CITATION: R. v. Gadam, 2016 ONSC 2523

DATE: 20160412

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Michael Sokolski, for the Crown

• and -

SRINIVASAN VENKATA GADAM

Baqa Rashdi, for the Defendant

Ruling #1

The Application under s. 11(b) of the Charter

Trafford J.

THIS IS AN OFFICIAL COPY OF THE RULING THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

A. Introduction

On December 26, 2013, Srinivasam Venkata Gadam was arrested on a charge of sexual assault of A.D. between April 1, 2013 and August 31, 2013, and released on a promise to appear. The information alleging that offence, and the related threat to cause the complainant's death, was sworn on January 20, 2014. The defendant was ordered to stand trial on the charge of sexual assault, and discharged on the count alleging a threat to cause the complainant's death, on June 2, 2015 by Kelly J. at the end of the preliminary hearing. The matter was before the OCJ for about 71 weeks. The trial by judge alone in the SCJ will begin on April 11, 2016, the second scheduled trial date, and is expected to last for about one week. The matter has been before this court for about 45 weeks. The total delay from the swearing of the information to the second trial date is about 115 weeks.

This is an application by the defendant under ss. 11(b) of the Charter for an order staying these proceedings on the basis of an alleged delay in bringing the matter to trial.

The position of the defence is that the delay in bringing this matter to trial was caused by the Crown's delay in determining before the preliminary hearing in June 2015 whether or not there was a reasonable prospect of conviction in this case, the failure of the Crown to retain an interpreter to assist the complainant in the first scheduled trial in November 2015 and the limits on institutional resources as manifested in the scheduling of the second trial date for April 2016. That delay caused significant prejudice to the defendant in the form of stress and financial loss which is well beyond that which is referable to the fact of the charge. A stay of these proceedings is required in accordance with R. v. Morin (1992), 1992 SCC 89, 71 C.C.C. (3d) 1 (SCC), in the submission of the defence.

Respectfully, I disagree.

The application is dismissed.

B. The Circumstances of the Case

B.1 Introduction

Let me begin with a summary of the material circumstances of the case. The application record describes them in more detail, especially insofar as it includes the transcripts of the proceedings, the affidavit of the defendant and the endorsements on the indictment for the appearances in this court. There is no need for me to repeat all of that information in detail. The cross-examination of the defendant during this application on the issue of prejudice led to further findings of fact by me.

B.2 The Circumstances of the Alleged Offence

It is helpful to begin with a summary of the circumstances of the alleged offence. The case is not a complex one. However, the summary will show why there was a significant amount of dialogue, between the Crown Attorney and the defence counsel as well as between the Crown Attorney and the complainant, in connection with the assessment by the Crown Attorney of the prospects of a conviction in this case. That assessment and all of the dialogue incidental to it is an important aspect of the administration of criminal justice. For an elaboration of that importance, see "The Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions", by The Honourable G. Arthur Martin, Queen's Printer for Ontario, 1993, Toronto, especially concerning:

ö the Committee's formulation of the threshold test for the commencement of a prosecution, the reasonable prospect of a conviction[^1];

ö the obligation of the Crown to assess the case[^2];

ö the importance of the Crown soliciting the input of the victims[^3]; and

ö the importance of discussions between counsel aimed at the complete or partial resolution of the case[^4].

Such discussions may include resolution discussions relating to the case as a whole, or some of its parts. That is mandated as an aspect of a JPT, under s. 625.1 of the Code and the related criminal proceedings rules, and is aimed at ensuring the fairness and efficiency of the upcoming proceedings. The professional responsibilities of the Crown and the defence include an obligation to consider the interests of the alleged victim. The Crown Attorney should ensure that the interests of such victims are solicited by the Crown if it is feasible to do so. Appropriate resolution discussions are a proper and necessary part of the administration of criminal justice. In my view, such an assessment and such dialogue when conducted with reasonable diligence and reasonable dispatch are properly treated as time inherent to the case under Morin.

It is alleged by the Crown that the complainant and the defendant met at a social event in Toronto late in 2012. Both of them are married. The event was attended by several people from southern India. The complainant and her husband, K.K., subsequently learned the defendant was employed as a software engineer with a telecommunications company, and was assisting people who wanted employment in that area. The complainant's education was related to that area. She wanted to be employed in this field. For that reason, she agreed to go to the defendant's condominium for training. She went for such training two times per week. Originally, the defendant's wife was present during the sessions but by April 2013 she had obtained employment elsewhere. In April 2013 the defendant sexually assaulted the complainant violently. He threw her onto the bed, pulled her hair, forcibly removed her pants and attempted to penetrate her vagina with his penis. She felt some ejaculate on her legs. She did not open her legs. The defendant said he loved her. He also threatened her and her family with harm if she disclosed this incident to anyone, and said he would deny the incident and otherwise bring shame to her if she made such disclosure. The complainant feared for her family and marriage. Initially, she did not return to any more training sessions. Eventually, she did return, apparently after the defendant spoke to her husband about those sessions. In those subsequent sessions, she regularly consented to sexual intercourse because of his earlier threats. Such intercourse continued into August 2013, with the exception of July 2013 when she returned to India for a visit. Ultimately, she disclosed these incidents to her husband. They went to the TPS in November 2013. The defendant was arrested in December 2013 and charged in January 2014.

