Ontario Court of Justice

Date: 2024-09-16 Court File No.: Toronto Region 23 48106733

Between: His Majesty The King

— And —

Satheeskumar Kulasingam

Before: Justice Joseph Callaghan

Heard on: September 4, 2024 Reasons for Decision (11b) released on: September 16, 2024

Counsel: L. Petryshen, for the Crown M. Leitold, for S. Kulasingam

Overview

[1] Satheeskumar KULASINGAM is charged with one count of assault cause bodily harm that allegedly took place between May 27 and 28, 2023. Mr. Kulasingam was charged and released on June 1, 2023, and the information was sworn the next day. Mr. Kulasingam had a first court appearance on July 4, 2023.

[2] The trial in this matter is scheduled to conclude on Oct. 10, 2024. It is agreed that the total delay in this case is 16 months and 9 days. Accordingly, the relevant period of delay does not exceed the 18-month ceiling in the Ontario Court of Justice established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27.

[3] Notwithstanding that this case falls below the presumptive ceiling, Mr. Leitold, on behalf of Mr. Kulasingam, has brought an application seeking a stay of proceedings based on a breach of Mr. Kulasingam’s right to be tried within a reasonable time.

[4] This places the onus on Mr. Kulasingam to show on a balance of probabilities that: i. The defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings; AND ii. The case took markedly longer than it reasonably should have. [See Jordan, at para. 48.]

Allegations

[5] The Crown alleges that between May 27 and 28, 2023, Mr. Kulasingam became engaged in an argument with the complainant and hit him in the face. This allegedly caused the complainant to fall and break his ankle. The complainant reported this incident to the police on June 1, 2023.

[6] On July 4, 2023, Mr. Kulasingam made his first court appearance. This was more than one month after the complainant provided his statement to police, which was recorded by an officer’s body worn camera (BWC). Mr. Kulasingam had already retained counsel on his first appearance and Mr. Leitold appeared as counsel of record. By this date, Mr. Leitold had already reached out to the Crown’s office seeking disclosure for his client.

[7] It became clear early on that a key piece of disclosure, the video statement of the complainant in this matter, was not included in initial disclosure. Mr. Leitold therefore made repeated requests seeking further disclosure, including highlighting the need for this crucial piece of disclosure.

[8] Subsequent to the first appearance, Mr. Leitold made 6 court appearances on behalf of Mr. Kulasingam seeking the critical outstanding disclosure: July 25, August 22, September 19, October 17, November 7, and December 5, 2023.

[9] On December 5, 2023, more than six months after Mr. Kulasingam’s arrest, the Crown and defence were still waiting for the police to produce, essentially, the crux of the case against Mr. Kulasingam: the complainant’s statement, the 911 audio and the complainant’s relevant medical records.

[10] Throughout this time period, the Crown’s office made repeated requests for this important disclosure: June 27, July 24, August 25, Sept. 18, October 19, November 18 and December 5, 2023. Despite the lack of success in producing the required piece of disclosure, I have no evidence that the Crown’s office took any additional steps – such as following up with a supervising officer – to obtain the missing disclosure.

[11] The Crown’s office finally received the long-overdue BWC video containing the complainant’s statement on December 6, making this available to Mr. Leitold the same day. Unfortunately, the police produced a video statement without any video.

[12] The Crown’s office immediately followed up; however, it took police another 42 days and one more court appearance to produce a corrected copy of this video statement. Counsel for Mr. Kulasingam finally received the complete, viewable video statement of the complainant on January 17, 2024, more than 7 months after the video was created.

[13] No explanation has been provided for why the police took so long to produce a copy of a video that existed on the day Mr. Kulasingam was charged.

[14] Throughout this process, a review of the court transcripts makes it clear that both the assigned Assistant Crown Attorney and counsel for Mr. Kulasingam required the complainant’s statement to make important decisions in the case. In my view, the exchange in court from the November 7, 2023 court appearance exemplifies this: Mr. Leitold: I've conducted an initial pre-trial with my friend's colleague and we've identified some critical outstanding disclosure that will be required for an informed discussion. Just going to confirm that, in fact, that's – remain outstanding, and I believe it is. I wonder if my friend has an update in his file. Mr. Edwards for the Crown: I see the notes from the pre-trial which reflect my friend's comments about the outstanding disclosure.

[15] Following receipt of the complainant’s statement, and after some back-and-forth scheduling communications between Crown and defence counsel, a meaningful Crown pre-trial was held on March 20, 2024. On that same date, a judicial pre-trial (JPT) was set for April 17, 2024.

[16] The JPT with Justice Montague was held on April 17, 2024, during which a 1.5-day trial estimate was obtained. On the same day, Mr. Leitold provided the Crown with the requisite trial scheduling form with his available dates to book a trial scheduling conference with the Trial Coordinator.

