CITATION: R. v. Singh, 2017 ONSC 7254
COURT FILE NO.: CRIMJ(P)1987/16
DATE: 20171204
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
ENDORSEMENT
DURNO, J.
[1] On November 15, 2017 dates were set with filing deadlines for certain pre-trial motion that counsel for Prabhjeet Singh first mentioned on November 15, 2017. The applicant was to file by November 22, 2017, and the arguments to be heard November 30, 2017. These were dates to which Mr. Salloum who was appearing that date for Prabhjeet Singh agreed. They were dates set on the Court’s direction as it was essential the applications be litigated well in advance of the February 12, 2018 trial date for three accused on a charge of manslaughter.
[2] On November 17, 2017, Mr. Salloum wrote to the Crown with a copy to counsel for the co-accused and the Trial Coordinator. He said, “Mr. Grill has decided that it is not appropriate to bring the motion at the time set by His Honour.” Mr. Grill no longer considered it appropriate that Mr. Salloum argue the applications. He reserved his right to argue the applications if and when he determined it was appropriate to do so. The letter concluded noting Mr. Salloum’s intention to appear on November 30, 2017 and adjourn the case to the confirmation date of January 10, 2018.
[3] While not stated, it was apparent that no material would be filed in support of the applications by the November 22, 2017 filing deadline set by the Court. It also appeared that no preparation for the applications would be undertaken in the two weeks between Mr. Salloum’s letter and the next court appearance.
[4] On the same date, counsel for Dilsher Singh, Nicole Rozier and Ekaterina Perchenok, wrote to Mr. Salloum with copies to the Crown, Ms. Gadhia, counsel for Abhijeet Nagra, and the Trial Coordinator noting the applications must be brought and argued forthwith. To do otherwise, would be “unfair to the co-accused, to the Crown and to its witnesses, and to the Administration of Justice.”
[5] I am not aware of any response being received to Dilsher Singh’s counsels’ letter.
[6] By endorsement dated, November 24, 2017, I directed that the applications be heard by no later than December 15, 2017 with filing deadlines of one week from the endorsement date - the same amount of time Mr. Salloum said would be required to prepare and file the applications when he appeared on November 15, 2017. Otherwise the applications would not be considered.
[7] On November 30, 2017, Ms. Shemesh appeared along with Mr. Salloum and advised of five facts.
[8] First, because he is not on the Legal Aid Ontario (LAO) panel that permits counsel to conduct homicides, Mr. Salloum could not argue the applications. This was not indicated in court on November 15, 2017 nor was it mentioned in Mr. Salloum’s letter of November 17, 2017 as a reason he could not argue the applications.
[9] Second, Mr. Grill has advised the Law Society that he is not practicing for medical reasons. Ms. Shemesh indicated Mr. Grill was not going to practice in December and hoped to be able to return to practice in January. She also said that he was awaiting at least one specialist’s appointment with respect to the extent of his medical issue. While not indicated before, I infer these events arose after the earlier noted dates.
[10] Third, Ms. Shemesh submitted that she would argue the applications in January if Mr. Grill was unable to do so. She has vacation plans from December 18, 2017 through January 3, 2018. Ms. Shemesh said that the supporting material could be filed by the week of December 18, 2017 and provided dates when she could argue the applications – January 5, 8 and 12, 2018. Prior to December 18, 2017, she was in a murder trial that was in its third day of jury deliberations and had to complete written submissions in an importing case by December 13, 2017.
[11] Fourth, Ms. Shemesh advised that LAO was now issuing certificates for cases outside LAO’s Greater Toronto Area[^1] (GTA) and not paying counsel’s mileage.
[12] As indicated in court, when the lack of courtroom issue arose, LAO’s position was if the trial was held more than 50 kilometers from counsel’s office and outside of LAO’s GTA, mileage would be paid. In over two years of transferring cases, no counsel has ever raised this issue.
[13] Fifth, Ms. Shemesh advised that the following applications will be brought:
i. an application to remove me as Case Management Judge for the applications[^2]
ii. a “Brampton only” application which would challenge the authority of the Superior Court of Justice to move criminal case within the Superior Court of Justice Region where the indictment was filed or to other Regions.
iii. in the alternative, a s. 10(b) Charter application that Prabhjeet Singh’s right to counsel of choice would be violated because his counsel of choice was “unable” to conduct a trial in Kitchener because he has child care commitments and does not defend cases outside of Toronto and Brampton.
iv. if applications (ii) and (iii) are dismissed, Mr. Grill would apply to be removed as counsel of record.