B.3 The Proceedings in the Ontario Court of Justice

With that summary of the circumstances of the case, as alleged by the Crown, let me now summarize the proceedings in the OCJ. The total delay in that court was about 71 weeks.

The defendant was arrested on December 26, 2013. He was released on a promise to appear.

The information alleging the offence of sexual assault from April 2013 to August 2013 was sworn on January 20, 2014.

The defendant's first appearance was on February 10, 2014. He was assisted by duty counsel. Partial disclosure was made by the Crown. The defence asked for an adjournment to March 24, 2014 to permit further disclosure. The request was granted, on consent.

On March 24, 2014, Baqa Rashdi, the defendant's counsel of choice, appeared and filed a designation. He asked for an adjournment to April 16, 2014 to review the disclosure to date, obtain further disclosure and discuss the case with the Crown Attorney. It was granted, on consent.

On April 16, 2015, Rashdi appeared pursuant to the designation. He asked the court to adjourn the case to May 7, 2014 so that resolution discussions with the Crown could occur. The adjournment was granted, on consent.

On May 7, 2014, Rashdi was unable to appear because of a family emergency. Duty counsel spoke to the matter, relying upon the designation, and requested an adjournment to June 3, 2014, for the continuation of resolution discussions. It was granted, on consent.

On June 3, 2014, Rashdi appeared pursuant to the designation. He advised the court that some discussion between counsel occurred, and asked the matter go to June 26, 2014 for a JPT. The Crown consented and provided to the defence a DVD of some witness interview(s).

On June 26, 2014, the JPT was held before Borenstein J. The Crown Attorney advised the court he wanted to assess the prospects of conviction and discuss the case with the complainant. He requested an adjournment to July 28, 2014. Rashdi, who appeared pursuant to the designation, agreed.

On July 28, 2014, the Crown Attorney told the court that the complainant had not yet met with the Crown because of her scheduling, the complainant's, difficulties. The assessment of the prospects of conviction was on hold pending such an interview. The Crown asked the matter to be adjourned to September 8, 2014, and added "…I don't anticipate this matter proceeding…". Rashdi expressly declined to waive 11(b) for the proposed adjournment, but agreed to the date of September 8, 2014 when the court said "…obviously, it's in your client's interest that they are looking into reasonable prospect of conviction…".

On September 8, 2014, Rashdi appeared pursuant to the designation. The Crown Attorney advised the court she was still in discussions with the defence and wanted more time because "…my friend is going to attempt to provide (me) with some further information… the Crown always has an obligation to continue (its) assessment (of the prospects of a conviction)… and we will do so…". The defence expressly waived s. 11(b) for the adjournment to October 6, 2014 in those circumstances.

On October 6, 2014, Rashdi appeared pursuant to the designation. He told the court he was having discussions with the Crown Attorney about the prospects of a conviction in this case and "…will provide her with some documentation…". He asked for an adjournment to October 27, 2014 so that she could review that documentation. The Crown agreed.

On October 27, 2014, the defendant appeared in person. Both the defendant and the Crown Attorney advised the court that Rashdi had a family emergency. The defendant asked for an adjournment to November 10, 2014. The Crown consented.

On November 10, 2014, Rashdi appeared pursuant to the designation. He advised the court the Crown Attorney assessing the prospects of conviction was involved in another case until December, "…we are just talking about the reasonable prospect of conviction… that's why we've waived s. 11(b) a number of times…". He asked the court to schedule another JPT. The court adjourned the matter to December 9, 2014 for a JPT, as requested and with the consent of the Crown.

On December 9, 2014, Rashdi appeared pursuant to the designation. He advised the court that counsel had scheduled a preliminary hearing for June 1 and 2, 2015, with an interim date of February 17, 2015, for a further JPT before Downes J. and for a formal election by the defendant. The Crown agreed.

On February 17, 2015, Rashdi appeared with the defendant. The defendant's election of trial by judge alone in the SCJ was completed. Both counsel confirmed the dates for the preliminary hearing, June 1 and 2, 2015.

