ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA 3-5/11
DATE: 20120620
B E T W E E N:
HER MAJESTY THE QUEEN Appellant
- and -
NIROSHAN SIVANANDAMOORTHY Respondent
Debra Moscovitz , for the Appellant
Adam Little, for the Respondent
HEARD: June 13, 2012
Kelly J.
REASONS FOR DECISION
[ 1 ] The Respondent was tried by Lipson J. on the charge of operating a motor vehicle with over 80 milligrams of alcohol in 100 milliliters of blood. On December 17, 2010, the trial judge ordered a stay of proceedings on the basis that the Respondent’s right to be tried within a reasonable time pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms was violated. The Crown appeals this decision.
[ 2 ] Counsel for the Appellant submits that the trial judge erred in staying the proceeding. She raises the following issues on appeal:
a. Did the trial judge mischaracterize certain periods of time?
b. Did the trial judge err in concluding that the Respondent had suffered prejudice warranting a stay?
c. Did the trial judge incorrectly balance the societal interest in a trial on its merits against the Respondent’s Charter right to a reasonable trial?
[ 3 ] The delay from the time the information was sworn to trial was approximately 18 months. The trial judge concluded that 13 3/4 months was unreasonable. I find that he mischaracterized two months of the delay and that there was an error in finding prejudice in these circumstances. As such, the appeal is allowed.
a. Did the trial judge mischaracterize certain periods of delay?
[ 4 ] The Appellant submits that the trial judge mischaracterized the following periods as institutional delay: June 16, 2010 to August 13, 2010; and November 4, 2010 to January 27, 2011. The Appellant submits that both of these periods should be characterized as delay attributable to the defence. I disagree and I have calculated the unreasonable delay at 11 ¾ months. [1]
June 16, 2010 to August 13, 2010
[ 5 ] The trial judge characterized the period of June 16, 2010 to August 13, 2010 as institutional delay because there was no fully accredited interpreter available on the first trial date. I disagree with such a categorization. I would consider this two-month period as “neutral” for the following reasons.
[ 6 ] On June 16, 2010, the Respondent appeared for trial. At the commencement of the proceeding, Crown Counsel explained the following to the Court:
a. That the Respondent would be seeking leave to bring a Charter application, but that the Crown was not in possession of the materials. She then stated: “So, it looked like there would be an adjournment for that”.
b. That there may be an application for an adjournment because the Tamil interpreter was not fully accredited as requested by the Respondent.
c. That a necessary Crown witness (the qualified technician) was not available to testify on that day because he was at the Hospital for Sick Children with his son. The Crown could proceed with the four Crown witnesses following which the Crown would be seeking an adjournment of the trial for purposes of calling the qualified technician on a later date.
[ 7 ] Crown Counsel submitted that she was content with proceeding with the interpreter, but did not suggest that a voir dire regarding the interpreter’s qualifications occur. The Court intervened and stated:
But we can’t force someone on, I don’t believe anyway, if the interpreter is not qualified. So, if there is no prospect for getting another interpreter and Mr. Connelly’s [Counsel for the Respondent] position is he wants a certified interpreter, I think we’re stuck.
The issue, if we don’t have a certified interpreter and the defence objects to proceeding, then I – subject to anything that you can come up with Ms. MacDonald [Crown Counsel], that I’m not aware of, I would think that would be the end of it.
[ 8 ] Neither the Crown, nor the Court suggested that a voir dire be conducted to determine the qualifications of the conditionally accredited interpreter. Nobody even suggested that the Respondent and the interpreter should have a conversation to determine whether the Respondent understood the interpreter such that the trial could proceed. The matter was simply adjourned to August 13, 2009.
[ 9 ] As the adjournment was being granted, Counsel for the Respondent submitted that “it certainly doesn’t appear to be a defence adjournment, it appears to be an adjournment necessitated by the unavailability of the interpreter in the first instance”. I do not fully agree.
[ 10 ] Although Lipson J. characterized this time as “institutional” due to the fact that the Ministry of the Attorney General did not provide an accredited interpreter and while I fully appreciate his frustration with the state of the availability of Tamil interpreters in Scarborough, I believe that that issue was a “red herring”. Regardless of the issue regarding the interpreter’s qualifications, the matter would have to be adjourned because the Crown did not have all of its necessary witnesses to testify on the first trial date and Counsel for the Respondent had just alerted her to the real possibility of proceeding with a Charter application that morning.