[14] The Crown submitted that the motions had to be heard in December. Ms. Perchenok, who was appearing on behalf of Ms. Gadhia said Ms. Gadhia had texted instructions for her to apply for severance for Abhijeet Nagar. I believe that when the February 12, 2018, trial date was set Ms. Gadhia had agreed to that date noting that it would result in her cancelling a planned vacation out of Canada.
[15] Ms. Rozier, on behalf of Dilsher Singh, joined the severance application.
[16] Setting aside notice requirements for the moment, I found it was premature to address severance. All trial counsel and the Court felt that if Mr. Grill was permitted to remove himself from the record in January, that severance was either likely or a certainty as no counsel would be in a position to accept Prabhjeet Singh’s retainer and be ready to proceed in February. Ms. Shemesh disagreed, feeling it would be possible that other counsel could be ready to step in. It was not certain that no counsel would be available if the decision was made five weeks before the trial date.
[17] Returning to the substantive applications, Ms. Shemesh said she thought the applications would require two days and that it could involve evidence from LAO. Ms. Rozier suggested the applications could take four days or more.
[18] After hearing the submissions, I advised counsel that scheduling issues had to be explored and they would be advised on the dates.
[19] Several issues became clear during the appearance. First, addressing these issues on the Monday morning the trial was scheduled to start would be far more disruptive to the co-accused, counsel for the co-accused, Crown counsel, witnesses and to Court scheduling of all cases than was previously anticipated. When it is considered that the judge who hears the substantive applications will want some time to consider them, waiting until counsel determines if he will exercise his reserved right was more unacceptable and inefficient than it was on November 15, 2017. On that date, I rejected the initial suggestion that these arguments be presented either the week of January 29, 2018 or February 12, 2018 depending on Mr. Grill’s availability.
[20] Second, Mr. Salloum cannot argue the motions. Ms. Shemesh is prepared to argue the applications provided her schedule permits.
[21] Third, the filing requirements and scheduling of these applications poses additional challenges with the Holiday Season between today’s date and the trial date.
[22] Fourth, the substantive applications have to be determined as soon as possible. While it is theoretically possible that another counsel would be prepared and available to step in for Prabhjeet Singh that is most unlikely. I reach that view based on dealing with many accused who have changed counsel either on their own initiative or as a result of counsel getting off of the record. This is particularly so, with Prabhjeet Singh being represented through a LAO certificate which would require him to apply to change counsel. It becomes more problematic given Ms. Shemesh’s view that counsel could be prepared and available if the decisions are made five weeks before trial. That would require decisions, not just submissions, on the substantive issues by January 8, 2018.
[23] Further, while counsel for the co-accused would have a few weeks’ notice, Mr. Grill was taking the lead on the proposed challenge for cause questions although not all defence counsel had agreed on the suggested questions. In addition, he was taking the lead in opposition to the Crown’s application for the jury to take a view of the warehouse where the incident occurred. He had suggested those arguments would take two days.
[24] Fifth, I was initially of the view that the recusal application should be heard in December to facilitate court scheduling. When asked if she could file and argue that application in December, Ms. Shemesh responded, “I just can’t.” If the recusal application was argued and granted on the first of consecutive days scheduled for the applications, another judge would have to be scheduled and review the material.
[25] Upon further reflection and noting Mr. Grill is not practicing at all, Ms. Shemesh’s professional and personal schedules, and that Mr. Coughlin is prepared to adjust his vacation schedule as is the court, it is appropriate to have the Recusal Application heard on January 5, 2018. All material for that application must be served on all counsel and filed by not later than December 15, 2017.
[26] Regional Senior Judge Daley has agreed that the Court scheduling will be adjusted to accommodate the result of the first application.
[27] Second, with regards to the substantive applications, Ms. Shemesh submitted that the issues were important ones which they wanted to litigate. The Court agrees. The Superior Court has attempted to deal with the inadequate number of courtrooms in the Davis Court House for several years. The earliest the addition (currently scheduled to provide three additional SCJ courtrooms) will be ready for occupancy is early 2019. That leaves at least 13 months before relief is available in a courthouse that receives over 300 indictments a year. If there are jurisdictional issues, they should be addressed as soon as possible so that other options can be implemented should it be determined the Court cannot transfer cases in accord with the current practice.
[28] The determination of the issues will impact on other trials, defence counsel, Crown Counsel, witnesses, and self-represented accused persons. No doubt the Court Services Division of the Ministry of the Attorney General will also have an interest. Whether the assigned Crowns notify that division of the applications is for Crown Counsel to determine.