The defendant appeared for the preliminary hearing, and was ordered to stand trial on the charge of sexual assault, and discharged on the alleged threat to cause harm, by Kelly J. on June 2, 2015. On that date, further disclosure was provided to the defence, a DVD of the interview of the complainant's husband.

B.4 The Proceedings in the Superior Court of Justice

On June 18, 2015, the defendant appeared before the SCJ. The case was adjourned to July 9, 2015 to be spoken to. No transcript of that first appearance or any other one before the SCJ was filed with this application.

On July 9, 2015, the JPT was scheduled for August 20, 2015. An earlier date in July 2015 was not agreeable with the defence.

On August 20, 2015, the JPT was held, as scheduled. The trial was set for five days beginning November 9, 2015, on the consent of the defence. The trial confirmation date of October 8, 2015 was also set by the Court.

On October 8, 2015, the defence requested some time to obtain the defendant's phone records from Telus. They had been requested of Telus in August 2015 but not yet received by Rashdi. The trial dates were maintained and the matter was adjourned to October 15, 2015 to be spoken to. On that date, the trial dates were confirmed. Counsel advised the court that a ruling on the qualifications of an interpreter for the complainant would be required at the outset of the trial. Such a voir dire was conducted before B. O'Marra J. who, on November 10, 2015, ruled against the Crown on that issue. As no other Telugu interpreters were available, the trial was adjourned to April 11, 2016, on the consent of the defence. The trial dates in April 2016 were confirmed on March 7, 2016.

B.5 The Prejudice to Gadam

Some affidavit evidence has been tendered on this application relating to the prejudice allegedly caused to the defendant by the delay in this case. Much of that evidence is hearsay, or has a hearsay component to it. The essence of that evidence is that the defendant has suffered significant financial prejudice because his contracts through a third party with Telus and Rogers were terminated as a result of the complainant's husband bringing some information to their attention. What that information is not clear to me. Whether it related to the circumstances of the alleged offence, or something else, is not clear. Whether the defendant was given notice and some financial compensation, or terminated for cause, is not clear. The defendant did testify, in cross-examination, that he lost a contract with Telus and a contract with Rogers which likely would have provided him with, respectively, about $96,000 and $150,000. Those losses, at best for the defendant, were caused by the fact of the charge and not the delay in bringing the case to trial. The delay, he alleges, has made it difficult for him to enter into similar contracts with, for example, Bell Canada. He wants a clean slate, that is, a verdict of not guilty, when he negotiates such a contract. There is no evidence of his overall financial position before the court. Nor is there any evidence of any attempt to mitigate the alleged losses.

Thus, while I accept that the defendant's financial loss has been aggravated to some extent by the delay in bringing this case to trial, I decline to place much weight on that factor because of the vagueness of the evidence and the absence of other evidence that one might reasonably expect where the applicant is alleging such financial prejudice under s. 11(b) of the Charter. There is no direct evidence of any other form of prejudice in this case, such as medical evidence of undue anxiety or stress. I do infer that the delay was added some stress to the stress caused by the charge itself.

B.6 Conclusion

These, then, are the material circumstances of the case, as found by the court, insofar as they relate to the delay in bringing the case to trial.

C The Legal Analysis of the Case

C.1 Introduction

Let me now describe the legal framework for this application and then apply it to the circumstances of this case.

C.2 The Framework of the Application

Under Morin, there are four factors to be considered:

ö the length of the delay;

ö the waiver of time periods;

ö the reasons for the delay, including:

• the inherent time requirements of the case;

• the actions of the defendant;

• the actions of the Crown;

• the limits on institutional resources: and

• other reasons for the delay; and

ö the prejudice to the defendant, if any.

This analysis requires the court to identify the factors leading to the impugned delay and then balance them in the context of the interests that s. 11(b) of the Charter is designed to protect. Simply listing the factors is not sufficient. Rather, the weight to be given them in the context of the purpose of s. 11(b) will lead to the result of the application. That purpose is to protect the individual rights of the defendant under s. 7 of the Charter and the public interest in a timely trial on the merits. The individual rights are the security of the person, by minimizing the anxiety and stigma of criminal proceedings, the liberty of the person, by minimizing the effect of pretrial custody or restrictive bail conditions, and the fair trial of the person, by ensuring that the trial occurs while the evidence is fresh and available. The pertinent societal interests relate to the enforcement of the law through a fair trial on the merits at a time reasonably proximate to the alleged offence(s) when the proferred evidence is more likely to be reliable. Undue delays may undermine the confidence of the public in the administration of justice. For an elaboration of this framework, see Morin at para. 30. Its implementation in the circumstances of any given case does not mandate a minute examination of every aspect of the history of the case for the purpose of assigning blameworthiness for the delay to someone. See R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26. Rather, s. 11(b) focuses exclusively on the fact of delay and its causes. See R. v. Schertzer, 2009 ONCA 742, [2009] O.J. No. 4425 (C.A.).

