R. v. Singh, 2017 ONSC 7039

CITATION: R. v. Singh, 2017 ONSC 7039

COURT FILE NO.: CRIMJ(P)1987/16

DATE: 20171124

DATE CORRECTED: 20171129

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN V. PRABHJEET SINGH, ABHIJEET NAGRA AND DILSHER SINGH

BEFORE: Durno J.

COUNSEL: Carson Coughlin and Colin Henderson, counsel for the Crown Gary Grill, counsel for Prabhjeet Singh Roots Gadhia, counsel for Abhijeet Nagra Nicole Rozier and Ekaterina Perchenok, counsel for Dilsher Singh

AMENDED ENDORSEMENT[^1]

[1] The three accused are charged with manslaughter. They first appeared in the Superior Court of Justice 21 months and 7 days after the date of their arrest and the first Ontario Court information was sworn. Their trial was scheduled to commence on November 14, 2017 and is anticipated to take five to six weeks with a jury.

[2] The trial date was adjourned because Prabhjeet Singh’s counsel Gary Grill suffered a concussion and has been told he should not be practising for a couple of months. The trial was adjourned to February 12, 2018 with pre-trial motions being heard the week of January 29, 2018 or at the start of the trial depending on Mr. Grill’s availability. Mr. Salloum, counsel from Mr. Grill’s office, advised the Court, Crowns and counsel for the co-accused after the adjournment was granted that during those motions, Mr. Grill would seek an Order that the trial be held in Brampton and if that was not successful, he would apply to be removed from counsel of record.

[3] Arguing those applications in January or February was unacceptable to the Court and other counsel. Mr. Salloum agreed to argue those applications on November 30, 2017 and was given until November 22, 2017 to file the appropriate material. The Crown and co-accused would have one week from the date they received Mr. Salloum’s material to file responding material.

[4] On November 17, 2017, Mr. Salloum sent a letter to Crown Counsel. It was copied to counsel for the co-accused and the Trial Coordinator. The letter stated “Mr. Grill has decided that it is not appropriate to bring the motion at the time set by His Honour” because of his health issues and it “would likely be premature.”

[5] Ms. Perchenok, co-counsel for Dilsher Singh, responded by letter late in the afternoon of November 20, 2017. Her letter was copied to the Crown, counsel for the co-accused and the Trial Coordinator. Ms. Perchenok voiced strong opposition to Mr. Grill’s decision and stressed that the trial issues had to be resolved as soon as possible.

[6] Mr. Salloum’s letter precipitated this endorsement.

[7] Before addressing the orders, some background is required to place the issues in context.

[8] That the A. Grenville and William Davis Courthouse (Brampton Courthouse) did not have sufficient courtrooms for the needs of the Superior Court of Justice became apparent in 2014. Pending the completion of an addition to the Courthouse, the Ministry of the Attorney General’s solution to the shortage was to move cases to Kitchener, Guelph, Milton or Orangeville. The Superior Court concluded that the Chief Justice and the Regional Senior Judge (RSJ) had jurisdiction to transfer cases. Where it was a jury trial, the jury is selected in Brampton and either transported to the location of the trial or are given mileage from their homes.

[9] It was important that all counsel and accused persons were advised on the potential for their case to be heard in another courthouse on their first appearance in the Superior Court. Since late 2014 at least, every Assignment Court starts with comments with regards to cases being moved to other courthouses. While every effort is made to keep cases in the Brampton Courthouse, there are weeks when cases must be moved. Generally, counsels’ and accused persons’ input is considered, but there are now weeks when no trials can proceed in the Courthouse. Courtroom availability is monitored on a regular basis so that if a courtroom becomes available and the trial can be completed in the Brampton Courthouse, the case returns to the Brampton Courthouse.

[10] Since 2014 there has been commendable cooperation from the bar in dealing with a most unsatisfactory situation. The jurors are always told in advance of the jury selection process that the trial will be held in another jurisdiction. The jurors have been cooperative and accommodating as well.

[11] By letter dated January 13, 2015, former RSJ Van Melle wrote to the President of the Criminal Lawyers’ Association (CLA) who had raised concerns about cases being transferred out of Brampton. The letter outlines the background and efforts undertaken at that time to keep cases in Brampton. Her Honour permitted the President to share the letter with all members of the CLA.

[12] Since the Supreme Court of Canada judgment in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. there are additional challenges to ensuring trials are held within a reasonable time. Courts are directed to be proactive.

