WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2023 07 18 Court File No.: Halton Info # 1211-998-21-523-00

Between:

HIS MAJESTY THE KING

— AND —

KERLON MUNGAL

Before: Justice S.N. Latimer

Supplementary Reasons for Decision released on July 18, 2023

Counsel: Victoria Reid, counsel for the Crown Monica Lipson, counsel for Mr. Mungal

LATIMER J.:

[1] This case demonstrates the peril continued reliance on the Burlington courthouse presents for our local justice system.

I. The problems that emerged

[2] This case involved a sexual assault allegation. One day was required for trial, two for a third-party records motion. The trial was set within Jordan timelines. The parties all attended the Burlington courthouse on May 30, 2022, to participate in the trial.

[3] The trial did not occur that day. The impediment was that it was a particularly hot day, and the building’s HVAC unit failed to properly cool the courtroom. Both lawyers described the temperature as unworkable. All other courtrooms – in both Burlington and Milton – were otherwise occupied. Mr. Mungal’s trial had to be adjourned to another day. The May 30th transcript records the following:

THE COURT: … I feel the need to memorialize what is happening on this record. This is an embarrassment, I am embarrassed that the people of Halton, both those accused of crimes and those who come to be witnesses in our courthouse, have to come here and be told that this aging, antiquated building cannot physically sustain their trial and they are forced to leave and find a further date. It is an injustice. It impacts counsel, and I apologize to both of you. I wish there was a solution, but it is just one in a series of failings in the current physical structure in which we exist, both in Burlington and Milton.

MS. REID: Just when – just to be clear for the record and I know we spoke to it earlier the, the issue today as to why we physically can’t continue is not because there’s not a physical courtroom but there is a HVAC problem with this courtroom today and that’s what has led to this problem. And to be fair, for the record, we know that the HVAC problem existed as late as, or as early as Friday of last week. I don’t know when it became an issue but that’s what the, why there’s no physical courtroom today.

THE COURT: That’s fine, I suppose I was not specific enough. I’m sweating and I’ve been sweating about three minutes into this hearing. I can’t imagine the staff who have been here much longer, issue one. Issue two is the attempted remedy are these portable air conditioning units which are working so hard that I have to speak over them, as do all of us. [1]

[4] The trial was ultimately reset for November 14, 2022, again in Burlington. A new issue, however, arose on that date. The closed-circuit testimonial equipment – previously approved for the complainant’s testimony – was malfunctioning. Ms. Kimberly Watt, of the VWAP office, provided context to the issue, as the transcript reveals:

THE COURT: We’re in B11 which is supposed to be the room in Burlington of the three courtrooms that we have that is able to accommodate the closed-circuit television room. In my anecdotal experience, three out of four times I’m sitting in this courtroom there is some level of technological failing. What’s your experience?

MS. WATT: So, Your Honour, I know in the last number of weeks the issue we’re having is we’re able to connect to the CCTV room but if defence or Crown want to play anything, that second TV in the CCTV room is supposed to be enabled to play a video or audio or essentially show evidence, and that TV has not been working at least as far as I know for the last number of months….

THE COURT: I just think it’s important that these things be preserved on the record because it is endemic in this jurisdiction and in this location and it’s not, it’s not fair to Mr. Mungal, it’s not fair to complainants, and it continues to happen. Thank you, Ms. Watt.

MS. WATT: Yeah. And what I can tell you, Your Honour, is because my manager, Jeanette Mitchell, has been in close contact with court’s admin management to discuss this issue because it affects us greatly. It’s very stressful to say the least…

[5] The equipment continued to malfunction throughout the day, despite everyone’s best efforts to resolve it. The complainant spent the day at the courthouse, in a state of perpetual readiness to testify. The courthouse, however, could not oblige. The matter was adjourned to January 2023 for an 11(b) motion and trial.

II. The s. 11(b) motion

[6] I heard the s. 11(b) motion in early January 2023, under the shadow of the looming potential trial date. My judicial secretary subsequently advised the parties that the motion was dismissed ahead of trial, and I provided short reasons on the record for the dismissal. I indicated that more fulsome reasons would follow. These are those reasons.

