ONTARIO COURT OF JUSTICE

CITATION: R. v. Saini, 2019 ONCJ 220

DATE: 2019 03 28

COURT FILE No.: Brampton 3111 998 17 4152

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

GREESH SAINI

Before Justice G.P. Renwick

Heard on 05 March 2019

Reasons for Judgment released on 28 March 2019

J. Kingdon............................................................................................ counsel for the Crown

S. Sutharsan......................................................... counsel for the defendant Greesh Saini

RULING ON S.11(B) CHARTER APPLICATION

RENWICK J.:

INTRODUCTION

[1] The Defendant was arrested and charged on 29 March 2017 for having an excess blood alcohol concentration while driving. Originally, his trial was set to be completed on 18 September 2018. On the first day of the trial (17 September), the prosecutor agreed that it had not fulfilled a legitimate disclosure request that had been made six weeks earlier. The prosecution did not oppose the Defendant’s request for an adjournment of the trial. The trial was adjourned until 29-30 April 2019.

[2] Unfortunately, during the interim period between the two trial dates, the original defence counsel passed away. Current counsel had been the articling student who had attended on every appearance once counsel had been retained (sometime before 10 July 2017), except for the original trial date. After the passing of the original counsel, Mr. Sutharsan was retained to represent the Defendant.

[3] The total gross delay in this matter is approximately 25 months or 109 weeks. The Defendant alleges that his right to a trial within a reasonable period of time has been denied.

[4] The prosecution defends the application on the basis of the numerous periods of delay attributable to the Defendant, which when subtracted, brings the matter within the 18-month ceiling prescribed by the Supreme Court for trials in this court: see R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27 at para. 46.

[5] The Defendant did not suggest that if the court finds that the delay in this matter is less than the presumptive ceiling, that the matter should nonetheless be stayed for unreasonable delay.

THE LAW

[6] The first step under the Jordan analysis is to determine the total length of time between the date when the defendant was charged and the completion of his trial.[^1] The next step is to subtract from the total delay any time periods which are “attributable to the defence.”^2

[7] If the net delay remains above the appropriate ceiling:

…then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.[^3]

[8] If, after subtracting defence delay, the net delay is below the ceiling:

…then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. …stays beneath the ceiling [will] be rare, and limited to clear cases.[^4] [Emphasis in the original.]

[9] What is “defence delay?” Time periods that may be deducted from the total delay are those “where the defence conduct has “solely or directly” caused the delay.”[^5]

[10] That said, not all delay caused by the defence should be counted as defence delay. Our Supreme Court has clarified the definition of defence delay in R. v. Cody at paras. 29-30, and 32-33:

In setting the presumptive ceilings, this Court recognized that an accused 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 person'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).

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that -- examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64).

Defence conduct encompasses both substance and procedure -- the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently" (Jordan, at para. 138).

[11] Our court of appeal has also interpreted defence delay as:

…including periods of time when the Crown and the court are ready to proceed, but the defence is not: Jordan, at para. 64. See also: R. v. Cody, 2017 SCC 31, at para. 55. Although actions that are legitimately taken to respond to the charges will fall outside of defence delay, when what prevents the matter from proceeding is simply that the defence is not available when the Crown and the court are, this constitutes defence delay and will be subtracted from the total delay.[^6]

DISCUSSION

[12] In this case, it is agreed by the parties that the total length of time until the anticipated completion of the Applicant’s trial is approximately 25 months (24 months and 24 days). The parties also agree that this is not a complicated case and there are no exceptional circumstances which could excuse any delay from the overall calculation.

[13] During argument, the Applicant conceded that the transcripts established two- months of defence delay while counsel was being retained: 04 January to 01 February and 01 February to 01 March 2018.

[14] The parties disagree over the attribution of delay for many of the adjournments leading up until the matter was set down for trial, as well as the calculation of delay for dates offered which were unacceptable to the defence. For this reason, I have undertaken a careful review of all transcripts or explanations of the many court appearances in this matter.