[13] Turning next to this case, on the first appearance of this case in the Superior Court on January 9, 2017, I addressed counsels’ obligations concerning pre-trial conference forms including that it was imperative that they be completed fully. I referred to the venue of trials including that the Courthouse did not have enough courtrooms, construction on the addition had yet to commence, and that the Ministry of the Attorney General’s solution in the interim was to move cases to Orangeville, Kitchener, Milton and Guelph. With very few exceptions the decision to move a case was made on the Monday morning of trial as we endeavored to keep as many cases as possible in Brampton. The comments included:

Anyone setting a trial date in this building should proceed on the basis that your trial could be moved.

[14] Within ten minutes of those comments, this case was called. Mr. Salloum appeared on behalf of Prabhjeet Singh. He made no comments regarding the transfer of cases. A pre-trial conference was scheduled for February 12, 2017.

[15] Mr. Grill completed and filed his Pre-trial Conference Report (Form 17 of the Criminal Proceeding Rules for the Superior Court of Justice). The section for “Other Legal Issues requiring rulings anticipated by the Defence” included only “exclusion of autopsy photos.” There was no reference to the transfer of cases.

[16] On February 12, 2017, a pre-trial conference was held and tentative trial dates were discussed. Mr. Grill attended on behalf of Prabhjeet Singh. At the conference he made no comments regarding the transfer of cases. When canvassing dates on the record in court, I spoke of needing a week or more to canvas judge availability for the trial starting in May or June, 2017 and continued:

Whether the courtroom will be in this building, I do not know.

[17] Mr. Grill made no comment about the trial potentially being in another courthouse.

[18] Other dates were canvassed and November 24, 2017, and selected as a tentative trial date. The case was adjourned for all counsel to determine if that trial date raised “Jordan Issues.”

[19] On February 22, 2017, when the date was confirmed Mr. Salloum appeared and made no comment with regards to the transfer of cases. Through Mr. Grill’s “coordination” all counsel had agreed that the November 14, 2017 trial date would not result in Jordan issues.

[20] On November 3, 2017, the case was scheduled for Trial Readiness. At that appearance and through a memo from the Trial Judge, counsel were advised that the motions and trial would be held in Kitchener. The Trial Coordinator had determined in advance that there would be no courtroom available in Brampton for this trial. At the trial readiness appearance, Mr. Salloum appeared for Prabhjeet Singh. He made no comment about the transfer of cases.

[21] On November 6, 2017, Mr. Grill applied to adjourn the trial date citing injuries he received in a motor vehicle accident on October 6, 2017 and a torn calf muscle he suffered a couple of weeks later. The injuries made travelling to Kitchener problematic during his recuperation. The application did not mention the process that resulted in the trial being held in Kitchener.

[22] On November 7, 2017, the application was heard. Mr. Grill attended on behalf of Prabhjeet Singh. While I believe there was an oblique reference to other potential bases for the adjournment, he said in effect that his medical issues were the basis of his application. There was no mention of the process that led to the trial being scheduled in Kitchener.

[23] After hearing from all counsel, I indicated that I would have to consult with the RSJ and Trial Coordinator regarding the scheduling of the trial. A possible February 12, 2018 trial date was discussed. Counsel said that date would not lead to a Jordan Application for Abhijeet Nagra or Prabhjeet Singh. Ms. Rozier submitted that for Dilsher Singh, there would be s. 11(b) issues but she felt an application would not succeed.[^2] However, all counsel had agreed that a February 12, 2018 trial date would hopefully enable Mr. Grill to recuperate.

[24] The case was adjourned. Counsel were to be notified as soon as possible regarding the February date and if the Kitchener Courthouse decision could be reconsidered. After discussions with the RSJ and Trial Coordinator, it was determined that the trial would remain in Brampton. Counsel were advised on November 8, 2017.

[25] The next day Mr. Grill had an appointment with his doctor. Given his doctor’s advice, Mr. Grill immediately obtained a letter and forwarded it to the Court, the Crowns and counsel for the co-accused. The doctor felt Mr. Grill had underestimated the effects of the October 5, 2017 accident on his physical being and described symptoms of Concussion. The doctor “warned” Mr. Grill that he should not be involved in any professional activity “right now” that requires concentration and judgment. While he could not determine how long his recovery would take, it would be faster if he was out of his work environment.

[26] When the letter was received, I advised counsel that his second adjournment application could be heard on November 10, 2017, his letter would be a sufficient record and no further material was required.

[27] On November 10, 2017, Mr. Salloum appeared for Dilsher Singh and made submissions regarding the adjournment. He appropriately and understandably qualified his comments in agreeing to the February 12, 2018, trial date. It was hoped Mr. Grill would be available. Ms. Gadhia raised issues regarding Mr. Grill’s possible unavailability in February but indicated that a February trial date would not result in a Jordan Application by her client.

