Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2021 11 08 COURT FILE No.: Brampton: 20-7616

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

AMANDEEP MALHI

Before: Justice W. James Blacklock

Heard on: November 2, 2021

Reasons for Application to Stay Proceedings released on: November 8, 2021

Counsel: A. Persad-Ford, for the Crown H. Saini, for Amandeep Malhi

BLACKLOCK J.:

Introduction

[1] I have before me an application to stay the proceedings that are outstanding against Mr. Amandeep Malhi. He is charged with 2 counts of simple assault, assault with a weapon, and threats that arise in a domestic context.

[2] The overall delay in this matter is approximately 19 months from the date the Information is sworn until the date that the trial is now anticipated to end.

[3] The accused made his initial appearance in bail court on May 11, 2020. He was granted bail and released May 13, 2020. Counsel appeared for the first time having been retained on July 22nd 2020. At that stage initial disclosure was not ready. The matter was adjourned on a couple of occasions. Initial disclosure was provided to the defence by September 3rd, 2020. At that time the courts were functioning in the Covid pandemic.

[4] On the September appearance the defence indicated they would review the disclosure and set a judicial pretrial.

[5] One was set for and held on Oct 2nd, 2020.

[6] Following the JPT the matter was spoken to on Oct 7th. Counsel then indicated there was, in fact, disclosure the defence desired still outstanding in the form of video statements from the children of the accused and complainant who were said to be eyewitnesses to the events.

[7] At that point there seems to have been some issue that the disclosure in question existed. The parties indicated they would follow up to determine if this was the case. Eventually on October 23rd the Crown emailed the defence saying that the disclosure had arrived but needed to be vetted. On the other hand, at the next court appearance on October 28th, the Crown indicated they were still waiting on the disclosure to be provided and the matter was then adjourned to November, December, and ultimately to January. In one of those adjournments the matter was not discussed as counsel was addressing a number of his matters and it was inadvertently overlooked.

[8] In December and January defence counsel sent emails to the Crown inquiring about the missing disclosure. In January the Crown replied that the summaries of the children’s videos were there but not the actual videos themselves and the Crown indicated again it would follow up

[9] On January 15th, 2021 the matter was spoken to with the Crown indicating that the disclosure was at the vetting stage. The matter was adjourned to January 27th and it is agreed that an email exchange occurred in which the Crown queried whether defence counsel would be prepared to set dates without the videos in question. Defence counsel took the position that they would not be prepared given that the witnesses in question were eyewitnesses and not merely peripheral to the case.

[10] Disclosure was still not available on January 27th and the matter was again adjourned to February 27th. The disclosure was finally uploaded and made available to the defence as of February 26th.

[11] At that stage, however, the defence did not take any steps to communicate with the trial coordinator to engage the date setting process until May 4th.

[12] A meeting with the trial coordinator then occurred on May 11th and dates were selected.

[13] Those dates were formally set in court on July 16th, 2021 for Dec 7-9, 2021.

[14] In my view, quite apart from the question of whether the defence should have been in the ordinary course prepared to set a trial date prior to receipt of the videos of the children in this case, I can say I am still satisfied that the net delay in this case is under the presumptive ceiling of 18 months.

[15] The failure to take steps to set a date between the date when disclosure was complete on February 26th and May 4th represents, in my view, a marked indifference to delay which means that at least a significant portion of that period should be deducted in calculating the net delay here.

[16] Even allowing for a busy practice, two weeks would be a reasonable amount of time to review the children’s videos and get final instructions. That means I should deduct 1 and ¾ months from the over-all delay of 19 months which takes us to a net delay of approximately 17 months 1 week.

[17] This puts this case under the 18-month presumptive ceiling meaning that the onus is then on the defence to satisfy me of two things: first that the case has taken markedly beyond the period of time a case of this sort should reasonably have taken to come on and secondly that the defence has displayed meaningful and sustained efforts to expedite the process

[18] I would add that the Supreme Court in R. v. Jordan, 2016 SCC 27 has said that finding of a breach when the delay in this court is under the presumptive ceiling will be rare. These two components should thus be interpreted with that caution in mind. In addition, in my view, the second component requires more than verbalizing 11(b) concerns and describing on the record the deficiencies in the way matters are proceeding.

[19] I will proceed on the assumption without deciding that the first hurdle has been met by the defence in this case. I am not, however, satisfied on the balance of probabilities that the defence has taken meaningful and sustained steps to expedite the process.

[20] I accept that they were repeatedly seeking the videos of the children in this case and making it clear that they were 11(b) issues. I believe they also accepted the first trial date ultimately offered them in May of 2021. Having said that, neither of these steps on this record did anything to clearly expedite the process. On this record these steps are little more than defence counsel simply going along with the process at the pace it was proceeding at. While these matters are relevant considerations at this stage, they get modest weight when considering if the defence has truly taken sustained and meaningful steps to expedite the process.

[21] On the other hand, the defence on more than one occasion in this case behaved in a way that unnecessarily impeded the setting of an earlier date.

[22] Firstly, they rejected what appears to have been the willingness of the Crown to set dates before the children’s videos were fully available to the parties. In the circumstances of this particular case, that would have been, in my view, an eminently reasonable approach at least as of January 2021.

[23] As of January 15th, the disclosure process had reached a point that both parties, in all probability, knew the shape of the allegations and knew the full scope of what needed to be disclosed. They also knew that they either had that disclosure or knew it was in existence, in police possession and was being produced without opposition. The Crown had the summaries of the children’s videos and was positioned to legitimately say that there was a need for the child friendly court.

[24] There was no real election issue in this case that then impeded setting of a date. This appears to be the type of a case that daily proceeds by way of judge alone at this level of court. The accused is not charged with any offence involving bodily harm. The parties initially had a statement from the central witness in the case, namely, the complainant, and thus, in all probability, knew the nature of the conduct said to be involved at its highest. Indeed, the Crown has now elected to proceed summarily on all the charges including, with a waiver of limitation period, the historical matters.

[25] In addition, given the amount of time that would have passed between any set date and the ultimate trial date there would have been more than enough time to assess any need for a change in trial tactics arising out of a full review of the content of children’s videos. Furthermore, given that the Crown had made the suggestion of taking this approach to the date setting process they could hardly allege any delay in a plea arising out of the late disclosure of the children’s video meant that such a plea was not an early one. Finally from some of the correspondence filed it appears that the possibility of resolution by way of plea was extremely remote here in any event.

[26] Thus, in the context of how this particular matter unfolded at, least as of January 2021, I do not believe that there was anything that reasonably stood in the way of the setting of a date for trial. The defence chose not to do so. They were entitled to take this approach, but that was an approach that is hardly consistent, in these particular circumstances, with the sustained taking of meaningful steps designed to expedite the process.

[27] I would also observe, as mentioned earlier in calculating the net delay in this case, the defence furthermore failed to move expeditiously to seek the setting of a trial date through the trial coordinator’s office even after the disclosure of the children’s videos was made.

[28] Not being satisfied then that the defence has truly taken sustained steps to meaningfully expedite the process and the net delay here being under 18 months, this application must be dismissed.

Released: November 8, 2021 Justice W. James Blacklock