[29] Third, the dates provided in court on November 30, 2017, are inadequate to properly schedule the substantive applications. At this time there appears to be agreement on January 12, 2018 only. No one has suggested the applications will take one day.
[30] Fourth, while hearing the substantive applications sequentially would be preferable. Raising the issues for the first time on November 15, 2017, months after the case first appeared in the Superior Court leaves no option than to have all three substantive applications heard at the same time.
[31] Fifth, the time required for those applications is difficult to “guesstimate” at this stage without the Application Records and factums. Regardless of who hears those applications, all counsel should keep in mind a court’s authority to impose time limits on oral submissions. Whether there will be time limits on the recusal and substantive applications and if so, what they will be is for the Application Judge(s) to determine.
[32] Further, as indicated previously, all applications and responses must be filed in full compliance with the Criminal Proceedings Rules for the Superior Court of Justice and each must be accompanied by a factum. With respect to the evidentiary bases for the applications, evidence is required. Absent the agreement of all counsel on a factual issue, submissions on factual matters may provide an inadequate evidentiary basis for the rulings.
[33] The factums must include counsel’s time estimate for evidence, if any, and arguments. If the Application Judge considers time limits on oral submissions, these estimates will assist. In addition, it will facilitate the considerable rescheduling of court schedules that is required to have these applications heard.
[34] With regards to the substantive issues I agree that more than one day must be scheduled. I should have obtained more dates from counsel on November 30, 2017. It would be appreciated if counsel could provide the Trial Coordinator with all their available dates between January 8 and 19 before the December 5, 2017 appearance. It would also be helpful if counsel could indicate their tentative position as to the applications upon which they intend to file material and make submissions, subject to reviewing the material in support of the applications.
[35] While it would be highly unusual, if necessary to address these applications as soon as possible, it may be necessary to impose on other courts to accommodate counsel. On December 5, the accused will be remanded to January 5, 2018 for the Recusal Application.
[36] On December 20, 2017, with the Application Records filed, it should be possible to have a better time estimate and set firm dates for the applications. The case will be addressed in court on that date at 2:30 p.m. The accused will not be required. Neither counsel nor the accused are required to attend provided counsel have provided their available dates in advance.
[37] The following orders are issued. Any application to vary the terms of these orders must be brought in full compliance with the Criminal Proceedings Rules for the Superior Court of Justice and heard in court.
i. Prabhjeet Singh is to file and serve his Notice of Application, Application Record and factum for the Recusal Application by not later than December 18, 2017. The Crown and any counsel wishing to file material and make submissions must do so by not later than January 4, 2018. The application will be heard on January 5, 2018 at 11:00 a.m.
ii. Prabhjeet Singh is to file and serve his Notice(s) of Application, Application Record and factum for the “Brampton Only” application and any related issues by not later than December 18, 2017. The Crown and any counsel wishing to file material and make submissions must do so by not later than January 5, 2018.
iii. Prabhjeet Singh is to file and serve his Notice of Application, Application Record and factum for his s. 10(b) Charter Application(s) and any related issues by not later than December 20, 2017. The Crown and any counsel wishing to file material and make submissions must do so by not later than January 10, 2018.
iv. the “Brampton Only,” s. 10(b) and any related applications will be heard commencing January 12, 2018. Further dates will be determined when counsels’ dates are available.
v. Mr. Grill is to file and serve his application to be removed of counsel of record if the first two substantive applications are determined against Prabhjeet Singh by not later than December 22, 2017. The application must be in full compliance with Rule 25, and include a supporting affidavit and factum. The Crown and any counsel wishing to file material and make submission on this issue must do so by not later than January 15, 2018.
vi. No Recusal Application or applications for a “Brampton Only Order,” s. 10(b) applications based upon the location where the trial will be held or for the removal of counsel from the record based on the location where the trial will be held will be considered at any other times.
DURNO, J.
Released: December 4, 2017
CITATION: R. v. Singh, 2017 ONSC 7254
COURT FILE NO.: CRIMJ(P)1987/16
DATE: 20171204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN V. PRABHJEET SINGH, ABHIJEET NAGRA AND DILSHER SINGH
ENDORSEMENT
Durno J.
Released: December 4, 2017
[^1]: I believe this includes Milton but not any other centre in the Superior Court Central West Region or Kitchener.
[^2]: For ease of reference, the remaining applications will be described as the substantive issues.