[28] Ms. Perchenok on behalf of Dilsher Singh, submitted that he opposed the adjournment, did not waive his s. 11(b) rights and was seeking severance. A February trial date would lead to a Jordan Application on his behalf.

[29] While all counsel made some brief submissions on the oral severance application and the Crown wanted a ruling on the application on November 10, 2017, I declined to rule, wanting to examine some law in regards to severance and review the recent s. 11(b) jurisprudence. The case was adjourned to November 14 for further submissions.

[30] On November 14, 2017, further submissions were heard and the case was adjourned to November 15, 2017 for a ruling on the adjournment application and severance.

[31] On November 15, 2017, Prabhjeet Singh’s adjournment application was granted and Dilsher Singh’s severance application dismissed. At the conclusion of the ruling, I repeated what I had said when the November 14, 2017, trial date was first canvassed – whether the trial would be in Brampton, I did not know.

[32] February 12, 2018, was set for the trial and discussions were held regarding the motions being conducted the last week of January, 2018, if Mr. Grill was available. Counsel for the co-accused appropriately sought an intervening date for an update regarding Mr. Grill’s condition. Mr. Salloum was communicating with Mr. Grill using his cell phone and providing input in attempting to set an intervening date for an update on Mr. Grill’s medical issues.

[33] As we were completing the appearance, and over 15 minutes after the judgment was completed, Mr. Salloum interjected that he had just received a text from Mr. Grill. He intended to apply in January for an order that the trial be held in Brampton and that if that order was not granted, he would apply to be removed from the record. He said that these new applications would be heard either in the last week of January or at the February 12, 2018 sitting, depending on Mr. Grill’s availability.

[34] Counsel for the co-accused submitted that I should revisit the ruling I had just completed. The Crown did not feel the ruling had to be revisited. I found it was not necessary to do so at that time as I did not know the basis for the applications.

[35] The Crowns, counsel for the co-accused and the Court raised serious concerns with regards to the new applications being heard in January or February. The potential for Prabhjeet Singh to be without counsel on the eve of a trial for manslaughter if the first application was not granted and the second was granted raised the significant possibility of two trials being required because the effect of Mr. Grill getting off of the record on the eve of the jury trial starting would leave Prabhjeet Singh without counsel. The objective of one trial for all accused was the issue considered in the ruling that had just been delivered. I made it clear that the proposal to address these issues when Mr. Grill determined was unacceptable. No one in the courtroom could have been under any other impression than that these issues had to be determined well before the end of January.

[36] Mr. Salloum said that the applications could be brought sooner and if necessary, he would argue them. It was determined that they would be heard November 30, 2017 with the applicant filing not later than November 22, 2017. Mr. Salloum said he would need a week to provide the required material. I had advised that the applications had to be based upon evidence and not submissions.

[37] Late in the attendance, Mr. Salloum offered to provide “a skeleton” of the argument or to have it included in the written application. I found the skeleton would not assist at that time as a proper written application record was required.

[38] Two days later, Mr. Salloum wrote to the Crown. Mr. Grill had decided it was not appropriate to bring the applications on the dates I had set because his medical issues prevented him from arguing the applications and it was premature as there was no “clear indication” the trial would not be in the Courthouse. Notwithstanding any “obiter dicta in relation to available courtrooms, construction, the treatment of previous cases, Mr. Singh has no authoritative reason to doubt his matter will be heard in Brampton.” If the Court or Crown brings an application he reserved the right to oppose such change of venue. Independently of his client, he reserves the right to bring a motion “that preserves his right to practice law in a geographically-restricted fashion that does not include lengthy trips to distant parts of the province.”

[39] This was the first time in the ten and a half months the case was in this Court that Mr. Grill or Mr. Salloum had raised these issues despite the repeated comments in court.

Analysis

[40] At the first appearance in the Superior Court, it was made clear to counsel for Prabhjeet Singh that the trial could be held in another courthouse. Mr. Singh and Mr. Grill had a reason to believe his trial might not be held in the Courthouse. Indeed, the trial was already scheduled for Kitchener. There was no application. There will be no Court application in February if the trial is going to be held in another courthouse. Accordingly, the application that Mr. Singh, through his counsel, reserves his right to oppose will not arise. Assuming the “right to practice laws in a geographically restricted area” application is a motion to be removed from the record, linking that argument to a Court application means that opportunity will never occur.

