ONTARIO COURT OF JUSTICE

CITATION: R. v. Ramrattan, 2021 ONCJ 687

DATE: August 10, 2021

Information No. 19-2073

HER MAJESTY THE QUEEN

v.

AARON RAMRATTAN

P R O C E E D I N G S O N A P P L I C A T I O N

(Excerpt - 11(b) Ruling)

REMOTELY BEFORE THE HONOURABLE JUSTICE P. T. O'MARRA

on August 10, 2021, for a BRAMPTON, Ontario proceeding

APPEARANCES:

T. Mrejen Counsel for the Crown

L. Rados Counsel for Aaron Ramrattan

O'MARRA, J (Orally):

This is my oral decision on an application brought alleging an infringement of the Mr. Ramrattan's right to be tried within a reasonable period of time and counsel is seeking a stay of proceedings.

If I chose at a later date to issue written reasons and there is a discrepancy or different between the oral reasons I am delivering today and the written reasons, the written reasons will prevail.

The Applicant was investigated, arrested and charged with assault on February 25th, 2019. The Information was sworn on November 26th, 2019. The trial in this matter is set to commence before me in the Ontario Court of Justice today, August 10th, 2021, and it is anticipated that it would conclude on August 11th, 2021, which is 897 days or 29 months and 16 days from the date of the Information.

On July 30, 2021, the application was argued before me, and I reserved until today in order to deliver my reasons.

The Chronology:

The history of the proceedings was accurately set out in the applicant's factum and the Crown's response. I do not propose to recite the pace of the proceedings in its entirety or cite specific transcripts with the exception of two dates: October 10, 2019, and November 25, 2020.

Nevertheless, the history is based on all the transcripts, Crown Disclosure, an affidavit from Dragana Sabani, from the Victim/Witness Assistance Program, emails and other litigation documents and records.

• On February 25, 2019, the applicant was arrested for assault.

• February 26, 2019, the Information was sworn, and the applicant was released on bail.

• On March 26, 2019, Duty Counsel addressed the matter, and it was adjourned to April 2, 2019.

• On April 2, 2019, counsel's agent attended, and the matter was adjourned to April 16, 2019, initial disclosure was to be picked up at the disclosure hub.

• On April 16, 2019, the agent attended. The matter was adjourned to April 30, 2019 to schedule a Crown Pre-Trial.

• On April 30, 2019, the agent attended. The matter was adjourned to May 7, 2019, for the Crown to investigate the outstanding disclosure, specifically the complainant's statement.

• On May 7, 2019, the agent attended. The matter was adjourned to May 9, 2019, for the agent to see if the complainant's DVD statement was available.

• On May 9, 2019, the agent attended. The matter was adjourned to June 6, 2019, as substantial disclosure was still outstanding.

• On June 6, 2019, the agent attended. The matter was adjourned to July 4, 2019 as substantial disclosure was still outstanding.

• On July 4, 2019, the agent attended. The matter was adjourned to September 19, 2019 in order that a Judicial Pre-Trial could be held on September 12, 2019.

• On September 19, 2019, the agent attended. The matter was adjourned to October 10, 2019 for a further Judicial Pre-Trial to be held on October 3, 2019.

• On October 10, 2019, the agent attend. Trial dates were set for November 25 and 26, 2020. The trial coordinator's verification of trial date form indicated that the first available date for both the Court and the Crown for a two (2) day trial was December 10 and 11, 2019. Counsel was not available. The form reflected that October 21st and 22nd, 2019 and October 31st and November 1st, 2019 were offered but rejected by both the Crown and the Defence. An agent stated on that day, and I quote at page 1 of that transcript, lines 20 to 26, the following Ms. Carvalho states: "Apologies. I would also like to indicate that the first date offered was December 10 and 11. Counsel was not available, and the next date offered was the date scheduled of November 25th and 26th. Counsel had many earlier dates available in each month prior to that".

• On November 16th, 2020, counsel attended to the triage court to confirm trial readiness. The Crown indicated that the complainant had been subpoena, and was attending court to testify in person, and that remote access was not necessary. Ms. Allison on page 2 on behalf of the Crown was quoted starting at page 2, line 19. The court says, "Okay, all right, [indiscernible] remote access?" Ms. Allison says, "No, it looks like the complainant is willing to come in person."

• On November 20, 2020, the Crown filed and served an application to adjourn the trial date due to the complainant's unavailability as a result of her pregnancy and childcare issues.

• On November 25, 2020, the Crown's application for an adjournment was granted by Justice Hawke, despite the Defence's resistance. The matter was adjourned to December 8, 2020 to set a new trial date.

