Citation: R. v. Karimian-Kakolaki, 2016 ONSC 8013

Court File No.: M216/16 Date: 2016-12-20

Ontario Superior Court of Justice

Between: Her Majesty the Queen (Respondent) – and – Sedigheh Karimian-Kakolaki (Applicant)

Counsel: Michael Feindel, for the Respondent M. J. Bryant, for the Applicant

Heard: November 17, 2016

Then J.:

[1] The applicant seeks a writ of certiorari in aid of quashing the order of Madam Justice Brown of the Ontario Court of Justice, holding that the Crown had established a prima facie case pursuant to s.672.33 of the Criminal Code against the applicant who had been previously found unfit to stand trial and extending the time for the hearing of the matter pursuant to s.672.33(1.1).

Background

[2] Counsel agree that the background facts have been aptly summarized by the Ontario Court judge as follows:

The Respondent has been charged with Assault Cause Bodily Harm. The complainant was a nurse working in a psychiatric hospital. At the time of the allegation, the Respondent was a patient at the hospital. The alleged offence date was in 2010. On March 24, 2010, the Respondent was found by a judge of this court to be unfit to stand trial. She was ultimately referred to the jurisdiction of the Ontario Review Board, and was most recently found unfit to stand trial on August 10, 2015.

Pursuant to section 672.33 of the Criminal Code, a prima facie hearing is required to be held "not later than two years after the verdict is rendered and every two years thereafter" until the accused is acquitted, or tried, "to decide whether sufficient evidence can be adduced at that time to put the accused on trial."

A prima facie hearing was last held pursuant to this provision, on May 6, 2014. The Respondent was represented by counsel who was not the counsel on this application. At that time, the court found that the Crown had met the burden of the convincing the court that there was sufficient evidence which could be adduced at that time to put the accused on trial.

This application is the next application, having been brought by the Applicant, and was heard and argued before this court on May 11, 2016. The Respondent has challenged the timing of bringing this application and setting the hearing date, in that it was brought well beyond the successive 2 year anniversary dates (March 24) of the finding of unfitness and as well the adequacy the material before this court to establish a prima facie case.

The Facts

(a) Sufficiency of Evidence

[3] On the prima facie application the Crown tendered the affidavit of the Officer in Charge in which he swore that based on the affiant’s recent conversations with the complainant she would testify in terms of her unsworn “will say” statement which he attached as an exhibit to his affidavit. The unsworn notes of Police Constable Chang, who took the complainant’s statement at Mount Sinai Hospital was also attached as an exhibit to his affidavit.

[4] The witness statement of the complainant asserts that the applicant chased Catherine Glen, the complainant, who is a nurse at a psychiatric facility, down the hallway and that she pushed her from behind onto the floor. The complainant hit her head on the door frame in the course of her fall and began to bleed as a result. She indicated that she was taken by ambulance to hospital for further care. The notes of Police Constable Chang indicate that he attended at Mount Sinai Hospital to obtain the complainant’s statement where he observed the complainant in the Emergency Room attended by doctors for sutures to her head.

[5] Counsel chose not to cross-examine the affiant. The judge admitted the affidavit of the Officer in Charge into evidence in the proceeding and found based on “all of the material before this court” that the Crown had met the onus of showing that there was sufficient evidence that can be adduced to put the applicant on trial.

(b) Extension of Time

[6] The last prima facie hearing was held on May 6, 2014. However, the judge found that since the verdict of unfitness was rendered on March 24, 2010, section 672.33 of the Criminal Code required the Crown to bring the application on March 24, 2016, and that accordingly since the application had not been brought until May 11, 2016, the Crown had failed to comply with the time limitation mandated by s.672.33 of the Criminal Code. The judge exercised her discretion to extend the time pursuant to s.672.33(1.1) of the Criminal Code noting that in all of the circumstances, she was satisfied that the extension was necessary for the proper administration of justice.

[7] The applicant raises the following issues which may be put in terms of two questions:

A. Did the Ontario Court judge commit jurisdictional error in holding that there was any or sufficient admissible evidence capable of establishing a prima facie case pursuant to sections 672.33, 672.33(3)-672.33(6) of the Criminal Code?

B. Did the Ontario Court judge commit jurisdictional error by the exercise of her discretion to extend the time for the hearing of the application in an arbitrary fashion in the absence of evidence to support the factors relied upon and by reversing the burden of proof to adduce of evidence of relevant factors pursuant to ss.672.33(1.1) and 672.33(3) of the Criminal Code?