[41] There are further problems with Mr. Salloum’s November 17, 2017, letter. While changing from Mr. Grill seeking an Order that the trial be held in the Courthouse and if that was not granted, applying to be removed from the record to responding to applications, the issues counsel now reserves the right to litigate appear to be the same. Mr. Grill said his applications would be brought in January. When it was readily apparent that the proposed date was unacceptable, Mr. Salloum offered to prepare and if necessary, argue the applications earlier. That was in accord with the direction of the Court and the interests of justice. In the letter Mr. Grill effectively ignores the November 15, 2017 proceedings and determines when he could litigate the issues.

[42] I am unaware of any authority by which one counsel can by letter determine when the issues in a scheduled application will be litigated in the face of directions to the contrary from the Court. While it would be prudent of counsel who is completely abandoning an issue for all time to notify the Court and the other parties that is not what occurred.

[43] As was readily apparent on November 15, 2017, it is unacceptable to have these issues heard when Mr. Grill has now determined they could be raised. To wait until the case is in pre-trial motions, would significantly disrupt the trial scheduling until these issues were determined. The Supreme Court has mandated that courts operate more efficiently in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. That one counsel has determined he reserves the right to raise issues that could significantly impact on the trial is the antithesis of efficiency.

[44] To proceed as Mr. Grill has determined would place all other justice system participants in this trial in a precarious situation. Neither the Crown, counsel for the co-accused, the accused or the Court would know how the trial was going to proceed until Mr. Grill determined if he was going to exercise his reserved rights. In particular, Prabhjeet Singh, who retained a lawyer who knew or whose associate knew from the first appearance that cases were being transferred, could be left without counsel because the case was being tried in another courthouse.

[45] It would not just be those involved in this case who would be affected. Other cases would be impacted, effectively put “on hold” until these issues were addressed. It would only be at that time that the final trial assignments could be made. As Doherty J.A. held in R. v. Allen (1996), 1996 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.), at para. 37 when dealing with s. 11(b) and continuations:

No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases.

[46] Section 482.1 of the Criminal Code provides that the parties to a case “shall comply with any directions made in accordance with” case management rules of Court. As the Case Management Judge, pursuant to s. 551.3(1) of the Criminal Code, I can establish schedules and impose deadlines on the parties. I intend to do so.

The Orders

[47] The following orders are issued:

[48] If Prabhjeet Singh intends at any time to raise issues regarding the transfer of cases from Brampton and/or to apply for an order that his trial is to be held in Brampton, he shall perfect his application in full compliance with the Rules of Court by not later than December 1, 2017. The material must include an Application Record, supporting affidavit(s) and casebooks.

[49] If Mr. Grill intends at any time to apply to be removed from the record for Prabhjeet Singh and/or to bring a motion that “preserves his right to practice law in a geographically restricted area,” he shall perfect his application in full compliance with the Rules of Court, including Rule 25 with regards to applications to be removed as counsel of record, by not later than December 1, 2017.

[50] The Crown and counsel for the co-accused will have one week from the date the material is received to respond.

[51] No applications with regards to the transfer of cases, for an Order that the trial be held in Brampton, for Mr. Grill to be removed as counsel or “preserving Mr. Grill’s right to practice law in a geographically restricted area” will be considered after December 15, 2017.

[52] The November 30, 2017 at 11:00 a.m. remains a date to which the accused are remanded. At that time a date not later than December 15, 2017, will be set for any new applications Mr. Grill intends to bring.

[53] Finally, I am not unmindful of Mr. Grill’s medical issues. The Court has attempted to accommodate those issues by changing the location of the November 14^th^ trial to Brampton, permitting the November 10^th^ adjournment application to proceed without compliance with the Rules and scheduling the trial for February in the sincere hope that he would be available. Regrettably, through Mr. Salloum’s letter, Mr. Grill has determined when the issues he has raised could be argued. The letter necessitates the Orders. While I appreciate that this will result in another counsel arguing his applications, the position advanced in Mr. Salloum’s letter leaves no reasonable alternative.

Durno J.

Date Corrected: November 29, 2017

CITATION: R. v. Singh, 2017 ONSC 7039

COURT FILE NO.: CRIMJ(P)1987/16

DATE: 20171124

DATE CORRECTED: 20171129

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN V. PRABHJEET SINGH, ABHIJEET NAGRA AND DILSHER SINGH

ENDORSEMENT

Durno J.

Released: November 29, 2017

[^1]: Correction Notice: November 29, 2017: In paragraph 48, the name “Dilsher” has been changed to “Prabhjeet”.

[^2]: While Ms. Gadhia for Abhijeet Niagra raised issues with the case being transferred including that she would never have accepted the brief had she known the case would be transferred, for the purposes of this endorsement it is not necessary to address those issues. Her submissions did not include any jurisdictional considerations.