CITATION: R. v. BHULLAR, 2015 ONSC 3299
INFORMATION NO.: 11-A11247
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SUKHMUNDER BHULLAR
Appellant
Moiz M. Karimjee, for the Respondent
Lawrence Greenspon, for the Appellant
HEARD: May 19, 2015
DECISION ON SUMMARY CONVICTION APPEAL
ratushny j.
1The appellant has been convicted of impaired driving. He appeals his conviction on the basis of errors of law he alleges the trial judge made in dismissing his s. 11(b) Charter application on March 27, 2013.
2The alleged errors are:
(1) The trial judge wrongly characterized a delay caused by the unexplained absence of an interpreter on the first set of scheduled days for trial (September 17 and 18, 2012) as being a “neutral” delay for s. 11(b) purposes. The appellant submits the absence of an interpreter should have been characterized as institutional delay that contributed 189 days to the total time period of 629 days between the swearing of the information against the appellant (September 6, 2011) and the completion of the trial (May 29, 2013).
(2) Alternatively, the trial judge ought to have considered that the Crown was not ready for trial on the second set of scheduled days for trial (November 20 and 21, 2012) because of outstanding disclosure that had been sent to the Crown (on August 14, 2012) but not forwarded to the appellant for these second set of trial dates. The appellant submits this outstanding disclosure caused the trial to have to be adjourned to a third set of trial dates (May 28 and 29, 2013), resulting in the delay of 189 days.
Relevant Facts and Positions of the Parties
3The material timelines are as follows.
September 6, 2011 – the Information against the appellant is sworn.
November 21, 2011 – the first set of trial dates of September 17 and 18, 2012 are scheduled.
September 17 and 18, 2012 – the trial is ready to commence but the requested Punjabi interpreter is absent for unexplained reasons. The trial is rescheduled on September 21, 2012 to November 20 and 21, 2012.
August 14, 2012 – the Defence brings a disclosure application regarding the materials relevant to the qualifications of the Crown’s expert witness and the trial judge dismisses the application.
November 20 and 21, 2012 – the trial commences and continues on the second day but an adjournment is granted when Defence counsel learns from the Crown’s expert witness that months earlier she had forwarded to the Crown the disclosure he had been requesting, relevant to her qualifications. Defence counsel had not received that disclosure. Both counsel concede they require, in any event, two more days to complete the trial. The two additional days are scheduled on November 23, 2012 for May 28 and 29, 2013.
March 27, 2013 – the Defence brings a s. 11(b) Charter Application that is dismissed on that same date.
May 28 and 29, 2013 – the trial is completed.
4It is common ground between the parties that the 76 days from the swearing of the information to the scheduling of the first set of trial dates is to be considered as an inherent or neutral period of time.
5It is also common ground between the parties that the original trial estimate of two days was inadequate and that the resulting delay in scheduling two extra days should be considered as involving a neutral period of time caused by an inaccurate time assessment by both parties. At issue is identifying that resulting delay period.
6The first appeal issue involves the 63 days of delay between the first set and second set of trial dates caused by the absence of the interpreter. The trial judge characterized this as an unexplained absence and, therefore, as a neutral delay. The appellant disagrees and submits the absence of an interpreter caused an institutional delay of 189 days between the second set of trial dates (November 20 and 21, 2012) and the third set of trial dates (May 28 and 29, 2013), arguing that the first and second sets of trial dates could have completed the trial and the third set of trial dates would have been unnecessary had the interpreter not been absent for the first set of trial dates.
7Alternatively, the appellant argues that this same period of 189 days between the second and third set of trial dates was a delay caused by the Crown not being ready for trial on the second set of trial dates because of its outstanding disclosure.
8For the delay caused by the inaccurate trial time estimate and conceded as neutral, the appellant has chosen the period of 63 days between the first set of trial dates with the absence of the interpreter and the second set of trial dates, arguing that four days for trial would have been required in any event. While it would seem more logical for this delay to involve the longer period of time of 189 days between the second set of trial dates (November 20 and 21, 2012) and the third set of trial dates (May 28 and 29, 2013), given that it was only clear to the parties on the second day of trial on November 21, 2012 that more trial time was required, this is not the appellant’s argument. It is, however, the Crown’s argument.
9To summarize, it is the 189 days period between the second and third set of trial dates that the appellant seeks to have characterized as institutional or Crown delay, either by reason of the absence of an interpreter on the first set of trial dates or because the Crown had not disclosed requested trial materials for the second set of trial dates.
10The Crown submits that the trial judge properly characterized the delay caused by the interpreter’s unexplained absence as a neutral period of delay.