Analysis

A. Did the Ontario Court judge commit jurisdictional error in holding that there was any or sufficient admissible evidence capable of establishing a prima facie case pursuant to ss.672.33 and 672.33(3) to 672.(6)?

[8] The relevant statutory provisions are as follows:

Section 672.33 of the Criminal Code

672.33 (1) The court that has jurisdiction in respect of the offence charged against an accused who is found unfit to stand trial shall hold an inquiry, not later than two years after the verdict is rendered and every two years thereafter until the accused is acquitted pursuant to subsection (6) or tried, to decide whether sufficient evidence can be adduced at that time to put the accused on trial.

Court may order inquiry to be held (2) On application of the accused, the court may order an inquiry under this section to be held at any time if it is satisfied, on the basis of the application and any written material submitted by the accused, that there is reason to doubt that there is a prima facie case against the accused.

Burden of proof (3) At an inquiry under this section, the burden of proof that sufficient evidence can be adduced to put the accused on trial is on the prosecutor.

Admissible evidence at an inquiry (4) In an inquiry under this section, the court shall admit as evidence (a) any affidavit containing evidence that would be admissible if given by the person making the affidavit as a witness in court; or (b) any certified copy of the oral testimony given at a previous inquiry or hearing held before a court in respect of the offence with which the accused is charged.

Conduct of inquiry (5) The court may determine the manner in which an inquiry under this section is conducted and may follow the practices and procedures in respect of a preliminary inquiry under Part XVIII where it concludes that the interests of justice so require.

Where prima facie case not made (6) Where, on the completion of an inquiry under this section, the court is satisfied that sufficient evidence cannot be adduced to put the accused on trial, the court shall acquit the accused.

Section 540(7) of the Criminal Code

(7) A justice acting under this Part may receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case, including a statement that is made by a witness in writing or otherwise recorded.

[9] In R. v. Demers, 2004 SCC 46 the Supreme Court has outlined the test that the Crown is required to meet under s.672.33 of the Criminal Code at paragraph 35 as follows:

Section 672.33 requires the court only to examine whether or not the Crown is able to put forward sufficient evidence to put the accused on trial. In other words, the Crown must adduce some “evidence upon which a reasonable jury properly instructed could return a verdict of guilty": R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679, at para. 2; United States of America v. Shephard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080. Section 672.33 does not presume guilt, but rather aims at preventing abuses of the regime under Part XX.1 Cr. C. by providing that the accused is acquitted when the evidence presented to the court is insufficient to put him or her on trial.

[10] First, the applicant submits that the affidavit of the Officer in Charge does not constitute admissible evidence as his reference to his conversation with the complainant constitutes hearsay and that the unsworn exhibits to his affidavit, i.e., the unsworn “will say” of the complaints anticipated evidence as well as the anticipated evidence of the Police Constable Chang contained in his memo book constitute double hearsay. At the very least, the applicant submits that the Crown should have adduced the evidence of the complainant and Police Constable Chang by way of sworn affidavit.

[11] The judge addressed this argument as follows in her reasons for judgment at paragraphs 33-35:

33. … The procedural provisions in the Criminal Code have been relaxed as it relates to the calling of evidence in a preliminary hearing in the recent past. Section 540(7) provides for the reception of evidence that would not otherwise be admissible, but that the justice considers credible or trustworthy, in the circumstances of the case, including a statement that is made by a witnesses [sic] in writing or otherwise recorded.

34. The affidavit material filed in this prima facie application would be within the category of permissible evidence in s. 672.33(5), and s. 540(7). Counsel for the Respondent had advance notice of the Applicant's intention to proceed with the affidavit as prepared, having been served with the material in advance of the application. Counsel for the Respondent indicated to the court his contemplation of seeking to potentially cross-examine the affiant, and his tactical decision to not do so in this case. Although the exhibits of the affidavit should have been specifically signed by the commissioner, and the failure to do so reflects negligent execution of the document, it does not in this court's view make it lacking in trustworthiness or credibility, and thereby inadmissible, or unsuitable for consideration based on the relevant provisions. In the interests of justice, at this time and in this case, this court will consider this material.

35. Considering all of the material before this court, this court finds that the Applicant has met the onus, of showing that there is sufficient evidence that can be adduced to put the Respondent on trial.