• On December 8, 2020, the agent attended and the matter was adjourned again to January 19, 2021 to set a new trial date.

• On January 19, 2021, the agent attended, and the matter was adjourned again to March 2nd, 2021 to set a new trial date.

• On March 2nd, 2021, the agent attended. The matter was set for a new trial date to commence on August 10th and 11th, 2021.

I turn now to the Jordan analytical framework.

The Jordan Analytical Framework:

1. In determining whether a person's section 11(b) right has been infringed, 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. (See Jordan, 2016 SCC 27, para. 47).

2. Second, defence delay must be deducted from that total, which is the Net Delay. (See Jordan at para. 66)

3. Third, if that delay is beyond the 18-month ceiling for Ontario Court matters, it is presumptively unreasonable. (See Jordan, para. 66). The Crown bears the onus of justifying that delay. (See Jordan, para. 47). If, the Crown cannot rebut the presumption a stay follows. (See Jordon, para. 47) Justification for delay is restricted to "exceptional circumstances." (See Jordan at para. 47).

4. Exceptional circumstances lie outside the control of the Crown in that they are (i) reasonably unforeseen or reasonably unavoidable, and (ii) cannot be reasonably remedied once they arise. (See Jordan, para. 68)

5. Exceptional circumstances are recognized as discrete events or case complexity. In the case of the former, the delay attributable thereto is deducted from the total. In the case of the latter, if found, delay beyond the ceiling may be deemed reasonable. (See Jordon, para. 71)

6. Subtract delay caused by discrete events from the Net Delay for the purpose of determining whether the presumptive ceiling has been reached. (See Jordan, para. 75).

7. If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable. (See Jordan at para. 80).

8. If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. (See Jordan at para. 48).

9. The total delay in this matter is 29 months and 16 days.

10. It is agreed in this case that the matter is not complex.

What I consider to be the two issues for me to decide the merits of this application are the following:

1. How much Defence caused delay, if any, should be deducted from the total delay?

2. Should the circumstances surrounding the Crown's successful adjournment application of the first trial date constitute an exceptional circumstance?

Dealing with Issue Number 1 - How much Defence caused delay, if any, should be deducted from the total delay?

The Crown argues that the Defence is responsible for the period of delay from December 10th, 2019 to November 26th, 2020, as the Crown was ready to proceed for trial on December 10, 2019 but the Defence was not. This period of delay amounts to 10 months and 27 days or 332 days. The Crown's response indicated that the delay was "380 days or 12 months" which is incorrect.

Counsel submitted that when the first trial date was scheduled that there was a lack of reasonable dates canvassed prior to scheduling the matter for the original trial date. Counsel had many other dates available after the date that was offered and before the original trial date.

I refer to this as the Godin argument, that is that counsel should not be expected to hold themselves perpetually available to set a trial date. Counsel invoked the following passage from Justice Cromwell at paragraph 23 speaking on behalf of the Court. And I quote:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry -- efforts which were ignored -- suggests that he wished to proceed expeditiously. I respectfully agree with Senior Justice Glithero, dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.

The issue of whether Godin has been overtaken by

the Jordan framework has generated a lot of

judicial debate and different approaches.

I note my colleague, Justice Blacklock dealt with

this very issue of defence unavailability in the

post Jordan era and several decisions that have

attempted to addressed it as well, in an unreported

decision of R. v. Lobo dated April 1st, 2021.

Justice Blacklock went onto to say the following:

In Ontario there are decisions indicate that in light of the new regime established in Jordan supra the principles in Godin supra do not survive at all. These cases suggest, as the Crown here argues, that delay in the proceedings following even a single date being offered upon which the defence is unavailable should be simply treated as defence delay. See for example Regina v. Grewal, Regina v. Bilachi and Regina v. Brown. On the other hand, there are cases suggesting Regina v. Godin supra survives Jordan supra and consequently the offering of a single date does not mean that any subsequent delay is to be treated as falling to the defence. (See for example Regina v. Daliwahl).

There are also cases which are perhaps more nuanced. These cases suggest that context beyond the mere number of dates offered is important. (See Regina v. Albinowski from the Ontario Court of Appeal, Regina v. Dhillon 2019, an Ontario Court of Justice decision, and Regina v. Ameerullah, a Superior Court decision).

Factors recognized in these cases going to that context include what is the cause for the need to set the date in question, is the date offered far enough out to have realistically permitted preparation, as well as how many dates were provided.

Ameerullah supra provides a further gloss. It also suggests that in some cases in which even one date is offered to the defence some portion of the subsequent delay may be taken as falling to the defence.