C.3 The Calculation of Institutional Delay

As I have said, the institutional delay in bringing the matter to trial is a factor to be determined by the court. It is important to understand the import of the term "institutional delay".

Institutional delay refers to the interval that begins when the parties are ready but the court is not. As Code J. observed in R. v. Lahiry, 2011 ONSC 6780, [2011] O.J. No. 5071 (SCJ) at para. 2:

…the entire period from the set date appearance to the trial (is not to be) automatically characterized as … institutional delay, without further analysis…

Code J. further observed that the institutional delay "…starts to run when the parties are ready… but the system cannot accommodate them…". Thus, the court on an application under s. 11(b) must determine when the parties are ready. One must not assume that they are immediately ready when the trial date is set. The schedules of counsel may work against such a conclusion. Moreover, some time is required by way of preparation for the trial by counsel even if such counsel is immediately available for the trial. See Lahiry at paras. 31-32, R. v. Steele, 2012 ONCA 383, [2012] O.J. No. 2545 (C.A.) at para. 19 and R. v. Ignagni, 2013 ONSC 5030, [2013] O.J. No. 3531 (SCJ) at para. 59. A party is ready for trial when counsel of record is available for trial and has completed the preparation for trial. The factor of institutional delay begins then.

The onus is on the Applicant to prove the availability of counsel for trial and the completion of preparation for trial. The court must be able to determine those issues of fact. The defence should expressly state such information on the record when the trial date is set. The failure of counsel to advise the court of earlier availability "…makes it difficult, if not impossible, to determine with precision, how the delay between the setting of the date and the date selected for trial should be allocated…". See Watt J.A. in R. v. Nguyen, 2013 ONCA 169, [2013] O.J. No. 1243 (C.A.) at para. 81. In the absence of evidence showing the earlier availability of counsel, the Court may infer that the interval to the trial date was acceptable to counsel, due to prior commitments and time required to prepare for trial. See Cranston at paras. 55-56. Otherwise, the allocation of time to preparation will be done with regard for all of the circumstances of the case, including its complexity and the comments by counsel on the record, if any, such as comments relating to applications to be made before trial. Third party records applications, dialogue between counsel concerning the resolution of the case or the simplification of the trial through some admissions of fact and applications under s. 11(b) all add to the preparation time for trial. Preparation time varies significantly with the case, and counsel. More time may be required to prepare for a "…difficult preliminary hearing…". See Schertzer at para. 92.

C.4 Some Specified Intervals

C.4.1 January 20, 2014 to September 8, 2014

The period from January 20, 2014, the date of the first appearance in the OCJ, to September 8, 2015, when the defence advised the OCJ it was providing some other information to the Crown Attorney to be considered in her assessment of the prospects of a conviction in this case, is time inherent to the case in my view. Partial disclosure was made on January 20, 2014. Retained counsel, Rashdi, appeared on March 24, 2014 and advised the court more time was required to complete the disclosure, review the disclosure and enter into discussions with the Crown Attorney about the case. Further time for such discussions was requested by the defence on April 16, 2014 and May 7, 2014. On June 3, 2014, the defence consented to a JPT on June 26, 2014, and indicated to the court the discussions with the Crown had been delayed. The JPT was held on June 26, 2014 before Borenstein J. but the case was adjourned to July 28, 2014 on the consent of the defence to permit the Crown Attorney to discuss the case with the complainant and to assess the prospects of a conviction. There was a delay occasioned by the complainant's schedule so the case was adjourned on July 28, 2014 to September 8, 2014 for the same reason. The defence expressly declined to waive s. 11(b) for that interval, but did expressly waive such rights for a subsequent more or less identical adjournment on September 8, 2014. In my view, all of the period from January 20, 2014 to September 8, 2014 is properly treated as time inherent to the case. It related to all of the usual intake aspects of the OCJ for a case like this one. It is neutral time. It is about 33 weeks.

C.4.2 September 8, 2014 to October 6, 2014

The period from September 8, 2014 to October 6, 2014 was expressly waived by the defence. Rashdi expressed an intention to provide some documents to the Crown Attorney to be considered in her assessment of the strength of the Crown's case. It is about 4 weeks.