11The Crown also argues that in the 301 days between the scheduling (on November 21, 2011) of the first set of trial dates and those dates (September 17 and 18, 2012), parts of that delay are attributable to inherent time requirements of the case and other parts are attributable to the appellant because in requesting the disclosure regarding the Crown’s expert witness, the appellant was indicating at different times during these 301 days that he was not ready for trial on September 17, 2012.
12I deal with each of these issues in turn.
The Absence of an Interpreter and s. 11(b) Charter
13This is the more important issue on this appeal given that the determination of the other issues is more factually driven.
14Counsel have placed four cases before me on the effect of the absence of an interpreter on the s. 11(b) issue of the right to trial within a reasonable time: R. v. Liang, 2011 ONCJ 458 (OCJ); R. v. Sran, 2012 ONCJ 19 (OCJ); R. v. Lai, 2011 CarswellOnt 15611 (OCJ); R. v. Martinez, 2012 ABQB 317 (ABQB).
15I understand the court in Lai to have concluded that depending on the cause of the interpreter’s absence, the delay can be attributed as either an institutional or a neutral delay (at paras. 47 and 48).
16In Martinez the court came to a similar conclusion. It said in dealing with an appeal from conviction, that where the interpreter was absent due to an unexpected illness, this part of the delay was “inherent to the operation of our court system and ought to be considered neutral”. The court also found that for another period of delay, the “lack of an interpreter due to an apparent error, and lack of a backup, [was] a resource issue resulting in institutional delay. The ensuing delay was properly attributed to the Crown. There was no reason given to explain the absence.” (at paras. 30 and 32)
17In Liang the court focused on the constitutional nature of interpreter assistance under s. 14 of the Charter for an accused or any witness needing that assistance. Flowing from that constitutional right, the trial judge stated that it was “the responsibility of the Ministry of the Attorney General to provide a competent interpreter” and that “the lack of an interpreter for Mr. Liang amount to….institutional delay” (Sran at para. 113).
18In Sran the court followed Liang and stated that the “inability of the prosecution to meet its obligation in respect to the provision of an interpreter…through an apparent scheduling error”, caused the delay (at para. 117).
19With all due respect to the courts in Liang and Sran, I am not of the view that the absence of an interpreter always amounts to institutional delay flowing from the state obligation in s. 14 of the Charter. While s. 14 guarantees a party or a witness in any proceeding the right to the assistance of an interpreter when needed and it is, therefore, the obligation of the state to provide that assistance, when the interpreter is absent, the explanations for that absence have to be considered before the ensuing delay can be properly attributed. This is simply in accordance with principles enunciated in R. v. Morin 1992 CanLII 89 (SCC), [1992] SCJ No 25 (SCC) by Sopinka J. and particularly at paras. 40, 47, 59.
20An additional consideration is that different court practices are involved in requesting an interpreter. In this Court the request and the arrangements are to be made by the party requiring interpretation. In other courts I understand it is the court clerk who forwards the request for interpretation assistance to the interpreters’ office after notification of the need has been made on the record. This means different persons can be involved in the request and allows for different causes to have contributed to an absence of an interpreter and the resultant delay.
21In Liang, I am not aware whose scheduling error, as the court stated had occurred, caused the delay.
22In Sran, it seems it was the prosecution or the interpreters’ office that caused the “apparent scheduling error” leading to the delay being attributed to the Crown.
23In Lai, I agree it is reasonable that an unexpected illness or emergency causing the absence of the interpreter be characterized as part of the human condition and considered as inherent or neutral in its effect on s. 11(b). I also agree, although a resource issue has to be grounded in evidence placed before the court, that where there is a resource issue involving systemic problems in having sufficient accredited interpreters available, this may be found to be a contributing cause to the absence of the interpreter so that some of the delay might be properly characterized as institutionally caused. In Morin at paras. 47 and 48, Justice Sopinka discussed this difficult issue of limits on institutional resources.
24In Martinez, the court succinctly attributed the delays stemming from the interpreter’s absence as being neutral in respect of an unexpected illness and a Crown delay due to an apparent error, lack of backup and a resource issue.
25In summary, I recognize that the provision of the assistance of an interpreter where necessary is constitutionally guaranteed and a state responsibility. Where there is an absence of an interpreter, its cause is to be considered. Where an explanation of its cause is not before the court as in the present case, it is fair, as the trial judge concluded, to characterize the resulting delay as neutral.
