COURT FILE NO.: CR-15-70000087

DATE: 20150831

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

REMY BOGHOSSIAN, RAFFI EBREKDJIAN and SIVA SUTHAKARAN

Respondents

Counsel: Roy Beresowsky, for the Crown Gregory Lafontaine, for Remy Boghossian; Walter Fox, Amicus Curiae for Raffi Ebrekdjian; Barry A. Fox, for Siva Suthakaran

HEARD: May 4, 2015

Section 11(b), Unreasonable Delay Application

a.j. o’marra j.

[1] Siva Suthakaran is charged jointly with Remy Boghossian and Raffi Ebrekdjian of defrauding the Royal Bank of Canada of monies exceeding $5,000. It is alleged that Mr. Suthakaran with the others defrauded the RBC of $1,895,751 by use of a false bank draft. The funds were used to purchase gold bars of an equivalent value.

[2] Mr. Suthakaran has brought an application seeking a declaration that his right to trial without unreasonable delay, as guaranteed by s. 11(b) of the Charter of Rights and Freedoms has been violated. Further, he seeks an order to have the proceedings against him stayed pursuant to s. 24(2) of the Charter.

[3] The s. 11(b) application was brought at the commencement of trial, May 4, 2015 with short notice to the Crown. Consideration of the application was deferred to the end of the trial. After the trial had commenced co-accused, Raffi Ebrekdjian filed a Notice of Application, without further materials in support, joining the application brought by Mr. Suthakaran.

[4] The investigation into the use of the forged bank draft and wire transfers to purchase gold bars from Montreal gold dealers began on February 11, 2011. The applicant, Siva Suthakaran was arrested April 14, 2011 and charged with the offences before the court May 20, 2011. The trial commenced May 4, 2015. The overall time from the time the applicant was charged, May 20, 2011 to trial is four years.

The Legal Framework

[5] The assessment of whether an accused’s rights under s. 11(b) to be tried within a reasonable time has been infringed entails a balancing of the individual’s rights and societal interests with the length and causes of the delay. (See: Regina v. Askov (1990), 1990 45 (SCC), 59 C.C.C. (3d) 449 (S.C.C.) at pp. 483-484; Regina v. Morin (1992), 1992 89 (SCC), 71 C.C.C. (3d) 1 (S.C.C.) at p. 13).

[6] In determining whether or not the right of an accused be tried within a reasonable time has been denied the general approach is not by the application of a mathematical calculation or formula or the imposition of a limitation period, but rather by a judicial determination made by the balancing of interests which the section is designed to protect against factors which lead to the delay.

[7] In analyzing whether or not any impugned period is unreasonable the court must consider four factors as set out by the majority decision in Regina v. Morin, supra, at p. 13:

1. The length of delay;

2. Any waiver by the accused of time periods;

3. The reasons for the delay, including

(i) the inherent time requirement so the case,

(ii) actions of the accused,

(iii) actions of the Crown,

(iv) limits on institutional resources; and

(v) other reasons for delay; and

4. Any prejudice to the defendants.

[8] In Regina v. Quereshi (2004), 2004 40657 (ON CA), 190 C.C.C. (3d) 453 (O.C.A.), Justice Laskin at paras. 10-14 summarizes each of these factors providing a helpful guide to assessing the evidentiary record:

To decide whether s. 11(b) has been infringed, the court must balance these individual and societal goals with the length and causes of the delay. In Morin, the Supreme Court of Canada set out the framework for this judicial balancing. Four factors which must be considered:

i) The length of the delay. If the period between the date charges were laid and the date the trial ends is unexceptional the court need not inquire further. If, however, the amount of time warrants inquiry then the three other factors must be considered.

ii) Waiver of the time periods. If the person has unequivocally waived any of the delay, that portion will be subtracted from the overall period before assessing whether s. 11(b) has been violated.

iii) Reasons for the delay. If the accused waiver does not resolve the application, the court must consider the reasons for the delay. The reasons have been grouped into five categories:

(a) Inherent time requirements. The requirements recognize that some delay is inevitable. They cover the time period required to prepare and process the case assuming the availability of adequate and judicial resources. The inherent time requirements of a case are neutral in the s. 11(b) reasonable assessment. They do not count against the Crown or the accused. These time requirements include intake procedures – for example, bail applications, retention of counsel, and disclosure. A greater time is required if the case is complex or if the proceedings include both a preliminary inquiry in the Provincial Court and a trial in the Superior Court.