[12] I agree with the judge that the provisions of s.672.33(5) and 540(7) are broad enough to permit the reception by her of the proffered evidence in the circumstances of this case. As objection was taken to the fact that the evidence of both the complainant and Police Constable Chang was not tendered in affidavit form I propose to make two comments with respect to the applicability of subsection (4) of s.672.33 of the Criminal Code. First, in my view, subsection (4)(a) permits the tendering of evidence in affidavit form but does not necessarily preclude the admissibility of evidence that is not in affidavit form provided such evidence is deemed credible and trustworthy and the evidence is otherwise compatible with the interests of justice. Secondly, however, I tend to agree with the applicant that it would clearly be generally preferable for evidence to be tendered in affidavit form even if it is not necessary to do so in order to provide for meaningful cross-examination in cases where the sufficiency of evidence warranting committal is not as clear as on the specific facts of this case.

[13] The appellant also argues that even if the evidence of the Officer in Charge together with the attached exhibits is admissible the judge committed jurisdictional error in that there is nothing in the record that indicates that the judge considered all of the evidence with respect to the material elements of the offence of assault bodily harm as outlined in s.267(b) of the Criminal Code.

[14] The essential elements of the offence of assault causing bodily harm defined in s.267(b) of the Criminal Code require the (i) the external circumstances of an assault under s.265(1)(a) of the Criminal Code, i.e. without the consent of another person, the intentional application of force to that other person, directly or indirectly and (ii) the resultant bodily harm under s.267(b) of the Criminal Code. The mental element requires (i) the mental element for the offence of assault, i.e., intentional application of force (ii) objective foreseeability that the assault would subject the victim to the risk of bodily harm. (See R. v . Nurse (1993), 1993 14691 (ON CA), 83 CCC (3d) 546 (Ont. C.A.)). The mental element of assault bodily harm is satisfied by proof that the accused was reckless whether his acts caused bodily harm to the complainant. (See: R. v. E.(A.) (2000), 146 CCC (3d) 149 (Ont. C.A.)).

[15] In my view, even though the Ontario Court judge did not specifically relate the evidence outlined in paragraph (4) of these reasons to the essential elements of the offence, that evidence establishes the elements required to make out the offence of assault bodily harm. The applicant intentionally applied force to the complainant and was reckless that his acts would cause the injury that resulted from her conduct.

[16] The applicant further submits that because the judge did not specifically relate the evidence to the essential elements of the offence there is no clear indication that in finding that the evidence was sufficient to support a prima facie case the judge considered all of the evidence. In this regard the applicant relies on what was said by the majority of the Supreme Court in R. v. Deschamplain, [2004] 35 SCR 601 at paragraph 34 as follows:

It is now plain from Canadian jurisprudence that a trial judge is not required to give extensive reasons for a decision, but is bound to indicate what he or she understands the nature of the case to be so that the parties are aware that the case they argued was the one decided: see Sheppard, supra. Similarly, a preliminary inquiry judge is not required to render extensive reasons but must demonstrate that he or she met the statutory and mandatory duty to consider the whole of the evidence. It hardly needs saying that had the proceedings been a trial and not a preliminary inquiry, an acquittal of the respondent for the reasons given by Serré J. not to commit would likely be sustained. However, the mandatory duty imposed on the judge at a preliminary inquiry to consider the whole of the evidence requires some clear indication that this obligation was met. In my view, the reasons at issue here do not satisfy this requirement.

[17] It should be noted that in Deschamplain the Provincial Court judge did not refer at all to substantial circumstantial evidence before discharging the accused. In the instant case the judge clearly indicated in terms that she had considered all of the evidence. At the commencement of argument she stated: “I have reviewed the application and supporting material in support of the prima facie application.” At the conclusion of her reasons for judgment she stated:

35. Considering all of the material before this court, this court finds that the Applicant has met the onus, of showing that there is sufficient evidence that can be adduced to put the Respondent on trial.

Conclusion:

36. The court finds that there is sufficient evidence to put the Respondent on for trial, pursuant to s. 672.33 of the Criminal Code.

[18] In my view, the judge has met the standard proscribed in Deschamplain in the circumstances of this case. Moreover, the approach of counsel in argument was not that the evidence was insufficient to support a prima facie case but rather that the evidence was inadmissible. In the circumstances of this case it was not necessary to specifically relate the evidence to the essential elements of the offence as the reasons for judgment decide the issues that were argued. (see: R. v. Hughes (2007), 2007 20780 (ON SC), 262 CCC (3d) 98 at paras. 36-43)

[19] I find no jurisdictional error either on the basis that there was no evidence to support a prima facie or on the basis of any failure by the judge to consider all the evidence.