26I find, therefore, that the trial judge made no error in this regard and that the delay due to the absence of the interpreter was properly counted as a neutral delay. The amount of that delay is the 63 days from the first set of trial dates to the second set of trial dates, as counsel were still resting on their two days estimate and expected at that time to be able to finish the trial in the two days scheduled for the second set.
The Effect of the Outstanding Disclosure on s. 11(b) Charter Issues
27The outstanding disclosure requested by the Defence was a list from the Crown’s expert toxicology witness as to details of her court appearances as an expert witness. As such, it amounted to a third party record and was not part of the Stinchcombe duty of disclosure by the Crown. However in an effort to assist the Defence and avoid an adjournment, the Crown requested the disclosure from its witness. The Defence had not received it at the time of the commencement of trial on the second set of trial dates in November 2012. The expert witness testified she had forwarded it to the Crown in August 2012. The Crown made inquiries and indicated to the trial judge it had no record of ever having received the material.
28It is on this factual basis that the appellant submits the Crown was not ready for trial on the second set of trial dates in November 2012 and by its failure to provide the disclosure sent to it from its witness, caused the trial to have to be adjourned to the third set of trial dates. The problem with this argument, however, is that the Crown had not received the disclosure so that it had nothing to forward to the Defence and could not be regarded as having caused the adjournment. The other problem with this argument is, as the trial judge pointed out in his s. 11(b) ruling, that the trial could not have been completed in the two days scheduled and would have had to be adjourned in any event.
29A consideration of the reasons for this adjournment leads me, therefore, to the conclusion that the ensuing delay of 189 days until the third set of trial dates was a delay driven by the need for more trial time than the parties had agreed should be scheduled. As such it was properly characterized as a neutral delay by the trial judge. It was not a delay attributable to the Crown because of the disclosure issue. I dismiss this ground of appeal.
When the Defence can be said to be ready for trial
30This is an issue raised by the Crown in its characterization of various parts of the 301 days between the setting of the first set of trial dates and those first trial dates. The Crown has argued that this period of institutional delay only begins to run some nine months later on August 14, 2012, when the disclosure application by Defence was dismissed.
31I disagree with this argument. I do not think it is at all available to the Crown in the circumstances of this case to place itself in the shoes of the other party and argue when that other party can be said to be ready for trial. The Defence accepted the first set of trial dates on November 21, 2011 and it is reasonable to infer from that acceptance that it was committing to be ready for trial on September 17, 2012. That is in fact what occurred except for the interpreter’s absence which caused an adjournment. The disclosure application taking place before the trial was first scheduled to begin did not have the effect of deeming the Defence as not being ready for trial at that first date. When the Defence was ready for trial remained a Defence decision according to the circumstances of its case. There is no evidence that it was not ready for trial at any time within the 301 days before the first set of trial dates. It is in this context that the delay period of 301 days falls squarely within the category of institutional delay.
32If the Crown were able to successfully argue that the Defence was not ready for trial on the scheduling of the first set of trial dates because of its later disclosure application, this would bring about an unworkable situation requiring the Defence to be fully ready for trial and to have disposed of any interlocutory motions before the setting of trial dates and before it understood there was a problem with its disclosure. This would neither be workable, fair or reasonable in the circumstances of this case and, most likely, in the circumstances of most cases.
33It is for these reasons that I disagree with the Crown’s position on this issue. This issue, however, has no effect on this appeal, as set out below.
Conclusions on s. 11(b) Charter
34The trial judge made no errors of law in dismissing the appellant’s s. 11(b) Charter application on March 27, 2013.
35Neither is the period of delay unreasonable in all of the circumstances.
36Of the 629 days from the swearing of the Information to the conclusion of trial, the total period attributed as neutral delay is 328 days (76 days to the setting of the first set of trial dates; plus 63 days from the first set of trial dates to the second set, due to the interpreter’s absence on the first set; plus 189 days between the second and third set of trial dates due to the inaccurate trial time assessment).
37The total period attributed to institutional delay is 301 days or 10 months, being the initial delay from the setting of the first set of trial dates to those first dates. While this can be considered as pushing the general limits placed on institutionally caused delays pursuant to Morin at para. 55, it cannot be said that the trial judge made a wrong decision on a question of law in determining that the appellant’s s. 11(b) rights had not been violated and in declining to stay the proceedings.
38It is for these reasons the appeal is dismissed.
Justice L. Ratushny
Released: May 26, 2015
CITATION: R. v. BHULLAR, 2015 ONSC 3299
INFORMATION NO.: 11-A11247
DATE: 2015/05/26
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
SUKHMUNDER BHULLAR
Appellant
decision on summary conviction appeal
Ratushny J.
Released: May 26, 2015.