[17] After not receiving a response from the Crown, on April 26, 2024, Mr. Leitold again wrote to the Crown, seeking to set trial dates as soon as possible.

[18] On May 1, 2024, the assigned Crown and defence counsel met with the Trial Coordinator and booked October 9 and 10, 2024 as the trial dates in this matter. Mr. Leitold was available on the first three sets of dates in September 2024 that were offered by the Trial Coordinator; however, the assigned Crown was not. [See the Trial Scheduling Form attached to the information in DIR [1]]

[19] In was not until June 24, 2024 – more than one year after the information was sworn - that the complainant’s medical records and the 911 audio were disclosed to the defence.

Position of the Parties

[20] Mr. Leitold submits that he has demonstrated throughout the proceedings a sustained commitment to expedite the matter. Indeed, he argues, but for the extremely delayed critical disclosure, this matter could have been tried many months earlier.

[21] Counsel for Mr. Kulasingam further submits that for this simple and straightforward case, 16 months and 9 days far exceeds the time it should reasonably have taken.

[22] In response, the Crown – who was not the assigned Crown through most of the proceedings in this matter – argues that Mr. Leitold missed many opportunities to expedite the proceedings. Primarily, Ms. Petryshen argues that counsel should have set a JPT earlier in the proceedings, which would have allowed a trial date to be set earlier.

[23] In addition, Crown counsel submits that it was not necessary to obtain the complainant’s statement to set a trial date, given the short duration of the statement (just over 30 minutes) and the provision to the defence of a brief, 22-line summary of that statement. In addition, Ms. Petryshen points to this Court’s current Jordan-Compliant Trial Scheduling Practice Direction.

[24] Finally, Ms. Petryshen argues that this case, when assessed in the context of all cases tried in Toronto, will not take markedly longer to complete by its currently scheduled end date.

Analysis

The Crown’s Constitutional Disclosure Obligations

[25] The Crown has a constitutional obligation to "disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it". [See R. v. Stinchcombe, [1991] S.C.R. 45, at para. 18]

[26] It is clear that defence counsel cannot wait for “every last bit of evidence” to be disclosed before taking preliminary steps, such as attending pre-trials and setting trial dates. [See R. v. Richards, 2010 ONSC 6202 at para. 22; R. v. Kovacs-Tator (2004), 192 C.C.C. (3d) 91 (Ont. C.A.) at para. 47; R. v. M. (N.N.) (2006), 209 C.C.C. (3d) 436 (Ont. C.A.) at para. 37]

[27] In the present case, the evidence against Mr. Kulasingam was mainly the complainant’s video statement. This was recorded in the body worn camera video of the officer who interviewed him. Inexplicably, the police took over 7 months to disclose this video in its entirety to the Crown, despite numerous requests by Mr. Leitold and by the Crown.

[28] The Crown cannot fulfill its constitutional obligations to make full disclosure to the defence if its efforts are thwarted by the police. In this case, that is exactly what occurred. For more than 7 months, the Crown was unable to undertake her necessary review of the complainant’s complete statement (including video), preventing her from fulfilling her duties as a minister of justice: to assess the case for reasonable prospect of conviction (RPC) and to determine if the prosecution was in the public interest.

[29] In R. v. Thanabalasingham, 2020 SCC 18 at para. 9, the Supreme Court emphasized that "[t]he clear and distinct message in Jordan was that all participants in the system are to take proactive measures at all stages of the trial process to move cases forward and bring accused persons to trial in a timely fashion." Clearly, “all participants in the justice system” includes the police.

Problems with delayed video disclosure from the police

[30] The present case is not the only one suffering from delinquent video disclosure. As a judge in this jurisdiction, I have overseen multiple cases in our Judge-Led Case Management Court and while conducting JPTs in which video disclosure is significantly delayed.

[31] With the advent of body-worn cameras used by most police officers in this jurisdiction, the amount of video disclosure has increased exponentially. In addition, more and more cases include surveillance video, in-car-camera video, booking video, cells video and cellphone video. This type of evidence is significantly more time-consuming for the parties – both Crown and defence – to review than the paper statements and police notes of the past.

[32] Accordingly, in order for cases to be dealt with efficiently and decisions to be made in a timely manner, by both Crown and defence, the police must provide this important disclosure as soon as possible following the completion of an investigation and charges being laid.

[33] The delay caused by the police in not providing video disclosure in a timely manner produces cascading impacts that further exacerbate delay, unnecessarily burden the litigants and contribute to the clogging of our case management courts: a. Defence counsel spend more of their retainers than should be necessary chasing outstanding disclosure by sending additional emails to the Crown and making additional court appearances. b. Similarly, defence counsel retained through Legal Aid, with its limited assigned hours, end up spending unpaid time chasing disclosure. c. Crown counsel, as well as Crown staff, burdened by very large caseloads, spend far too much time following up with defence counsel and police, chasing disclosure that the police are constitutionally obligated to provide.