C.4.3 October 6, 2014 to December 9, 2014

The period from October 6, 2014 to December 9, 2014 also related to the delay caused by the Crown's assessment of the prospects of a conviction. On October 6, 2014 the defence asked for an adjournment to permit such an assessment as the defence now had the documents it wanted the Crown to consider. The assessment had not been completed by October 27, 2014. Nor had it been completed by November 10, 2014, because the assigned Crown Attorney was committed to another assignment. The defence requested another JPT, for December 9, 2014, in those circumstances. Given the importance of the dialogue between the Crown and the defence during the intake phases of a case, the assessment by the Crown of the prospects of a conviction and the defence's acquiescence to the delay caused by the expressed desire of the Crown to consider the defence documents, this interval from September 8, 2014 to December 9, 2014 is time inherent to the case. It is about 9 weeks. The delays caused by the complainant's schedule and the other assignment of the Crown Attorney are of concern to the court. However, as I said, the defence acquiesced in the consequential delays, for good reason in my view, when you consider the treatment of such dialogue and such assessment by counsel as a whole in the circumstances of this case. A minute parsing of all of the pertinent circumstances is not appropriate under s. 11(b) of the Charter.

C.4.4 December 9, 2014 to June 1, 2015

The period from December 9, 2014, where another JPT was held before Downes J. and the two days for the preliminary hearing beginning on June 1, 2015 were set, is partially inherent time and partially institutional delay. The defence did not expressly address its earlier availability or its preparation time, as it should under Lahiry and Nguyen. The matter was spoken to on February 17, 2015 when the defendant formally elected trial by judge alone in this court. In those circumstances, I will treat the interval to February 17, 2015, 10 weeks, as inherent time and the balance from then to June 1, 2015, 15 weeks, as institutional delay.

C.4.5 June 2, 2015 to November 9, 2015

Similarly, in the circumstances of this case, the interval from June 2, 2015, when Kelly J. ordered the defendant to stand trial, to November 9, 2015 is properly treated as time inherent to the case. This interval is the intake phase of the case in the SCJ. This included the first appearance on June 18, 2015, the scheduling of the JPT on July 9, 2015 and the conduct of the JPT on August 20, 2015. On that date, the trial was set for November 9, 2015. The defence consented to that date, without giving any information to the court about earlier availability or preparation time for trial. Clearly, some preparation was required and completed, given the reference to the Telus records relating to the defendant's phone when the case was spoken to October 8, 2015 and, further, given the information provided to the court on October 15, 2015 about the need for a voir dire relating to the qualifications of the interpreter proferred by the Crown to assist the complainant. For these reasons, I treat all of this period, 23 weeks, as time inherent to the case.

C.4.6 November 10, 2015 to April 11, 2016

However, in my view, all of the period from November 10, 2015 to April 11, 2016 is institutional delay. It is 22 weeks. All counsel were available and ready to proceed to trial. The trial was adjourned because B. O'Marra J. ruled against the Crown on the qualifications of the proferred interpreter. No other such qualified interpreter was available.

C.4.7 Conclusion

In conclusion, the total delay is about 115 weeks, from January 20, 2014, the date the information was sworn, to April 11, 2016, the trial date. It is estimated that the trial will be completed in about one week.

Four weeks were waived by the defendant. That leaves a balance of about 111 weeks to be allocated under the Morin factors.

The inherent time requirements of the case are about 52 weeks in the OCJ and 23 weeks in the SCJ, a total of about 75 weeks. That leaves a balance of about 36 weeks to be allocated under the other Morin factors.

The institutional delay of the case is about 15 weeks in the OCJ and about 22 weeks in the SCJ, for a total of 37 weeks. That more than accounts for the balance to be allocated under the Morin factors.

In the circumstances of this case, I have not allocated any time to the conduct of the defence, the conduct of the Crown or to any other reason.

C.5 The Balancing of the Factors

What, then, is the result of balancing the various factors under Morin?

The liberty interests of the defendant were not significantly impaired in this case. He was released on a promise to appear on the days he was arrested. There are no onerous conditions to the release. He was not denied bail. He frequently appeared in court through a designation filed with the court.

The defendant's security of the person has been adversely affected to some extent. I infer that he has experienced some anxiety and stress referable to the delay rather than the fact of the charge. It does not appear to be significant. There was no direct testimony on this point, other than the vague evidence relating to consequential financial loss. I decline to place much weight on that evidence. No expert medical evidence was tendered on this aspect of this case.

The defendant's fair trial interests have not been adversely affected by the delay. The complainant testified at the preliminary hearing. She was interviewed by the TPS. She is available for cross-examination at trial.

On the other hand, the public has a legitimate interest in a trial on the merits. This is a serious allegation of sexual assault of a continuing nature that occurred because of threats the defendant made to the complainant if she disclosed it to anyone.

C.6 Conclusion

Most of the delay in this case is inherent to the case itself. It is not a complex case. There was a lot of dialogue between the Crown and the defence concerning the prospects of a conviction. That dialogue included information provided by the defence to the Crown, and discussions between the Crown Attorney and the complainant. No time has been allocated to the defence, or the Crown, in the circumstances of this case. Otherwise, there has been some institutional delay, both in the OCJ and the SCJ, as I described earlier in these reasons. That delay is within the limits of acceptability prescribed by the SCC.