B. Did the Ontario Court judge commit jurisdictional error by the exercise of her discretion to extend the time for the hearing of the application in an arbitrary fashion in the absence of evidence to support the factors relied upon and by reversing the burden of proof to adduce of evidence of relevant factors pursuant to ss.672.33(1.1) and 672.33(3) of the Criminal Code?

[20] The relevant statutory provision of s.672.33 of the Criminal Code is as follows:

Extension of time for holding inquiry

(1.1) Despite subsection (1), the court may extend the period for holding an inquiry where it is satisfied on the basis of an application by the prosecutor or the accused that the extension is necessary for the proper administration of justice.

[21] The applicant submits that the judge lacked or exceeded her jurisdiction by reversing the onus of proof by requiring the applicant to demonstrate prejudice if the two year requirement for holding the prima facie hearing is not met and by attributing the delay to the former counsel of the applicant in the absence of evidence in that regard.

[22] In order to assess the submissions of the applicant it is necessary to refer to the reasons of the judge for exercising her discretion to extend the time for hearing. After reviewing the decision in R. v. Faraz, [2006] O.J. No. 5612 in which the authorities prior to and after the enactment of s.672.33(1.1) of the Criminal Code were extensively canvassed the judge adopted at paragraphs 26-27 of her decision the criteria developed in that case for the exercise of discretion pursuant to s.672.33(1.1) of the Criminal Code to determine whether the extension was necessary for the administration of justice as follows:

26. There is a dearth of jurisprudential consideration of s. 672.33(1.1), although the court in Faraz in para 10, opined that this discretionary power should consider: (1) prejudice to the accused caused by the delay, which will in part be a function of (2) the length of delay, versus (3) the public's interest in disposing of the case on the merits, which will be informed by inter alia, (4) the seriousness of the allegations.

27. This court agrees with the criteria for consideration of s. 672.33(1.1) as set out by Justice Schneider.

[23] The judge then applied these factors as follows:

28. In this application, it is clear that the Applicant sought to contact the then counsel who had represented the Respondent on the previous prima facie application. This counsel did not respond to the various attempts by the Applicant to contact counsel, until May 6, 2016. Following confirmation that a new counsel would be appearing for the Respondent in this application, the Applicant served the new counsel with the material. The matter was then brought before the court in 5 days, on the first date on which the new counsel for the Respondent was available to attend court.

29. This court also considers the matter of prejudice. In that regard, the court notes that application in this case was 5 days beyond the 2 year anniversary date of the prior prima facie hearing, on May 6, 2014. This is also a factor for the court to consider on the actual length of the delay. It was 2 years and approximately 7 weeks beyond the 2 year anniversary dates of the original finding of unfitness. Although the Respondent has stated in its material, and in its oral submissions, that there has been prejudice to the Respondent for this application, there is no particularization of any prejudice suffered by the Respondent.

30. In this case, the Applicant has asked the court to apply s. 672.33(1.1) to extend the period for holding this inquiry, on the basis that the extension is necessary for the proper administration of justice. The court does consider this request in the context of all of the circumstances, including the lack of any evidence of actual prejudice, the period of delay being only 7 weeks, the fact that the application was held approximately 2 years after the last prima facie application, the fact that after the identity of the new counsel for the Respondent was ascertained the application was scheduled for his first available date and the context of time having been lost in bringing the application to court arising from the delay in ascertaining the identity of counsel for the Respondent after multiple attempts by the Applicant to confirm retainer of counsel. The court also considers the public interest in disposing of the case on its merits, in relation to the serious allegations in this case of assault causing bodily harm. In all of the circumstances, the court is satisfied that the extension is necessary for the proper administration of justice. The court extends the period for this inquiry, accordingly.

(emphasis added)

[24] The applicant submits that in attributing a portion of the delay to the Crown’s futile attempts to ascertain the identity of the applicant’s counsel because of the failure of counsel for the applicant on the previous prima facie hearing to respond to the Crown’s inquiries until May 6, 2016, the judge acted arbitrarily and without evidence and accordingly committed jurisdictional error reviewable by this court. The applicant relies on Douglas Aircraft Co. of Canada v. McConnell, 1979 51 (SCC), [1980] 1 S.C.R. 245 at 277: “a decision without any evidence whatever in support is reviewable as being arbitrary.”

