Court Information

Ontario Court of Justice

Date: January 22, 2020

Court File No.: 4815-998-18-55002109-00

Between:

Her Majesty the Queen

— and —

Sukhvir Singh Thethi

Before: Justice Lori Montague

Heard on: December 10, 2019

Oral Judgment released on: December 20, 2019

Written Reasons for Judgment released on: January 22, 2020

Counsel

Mr. Christian Moreno — counsel for the Crown

Ms. Bella Petrouchinova — counsel for the accused Sukhvir Singh Thethi

Judgment

Montague J.:

I. Overview

[1] This is a ruling on an application for a stay of proceedings as a result of an alleged breach of the Applicant's Section 11(b) Charter right to be tried within a reasonable time.

II. Case Chronology

[2] A review of the information, trial date setting forms attached to it, as well as transcripts and affidavits submitted by both the Applicant and the Respondent, allows this court to summarize a timeline of how this case proceeded, below.

[3] On July 21, 2018, a complaint was made to TPS, and the Applicant was charged with the offence of Threatening to Cause Death, in relation to his former spouse. He was released on a recognizance the following day with a number of conditions, the most pertinent of which originally prevented him from attending at what was at the time the "matrimonial home" of himself and the alleged complainant.

[4] Mr. Thethi's first appearance in court (post-release) took place on September 5, 2018. On that date he was accompanied by his counsel retained for ongoing Family Court proceedings: disclosure was provided, he was advised of the name of the assigned Crown (Ms. Barnes), and the matter was adjourned to September 26, 2018, for a Crown pretrial (CPT) to take place. On that date the Crown elected to proceed summarily: and now criminal defence counsel (Ms. Petrouchinova) had been retained, though an agent (Mr. Subrata) appeared on her behalf. Before the next court date (NCD) of October 17th, agent for counsel for the Applicant submitted to this court, that counsel had made at least two attempts to contact Ms. Barnes: she called the Crown's Office, asked to speak to Ms. Barnes to schedule a CPT in accord with both of their schedules (and was told by their front office, that Ms. Barnes was busy); and then she made a second call (of which there is no record) and was given the Crown's email. She then emailed Ms. Barnes – who responded, according to the Respondent's affidavit, within three minutes – and counsel for the Applicant took the first CPT date offered (October 18, 2018). I do note that on September 26th, Mr. Subrata advised Justice of the Peace McAleer that "we found the name of the Crown assigned...and counsel will be in contact to hold a CPT. And counsel would like an adjournment for three weeks": and he indicated counsel "got C. Barnes (name), and wasn't able to contact her." (see transcript pages 3-4).

[5] The October 17th appearance was thus adjourned to October 31, 2018, for the CPT to take place in the interim: and on October 31, 2018 the case was adjourned to November 21st, pending the outcome of a JPT scheduled for November 13 (and to give counsel an opportunity to receive post-JPT instructions).

[6] On November 21, counsel for the Applicant advises that she was informed she should attend at the Crown's Office and pick up additional disclosure. That disclosure was of some officers' notes and of a 911 audio, which counsel for the Applicant deemed significant, as the complainant asserted she was making the call while threatened (though it turned out not to have that evidentiary significance). Also on November 21st, the first set of trial dates were set, for April 15 and 16, 2019, with an intervening confirmation date of February 1, 2019.

[7] Trial readiness having been confirmed, on April 15th counsel and her client appeared for trial. The Crown provided some additional disclosure as a result of a meeting she had had with the complainant (which turned out not to be of evidentiary value/assistance, and would not have led to a defence trial adjournment request). After counsel and the Applicant had waited approximately two hours, it was established that there was no judge available to start the trial, that it was not the priority case if assistance were offered; and also, that the judge in whose court it had been set, was the justice who had done the JPT. Counsel and her client, who had been ready to proceed, attended at the trial coordinator's office. They were offered a second trial date of July 25, 2019 – but defence counsel was not available, because of travel commitments. The trial was therefore reset for August 29 and 30, 2019: even though counsel for the Applicant would have to arrange childcare as a result, she submits that she was mindful of the Applicant's anxiety about awaiting his trial, as well as the marital property issues. An intervening date of June 3, 2019 was also set, to deal with confirmation of trial readiness and an outstanding potential bail variation issue (which I understand was based on a family court order having had been made, which permitted the Applicant to return to the matrimonial home, and removed the complainant from same). On June 3, the bail issue wasn't dealt with, but the availability of some additional disclosure was indicated by the Crown. The defence confirmed readiness on June 21: the Crown confirmed their readiness (at a Crown-only-required appearance) on July 12, 2019. I note Mr. Thethi was present on July 12, but not because he had been remanded with respect to this case: apparently he had been charged with a breach of recognizance (subsequently withdrawn by the Crown), and his first appearance on that matter was placed on July 12th, to coincide with this case.