(b) Actions of the accused. Actions of the accused falling short of waiver must nonetheless be taken into account in deciding whether the delay is unreasonable.

(c) Actions of the Crown. Similarly, the Crown’s actions may delay the trial. Even if not blameworthy, the prosecution cannot rely on its own actions to justify delay that is otherwise unreasonable.

(d) Limits on institutional resources. Inadequate resources may cause institutional or systematic delay. This delay begins when the parties are ready for trial but the system cannot give them a speedy trial date. The Supreme Court has put forward administrative guidelines for exceptional institutional delay: 8-10 months in the Provincial Court and 6-8 months in the Superior Court. These guidelines do not serve as limitation periods and may yield to other considerations. Where they are exceeded, however, the overall delay risks being labelled unreasonable.

(e) Other reasons for delay. In deciding an s. 11(b) application, the court must take account of all the reasons for the delay. This category catches reasons for delay that do not fit into the other four categories.

iv) Prejudice to the accused. Two kinds of prejudice are relevant here. First, the court may infer prejudice from the delay itself and is more likely to do so the longer the delay. On the other hand, the accused’s action or inaction that shows a desire to avoid a trial on the merits may negate any inference of prejudice from the delay itself. Second, the accused or the Crown may lead evidence to show either prejudice or the absence of prejudice.

[9] The burden of proof that a violation has occurred under s. 11(b) rests with the accused on a balance of probabilities. However, the evidentiary burden may shift to the Crown to explain any causes of delay by its actions.

Chronology of the Proceedings

[10] The chronology of the proceedings from the date Mr. Suthakaran was charged to the date of the commencement of trial is as follows:

Pre-charge Time Period

April 14, 2011 – accused arrested and information sworn; Applicant released on a promise to appear and undertake. The first appearance is May 20, 2011. As noted in Morin at para. 32 s. 11b) protection applies from the time the person is charged.

Ontario Court of Justice

1. May 20, 2011 – Applicant is charged with fraud and conspiracy to commit fraud over adjourned to June 6, 2011.

2. June 6, 2011 – first appearance, Applicant represented by counsel, designation filed, initial disclosure provided.

3. July 11, 2011 – Crown indicated that further disclosure, i.e. information to obtain (ITO) was being prepared.

4. August 11, 2011 – Crown advised further disclosure was ready for pick up. Counsel for the Applicant requested time to review provided disclosure.

5. August 29, 2011 – Crown provides further disclosure, production orders; counsel for the Applicant requested two weeks to review disclosure.

6. September 19, 2011 – judicial pre-trial was scheduled for December 16, 2011, the Applicant represented by counsel (and all accused) waived delay under s. 11(b) from September 19 to December 16, 2011.

[11] The period from when the applicant was charged, May 20, 2011 to September 19, 2011 is the intake period, 4 months and should be considered neutral in the assessment. I take into account the complex nature of the case involving voluminous disclosure. Further, a case involving a multiple accused adds an extra layer of complexity in assessing s. 11(b) interests. (See: Regina v. Nadarajah, 2009 ONCA 118).

[12] The period September 19, 2011 to December 16, 2011, three months was waived by the Applicant and therefore no delay attributable to the Crown or institution.

7. December 16, 2011 – the judicial pre-trial was conducted and a date for preliminary inquiry was set for November 19, 2012 to December 7, 2012. In the interim, the Applicant and co-accused were to prepare their statement of issues to be filed with the court.

[13] The time from December 16, 2011 to November 26, when the preliminary inquiry commenced was 11 months and should be considered institutional delay.

8. November 26, 2012 to December 7, 2012 – preliminary inquiry was conducted and adjourned to January 25, 2013 for the final witness to testify. Counsel were offered by the trial coordinator the date of January 30, 2013 for submissions. However, counsel for the applicant was only available on Fridays for the remainder of 2013. The first available date for Applicant’s counsel was May 3, 2013 which could not be accommodated. The matter was adjourned to May 10, 2013 for submissions on committal.