D. Conclusion

For these reasons, the application is dismissed.

April 12, 2016 Trafford J.

THIS IS AN OFFICIAL COPY OF THE RULING THAT MAY BE USED FOR AN APPEAL IF IT IS SIGNED IN ORIGINAL BY TRAFFORD J.

Table of Contents

A. Introduction. 1

B. The Circumstances of the Case. 2

B.1 Introduction. 2

B.2 The Circumstances of the Alleged Offence. 2

B.3 The Proceedings in the Ontario Court of Justice. 7

B.4 The Proceedings in the Superior Court of Justice. 9

B.5 The Prejudice to Gadam.. 10

B.6 Conclusion. 11

C The Legal Analysis of the Case. 11

C.1 Introduction. 11

C.2 The Framework of the Application. 12

C.3 The Calculation of Institutional Delay. 13

C.4 Some Specified Intervals. 14

C.4.1 January 20, 2014 to September 8, 2014. 14

C.4.2 September 8, 2014 to October 6, 2014. 15

C.4.3 October 6, 2014 to December 9, 2014. 15

C.4.4 December 9, 2014 to June 1, 2015. 16

C.4.5 June 2, 2015 to November 9, 2015. 17

C.4.6 November 10, 2015 to April 11, 2016. 17

C.4.7 Conclusion. 18

C.5 The Balancing of the Factors. 18

C.6 Conclusion. 19

D. Conclusion. 19

[^1]: At pp. 60-61, the Committee said: The Committee is of the view that… the evaluation process (by the Crown)… is concerned with the issue of whether the evidence in the case is sufficient to justify instituting criminal proceedings…

…Crown counsel, in determining the future of a prosecution, should do more than ascertain the existence of evidence capable of making out each of the necessary elements of the offence. The Committee agrees with the Law Reform Commission that prosecutorial experience can and should be brought to bear on a case. Such experience is an important resource, that ought to be well utilized in a system where discretion is so necessary, and where the consequences of the discretionary decisions to be made are so weighty. Since the Committee is of the view that some assessment of the credibility of witnesses, the admissibility of evidence, and a consideration of likely defences is both desirable and necessary, the Committee is, therefore, also of the view that a higher threshold standard than a prima facie case is necessary to institute or continue a prosecution. 

[^2]: At pp. 70-75, the Committee said: It must not be overlooked that in arriving at a conclusion that a particular prosecution meets the threshold test proposed by the Committee, the prosecutor must believe that there is at least a prima facie case against the accused. Further, there will already have been some consideration of credibility, admissibility of evidence, and likely defences in arriving at the conclusion that there is a reasonable prospect of conviction. Therefore, Crown counsel harbouring a genuine doubt about the guilt of an accused in a prosecution that passes the threshold test should consult with his or her more senior and experienced colleagues. In the unusual case, where the facts are not in dispute, and any responsible Crown counsel would harbour a genuine doubt about the guilt of the accused, it may be appropriate to advise that a prosecution not be commenced or, if it is already commenced, discontinued, despite the threshold test having been met. However, where, for example, the facts are in dispute, or matters of credibility are involved, the case should be prosecuted, and the ultimate decision on the guilt of the accused be left to the community's trier of fact, to be made in a public courtroom.

So, as in all matters of discretion, the threshold test recommended by the Committee is one that contains within it some measure of latitude. Experience is often an invaluable asset in minimizing that latitude. Consequently, Crown counsel are well advised to seek the advice of more senior colleagues when faced with a finely balanced decision to prosecute a case or discontinue it. However, inevitably, in some circumstances, reasonable Crown counsel will reasonably differ about application of the Committee's threshold test. As pointed out by Professor Edwards (above) in relation to the 51 per cent rule, applying this test is not a matter of scientific exactitude, and no one should expect that it could be so. 

Once the threshold test for the sufficiency of the evidence has been met, it is, of course, necessary to ascertain whether a prosecution is, in all of the circumstances, in the public interest. In 1925, Sir John Simon, then Attorney General of England, put the principle this way in a much quoted speech in the House of Commons: [T]here is no greater nonsense talked about the Attorney General's duty, than the suggestion that in all cases the Attorney General ought to decide to prosecute merely because he thinks there is what lawyers call "a case". It is not true, and no one who has held that office supposes it is. 

