Court Information

Date: September 24, 2020

Ontario Court of Justice Central West Region Brampton, Ontario

Between:

Her Majesty the Queen

-and-

Darshan Dhaliwal

Reasons for Judgment

Duncan J.

Decision

1. Overview

[1] The defendant is charged with one count of defrauding the public, offence dates between 2013 and 2018. His trial is scheduled to begin on September 28 and conclude on October 9, 2020. He has brought an application to stay proceedings contending that his 11(b) right to trial within a reasonable time has been infringed.

2. Background

[2] The defendant was originally arrested in January 2017 for fraud over in relation to one complainant, Saini. Publicity about that arrest brought out further complainants and by June 2017 the defendant faced six separate charges of fraud over and one of fail to comply with recognizance. These charges moved forward to the Judicial Pretrial stage in September 2017. However, setting a trial date was delayed for months. Eventually, in February 2018 a multi-day trial was set for October 2018. That date had to be changed due to the officer in charge having a scheduling conflict with another major case he was handling. In July 2018 new trial dates were set for April 2019. That trial date was adjourned for reasons that are complicated and controversial between the parties. Eventually, on September 3, 2019, the present trial dates were set.

3. Position of the Parties

[3] The parties are in agreement as to the total delay with respect to each allegation but not with respect to defence delay and therefore resulting net delay. The Crown contends that the net delay is below the presumptive ceiling with respect to each allegation and that this is not a rare case below that ceiling that would justify a stay. The defence calculates the net delay to be substantially above the presumptive ceiling and contends that there are no exceptional circumstances to justify expansion.

[4] By agreement this application has been presented in writing. The Crown filed its record, factum and authorities first, to help ensure that the application was perfected in a timely way. The defence then filed its material and the Crown then filed a response. Neither side addressed the over/under presumptive ceiling exception discussed by their opponent, apparently each feeling confident in its own position re net delay.

4. The Charges and Informations

[5] As mentioned, the first seven charges came forward at different times between January and June 2017. They were on separate informations:

1. Jan 18, 2017 – fraud over; ftc recog – victim S Saini
2. March 31, 2017 – fraud over x 4 – victims Alterna Savings, Cash Source, I Deol, J Grewal
3. June 13, 2017 – fraud over – victim K. Johal

[6] On September 29, 2017 (at JPT stage) the Crown put the charges together on a single 7 count information. The allegations spanned the period June 2013 – December 2016. The first trial date (October 2018) was set on this information.

[7] That October 2018 date had to be changed due to officer unavailability. Around the time that a new date was being set, an additional charge came forward: June 28, 2018 – fraud over – victim J. Benipal. It was soon joined with the other counts on a new 8 count information.

[8] In October 2018 the Crown substituted a new information sworn October 24 charging a single count of defrauding the public, offence dates between June 2013 and July 2018. This became the governing information, the one that was headed for trial in April 2019 and again to the upcoming dates of September 28-October 9, 2020. It is the one that is in issue on this application.

5. Start Date and End Date

[9] What is the start date for 11(b) purposes on this consolidated information? The general rule is that the date of swearing the information governs; R v Kalanj. With respect to this information that would be October 24, 2018. But I don't think any case has ever held that re-laying an information to join counts or make other adjustments to pre-existing charges has the effect of re-starting the clock. Obviously, the Crown could avoid all 11(b) problems if that were the case. The Crown quite rightly does not seek to do that but rather specifically accepts that the relevant start date(s) are the dates of the swearing of the original informations.

[10] But the consolidation of the charges into a single count raises a further question of whether the delay calculation should be made separately in relation to each of the former counts (with different start dates) or globally in relation to the consolidated count. The parties have assumed the former; I think it is the latter. If it was the former there would be a real possibility of one or more of the older allegations being beyond 11(b) tolerance while not so with the more recent one(s). What would the remedy be then? There is only one count to stay or not to stay. To date the Supreme Court has not strayed from its early pronouncements that a stay is the only remedy for an 11(b) violation. I don't think it is open to this court to fashion some different remedy such as refusing a stay but limiting the Crown to adducing evidence only on the more recent allegations, as appropriate and just as that might be.

[11] It is my view that the start date for the single all embracing count is the start date of the first charge as originally laid. That would be January 18, 2017, the Saini count. The end date is the anticipated end of the trial (October 9, 2020).

6. Total Delay

[12] While the parties have done individual calculations, it is my view as per above, that it is only necessary to examine the oldest allegation, in this case Saini. Counsel agree that the total delay in that case is 44 months, 22 days or 1360 days.

7. Net Delay

[13] The parties are far from agreement with respect to net delay. The Crown argues that once defence delay is subtracted the net delay is 16 months and 21 days. The defence says that the defence delay is much less and the net delay is much more – 37 months, 23 days.

