ONTARIO COURT OF JUSTICE
DATE: 2025-02-14
NEWMARKET
BETWEEN:
HIS MAJESTY THE KING
— AND —
VINAY PRAKASH CHAND
RULING ON s 11(b) APPLICATION
Application Heard: February 14, 2025
Ruling Delivered: February 14, 2025
Ms. Aisha Khan — counsel for the Crown/respondent
Mr. Arvin Ross — counsel for the defendant/applicant
KENKEL J.:
Introduction
[1] Mr. Chand is scheduled to start his trial on March 17th, 2025. That will be the second trial date. The first trial was adjourned because arrangements made with the Newcastle Crown Court in the United Kingdom for remote witness testimony were cancelled by that court on short notice. The defence submits that the delay to the end of the second trial is a breach of Mr. Chand’s right to a trial within a reasonable time. The Crown submits that defence delay, COVID delay and the discrete event that caused the first trial to be adjourned leave a remaining delay that is below the presumptive ceiling.
[2] Both parties agree on the attribution of delay with the following exceptions:
- 57 days related to defence availability in setting the new trial date,
- COVID – allowance for the ongoing effects of the pandemic backlog,
- Delay that resulted from the adjournment of the first trial which includes the above 57 days.
Overall Delay
[3] The total delay from the date the information was sworn on February 21, 2023 to the scheduled end of the trial is 25.61 months which is above the presumptive ceiling of 18 months set for this court – R v Jordan, 2016 SCC 27.
Defence Delay
[4] The applicant concedes there are 92 days of defence delay arising from two periods. The first was 24 days of delay when a Blitz Trial Scheduling request form was not submitted. The second period covers 68 days where counsel Mr. Ross was unavailable for earlier trial dates offered.
[5] The Crown adds 57 days due to restrictions on defence counsel’s availability when the new trial date was set. I agree with that attribution, but I don’t find it necessary to include that in the assessment in this case.
[6] On either calculation, the net delay remains presumptively unreasonable.
Discrete Events
[7] I’ve reviewed the history of this case and I do not find the effects of the COVID pandemic reflected in this record. There was some delay related to obtaining a trial scheduling date, but I find that reflects the ongoing backlog generated by the mismatch between the population and volume of cases in this region and the court and judicial resources available.
[8] This trial did not proceed in October because of an exceptional circumstance. The complainant who is the Crown’s central witness moved to England. The Crown did not learn of his move until July of 2024. The Crown tried to arrange to have the witness brought back to Canada to testify but he refused. The Crown then applied for an order under s 714 of the Criminal Code for remote testimony which was granted. They applied under the Mutual Legal Assistance Treaty (MLAT) to obtain assistance for video testimony from the United Kingdom (UK). Arrangements were made with the Newcastle Crown Court to have the complainant testify from that facility. Unfortunately, two days before the scheduled start of the trial, that court advised the Crown that they would not be able to facilitate the remote video testimony at any time.
[9] The change in circumstances forced the Crown to apply for an adjournment of the trial. The witness in question was central to the Crown’s case. It would not have been possible to start the trial with other witnesses in this case.
[10] The cancellation of the remote testimony arrangements by an external party on short notice was an exceptional discrete event that could not have reasonably been anticipated by either party. The trial would have been completed as scheduled otherwise. While the Crown and defence differ by some days on the attribution of the resulting delay, I find that this is not a case where either party bore any responsibility for the adjournment. Both parties did their best afterwards to obtain dates that were available to the court, counsel and the witnesses. In this case I find that the entire delay from the adjournment of the first trial to the end of the second set of trial dates is attributable to the discrete event.
The Remaining Delay
[11] Both parties calculate the overall total delay to be 799 days or 25.6 months following the formula set out in R v S, 2019 ONCA 895.
[12] Subtracting defence delay of 92 days from that overall total leaves 707 days.
[13] The adjournment caused by the discrete event was granted on October 21, 2024. From that date to the end of the second scheduled trial on April 10, 2025 is 172 days or 5 months and 21 days.
[14] Subtracting 172 days from the net 707 days leaves a remaining delay of 535 days. That’s 17.57 months which is below the presumptive ceiling.
[15] Given the complexity of the allegations and the overall history of the case I do not find that the overall remaining delay is unreasonable.
Conclusion
[16] The application is dismissed.
Delivered: February 14, 2025.
Justice Joseph F. Kenkel