Defence Has Taken Meaningful Steps That Demonstrate a Sustained Effort to Expedite the Proceedings

[34] When assessing the conduct of the defence, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly. [See Jordan at para. 85]

[35] When I follow the Supreme Court’s advice in Jordan and take a bird’s eye view of this case, I can only conclude that Mr. Leitold has taken meaningful steps to move the case forward, demonstrating a sustained effort to expedite the proceedings.

[36] While it is true that Mr. Leitold could have attempted to set a JPT earlier, based on my review of the transcripts provided, it is apparent that both the assigned Crown and defence counsel needed to review the complainant’s statement to make important decisions in the case. The Crown needed to review the statement to assess RPC and public interest. Defence Counsel needed to understand the case against his client to properly assess the strength of the Crown’s case and provide advice to Mr. Kulasingam accordingly.

[37] Even if a JPT had been set prior to the statement being received [per the OCJ Jordan-Compliant Trial Scheduling Practice Direction at para. 15], I find that the JPT would have had to be adjourned until the statement was received. The sparse, poorly drafted summary provided by the police was not a reasonable substitute for the video statement of the complainant and was insufficient to allow both parties to proceed to the JPT stage.

[38] Finally, I note that Mr. Leitold did set a trial date despite the complainant’s medical records and the 911 audio remaining outstanding until late June 2024. He did not wait until he had received “every last bit of evidence” to do so.

This Case Has Taken Markedly Longer Than It Should Have

[39] I now turn my attention to the second requirement that Mr. Kulasingam must demonstrate on a balance of probabilities: whether this case took markedly longer than it reasonably should have.

[40] For cases under the presumptive ceiling such as this one, “an accused may in clear cases still demonstrate that his or her right to be tried within a reasonable time has been infringed”. [See Jordan at para. 56]

[41] In R. v. K.J.M., 2019 SCC 55 at para. 78, the Supreme Court clarified that the restriction to "clear cases” was simply meant to ensure that borderline cases are not stayed, given the significant public interest in seeing a criminal matter resolved on the merits.

[42] Also in K.J.M. at para. 69, the Supreme Court clarified the nature of the "ceilings" established in Jordan: While the presumptive ceilings are a significant chapter in Jordan, they are not the full story. Jordan established ceilings, not floors. While the ceilings offer a bright-line approach, they are supplemented by a more flexible, case-specific approach to delay below the ceiling. In this way, Jordan marries uniformity with flexibility.

[43] A case's reasonable time requirements "derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings”. [See Jordan at para. 87]

[44] Determining whether the time a case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month…to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird’s-eye view of the case. [See Jordan at para. 91]

[45] Each case must be decided on its facts. As the Supreme Court noted in K.J.M. at para. 75: …By permitting a flexible, case-specific inquiry for cases falling below the ceiling, the Jordan framework recognizes that simply treating everyone alike is no solution. Context matters. While the presumptive ceiling provides a hard backstop that offers certainty, predictability, and simplicity, the test for a stay below the ceiling affords the necessary flexibility to ensure case-specific features… are not lost in the analysis…This Court emphasized that "'the judge must look at the circumstances of the particular case at hand' in assessing the reasonableness of a delay" (para. 58, citing Jordan, at para. 301, per Cromwell J. (concurring in the result)).

[46] In this simple, straightforward case, other than obtaining the complainant’s medical records, the police investigation was completed on June 1, 2023. The information was sworn the next day. It then took over 7 months and numerous requests to finally obtain the main piece of disclosure in this case, the complainant’s complete video statement.

[47] Having more than one month to prepare disclosure after the accused was arrested and the information was sworn, the police could have provided near complete disclosure by the first appearance (July 4, 2023). Even if the police took 2 months to get video disclosure to the Crown and the Crown took another month to review it, the delay to get to trial could have been reduced by at least 4 months.

[48] Instead, flowing from the inexplicable delay by the police to provide the video statement of the complainant, this case will have taken 16 months and 9 days if it completes as currently scheduled. In my view, this is markedly longer than this case should have taken.

[49] It is imperative that the police address the delay in providing video disclosure in this case and other cases currently before the court. Without a serious and dedicated effort to develop a process to ensure timely disclosure of video evidence, more cases are at risk of being stayed, including cases below the presumptive ceiling.

[50] For the reasons provided, I find that Mr. Kulasingam’s right to be tried within a reasonable time has been breached. I am therefore granting his application and staying the one-count information before the court.

Released: September 16, 2024 Signed: Justice Joseph Callaghan

[1] DIR refers to the application that contains the electronic information and related court documents used at the Toronto Courthouse, which replaced the use of paper informations in 2023.