Court File and Parties

COURT FILE NO.: CJ 9358

DATE: 2019/10/04

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Junior Ramsoram

BEFORE: G. E. Taylor

COUNSEL: Ashley Warne, Counsel for the Crown Malcolm McRae Counsel, for the Junior Ramsoram

HEARD: October 4, 2019

ENDORSEMENT

[1] Junior Ramsoram is charged with sexual assault, sexual interference, and invitation to sexual touching. He was charged on October 13, 2017. He was committed to stand trial in the Superior Court on April 12, 2018. A pretrial conference was held in the Superior Court on May 14, 2018. Pretrial motions commenced before Sloan, J. in February 2019 pursuant to the authority of s. 645 (5) of the Criminal Code. The trial was scheduled to commence on September 9, 2019 with a jury. On or about September 5, 2019 it was learned that Sloan, J. would be unavailable for the trial scheduled to begin on September 9, 2019 for medical reasons. The information at that time was that he would be unable to attend to his judicial duties for a period of 4 to 6 months.

[2] Arrell, R.S.J. arranged for a trial judge to be available so that the trial could begin as scheduled but this required Junior Ramsoram to consent to the trial judge being a different judge than the pretrial judge. He declined to do so. Accordingly, the trial was adjourned.

[3] The Crown has brought the present application for an order pursuant to s. 669.2 of the Criminal Code that the trial be continued before a different judge on the basis that Sloan, J. is “unable to continue” due to health reasons.

[4] At the commencement of the application the following was made an exhibit:

Justice Sloan is currently on an extended medical leave. His return to sitting duties is not certain, but will likely not be for at least six months. He is unable to attend to his judicial duties while on sick leave.

Harrison Arrell RSJ

October 4, 2019

[5] It is the position of the Crown that Sloan, J. is not able, at this time to continue with this proceeding based on the medical information provide by Arrell, R.S.J. It is the position of Junior Ramsoram that Sloan, J. is the designated trial judge and that he should continue to be so. It is not clear that Sloan J. is “unable to continue”. Rather he is only temporarily unavailable for a period of six months.

[6] Most of the cases referred to me by counsel involved applications for a stay of proceedings by an accused based on the right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter of Rights and Freedoms.

[7] In R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, the accused pleaded guilty but before he was sentenced the judge before whom the plea was entered became ill and ultimately resigned. The Court found that a delay of approximately 10 months between the date when the plea judge became ill and the Crown seeking the appointment of a new judge did not result in an unreasonable delay. At paragraph 50, the court stated:

The Crown’s duty to ensure trial proceedings are not delayed may require the Crown to apply to have a judge removed and replaced when the judge falls ill during the course of a trial. There is no set time period after the onset of illness when the Crown must apply to have the judge removed and replaced. Whether and when the Crown should act depends on what is reasonable in the circumstances of the case.

[8] In R. v. Gallant, [1993] 3 S.C.R. 80, a decision released at the same time as MacDougall, the accused pleaded guilty before the same judge as in MacDougall. A delay of approximately 10 months before the Crown sought to have a new judge appointed for the purpose of sentencing was found not to be unreasonable.

[9] In R. v. Lukomski, 2005 ONCJ 90, [2005] O.J. No. 1126, the trial judge became ill mid-trial and a new judge was appointed. In the context of an application for a stay due to delay, Wake, A.C.J. of the Ontario Court of Justice found that a delay of approximately nine months caused by the trial judge’s illness was part of the inherent time requirements of the case as was one of the considerations on a s. 11(b) application at the time.

[10] In R. v. White, [2014] O.J. No. 1050, Boswell, J. of the Superior Court, who was seized with a dangerous offender application following a guilty plea, appointed a replacement judge pursuant to s. 669.2 because of being assigned another length trial. At paras 12 and 13 he stated:

Section 669.2(1) does not restrict or limit the circumstances in which another judge may continue a proceeding already commenced. The section uses open-ended language: if the judge "is for any other reason unable to continue ..."

In my view, the section must be interpreted in a manner that is, in each case, in the interests of justice. Here, the interests of justice favour another judge continuing with the sentencing and dangerous offender application …

[11] In R. v.Brown, [2012] O.J. No.480, Hockin, J. of the Superior Court held on an application for certiorari, that a judge’s unavailability due to illness for a period of two months did not justify the conclusion that the judge was “unable to continue”.

[12] In the present case, this trial cannot begin before Sloan, J. until April 2020 at the earliest. Junior Ramsoram is prepared to waive his Charter right pursuant to s. 11(b) which is a factor which weighs in favour of awaiting the return of Sloan, J.

[13] Thirty months from the date of Junior Ramsoram’s arrest will be April 12, 2020. This case involves an allegation of sexual offences against a girl who was a preteen at the time of the alleged defences and is currently in her early teens. In my view society has an interest in having this case brought to trial. There is also no guarantee that Sloan, J. will be able to preside over the trial in April 2020. I am mindful that Mr. McRae, counsel for Junior Ramsoram has no room in his schedule to try this case before then. However, if a decision on appointing a new trial judge is delayed until April 2020, and it turns out that Sloan, J. remains unable to proceed with this case, the inevitable delay will place the trial sometime into the fall of 2020 or perhaps even early 2021.

[14] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada stated at para 2:

Moreover, the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs.

[15] I take from this passage that the delay in criminal charges coming to trial on a timely basis is not solely to be viewed from the perspective of the accused. Society has an interest in bringing criminal cases to a conclusion as well.

[16] This is not a case where it is known that Sloan, J. will be returning to his judicial duties as of a date certain. The length of his absence for medical reasons is uncertain. No evidence has been heard at the trial. In my view this distinguishes the present case from those cases in which the trial judge became unable to continue during the course of the trial or after a finding of guilt pending sentencing.

[17] It was conceded by counsel during the course of submissions that the pretrial application rulings made by Sloan, J. were generally in favour of the Crown. I therefore see no concern, as was raised in MacDougall, of the potential interference with judicial independence by a Crown applying for removal of the trial judge, mid-trial, because the trial judge had possibly exhibited some sympathy towards the position of the accused. That is not the present case.

[18] I have concluded that Sloan, J. is unable to continue with this case, due to medical reasons. I therefore find that it is in the best interest of the administration of justice for all future proceedings on the indictment against Junior Ramsoram to be continued before a judge other than Sloan, J. For that purpose, I will refer this matter to Arrell R.S.J. for the appointment of a new judge.

[19] The case will be adjourned to the Trial Scheduling Court on October 25, 2019 at 9 AM to set dates for any pretrial applications and for the trial.

G.E. Taylor J

Date: October 4, 2019