[14] The time from November 26, 2012 to May 10, 2013, 5.5 months should be considered as part of the inherent time requirements due to the complex nature of the proceedings and neutral in the s. 11(b) analysis, and in part accused delay, January 30, 2013 to May 10, 2013 the unavailability of applicant’s counsel.

9. May 10, 2013 – submissions were made on committal for trial. The matter was adjourned to June 20, 2013 for the committal decision.

[15] The time from May 10 to June 20, 1.5 months required for the court to make a determination should be considered part of the inherent time requirements and neutral in consideration of s. 11(b) analysis. The overall time period November 26, 2012 to June 20, 2013, 7 months is considered inherent and in part Applicant’s actions.

[16] After committal the accused were remanded to July 31, 2013 in the Superior Court, 1.25 months, intake and neutral in the assessment

Superior Court of Justice

1. July 31, 2013 – this was the first appearance in the SCJ. Ebrekdjian and Marziliano, co-accused at the time wanted the matter adjourned to obtain counsel. Marziliano requested a lengthy adjournment so he and Ebrekdjian could leave the country in order to visit a sick grandmother. The matter was adjourned to October 4, 2013.

[17] The 2.25 months, July 31, 2013 to October 4, 2013 should be considered a combination of inherent time requirement with respect to intake and in part actions of co-accused seeking a lengthy adjournment for personal matters.

2. October 4, 2013 – Ebrekdjian and Boghossian were not in attendance requiring the issuance of discretionary bench warrants. The matter was adjourned to October 24, 2013 for a judicial pre-trial.

3. October 24, 2013 – the assigned Crown was not available as being involved in another trial and the judicial pre-trial could not proceed. It was adjourned to October 28, 2013, .25 months.

4. October 28, 2013 – judicial pre-trial could not proceed as neither Boghossian nor his counsel was in attendance and Ebrekdjian and Marziliano were still trying to retain counsel. The matter was adjourned to December 9, 2013 for JPT.

The time from October 4 to October 24, 2013, .75 month was attributable to the actions of co-accused. October 24 to October 28 was Crown delay. October 28 to December 9, 2013 1.5 months was attributable to the actions of co-accused and as such neutral in the consideration.

5. December 9, 2013 – co-accused Ebrekdjian, Marziliano and Boghossian did not appear and discretionary bench warrants were issued. The Applicant, Suthakaran indicated he had a new lawyer, Pillay who was not available until mid-January, 2014 to conduct a judicial pre-trial. Although the Crown was available for JPT in December the JPT was set for January 15, 2014.

6. January 15, 2014 – all parties were in attendance, two of the accused were self-represented and required an open court JPT. Adjourned to January 30, 2014 for an open court JPT.

7. January 30, 2014 – Applicant, Ebrekdjian and Marziliano present. Boghossian and counsel were not present. An in-court JPT was held without Boghossian. The matter was adjourned to February 14, 2014 for JPT and to set a date for trial.

[18] The time from December 9, 2013 to February 13, 2014 2.25 months should be considered as neutral as either delay due to the actions of the co-accused.

8. February 13, 2014 – all accused were present and another JPT was conducted with all accused. The trial date was set to begin January 12, 2015 and scheduled for three months. The Applicant, Ebrekdjian and Marziliano adjourned to September 9, 2014 for trial confirmation. Boghossian adjourned to an interim date of April 3, 2014 for continuation of the JPT.

9. September 9, 2014 – all accused were present accused re-elected to judge alone with the trial time estimate reduced to two months. Applicant indicated he was retaining Pillay as counsel and adjourned to October 28, 2014 to obtain assurance of retainer.

10. December 11, 2014 – Applicant confirmed B. Fox as counsel. Adjourned to trial date January 12, 2015.

11. January 8, 2015 – counsel for Boghossian removed at request of the accused and replaced by present counsel. Boghossian was granted an adjournment of the trial date.

12. January 12, 2015 – on application by Marziliano his matters were severed on consent from the other accused. Notwithstanding Applicant indicated he was ready for his trial. The Crown’s request that the applicant and remaining co-accused be tried together was granted by Thorburn J. Trial dates were vacated and all parties were adjourned to January 21, 2015 to set a date for trial.