[14] It can be seen that even on the Crown calculation of net delay, the Saini allegation comes perilously close to the presumptive ceiling. It is only a month and 9 days short. In order to stay below the presumptive ceiling the Crown must be close to 100% correct in its assertions regarding defence delay.

8. Defence Delay

[15] Delay caused by the defence includes deliberate acts taken to delay the trial including frivolous applications and requests. But it does not include legitimate steps taken for preparation even where the Crown and court are ready to proceed. It does not include applications and requests that are not frivolous. The defence action must be the sole cause of the delay for it to be deductible.

[16] The Crown has identified 5 periods of alleged defence delay.

Periods 1 and 2: Intake Period Delay

[17] The first two periods in relation to Saini can be considered together. They include much of the period from initial appearance on the first charge to the point of setting the date for the Judicial Pre-trial – what could be called the intake period:

• Period 1: March 13, 2017 – April 24, 2017 (42 days)
• Period 2: June 12, 2017 – August 16, 2017 (64 days)
• Total: 106 days

[18] The Crown has carefully analyzed the appearances made during this period. Its position is essentially that the defence dawdled in moving the case forward towards setting a JPT (set August 21) and having a JPT (held September 15 and 27, 2017) whereupon a trial date could be set.

[19] The Crown argues that the defence could have scheduled a JPT as early as June 12 on the older charges rather than when it did, August 21. However, it is important to keep in mind that new charges were still coming forward as late as July. The last matter, Johal, made its first appearance in Court on July 10. The Crown's intention was to try all charges together as indicated by their joining them on one information at the time of the JPT. The pre-trial, including trial time estimate would be incomplete until Johal was included and considered either together with the others or separately. While it was possible to hold earlier pre-trials on the earlier laid counts (and in fact that was done at least re the Alterna etc count on August 21), moving forward to the setting of the joint trial date had to wait for Johal.

[20] In my view any delay that occurred before the Johal case came into the court is irrelevant because it did not cause any juridically significant delay getting to trial. The JPT and setting of the trial date could not have occurred before it did, even if the defence had moved more quickly in completing all intake business in relation to the older matters.

[21] The only question then is whether there was defence delay after Johal. The Crown argues that the JPT should have been set on the second Johal appearance, July 24, rather than the third, August 16. I am prepared to accept that argument for present purposes. However, the delay that resulted is only 23 days.

[22] Accordingly, it is my view that the only deductible defence delay in the intake periods 1 and 2 is 23 days rather than the 106 days as submitted by the Crown. The difference, 83 days, in itself puts the case beyond the presumptive ceiling.

Period 3: Set Date Delay

[23] On completion of the JPT on September 27, 2017 the Crown and Court were ready to set a trial date. But defence counsel requested an adjournment to October 23 to give him an opportunity to talk to his client and speak further with the Crown. There then followed a series of defence requested adjournments for similar reasons. The trial date was not set until February 2018. The trial dates were to be in October 2018 with pretrial severance of counts motion on August 3, 2018.

[24] The Crown includes all of this period as defence delay. I agree with that position for the most part but with one exception – the first adjournment to October 23. It is my experience that it is more common than not for counsel to seek a short delay after a pre-trial to confer with the client, particularly before setting a lengthy trial. It is perfectly legitimate to do so.

[25] The only question is what is a reasonable allowance for this step? Here the defence sought almost a month – not a plainly excessive period. The Crown did not object. However, the defence itself recognized that it was a bit longer than usual. Given this concession, in my view a lesser period of two weeks (14 days) would have been more reasonable.

[26] I would therefore deduct 14 days from the Crown's calculation of defence delay in relation to Period 3, set date delay.

Period 4: Defence Unavailability for Second Trial Dates

[27] When new trial dates had to be set in July 2018 the Court and Crown were available on dates in January and March 2019 but the defence was not. Dates in April were set to accommodate the defence availability.

[28] Based on the applicable case law, I agree with the Crown that the resulting delay between January and April constitutes defence delay.

Period 5: Adjournment of Second Trial Dates April 2019 and Ensuing Delay

[29] On April 8, 2019, shortly before the second trial was to begin, defence counsel applied to get off the record on the ground that there had been a breakdown in the solicitor-client relationship. He cited months of non-cooperation, avoidance and resistance by the defendant to assisting counsel in preparing for trial. That application for removal was granted. Ten days later, on April 18, the trial was adjourned so that the now unrepresented defendant could get new counsel.

[30] The Crown position is that the adjournment of the April 2019 trial and all of the ensuing time to the start of the upcoming trial, September 28, 2020, is defence delay.

[31] However, the defence contends that it is not that simple. He took the position before the Court dealing with the removal and adjournment applications that even if he was not permitted to withdraw as counsel, he would have to apply for an adjournment of the trial due to new disclosure he had received.