I can say at a minimum I definitively do not accept the notion that defence unavailability when only one date is offered should necessarily be treated as completely irrelevant to the section 11(b) analysis. Without making a final determination I must say I am drawn to the notion that the full impact of the defence being unavailable on a particular date should depend on all the circumstances.

I also note Justice Goodman stated the following in R. v. Belzil, which is a 2021 decision from the Superior Court. At paragraph 65 and 66 regarding the issue of defence availability, His Honour stated the following:

However, the words of Cromwell J. in Godin may have been supplanted by the Supreme Court decision in Jordan, Cody and, most recently, confirmed in the R. v. Thanabalasingham. At paragraph 9: "[d]efence counsel must be aware that, aside from time legitimately taken to respond to the charges, they "will have directly caused the delay if the court and the Crown are ready to proceed, but [they are] not."

I accept that this may influence the comments of Justice Cromwell earlier passage in Godin. (See also R. v. Mallozzi, Albinowski, Ameerullah and Balogh).

Again, as this evolving area of law makes clear, context is always important — not every single offer of a date for which the Crown and Court are both available, while the defence is not, will count as defence delay without further analysis. Each case turns on its facts.

Context is important in this particular case.

This was not a setting of a trial continuation date. This was setting of a first trial date.

The Court offered two trial dates before counsel was offered December 10th and 11th, 2019. Counsel and for that matter the Crown as well rejected October 21st and 22nd, 2019 and October 31st and November 1st, 2019. I can understand the reasoning for the Crown to reject the two suggested trial dates, as being too soon to allow subpoenaing witnesses and over all trial preparation. And I understand counsel may have good reason to reject the first trial date. But rather counsel did have an option to accept the second available date. And I note that counsel argued in his factum at paragraph 28 the following:

While a few earlier dates were canvassed with the trial coordinator, those were extremely and unreasonably close in time. For instance, the trial coordinator canvassed availability for 11 days away. The Applicant submits that it would not have been realistic to expect counsel to be ready to conduct a trial with days of it being set. The Crown was not available in any event.

The second trial date that was offered was 21 days away. And I note that counsel was not offered "a single" date in this case. In fact, counsel was offered three discrete trial dates. Counsel did not indicate that he was unavailable. His argument was that 11 days away was too soon. I am sympathetic to that argument to a point. However, the second offered trial date as I have stated was three weeks later. The record was silent as to why this date was not convenient. However, I suppose it is implicit that counsel felt that the date was too soon.

I cannot say that this is similar to Justice Blacklock's case and others, as more than one date was offered in this case by the trial coordinator.

The fact that the next trial date that was offered after December 10th and 11th, 2019 was approximately 11 and a half months away is troubling but also speaks to the volume of cases in the Region of Peel. But the December trial dates were 60 days away and this was not a trial continuation date. In my view, paragraph 64 in Jordan is abundantly clear "…the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable."

In my view the Defence delay commenced on December 10th and 11th, 2019 when counsel was not available.

Therefore, the defence delay is approximately 10 and a half months.

Issue Number 2 - Should the reasons for the Crown's successful adjournment application of the first trial date constitute an exceptional circumstance?

I cannot agree with counsel that the events surrounding the Crown Adjournment Application from November 25th, 2020 to August 11th, 2021 do not qualify as exceptional circumstances for the following reasons:

Counsel argued that the Complainant's difficulties in testifying at trial should have been flagged sooner or was reasonably foreseeable. Once the problem was identified the Crown should have taken further action to ameliorate any delay. Counsel's argument was similar if not the same argument raised and rejected by Justice Hawke in her reasons in granting the Crown's application.

Not surprisingly, it seemed that from correspondence dated July 26, 2020 that the complainant indicated that she did not want the prosecution to continue due to having a 5-month-old infant and was at that time 3 months pregnant.

Jumping ahead to November 13, 2020, 12 days before the trial date, the complainant's child at this time was approximately 9 months old and she was 8 months pregnant during COVID-19.

On November 13th, 2020, the complainant learned that her mother was unable to travel from Ottawa to assist in childcare while the complainant testified. VWAP was even going to pay for her flight. According to the transcript dated November 25th, 2020, Justice Hawke's reasons, the following on page 2 beginning lines 14 to 29 of the transcript:

There was a plan to the complainant's mother fly in from Ottawa so she could provide childcare while the complainant testified on both cases. Ms. Sabini learned that the first case was not going ahead. I am not perfectly clear where she learned that piece of information, but that was neither on or before November 13th. The witness certainly did learn by November 13th that whatever went wrong with the first case was not going ahead caused the complainant's mother to decide that she was no longer willing to travel from Ottawa. The business of the mother travelling from Ottawa I understand is something that the Victim Witness people were prepared to support in terms of her flight. Furthermore, other options were explored, including seeing if anyone else in the community could look after her. The complainant did not know anyone that she felt comfortable enough to leave her child with. There was a babysitter whose name was suggested to the complainant by VWAP, but as part of that person's daily schedule, she transported other children. It was decided this was not a suitable arrangement.