[15] From the first appearance on 10 April 2017 until the fourth appearance on 12 June 2017 the Defendant was unrepresented (assisted by Duty Counsel) and requested adjournments to obtain counsel. On 10 July 2017 counsel had been retained, but a four week adjournment was sought to review disclosure. These adjournments were not so unusual or lengthy to warrant consideration as defence delay. It is expected that there will be some period of time to obtain disclosure, retain counsel, review disclosure, and to prepare the matter to be set down for trial.

[16] Once counsel had been retained, almost all of the adjournments until the matter was set down for trial were requested by the Defendant for various reasons:

• 14 August 2017 – “awaiting additional disclosure;” no letter had yet been sent; defence said it will send a letter for additional disclosure;

• 28 August 2017 – “still awaiting additional disclosure;” no letter had yet been sent; defence said it will send a letter for additional disclosure;

• 18 September 2017 – defence had sent the letter for additional disclosure on 16 September 2017 - no transcript available [awaiting further disclosure];

• 16 October 2017 – defence did not articulate what further disclosure was still unavailable and wanted a 5 week adjournment; court adjourned the matter only three weeks;

• 06 November 2017 – no mention of outstanding disclosure; judicial pre-trial (“JPT”) was set;

• 07 December 2017 – JPT was held; 4 week adjournment sought to perfect retainer;

• 04 January 2018 – “this matter is ready to proceed to trial;” again, 4 week adjournment sought to perfect retainer; s. 11(b) waiver on the record;

• 01 February 2018 – “on the last court appearance we were prepared to – both parties were prepared to head to trial I believe;” 4 week adjournment sought to “get instructions” and to have client appear to “address the matter himself;” s. 11(b) waiver on the record;

• 01 March 2018 – Defendant did not appear; adjourned 1 day

• 02 March 2018 – Defendant did not appear; “Both crown and counsel are prepared to head to trial, but we need the accused here” and “I believe there was a waiver;”

• 12 March 2018 – trial set for 17-18 September 2018; request to return 13 August “Just to make sure that we’re confirmed for trial” and “to perfect the retainer;” matter held down to reach counsel; court was then advised “the issue was not because of retainer. We do anticipate that we’ll [sic] retained, however he wants the confirmation date two months beforehand just to confirm that all of disclosure and everything has been received because I think there might be some outstanding issues that he wants to canvass with the Crown;” and

• 16 July 2018 – trial confirmed for 17-18 September 2018.[^7]

[17] Again, some of these adjournments were appropriate to await disclosure, to obtain a judicial pre-trial date, and otherwise to move the matter toward setting it down for trial:

• 18 September to 16 October 2017 – awaiting further disclosure;

• 16 October to 06 November 2017 – awaiting further disclosure;[^8] and

• 06 November to 07 December 2017 – awaiting the judicial pre-trial.

[18] I reject the Defendant’s position that the delay from 14 August 2017 until 12 March 2018, excepting the periods explicitly waived (04 January to 01 March 2018) was not the result of the actions of the defence. The Crown indicated it was ready to set the matter down for trial on the third appearance (08 May 2017).

[19] Every adjournment from 14 August 2017 until 12 March 2018, except the period from 18 September until 07 December 2017, was solely attributable to delay caused by the Defendant. The delays were multiple and lengthy and were not “legitimately taken to respond to the charges.” I also note that the transcripts establish a marked indifference to moving the matter along with any haste.

[20] I calculate the defence delay in this matter as follows:

• 14 August to 18 September 2017 – 5 weeks where there were no outstanding disclosure requests or any other reason preventing setting the matter down;

• 07 December 2017 to 12 March 2018 – 13 weeks where the Defendant was not prepared to set the trial despite repeated requests by the prosecution;

• 18 June until 04 September 2018 – 11 weeks from the first available date where the prosecution and the court were ready for the trial but the defence was unavailable;

• 29 October 2018 to 11 February 2019 – 15 weeks from the first available date after the adjourned initial trial date where the prosecution and the court were ready for the trial but the defence was unavailable;

• 11 February to 12 March 2019 – 4 weeks from the next available date where the prosecution and the court were ready for the trial but the defence was unavailable; and

• 12 March to 29 April 2019 – 7 weeks from the next available date where the prosecution and the court were ready for the trial until when the defence was available.