[32] The disclosure consisted of about 350 pages of bank records and financial documents which related to accounts of the defendant or his parents. They were obtained by production orders sought in January 2019, produced by the financial institutions in February 2019, vetted by the Crown and then disclosed to the defence on March 12, 2019, about 6 weeks before the trial.

[33] The written Form 1 removal application was based on the non-cooperation of the defendant with his lawyer and the consequential breakdown of their relationship. The adjournment application was based on the need to provide the defendant with an opportunity to get a new lawyer. The disclosure issue, while mentioned, was not raised as a ground for either application and was not adjudicated upon by the Court.

[34] I don't think it can be said that the trial would have been "adjourned anyway" due to the new disclosure. Far from it. A court may well have refused the adjournment considering:

• The defence had almost 6 weeks to absorb and consider the material
• The records related to the defendant's (and parents) own bank accounts. They would have been familiar to the defendant even before being disclosed.
• The defendant's own continuing lack of co-operation and avoidance hindered counsel's ability to review the records as much or more than the timing of the disclosure
• The applications for removal of counsel and adjournment were brought very late in the game and close to the trial date.
• The case was already dated
• Multiple days had been set aside for the trial.

[35] In my view, while the disclosure issue might have resulted in an adjournment it cannot be said that that would have inevitably occurred. In contrast, the defence application to be removed made the trial adjournment inevitable and was the articulated reason for granting it. It would be speculative to assign any responsibility for the adjournment to any other cause.

[36] As for the ensuing delay to the third trial dates: Following the adjournment, the defendant did not retain new counsel. Eventually, June 7, 2019, original counsel came back on the record. There then followed a period of three months until the trial date was eventually set on September 3, 2019.

[37] In my view when the defence is responsible for the adjournment of a trial, the ensuing delay is prima facie defence delay, absent some obvious delaying action taken by the Crown. It is not necessary, in my view to re-analyze this period for additional defence delay. My review of the record shows no such Crown action. To the contrary the Crown was ready to move forward to set new trial dates throughout.

[38] Accordingly, I agree with the Crown's submission that the entire period between second and third trial dates (17 months 5 days) must be considered defence delay.

9. Conclusion on Net Delay

[39] I have determined that the Crown's calculation of defence delay is excessive for periods 1 and 2 by 83 days and for period 3 by 14 days. It is otherwise properly assessed and calculated by the Crown for period 4 and period 5.

[40] Total defence delay therefore decreases by 97 days which in turn increases Net delay by 97 days (3 months 7 days). Adding this to the Crown's Net delay calculation of 16 months 21 days yields a court determined net delay of 19 months 28 days.

[41] The net delay is therefore presumptively unreasonable.

10. Exceptional Circumstances

[42] As mentioned above, no argument is presented by the Crown claiming exceptional circumstances or complexity that would justify an extension of the presumptive ceiling.

11. Order

[43] I find that the defendant's right to trial within a reasonable time has been infringed. I am obliged to direct a stay of proceedings on the single count information before the court.

12. Addendum

[44] As mentioned, this application was made in writing. While preparing these reasons, the issue described above in paragraph 10 arose in my analysis. It had not been addressed by either counsel in their otherwise excellent and helpful written material. I invited them to make further brief written submissions on the point.

[45] One of the points arising from these submissions is whether, if the consolidated count must be stayed, the trial can proceed on one of the multi-count informations that are still before the court. The defence argues that to do so would be an abuse of process. At this point it is premature and inappropriate for me to deal with that issue as it is not even certain that the Crown will seek to proceed in that way and I have heard no argument on the abuse of process point.

[46] However, I am in a position to deal with the 11(b) aspect of the counts on the multi-count informations. As mentioned, counsels' written submissions approached the single count information as if it involved separate analysis of the several separate counts. They have therefore presented their full argument as it would apply to a multi-count information.

[47] So - dealing with the remaining counts separately: The net delay for the other counts can be similarly calculated by adding 97 days (3 months 7 days) to the Crown's figures for net delay:

• Alterna etc – 15 mos 21 days + 3 mos 7 days = 18 mos 28 days
• Johal – 14 mos 20 days + 3 mos 7 days = 17 mos 27 days
• Benipal – 7 mos 7 days + 3 mos 7 days = 10 mos 14 days

[48] In the result, when considered separately, the counts relating to Saini, Alterna, Cash Source, Deol and Grewal are beyond the presumptive ceiling and cannot be saved by exceptional circumstances. They must be stayed. Counts relating to Johal and Benipal are below the presumptive ceiling and are not exceptional. They are not stayed.

September 24, 2020

B Duncan J.

M Sodhi for the defendant/applicant

J Heller for the Crown/respondent