R. v. Persaud, 2016 ONSC 783
CITATION: R. v. Persaud, 2016 ONSC 783
COURT FILE NO.: 15-AP-50000007
DATE: 20160203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AVINASH PERSAUD
COUNSEL:
L. Schwalm, for the Crown
R. Wellington, for Mr. Persaud
HEARD: January 28, 2016
REASONS FOR JUDGMENT
r.f. goldstein j.
[1] Avinash Persaud, the appellant, had an acrimonious relationship with the complainant, Preya Deopaul. Mr. Persaud allegedly assaulted Ms. Deopaul on February 18 2014. She went to the police on March 25 2014. The police laid an assault charge against Mr. Persaud. His trial was scheduled to be heard by Madam Justice Oleskiw in the Ontario Court of Justice on November 21, 2014.
[2] On the day of trial the Crown disclosed a photograph of the complainant to Mr. Persaud’s counsel. The photograph allegedly showed her injuries. Ms. Deopaul said she took the photograph on her cell phone a few days after the alleged assault. The photograph had a date and time stamp on it. Ms. Deopaul did not give the photograph to the police. It was only made available to the authorities, and thus to Mr. Persaud’s counsel, on the day of trial. Mr. Persaud’s trial counsel, and his appellant counsel, did not suggest any improper withholding of the evidence. The Crown conceded that the usefulness (or otherwise) depended on the credibility of the complainant.
[3] Mr. Persaud’s counsel requested an adjournment. He said he was just getting the photograph for the first time. He was prepared to cross-examine the complainant on the basis of her statement alone and the photograph had changed the game.
[4] The trial judge refused to grant the adjournment. She said:
Yes. Defense is asking for an adjournment of the trial, based on the production of one photograph. I see no prejudice, whatsoever, to the accused in terms of there being anything that counsel could realistically do. I have not heard anything persuasive to suggest that he needs more time to prepare for trial, based on the production of a photograph on the day of the trial. So, I am dismissing the application for an adjournment.
[5] The trial proceeded. Mr. Persaud and Ms. Deopaul were the only witnesses. The trial judge found that accused guilty. She did not believe him, after conducting a thorough W.D. analysis: R. v. W.D., 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
[6] Mr. Persaud now appeals. Mr. Wellington, his counsel, argues that the trial judge erred in refusing to grant the adjournment. He does not say that the trial was unfair, but rather that the trial had the appearance of unfairness because of the refusal to grant the adjournment.
[7] I respectfully disagree. A trial judge has a wide discretion as to whether to grant an adjournment. An appellate court should only interfere with the exercise of that discretion where the accused has been deprived of a fair trial or the appearance of a fair trial: R. v. Hazout, 2005 CanLII 30050 (ON CA), [2005] O.J. No. 3550, 199 C.C.C. (3d) 474.
[8] Trial judges have a responsibility not only to the parties, but also to the administration of justice. That responsibility includes a responsibility to ensure that trials occur in a timely and effective manner. Where an adjournment is sought as a result of a disclosure issue, the trial judge must balance the right of the accused to make full answer and defence against the court’s duty to control the trial process: R. v. Hinds, 2015 ONSC 5210, 2015 CarswellOnt 13951 at para. 25. I respectfully adopt the following comments from my colleague Justice Fairbur made at paras. 27-28 (excerpts):
… Efficient and fair justice is inextricably linked to timely justice. This constitutes one of the factors that must be considered when an adjournment request is made.
Other factors to balance in the just determination of an adjournment request include the reasonableness and timeliness of the request, as well as the grounds for the request. The court should consider the prejudice that might arise to either party as a result of an adjournment or refusal to adjourn. The right to a fair trial and the integrity of the administration of justice should also factor into the ultimate determination: M. Fuerst, M.A. Sanderson, Ontario Courtroom Procedure, 3rd ed., (Toronto: LexisNexis, 2012) at p. 333. As noted by Dalphond J.A. for the majority in R. v. G.(J.C.) (2004), 2004 CanLII 66281 (QC CA), 189 C.C.C. (3d) 1 (Que. C.A.) at para. 12, leave to appeal refused [2004] C.S.C.R. No. 456: "it is proper for the trial judge when asked for a postponement to consider other relevant circumstances such as the gravity of the charges, the number of previous postponements and the consequences of a postponement for the accused".
[9] Ultimately, the case was about credibility, as the trial judge recognized. The photograph was corroborated the complainant’s evidence, but it is important to note that the trial judge disbelieved the accused after a WD analysis and found no significant inconsistencies in the complainant’s evidence. As the trial judge recognized, it is difficult to understand how an adjournment would have assisted the accused. I simply see no basis for concluding that the appearance of fairness was compromised. No doubt Mr. Persaud did not like the refusal. That does not make it unfair, or appear unfair. The trial would have appeared unfair (and been unfair) if, say, the trial judge had refused to hear defence counsel’s submissions.
[10] That is not what happened. The trial judge gave Mr. Persaud’s counsel several opportunities to explain why he needed the adjournment. She asked him several times why he was not ready to proceed with the trial. He was unable to articulate how the disclosure of the photograph affected his ability to make full answer and defence for his client. He did indicate that he might have been able to consult experts about the time stamp on the photo or whether the injuries were consistent with an assault.
[11] Even if I disagreed with the trial judge’s decision (which I do not in this case), I cannot intervene unless there was some error in principle or the trial judge’s discretion was not exercised judicially: R. v. Wood, 2005 CanLII 13779 (ON CA), [2005] O.J. No. 1611, 196 C.C.C. (3d) 155 (C.A.) at para. 7. In my respectful view, the trial judge exercised her discretion judicially and considered all the relevant circumstances. The appeal is dismissed.
R.F. Goldstein J.
Released: February 3, 2016
CITATION: R. v. Persaud, 2016 ONSC 783
COURT FILE NO.: 15-AP-50000007
DATE: 20160203
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
AVINASH PERSAUD
REASONS FOR JUDGMENT
R.F. Goldstein J.