[7] Simply stated, this motion revolved around three time periods:

(1) March 8, 2022, to May 30, 2022

(2) May 30, 2022, to July 20, 2022

(3) November 14, 2022, to January 18, 2023

(1) March 8, 2022, to May 30, 2022

[8] This case involved a third-party record motion that resolved on January 31, 2022, at the stage one portion of the hearing. This resolution meant that a full day of court time, on March 8, 2022, that had previously been set for stage two of the motion, was no longer required. The Crown and the Court suggested it could be repurposed and used for the trial, which was otherwise set for May 30, 2022. The defence declined and asked to keep the existing May trial date. March 8 was subsequently vacated, and the matter adjourned to May 30 for trial.

[9] As previously indicated in my oral Reasons, I accepted the Crown’s argument that the period of time from March 8 to May 30 was defence delay, in light of the fact that the only thing preventing this trial from being heard on March 8 was the defence decision to maintain the original May trial date. This amounted to two months, two weeks of defence delay.

(2) May 30, 2022, to July 20, 2022

[10] This time period is delay caused by the HVAC failure. The Crown submitted that it should be characterized as an exceptional circumstance, as there was no evidence before me of prior HVAC-related problems at the Burlington courthouse and, in the absence of such evidence, what occurred on May 30 should be treated as exceptional. Crown Counsel – not Ms. Reid – offered up an analogy of a car unexpectedly breaking down, and how that would also be unforeseeable. I responded at the time, “unless the car was from 1975, and not built for modern roads”.

[11] I reject the Crown argument that, in the absence of Mr. Mungal presenting evidence that the HVAC failure was an ongoing problem, I am required to treat it as an unforeseen exceptional circumstance. I do so for two reasons: first, I find it unreasonable that the possessor of such information (the state) would fault an individual for not providing it to the court. It is information peculiar to the Crown respondent’s knowledge. When I raised this issue, the Crown pivoted and indicated that it may not be readily available information, in any event.

[12] Secondly, I do not accept that a prior HVAC-related episode is a condition precedent for characterizing this time period as institutional delay. This failure is simply the most recent symptom of a core problem: the continued use of an aging, inadequate building. I adopt the same language I used last year, in R. v. Topp, 2022 ONCJ 83, another s. 11(b) ruling from Halton, where the particular issue was the impact of mold being discovered in the Milton courthouse:

The “deplorable” state of the Milton courthouse has been widely discussed over the past decade and is a notorious fact in the justice system. The closure of 50% of the Halton provincial court’s physical structure because of building-related public health issues is not an exceptional circumstance; it is an inevitable by-product of the continued use of an aging and ill-suited physical structure. [2]

[13] The same problems persist in Burlington. The May/June 2022 HVAC issue is simply one example, the endemic CCTV problems another. [3] This time period is properly characterized as institutional delay.

(3) November 14, 2022, to January 18, 2023

[14] The Crown accepts that this time period, following the CCTV failure that caused the second trial not to proceed, is institutional delay. That concession is reasonable, given the ongoing problems with the equipment.

[15] Overall, after adding up the time periods and subtracting periods of waiver and defence delay, the total is 16 months, 2 weeks. This is under the 18-month Jordan presumptive ceiling in the Ontario Court. While this case took markedly longer than it should have, because of the structural issues that continue to plague the Halton provincial court system, I am not satisfied that I can make a finding that there was a sustained effort to expedite the proceedings, particularly given the defence decision not to utilize March 8, 2022, as an earlier trial date.

[16] I end where I began. This sexual assault allegation almost avoided a trial on the merits because of systemic problems with the Burlington courthouse that impacted two separate attempts to conduct a simple, one-day trial. Continued use of the aged courthouses in Halton Region will no doubt present future problems, which in turn may imperil other prosecutions via trial delay.

Released: July 18, 2023 Justice Scott Latimer

Endnotes

[1] Courtroom #13 was subsequently closed for over a month, awaiting a replacement HVAC unit. Trials that were scheduled in that courtroom were added to the dockets of other courts. [2] Topp, para. 20. [3] To underline this point, at the time of writing, in late June 2023, further HVAC repairs are underway at the Burlington Courthouse to fix what is said to be an unrelated problem.