[ 11 ] These circumstances are unique because it would appear that both parties and the Judge (not Lipson, J.) seem to have concluded that they could not proceed without a fully accredited interpreter. This is not necessarily correct. [2] A voir dire could have been held to determine if the interpreter, although not accredited, was nonetheless qualified for the purposes of interpretation. Neither counsel nor the trial judge suggested that there be a voir dire. This may, in part, be attributable to the fact that the trial had to be adjourned in any event. At least two other reasons were given for the need to adjourn the trial: the need for the defence to advance a Charter application and the inability to complete the case because of the unexpected unavailability of a Crown witness because of the illness of his son.
[ 12 ] In light of the entirety of the circumstances, I agree that the trial judge mischaracterized this delay as Crown or institutional delay. The delay of approximately 2 months (from June 16, 2010 to August 13, 2010) is properly characterized as neutral.
August 13, 2010 to November 4, 2010
[ 13 ] On August 13, 2010 the trial had to be adjourned because the Respondent was ill. The return date for the trial was November 4, 2010. This period of time is properly considered neutral for the purpose of the s. 11 (b) analysis.
November 4, 2010 to January 27, 2011
[ 14 ] On November 4, 2010, the trial was scheduled to proceed and a proper competency inquiry was held. It resulted in a finding that the proposed conditionally accredited interpreter was not qualified.
[ 15 ] The Appellant submits that the time between November 4, 2010 and January 27, 2011 should be considered defence delay because the third trial date was only necessary due to the conduct of the Respondent in requiring a fully accredited interpreter on June 16, 2011. She submits that this submission has tremendous merit due to the change in position of Counsel for the Respondent.
[ 16 ] On the first day of trial Ms. Sabaratnam, who is a Tamil interpreter and has worked on the Scarborough Courts for many years, was available to provide interpretation services. Despite Counsel’s familiarity with her, he advised the Court that his client required an accredited interpreter. On the very next appearance, Counsel for the Respondent advised the Court that he did not “expect a problem” if Ms. Sabaratnam was available to interpret because “I’ve had her on many occasions and I have no complaints”. This was confirmed on the trial date and Ms. Sabaratnam provided interpretation services on the section 11(b) application with the approval of Counsel for the Respondent.
[ 17 ] Based upon these contradictory positions, Crown Counsel submits that the trial could have occurred on June 16, 2010 with Ms. Sabaratnam and that the trial judge mischaracterized this delay as institutional since all of the proceedings after June 16, 2010 were defence delay. For different reasons indicated above, I do agree that the time from June 16, 2010 to August 13, 2010 was improperly attributed as institutional delay. However, it was not defence delay. The proper characterization of the delay is neutral. Similarly, the delay from August 13, 2010 to November 4, 2010 was also properly attributable as neutral.
[ 18 ] However, the delay from November 4, 2010 until January 27, 2011 (a further 2 months) was properly attributed by the Crown as institutional delay in light of the failure of the Ministry of the Attorney General to provide a qualified Tamil-speaking interpreter. No qualified interpreter was available on November 4, 2010 and the trial judge, in my view, correctly characterized this period from November 4, 2010 to January 27, 2011 as institutional delay.
[ 19 ] In light of the trial judge’s mischaracterization of 2 months of delay as institutional delay, the question becomes whether the total delay in the Respondent being brought to trial nonetheless occasioned a s. 11 (b) violation. The total delay in issue was 18 months. Of that time, even on a proper characterization of the delay, the total unreasonable delay in issue was 11 ¾ months.
Issue B.: Did the trial judge err in concluding that the Respondent had suffered prejudice warranting a stay?
[ 20 ] The question of prejudice must be evaluated in the context of institutional delay being 11 ¾ months rather than 13 ¾ months.
[ 21 ] The trial judge did not consider the adjournment of the first trial date to be a tactic employed by the Respondent to set up a delay argument. He accepted that the Respondent had required a fully accredited interpreter and that there was no onus on him to conduct a voir dire to determine the qualifications. I have concluded that the delay should be considered neutral in light of the failure to conduct an inquiry, the fact that a Crown witness was unexpectedly unavailable because of the illness of his child and the expressed intention of Counsel for the Respondent to bring a Charter applicaton.
[ 22 ] The trial judge referred to the fact that the Respondent led no evidence of specific prejudice, but addressed the following in this part of the analysis:
a. The Respondent and his counsel were prepared to proceed to trial on two separate occasions (June 16, 2010 and November 4, 2010), but were unable to do so due to the unavailability of a qualified interpreter.
b. There was also inferred prejudice from the 13 ¾ months delay that was not contradicted by Crown evidence.
[ 23 ] While I agree with the trial judge that there is no indication that the Respondent was simply attempting to delay the case by requesting an accredited interpreter, I do not agree that the Respondent and Counsel were prepared to proceed to trial on June 16, 2010.