[21] I have not counted the period from 17 September to 29 October 2018 as defence delay, because the adjournment of the first trial date was caused by the failure of the prosecution to make timely additional disclosure.

[22] Subtracting the amount of defence delay (5+13+11+15+4+7=55 weeks) from the total delay (109-55=54 weeks or 25-12.75=12.5 months) easily brings this case within the Jordan framework for trial time reasonableness.

[23] Before concluding these reasons, I have several observations to make.

[24] The Defendant submits that the prejudice in this case is obvious and a stay is warranted because between the first trial date and the anticipated trial his original counsel died. This was truly an unforeseen and unfortunate event.

[25] However, had the Defendant been prepared to set a trial date on 07 December 2017 at the conclusion of the JPT, his trial may well have been set more than three months (13 weeks) earlier (assuming counsel was available for June 2018 dates in December 2017). In fact, the prosecution and the court were available 13 weeks before 17 September on 18-19 June 2018, but by 12 March 2018, defence counsel was not.

[26] As well, had the Defendant accepted the first date offered after the trial was adjourned when both the court and the prosecution were available (29-30 October 2018), the trial would likely have completed several weeks before the untimely passing of the original defence counsel (21 November 2018).

[27] Counsel for the Defendant also complained that the practise in this region (apparently not followed in other jurisdictions) of setting two-day trials on consecutive dates prejudiced his client because the trial would have been set much earlier if two non-consecutive dates were offered. Though that may be true, of the 109 weeks of total delay from the date of the alleged offence to the anticipated completion of this matter, less than half (54 weeks) is attributable to this institutional preference. Expecting the trial coordinator in this jurisdiction to break local practise and to offer non-consecutive trial dates to accommodate one counsel is unrealistic and possibly selfish, when there are so many other variables beyond the preference of one lawyer which factor into trial date availability.

[28] The transcripts reveal several other concerning features. Representations made were not always entirely accurate (consider the 14 and 28 August 2017 appearances where it was suggested that disclosure was still outstanding despite no request having been made; the indication on 16 October 2017 that the assigned prosecutor had been emailed and called without response – when pressed, it was learned that this had only happened earlier that day; and the representation made on 01 February 2018, ”on the last court appearance we were prepared to – both parties were prepared to head to trial I believe,” which was clearly not the case). This should be avoided.

[29] As well, on some occasions, the defence sought dates that were later than what was reasonable or what was ultimately granted. This undermines the basis for this application (a complaint of prejudice because the timely trial right of the Defendant had been violated), and the requirement that counsel must “actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently" (Jordan, supra, at para. 138).

[30] Lastly, the prosecutor suggests that the jurisprudence requires defendants to make hard choices between securing early trial dates and maintaining their preferred counsel. Pursuant to the reasoning in Mallozzi, supra, referred to above, this would seem to be the case. It is obvious that there is often a tension between obtaining an early (or earlier) trial date and counsel’s availability. It is also clear that although defence counsel are not expected to be perpetually available, the defendant who forgoes earlier dates to accommodate their counsel’s schedule do so at the expense of their own s. 11(b) right.

CONCLUSION

[31] After subtracting the delay caused solely by the Defendant for reasons unrelated to legitimately responding to his charge, this case is well within the appropriate period for trials in this court.

[32] Accordingly, the Application is dismissed.

Released: 28 March 2019

Justice G. Paul Renwick

[^1]: Jordan, supra, at para. 60.

[^3]: Jordan, supra, at para. 47.

[^4]: Jordan, supra, at para. 48.

[^5]: R. v. Cody, 2017 SCC 31, [2017] S.C.J. No. 31, at para. 28; Jordan, supra, at para. 66.

[^6]: R. v. Mallozzi, 2018 ONCA 312, [2018] O.J. No. 1794 (C.A.) at para. 3.

[^7]: On 17 September 2018, the prosecutor advised that there was a disclosure request made in writing on 03 August 2018, which was legitimate and which remained unfulfilled. The prosecutor did not oppose a defence adjournment request. On that date, 05 March 2019 was set for the s. 11(b) application and 29 April 2019 was set for the start of the two-day trial.

[^8]: I note that the Defendant was prepared to adjourn the matter for five weeks, but only a three-week adjournment was granted to await further disclosure.