Sir Hartley Shawcross, Attorney General in 1951, echoed this fundamental principle in his famous speech in the House of Commons when he stated that "it has never been the rule in this country - I hope it never will be - that suspected criminal offences must automatically be the subject of prosecution.... [T]he public interest ... is still the dominant consideration." In Ontario, Attorneys General and their agents have clearly recognized this constitutional obligation to act, at all times, in the public interest when exercising prosecutorial discretion: see, for example, Campbell v. The Attorney General of Ontario (1987), [1987 ON SC 4268](https://www.canlii.org/en/on/onsc/doc/1987/1987canlii4268/1987canlii4268.html), 31 C.C.C. (3d) 289 (Ont. H.C.); aff'd [1987 ON CA 4333](https://www.canlii.org/en/on/onca/doc/1987/1987canlii4333/1987canlii4333.html), 35 C.C.C. (3d) 480 (Ont. C.A.); leave to appeal to S.C.C. refused 35 C.C.C. (3d) 480n; I.G. Scott, "The Role of the Attorney General and the [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)" (1986-87), 29 Crim. L.Q. 187, at pp. 189-192.

[^3]: At pp. 82-84, the Committee said: In Ontario, at present, our system of prosecuting criminal offences is, for the most part public, rather than private. Agents of the Attorney General appear on behalf of the Crown, not the victim, in furtherance of the important principle that a criminal prosecution is not aimed solely at pursuing the victim's interest, but rather at promoting the public interest.

However, it can never be overlooked that the very subject matter of a criminal prosecution is an alleged act that has adversely affected the victim, perhaps in painful and humiliating ways. And, while the identity of the perpetrator may be in issue throughout the prosecution, the identity of the victim, and the injury suffered by him or her, is usually in no doubt whatsoever. It is, therefore, proper to consider the circumstances and attitude of the victim in assessing the public interest in conducting a prosecution. This, of course, includes, in homicide cases, those close to the deceased. The English Code for Crown Prosecutors, s. 8, states that "the interests of the victim are an important factor ... and should be taken into account." Such considerations, however, are not decisive. 

Different victims may, depending on their unique personal circumstances and the circumstances of the offence in issue, have varying attitudes toward the prosecution that will affect, in different ways, the decision as to whether a prosecution is in the public interest. For example, an attitude of forgiveness on the part of the victim in a minor property offence may well militate against proceeding with a prosecution. By way of contrast, an attitude of deeply felt and genuine loss by the victim as a result of an offence of the same magnitude would not have the same effect. Further, an attitude of vindictiveness by the victim toward the perpetrator of an offence would be a factor that is entitled to little, if any, weight in assessing the public interest in the prosecution. It may, in some circumstances, be appropriate for Crown counsel to resist the wishes of a vindictive victim. However, as the Court of Appeal for Ontario has held recently, in R. v. Bonello, (16 October, 1992, as yet unreported): 

In cases involving domestic violence, the representations and wishes of the victim should be treated with caution. We do not know what pressure she might be subject to. 

It should not be overlooked that a prosecution may be important and meaningful for a victim even if there is ultimately an acquittal. For example, in child sexual abuse cases, or domestic assault, the arrest and charge, or prosecution itself, can be instrumental in ending the abusive situation. Further, as the Supreme Court of Canada has stated, in R. v. Keegstra (1990), [1990 SCC 24](https://www.canlii.org/en/ca/scc/doc/1990/1990canlii24/1990canlii24.html), 61 C.C.C. (3d) 1 at 53-54, the trial process itself is an important form of expression that assists in furthering community values. Victims may feel that their suffering, and the sense of powerlessness that may accompany being a victim of crime, has been acknowledged and, to some extent, counteracted by their being a central participant in a public process. Or, a victim may altruistically want to share his or her experience so that others can learn from it, in hopes of preventing a recurrence. Considerations such as these cannot justify a prosecution where there is no reasonable prospect of conviction, but they are aspects of the victim's position that are worthy of careful consideration when assessing the public interest in a prosecution that has met the threshold test. The Committee, therefore, observes that victim/witness co-ordinators, and other victim support organizations, have a very important function to fulfill in assisting victims to express these views, and in assisting victims to understand that these views are important to the administration of criminal justice.

[^4]: At pp. 282-283, 289, 290 and 306, the Committee said: In addition to being generally in favour of properly conducted resolution discussions, the Committee takes a broad view of what that term entails. Resolution discussions, as contemplated by the Committee, include much more than simply plea discussions, which may themselves be quite broad. Resolution discussions include any discussions between counsel aimed at resolving any issues that a criminal prosecution raises. In the Committee's view, there is no reason to draw any distinction between the resolution of issues that will shorten the trial, and the resolution of issues that will make a trial unnecessary. This is precisely the approach taken in Rule 28 of the 1992 Ontario Criminal Proceedings Rules, which deals with pre-hearing conferences conducted pursuant to s. 625.1 of the Criminal Code. In accordance with Rule 28.03(2), a pre-hearing conference judge may inquire as to a broad range of issues that may arise at or before trial. The breadth of discussion at a pre-hearing conference, pursuant to Rule 28, extends to any matter "that may assist in promoting a fair, just, and expeditious trial," and includes: disclosure issues; any applications to be made during or before trial, such as Charter applications, change of venue, voluntariness voir dires, etc.; jury selection issues; agreements of fact or admissions; the simplification of the proceedings, for example, by agreeing upon continuity of exhibits or the elimination of proposed witnesses; the length of the proceedings; and, pursuant to 28.03(2)(d),

the possibility of resolution of any or all of the issues in the proceedings, including the possible disposition of any or all counts contained in the indictment whether by plea of guilty or otherwise. 