[8] On August 29th when the Applicant and counsel appeared a second time for trial, there was no justice scheduled in the court the case had been set in, to be heard. The judge in the courtroom where the case was dealt with had already started one matter and according to counsel for the Applicant, there was another (second) trial "in the queue", ahead of Mr. Thethi's. Attendance at the trial coordinator's office led to new (third) trial dates being offered on the 4th, 5th and 6th of February 2020, which were the earliest available to the court: defence counsel was not available due to a scheduled SCJ jury trial that week, but did accept dates the following week (February 10 and 11th), which this trial is now scheduled for. I note that on the August 29th trial date, that Ms. Barnes indicated that if the trial were to have been estimated to take one day, that earlier trial date(s) would have been available "before the new year" (see p.4 of the transcript). And counsel for the Applicant stated that in spite of the risk of her jury trial running into February 10 and 11th, that "I have to take the first date that is open in my calendar," noting "Mr. Thethi is experiencing financial, emotional and mental hardship as a result of these numerous adjournments" (see p. 5).

III. The Legal Analytical Framework

[9] Both counsel have submitted case books in this matter, which I have thoroughly reviewed.

[10] In determining whether a person's Section 11(b) right has been infringed, I turn to the Ontario Court of Appeal in their decision in R. v. Gopie, 2017 ONCA 728, which summarized the "Jordan" method of calculating delay (see R. v. Jordan, 2016 SCC 27). First, the court must assess the total delay. This is a straightforward approach that begins with the laying of an information, and ends with the actual or anticipated conclusion of the trial. With respect to Mr. Thethi, the Applicant and Respondent are ad idem with respect to the amount of delay in this matter, from arrest until the second trial date now set in February of 2020 (the 11th): 571 days, or 18 months and 22 days.

[11] The second step in this court's analysis, is to determine if there is any delay attributable to the defence which must be deducted from that total, leaving the "net delay". Defence delay is divided in two categories: the first category is delay waived by the defence, and the second category is delay that is caused solely by the defence (see R. v. Cody, 2017 SCC 31 at para 26). In this case, delay attributable to the defence, with the exception of a one day variance, is agreed to be 40 or 41 days. The net delay, therefore, is 530 or 529 days, or, approximately, seventeen and a half months.

[12] The third step of this court's analysis, is to compare the net delay to the presumptive ceiling which in cases tried at the provincial court level, was set by the SCC in Jordan, as eighteen months. Since the net delay in the Applicant's instance falls below that presumptive ceiling, the onus is on the Applicant to demonstrate that the delay is unreasonable. To establish such "unreasonableness", the Applicant must establish both that they made "meaningful steps that demonstrate a sustained effort to expedite the proceedings", and that the case has taken markedly longer to proceed to trial than it should have" (see Jordan at paragraph 48).

A. Did the Applicant make meaningful steps that demonstrate a sustained effort to expedite the proceedings?

[13] At the time when the second and third trial dates were set, counsel for the Applicant was unavailable on the earliest dates for trial available to the court that were offered (July 25, 2019 and February 4, 2020, respectively), for personal and professional reasons, respectively. This court is not casting aspersions on counsel for the Applicant, but that is fact: the earliest possible new trial dates were not set, on both occasions. A review of the transcript of April 15, 2019, when the first trial date set did not proceed, indicates that counsel stated (on page 4, at lines 12-17): "we've accepted those dates (i.e., August 29 and 30, 2019). My client was ready to proceed, he's quite disappointed that the matter is not proceeding, but for all the reasons that have already been listed on the record, we have no choice." A review of the transcript of the second trial date set (on August 29, 2019) reveals that while counsel expressed concern about the effect of a second trial adjournment on Mr. Thethi, counsel did not raise 11(b) of the Charter at that time, either. That would have, hopefully, been some impetus for the Crown and or the court, to communicate with the trial coordinator, convey that concern for the matter to proceed quickly, and potentially, to have sought earlier dates than those set for August of 2019, and those now set in February of 2020. This court agrees with the submission of the Respondent, that there is some onus, not only on the court and the Crown, but also on the defence/Applicant, to act in a manner that minimizes delay and to notify the court if delay has become problematic, particularly if the dates being offered/accepted are set within the eighteen month acceptable ceiling enunciated in Jordan. On a reading of the transcripts of what occurred on both of the earlier trial dates set, this court cannot find that this is one of the "clearest of cases" where a stay of proceedings for delay should be granted, when the trial dates now set (in February of 2020) still fall within that eighteen month timeframe.

