application was 12 days away.

[24] A few days prior to October 31, counsel advised that it would be abandoning its records application.

[25] On October 31st, some further submissions were made by counsel about the impact of abandoning the application on the s. 11(b) application – specifically, what effect if any, this would have on my assessment of whether the application was frivolous.

[26] The Crown did not take the position that the application was frivolous. However, Mr. Moore submitted that the material that the Crown had provided the defence in response to the application was all publicly available (i.e., newspaper articles). The Crown had re-confirmed that there was no McNeil disclosure and that there was nothing new that the defence received.

[27] The defence took the position that the arrest of the officer two days before the trial surprised everyone. Everything happened very quickly and the third-party records application needs to be put in that context. There was a similar issue being litigated that was decided on September 7, some three weeks after the 2nd trial date was set. Defence needed to consider that and to seek disclosure of any material that might impact on her client's full answer and defence. Further, Ms. Rowell advises that the defence sought internal records and was advised there was an absence of them and so chose not to further the application.

My Findings

[28] I find that the third-party records application was not frivolous. The possibility of seeking the records was raised when the trial was first adjourned. It was further addressed at the subsequent JPT where Ms. Rowell was advised by the Crown that an application would be necessary.

[29] Counsel was diligent in corresponding with the Crown and related parties about the records. There was a ruling in a very similar case to be considered. Counsel rightly wanted to explore issues relating to the officer and their potential impact on her client's right to make full answer and defence.

[30] The ultimate abandonment of the application does not mean it was frivolous. Professionalism and thought was brought to the application that arose in a dynamic situation and counsel, after receiving information from the SIU and Officer Theriault's counsel, made an informed decision to abandon it. There is no reason to believe that the defence was engaged in "a deliberate and calculated tactic employed to delay the trial." (see R. v. Cody, 2017 SCC 31 at para. 32, and R. v. Coulter, 2016 ONCA 704 at para. 44)

Returning to the Issue of What is the Net Delay?

[31] In R. v. Mallozzi, 2017 at para. 7, Justice Ducharme considered what periods of defence unavailability should be counted as defence delay. He parsed the 108-day period of unavailability in that case and found that the earlier trial dates offered were not a "meaningful offer" as a witness had to be deposed prior to trial, and that was scheduled to occur after the first trial dates were offered.

[32] Further, in Jordan, at para. 65, the majority wrote that:

To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

[33] These passages, when considered in light of the SCC's holding in Godin – that "scheduling requires reasonable availability and reasonable cooperation" (para. 23) – leads me to conclude that even if counsel had been available on the first dates offered, those dates were not meaningful as counsel was likely bringing a third-party records application. The trial could not have proceeded on those early dates as counsel would not have had the time to serve and file facta and subpoenas and respond, particularly if a third party was seeking standing. Counsel had just been advised that morning at the JPT that the Crown would not be providing any disclosure about the charges facing the officer and that an application was required.

[34] In the circumstances, I find that 12 weeks to prepare and argue the application is reasonable. I note that in the Criminal Rules of the OCJ, a pre-trial application is to be heard 60 days in advance of trial – and in these circumstances, given that new disclosure could be forth-coming, this would qualify as a pre-trial application. It was also anticipated by both parties that the application would be brought in advance of trial. An additional 30 days to research and write an application is reasonable, thus resulting in the 90 day estimate.

[35] I recognize that the Crown would likely have accepted short service of the third-party application (although not explicitly stated on the record), given Mr. Moore's extraordinary efforts to secure as rapid a second trial date as possible. This application, however, had to be filed, responded to, argued and ruled upon prior to the start of the trial. And this time estimate does not allow for the added complexity of scheduling intervenors, if any. These applications are not lacking in complexity – given the privacy interests and rights to full answer and defence that they raise – and they require time to litigate and time to rule.

[36] Accordingly, the first meaningful date offered within this time frame is November 19th, which was accepted. The net delay is 18 ½ months and is presumptively unreasonable.

Was This an Exceptional Circumstance?

[37] The Crown, who now bears the onus, submits that the delay was reasonable as it was caused by an exceptional circumstance – the adjourning of the first trial because of the unexpected non-appearance of the central Crown witness. The Crown does not submit that the case was particularly complex.

[38] Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot remedy the delays emanating from those circumstances once they arise: see Jordan at para. 69

[39] As noted earlier, two days before the trial date, on July 18th, P.C. Theriault was arrested and charged with aggravated assault after an investigation by the SIU. The officer was suspended from active duty. The investigation related to an allegation from December 28, 2016. The SIU had been investigating since April of 2017.

[40] The officer had been notified to attend court, as opposed to subpoenaed, which is all the notice that is required for officers to appear as per TPS policy.

[41] The Crown submits that this was exceptional because it was outside the Crown's control in that it was not reasonably foreseen or unavoidable.

[42] The Crown notes that there is no closed list of discrete events and the Crown must not be held to a standard of perfection. The Crown likens this to a family or medical emergency. He also notes unanticipated events in trials – for example, a co-accused pleading guilty, counsel being removed from the record on the eve of a preliminary inquiry or a mis-trial can be classified as an exceptional circumstance.

[43] I disagree with the characterization of this as exceptional.

[44] To this day, there has been no satisfactory explanation advanced for why the officer did not appear. There is no affidavit evidence. The Crown suggested reasons in submissions – perhaps the officer was concerned he could be cross-examined about the outstanding allegations. Mr. Moore, the Crown on the first trial date, advised that he understood that the officer had been told not to attend court, but did not know where that direction came from.

[45] How can I find that the circumstance was reasonably unavoidable when I have not been given a reason for the non-appearance? Was the officer in shock, embarrassed, of the belief he could not testify if suspended, given advice not to testify? If some of this were before me I could assess the reasonableness of this purported "exceptional circumstance". This is unlike a medical emergency, where there is a clear nexus between the unforeseen event (i.e. admission to hospital) and the witnesses' non-appearance in court. There is no nexus for me to examine in this case.

[46] I have not been advised of any TPS policy that prohibits officers from testifying while suspended – not that such a policy would be determinative in this matter – but it would go some way towards explaining the officer's non-appearance.

[47] In the circumstances, I cannot characterize this non-appearance as unavoidable when I don't understand the thinking behind it.

[48] Accordingly, the Crown has not rebutted the presumption of unreasonableness and the charge will be stayed for a violation of s. 11(b).

Released: November 9, 2017

Signed: "Justice Kate Doorly"