An apt definition of resolution discussions as the Committee views them is found in D.W. Perras, "Plea Negotiations" (1979-80), 22 Crim. L.Q. 58, at pp. 58-59: 

A proceeding whereby competent and informed counsel openly discuss the evidence in a criminal prosecution with a view to achieving a disposition which will result in the reasonable advancement of the administration of justice.

In the Committee's view, there are many reasons, in principle, policy, and practicality, to favour the practice of counsel openly engaging in discussions that have as their objective the responsible resolution of trial issues before a trial takes place. 

The propriety in principle of resolution discussions flows, in large measure, from the very nature of our criminal justice system. It is, in essence, adversarial, and, as such, accords to the parties a large discretion to determine the manner and form of the proceedings. The extent of the discretion inherent in our system, and the corresponding onus on counsel to that discretion responsibly and with integrity, is discussed in detail in Chapter I of this Report. It is, in the Committee's view, only right that a system which affords counsel so much latitude in the presentation of a criminal prosecution to the Court, and expects counsel to meet such a high standard of integrity and responsibility, would extend to counsel the discretion to resolve issues before trial by mutual agreement. 

It is, in the Committee's view, an important part of both Crown and defence counsel's professional responsibilities to explore the situation of accused persons, victims and witnesses, so that these persons' circumstances may be appropriately brought to bear in determining how the proceedings should be conducted. For example, a particular witness whose testimony is necessary for either the Crown or defence may feel that appearing in court to testify will be quite traumatic. Accordingly, resolution discussions to explore the possibility of an agreed statement of facts, or a plea that would dispense with the need for the witness to testify, may be desirable. The Law Reform Commission of Canada has observed that "relieving such victims from the burden of becoming witnesses in criminal trials ought not to depend entirely on the spontaneous generosity of the accused." 

Even resolution discussions that resolve no substantive issues may lead to, for example, agreement as to the scheduling of witnesses to be called at trial. This apparently small step is of great assistance to witnesses, as it minimizes for them the personal inconvenience of testifying at trial. In many parts of Northern Ontario, witnesses must travel great distances to testify, making it particularly important that they be inconvenienced in this way as little as possible. The responsiveness to the personal needs of victims, witnesses, and accused persons that these types of resolution discussions may occasion can help to maintain a high level of public confidence in the administration of justice among those most directly affected by its processes.

The Committee recognizes the foregoing important practical benefits of resolution discussions, but the Committee does not, as did the Law Reform Commission of Canada in 1975, see resolution discussions as the triumph of expediency over principle. These practical benefits flow, in the Committee's view, from a practice that is inherently desirable in the context of our criminal justice system, for the reasons stated above. 

In sum, the Committee is of the view that appropriate resolution discussions are a proper and necessary part of the administration of criminal justice in Ontario.

For the victim of crime, the criminal trial can fulfil a number of important functions apart from the mere fact of leading to a conviction. For example, it can be a public process of denunciation, with appropriate vigour, of the acts of the offender, and thus, a public recognition of the fact that the victim has been wronged. It can satisfy, although only to a limit that is fundamentally just, a victim's personal desire to see such public denunciation visited upon the offender. It can educate the victim as to how the criminal justice system works. And it can be a cathartic, healing process for the victim. Given these and other important functions that a trial may serve from the perspective of the victim, resolution discussions that lead to a trial being dispensed with and an agreed-upon proposed sentence may leave a victim who is not consulted feeling poorly served by the administration of justice, even though the offender is ultimately convicted and an appropriate sentence imposed. The Canadian Sentencing Commission, in their 1988 Report, expressed concern about "the potential which undisclosed plea bargaining arrangements have to obscure for victims the visibility and accountability of sentencing dispositions". 

Therefore, in the Committee's opinion, the victim's viewpoint should be, where appropriate and feasible, solicited by Crown counsel. And although the victim's wishes cannot control the prosecution, they should be given due consideration in the resolution discussion process. It is, in the Committee's view, wrong that the criminal process should work itself through to a conclusion without taking appropriate account of the needs and circumstances of the person or persons most directly affected by the crime committed.