13. In an attempt to shorten the process, counsel for the applicant indicated that he would consent to the filing of the preliminary inquiry transcripts at trial however counsel for Boghossian indicated that there were questions regarding the filing of the transcripts. Ebrekdjian without counsel had amicus appointed, Walter Fox to assist with respect to the filing of the preliminary transcripts as evidence on the trial. The matter was adjourned to February 18, 2015 for a JPT and resolution of the filing of transcripts issue.

14. February 18, 2015 – all parties agreed that the preliminary inquiry transcripts could be filed as exhibits at trial with the trial estimate reduced to approximately three weeks set for May 4, 2015.

[19] The time from February 13, 2014 to January 12, 2015, 11 months should be considered institutional delay.

[20] The time from January 12, 2015 to May 4, 2015 the start of the trial, approximately 3.75 months is attributable to the actions of the co-accused.

Assessment

[21] I find that 22 months of the overall delay is attributable to institutional delay. The 11 months institutional delay in the Ontario Court of Justice and 11 months institutional delay in the Superior Court exceeds the combined total of administrative guideline periods of 8 to 10 months in the Provincial Court and 6 to 8 months in the Superior Court as suggested by the Supreme Court in R. v. Morin by 4 months. In this instance, the delay is prima facie excessive. The question is whether it is reasonable notwithstanding its length.

[22] Although the Supreme Court of Canada approved an administrative guideline for the courts to use in assessing institutional delay, Sopinka J. also observed in R .v. Morin at p. 28 that “deviations of several months in either direction can be justified by the presence or absence of prejudice”. Further, the Ontario Court of Appeal in R. v. Bennett, supra at 465, affirmed 1992 61 (SCC), [1992] 2 S.C.R. 168 stated that the administrative guidelines are not intended to “reduce the concept of reasonableness in s. 11 b) to a simplistic computation of time”.

[23] In consideration of the overall time both the Applicant and respondent agree that the bulk of the delay beyond the institutional delay was caused by the actions of the unrepresented co-accused. Throughout the proceedings, particularly when the matter was in the Superior Court, each of the co-accused at various times failed to attend court and was unprepared to proceed due to various counsel issues.

[24] Even though the Applicant agreed that much of the delay was attributable to the co-accused’s actions Counsel submits the Crown should have taken the appropriate steps to move the Applicant’s matter along in a timely fashion to reduce the overall delay. The Crown should have taken steps to sever the Applicant.

[25] In response the Crown argues that in the circumstances the Applicant’s actions, as an alleged accomplice in a complex and well planned fraud spanning many days were so closely interwoven with those of his co-accused, severance was not an option.

[26] In considering the actions of the co-accused as contributing to the delay as noted by the Ontario Court of Appeal in Regina v. L.G. (2007), 2007 ONCA 654, 228 C.C.C. (3d) 194 at para. 63 (O.C.A.) that “ordinarily delay caused by the actions of the co-accused is considered neutral in the s. 11(b) analysis”. Further, the Court stated with respect to co-accused attributed delay and severance:

[G]enerally speaking, it is in the interests of justice that individuals charged jointly with an offence be tried together. “A single trial for two or more accused generally conserves judicial resources, avoids inconsistent verdicts, and avoids witnesses having to testify more than once”: Whylie at para. 24. As was noted in Whylie, severance will rarely be granted. Given these principles, delay caused by the actions of a co-accused ordinarily will not be attributable to the Crown or to the absence of institutional resources.

[27] Although Mr. Marziliano’s matter was severed on consent, Thorburn J., who was to preside over the first trial date scheduled for January 12, 2013 in considering whether the Applicant’s trial should proceed alone indicated that he should not be tried alone because of the “degree of inter-relationship” between the Applicant and his co-accused (Boghossian and Ebrekdjian).

[28] In this instance no additional delay can be attributed to the Crown not seeking to sever the Applicant’s matter from the other accused.

Prejudice

[29] It was noted in R. v. Seegmiller, 2004 46219 (ON CA), [2004] O.J. No. 5004 (C.A.) at para. 25 that where real prejudice exists the acceptable period of delay can be shortened, however, correspondingly, it must also be recognized that in the absence of meaningful prejudice the period of delay that is constitutionally tolerable can lengthen.