B. Did the Applicant's case take "markedly" longer to proceed to trial than it should have?

[14] Counsel for the Applicant submits that the approximately three-week delay in the setting of a Crown pretrial in this case, should be borne by the Respondent. On September 5, 2018, Mr. Thethi's first court appearance post-release, he was given disclosure and he was accompanied by counsel (albeit, his counsel for then ongoing Family court matters), who was advised of the name of the assigned Crown (Ms. Barnes). The matter was adjourned to September 26, 2018, for a Crown pretrial (CPT) to take place. On September 26th and agent for current (criminal court) counsel appeared, and stated "…we found the name of the Crown assigned, Courtney Barnes, and counsel will be in contact to hold a CPT. And counsel would like an adjournment for three weeks" (see pages 3-4 of the transcript). When the presiding Justice of the Peace then points out that "I note whoever appeared last time was told the Crown was Ms. Barnes and was asked to have a pretrial. And that was September the 5th. So we'll do it again", agent for the Applicant's counsel then stated "Yes, she wasn't able – she got C. Barnes and wasn't able to contact her" (see page 4 at lines 5-10). As a result, the case was adjourned, as requested, to October 17, "again for pretrial" (to quote Justice of the Peace McAleer). As counsel for the Respondent now points out, agent for counsel for the Applicant at no time asserted on September 26th, that the Crown had failed to respond to precious attempts (by telephone or any other means), of Mr. Thethi's counsel, to contact Ms. Barnes. That position of the Respondent is bolstered by the affidavit in their materials, of David Reznikov (based on an email from Ms. Petrouchinova to Ms. Barnes sent October 16, 2018, attached as Exhibit A). In the email, counsel for the Applicant states "Hi, I'm reaching out for a CPT on Thethi, thanks!" Three minutes later, Ms. Barnes responds "any chance you're free to speak Thursday October 18 at 4:15 pm?" Ms. Petrouchinova replies one minute later, "Yes, thanks!' and gives her phone number. According to Mr. Reznikov, the Respondent takes the position that that email exchange was "the first communication that the Respondent received from the Applicant regarding setting a CPT": and "This email does not refer to any prior attempts to contact the Respondent. The Respondent did not receive any phone calls from the Applicant prior to receiving this email." The immediacy of Ms. Barnes' response, and the written record of it, gives credence to the position of the Respondent: that is, that the Respondent was ready, waiting, and as soon as contacted by the Applicant's counsel, able to set a CPT two days later. On the evidence, this court is not prepared to hold the Respondent responsible for any delay in the setting of the CPT in this matter: nor to find that that delay cause Mr. Thethi's case to take "markedly" longer than it should have.

[15] This court can consider whether this case was particularly complex, such that the time the case took was justified and the delay reasonable (see Jordan, at paras. 75-80). However, the Crown and the defence agree that this is not a "complex" case, nor does it involve exceptional circumstances, as defined in Jordan. In that they are ad idem with this court: in my view this is a serious allegation against Mr. Thethi, but not a complex case. As described by counsel for the Applicant, the threat alleged consists of "three words, and a couple of minutes of interaction" between the Applicant and the complainant. There are no Charter applications, voir dires, or other pretrial motions: nor are date, time, or jurisdiction in issue.

[16] The Respondent takes the (logical) position, that a one-day trial time estimate for this case would have elicited offers of earlier trial dates, than a time estimate seeking two days. The Respondent takes the position that Mr. Thethi's would be a one-day trial, but for the Applicant indicating they may require some time to cross-examine the complainant, who is essentially the only Respondent witness. However, Counsel for the Applicant asserts that it was prudent to set two days, as there were seven-eight prior police occurrences between the two parties over a period of years, that she might have to explore with the complainant. Though it is of lesser consideration in this court's decision-making, I do take into account the fact that this case could have taken less time to proceed to trial, had the time estimate of the Respondent been the basis for the setting of trial dates.

[17] The fact that this case was effectively not reached on two occasions on the day of trial was unfortunate, but not predictable: and in a busy jurisdiction such as the one which 2201 Finch's court encompasses, not entirely unusual nor arbitrary. To quote Justice Molloy in R. v. RD, 2017 ONSC 1770, at paragraph 32:

"Toronto has always had a busy criminal trial list, with a higher percentage of complex trials and long trials than is the case for other jurisdictions in the province, and perhaps in the country. Over the past two decades, as the population has grown and both the length and complexity of criminal trials have increased dramatically, there has been no appreciable increase in the number of judges in this jurisdiction."

[18] The issue identified by Justice Molloy in 2017, has recently been compounded by this courthouse having had three fulltime experienced and long-presiding justices retire from the bench in March and June of 2019: of whom only one has been replaced. While this court is not unsympathetic to the Applicant's time and the financial implications of having appeared twice for trial without his matter having been reached, I cannot find that this matter took "markedly" longer to proceed to trial than it should have. It still falls within the timeframe of delay recognized as acceptable by the Supreme Court of Canada, particularly in a jurisdiction as busy and with such a volume, as this courthouse's.

IV. Conclusion

[19] In Jordan, the SCC has made it clear that stays of proceedings will be rare where the delay falls below the presumptive ceiling. The Applicant's case falls below that ceiling. The Applicant has not demonstrated that he took sustained and meaningful steps to expedite his trial. Moreover, this court finds that at all times, the Crown was ready to proceed with the Applicant's case and did not occasion any delay. The only non-defence delay occasioned was by the unavailability of the court: and that delay will not have caused Mr. Thethi's case to take markedly longer than it reasonably should have, to get to trial in February of 2020. As a result, the Applicant has not met the onus upon him, to demonstrate that the presumptively reasonable delay in his case, is unreasonable. The application will be dismissed.

Released: January 22, 2020

Signed: Justice Lori Montague