[25] I agree with the applicant that the judge erred in law in relying upon the Crown’s attempts to ascertain the identity of counsel for the applicant as a factor in exercising her discretion to extend the time in the circumstances of this case. During the course of argument the Crown submitted that he had been instructed by an employee in the Crown’s office that after April 15, 2016, she had made several attempts to contact counsel who represented the applicant on the previous prima facie hearing but that counsel had not responded to her inquiries until May 6, 2016 when counsel indicated that she no longer represented the applicant but provided the Crown with the name of the applicant’s new counsel. She conceded that she could not remember the dates in which contact was attempted. Counsel for the applicant took the position that he had been instructed that no contact had been made with prior counsel until May 6 but that in any event reliance should not be placed on the information provided to the Crown in the absence of evidence that the conduct of counsel for the applicant was instrumental in delaying the hearing. In view of the fact that counsel for the applicant did not accept the Crown’s assertion the judge erred in law in relying on the information provided by the Crown in the absence of evidence to support it. However, this is not the end of the matter as this was not the only factor considered in exercising discretion to extend time. The judge also considered the absence of prejudice and the timeliness of the Crown’s efforts to hold a hearing. Moreover, this court retains a residual discretion not to grant certiorari even in the face of jurisdictional error. (See R. v. Clark, 2016 O.N.S.C. 6751 at p.17).

[26] With respect to the factor of prejudice the applicant submits that as in R. v. Jordan 2016 SCC 27 “the absence of prejudice can in no circumstances be used to justify delays after the ceiling is breached” and (ii) that in any event the potential prosecution of an unfit accused after the two year deadline is sufficient and that actual prejudice is not required nor is it incumbent on the applicant to “particularize” prejudice as this would reverse the onus of proof.

[27] In my view, Jordan has no application as s.672.33(1.1) specifically restores a discretion to extend the deadline for hearing when the statutory deadline is reached whereas in the situation in Jordan the deadline is absolute subject to exceptional circumstances which specifically do not include prejudice.

[28] Secondly, the applicant submits the detention of the applicant in hospital past the requisite hearing date constitutes prejudice. However, I accept the respondent’s submission that the detention of the applicant in hospital is occasioned by an order of the Ontario Review Board and not by the delay in holding a prima facie hearing. The failure to hold a hearing constitutes only potential or a risk of prejudice and only crystalizes into actual prejudice if the hearing judge finds that there was insufficient evidence to justify prosecution. In that regard, the onus is clearly on the Crown to demonstrate that the evidence is sufficient for committal and has been discharged as previously outlined. It would appear to me that any other form of actual prejudice would uniquely lie within the exclusive knowledge of the applicant who would bear an evidentiary burden to raise that form of prejudice before the Crown would be required to negative it.

[29] In my view the factors outlined in paragraphs 29-30 of the reasons for decision save for the reference to the multiple attempts to confirm the identity of the applicant’s counsel amply justify the exercise of discretion to extend the time. Although court correctly held that the hearing should have been held on March 24 a seven week delay has been not held to be so excessive as to prelude an extension of time nor to constitute jurisdictional error by other authorities (See R. v. Faraz, [2006] O.J. No. 5612 at paras. 4-7). Also counsel relied on the date for hearing made at the previous prima facie hearing. It must be noted that the identity of counsel for the applicant was ascertained exactly two years after the previous prima facie hearing had taken place and that the instant hearing was scheduled on May 11 or as soon as possible after counsel for the applicant was ascertained. It is not unreasonable to infer that the applicant’s previous counsel, the Crown and the judge were all of the view that the applicable two year period ended on May 6 and that accordingly the Crown was acting in good faith in attempting to comply with that date.

[30] It is acknowledged that in considering whether to grant an extension of time the judge ought not to have considered as a factor the efforts of counsel to ascertain the identity of defence counsel in the context of an alleged failure on the part of previous defence counsel to respond, without evidence to substantiate the allegations of the Crown. I am nevertheless satisfied that the other factors articulated by the judge were appropriately considered by her and amply support her discretion to grant an extension of time and that if necessary, this is an appropriate case to exercise my discretion not to grant certiorari to quash the order to extend the time.

[31] While I propose not to grant this application, nevertheless, I do not wish to be taken as condoning any notion that an extension of time will automatically be granted in the absence of a good faith effort on the part of the Crown to bring a prima facie application within two years after the “verdict of unfitness”. Moreover, I strongly encourage the Crown to adduce appropriate affidavit material in order to demonstrate a prima facie case as the present practice of reliance on the affidavit of the Officer in Charge is fraught with risk as this case illustrates. Finally, I wish to thank both counsel for their assistance.

[32] Accordingly, the application is dismissed.

Then J.

Released: December 20, 2016