[30] Also, the Ontario Court of Appeal observed in R. v. Kovacs-Tatar, 2004 42923 (ON CA), [2004] O.J. No. 4756 there is a difference between prejudice arising from merely being charged with a criminal offence and prejudice arising from delay (see also R. v. Silveira, [1998] O.J. No. 1622 (S.C.J.)). In R. v. Rahey, (1987) 1987 52 (SCC), 1 S.C.R. 588 at p. 624, Wilson J. stated the following:

[T]he impairment or prejudice we are concerned with under s. 11(b) is the impairment or prejudice arising from the delay and processing or disposing of the charges against the accused and not the impairment or prejudice arising from the fact that he has been charged. The prejudice arising from the fact of being charged with a criminal offence is suffered even where the accused is tried within a reasonable time. It is, so to speak, inherent in the system itself.

[31] Accordingly there is a distinction between prejudice from delay and prejudice from the charge. It is the former which the court must assess in the balance.

[32] The Applicant tendered an affidavit on the application in which he claims exceptional prejudice due to the delay in having his trial in a reasonable time. He indicates he has experienced an extreme amount of stress and depression due to the uncertainty of the outcome of the trial. He finds it difficult as a result of the stress in his daily activities to concentrate.

[33] His personal and business finances have suffered. The RBC bank has commenced a civil action against him and obtained a Mareva order against his residential home. Prior to having been charged he operated several businesses, a hotel, restaurants and a mortgage brokerage. He has been unable to arrange financing. He was forced to declared bankruptcy and he lost those businesses. His properties have been sold by the trustee in bankruptcy.

[34] He indicates that due to having been charged and the delay in the matter coming to trial conflict has arisen in his family. He and his wife separated in 2014 as a result of the financial and emotional hardships he continued to suffer as a result of the charges still being outstanding.

[35] Mr. Suthakaran was released on a promise to appear and undertaking April 14, 2011 as noted earlier. He was not subject to a period of detention. The only term imposed which affected his movements as the mater progressed to trial was a requirement that he surrender his passport, a matter that he does not say caused him prejudice.

[36] On the application an admission by the Applicant and Respondent was filed which states as follows:

On April 14, 2011, the applicant’s blackberry cell phone with assigned number 416-845-9977 was seized by the police. This cell phone was analyzed and found to contain numerous text messages between the applicant and three unknown women. The content of these text messages indicated that the applicant, who was married at the time, was engaged in a sexual relationship with these women up to the date the phone was seized.

[37] The applicant’s business problems were not caused by the delay in disposing of the matter, but rather as a result of being charged and by civil proceedings commenced by the RBC against him as a person alleged to have defrauded the bank of $1,985,751. In terms of his family difficulties and separation from his wife, given the admission referred to earlier, while being charged no doubt contributed considerable stress and strain on his relationship, it appears that the Applicant had marital issues well before the charges were laid which may well have contributed to the difficulties in his relationship.

[38] In the result, I am not satisfied that Mr. Suthakaran has suffered prejudice that flowed from the time it took the matter to get to trial such that his right protected by s. 11(b) was “seriously undermined”. Unfortunately, the prejudice outlined by the Applicant was inherent in the system.

[39] The period of institutional delay beyond the guideline suggested in Morin was not unreasonable considering the delay caused by the co-accused and the complex nature of the matter involving multiple accused.

[40] In terms of Mr. Ebrekdjian, who did not file any materials on the application, and who was one of the co-accused that contributed to the overall delay of the matter, he has not satisfied me his s. 11(b) right to be tried within a reasonable time has been violated.

Conclusion

[41] Given the size and complexity of the case, in which the original trial estimate was approximately three months, reduced only after the first trial date of January 12, 2015 was adjourned, the total institutional delay of approximately 22 months is not unreasonable. The Applicant’s constitutional right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter has not been violated.

[42] The application is dismissed.

A.J. O’Marra J.

Released: August 31, 2015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

REMY BOGHOSSIAN, RAFFI EBREKDJIAN and SIVA SUTHAKARAN

Respondents

REASONS FOR JUDGMENT

A.J. O’Marra J.

Released: August 31, 2015