[ 24 ] On September 22, 2009, during the judicial pre-trial, Counsel for the Respondent indicated that he intended to bring a Charter application alleging that his client’s rights pursuant to ss. 8 and 10(b) were infringed. Despite the passage of nine months, such materials were not served on the Crown prior to the first trial date of June 16, 2010.
[ 25 ] The necessity of a Charte r application was raised again on the morning of the first trial date of June 16, 2010. It appears that Counsel for the Respondent and Crown Counsel met with the Crown in Scarborough. Following that meeting, “it was felt there would be a trial”. Crown Counsel was advised that Counsel for the Respondent would likely be seeking leave to bring a Charter application which was not before the Court and in the possession of the Crown.
[ 26 ] Although the reason given for the adjournment on June 16, 2010 was the unavailability of an accredited Tamil interpreter, it appears that the Respondent had not perfected his Charter materials which might have necessitated an adjournment caused by his failure to do so. Accordingly, I do not agree that the Respondent and his Counsel were prepared to proceed to trial on June 16, 2010.
[ 27 ] Secondly, the inferred prejudice to the Respondent must now be considered in light of my finding that the unreasonable delay in this case was 11 ¾ months. While it might not be an error to infer prejudice at 13 ¾ months where the trial judge found there were two trial dates that could not accommodate the Respondent I have concluded otherwise., I do not find that a delay that exceeds the ordinary guidelines by 1 ¾ months is long enough that such an inference should be drawn, especially in the absence of actual prejudice. [3]
[ 28 ] These circumstances are not similar to those of R. v. Godin [4] where prejudice was inferred due to the unjustified delay of 24 months in circumstances where credibility was a significant issue. This appears to be a straightforward impaired and over 80 case. As such, I do find that the trial judge made an overriding and palpable error regarding his finding of inferred prejudice. As such, this ground of appeal is allowed.
Issue C: Did the trial judge incorrectly balance the societal interest in a trial on its merits against the Respondent’s Charter right to a reasonable trial?
[ 29 ] The Appellant submits that the trial judge simply “paid lip service” to the balance between the public interest in having a trial against the Respondent’s Charter rights. I do not agree in light of his consideration of the reasons and amount of delay.
[ 30 ] While his reasons do not make specific reference to the facts, he refers to the charges and when his reasons are read as a whole, it is clear that the trial judge was cognizant of all issues. This includes the requirement to balance the societal interests and that of the Respondent to a speedy trial. I do not find that he made an error in balancing the interests following his analysis of the other factors in the 11(b) analysis.
Conclusion
[ 31 ] For the above-mentioned reasons, the appeal is allowed. The Respondent is ordered to appear in the Ontario Court of Justice in Scarborough on July 24, 2012 at 10:00 a.m. to set a date for a new trial.
[ 32 ] In closing I wish to commend both Counsel for their materials and submissions, especially Mr. Little. He advanced his position in a vigorous manner. The Respondent was very well represented by him in this proceeding.
Kelly J
Date: June 20, 2012
COURT FILE NO.: SCA 3-5/11
DATE: 20120620
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
NIROSHAN SIVANANDAMOORTHY Appellant
REASONS FOR DECISION
Kelly J.
Released: June 20, 2012
[^1]: Neither Counsel raised the characterization of the period between the date of the judicial pre-trial on September 22, 2009 and the trial date of June 16, 2010. Both Counsel and the trial judge accepted that this was institutional delay without consideration of the necessity of clearing calendars and preparing for trial. It was obvious that Counsel for the Respondent required time to prepare his Charter arguments as they were not completed by the first trial date. I would have deducted one month from this period as inherent delay had it been raised, resulting in an unreasonable delay of 10 ¾ months. See: R. v. Lahiry , 2011 ONSC 6780 at para. 2 and R. v. Tran , 2012 ONCA 18 at para. 32
[^2]: See: R. v. Rybak , 2008 ONCA 354 , [2008] O.J. No. 1715 (C.A.) where the Court was clear at para. 84: Competence and accreditation are not co-extensive. In the absence of universally acceptable standards for assessing interpreter incompetency, neither the presence nor absence of accreditation can be considered dispositive of the issue of competence.
[^3]: See: R. v. Qureshi , 2004 40657 (ON CA) , [2004] O.J. No. 4711 (C.A.) at para. 14 : “…the Court may infer prejudice from the delay itself and is more likely to do so the longer the delay”.
[^4]: 2009 SCC 26 , [2009] S.C.J. No. 26