And again, I turn to the transcript of Justice Hawke's ruling at page 3 at the top beginning at line 2 and going to line 22. Justice Hawke stated:

It's my understanding that the complainant took the view that any other people in the community that she knows and not people she would leave her child with. She contacted a licenced childcare facility that she had some prior connection to by the 18th. Their answer was clear, and they would not make themselves available. Ms. Sibadi gave the complainant the name of the babysitter that she knew personally. That person was prepared to have helped. I believe that agreement was made known to Ms. Sibadi before she [indiscernible] to the complainant. That person rather is part of a daily scheduled transport school children in her car and this would mean that the complainant's 9 month old would need to ride along in the car and the complainant decided that was not suitable. Ms. Sibadi then checked if she could help out personally, but the manager of their office said that they could not have the child there.

In dealing with the issue of laches in the adjournment application, Justice Hawke rejected the same argument that counsel advanced in the delay application, that is the Crown should have been better prepared given the time that both the trial dates and COVID-19 have been outstanding.

Counsel argued similarly the Crown should have met with the complainant sooner. However, once the issue was raised the Crown should have taken more steps to arrange childcare support, including retaining a private nanny service, which would have permitted the complainant to testify remotely. Failing that, the Crown should have brought a material witness warrant application to compel the complainant's attendance and set another trial date soon after the original November trial dates.

I reject counsel's argument for basically the same reasons that Justice Hawke did. And I quote at page 4 beginning at lines 13.

So on that front, the complainant was subpoenaed and the evidence is that up until November 13th the witness had a plan for her mother to take care of her child while she testified. And that the Victim Witness was prepared to support this with a flight. So the question becomes whether or not there has been any neglect in attempting to have the witness appear since November 13th. I think the answer to that is no. Firstly, the Crown and the Victim Witness do not have a duty to provide child care. It is not unreasonable for the Victim Witness office to take the position that it did especially in these times. I disagree with the defence submission that there is always a way to marshal up child care and he went through some suggested options. I disagree that even then that doable even in the best of times. I especially disagree with his proposition for a 9 month old infant. Child care is licenced business. Demand is high and those places require application well in advance. They require a longer commitment than two days. During COVID this has become even more complicated. Everyday you hear that COVID has caused a national child care crisis. What the complainant really needs is a babysitter for two days. She did note one attempt that is considered one option that the Victim Person was able to present. I don't disagree with her choice to turn this option down. Before I go to that, I think this likely would have solved the problem but for us being in COVID times. Given we know that the person would have been prepared to do it and you know that the person had a good reference, that being Ms. Sibani herself, it probably would have been unreasonable and mindful the 19 times for the complainant to turn down this option. But I don't disagree with her in turning this down. The child is 9 months old. This would involve contact with school aged children in the car and then the 9 month old would return home to his mom who is expecting another child. That scenario just poses too many unknown in terms of risk to the 9 month old, the mom and the unborn child. I cannot assert that it would cause too much of a risk. I can't say that it would not [indiscernible].

In my view the exceptional circumstances laid outside the control of the Crown in that they were reasonably unforeseen and reasonably unavoidable, and could not have been reasonably remedied once they arise.

Therefore, I find based on the facts of this case that the delay in the original trial date being adjourned from November 25, 2020 to August 11/21 was unavoidable and could not have been remedied. Counsel did not take issue with the pace at which the second trial date was set.

The delay which is subtracted is 8 months and 18 days or 260 days constitute exceptional circumstances.

Deducting the defence delay and the delay precipitated by the crown's exceptional circumstances the delay of 592 days is subtracted from the total delay of 897 days which leaves a net delay of a little over 10 months which is well below the 18 months presumptive ceiling and is therefore reasonable.

For those reasons the application is dismissed.

...END OF EXCERPT AS REQUESTED

FORM 2

Certificate of Transcript (Subsection 5(2))

Evidence Act

I, Peta-Gaye Thomas, certify that this document is a true and accurate transcript of the recording of R. v. Ramrattan in the Ontario Court of Justice held at 7755 Huronatio Street, Brampton, Ontario, taken from Recording No. 3111_103_20210810_093022__30_OMARRAP.dcr, which has been certified in Form 1.

January 20, 2022

(Date) (Signature of Authorized Person)

PETA-GAYE THOMAS

ACT ID: 1116754711