COURT FILE NO.: CR-19-0018-AP
DATE: 2019-12-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GOKUL THIYAGARAJAN
Justin Marchand, for the Appellant
Appellant
- and -
HER MAJESTY THE QUEEN
Emily Delaney, for the Respondent
Respondent
HEARD: October 29, 2019, at Thunder Bay, Ontario
Regional Senior Justice B. R. Warkentin
Reasons for Judgment on Appeal
[1] The Appellant appeals his conviction for impaired operation of a motor vehicle contrary to s. 253(1)(a) of the Criminal Code. The Appellant was convicted on February 15, 2019 by Justice J.B. Wilson in the Ontario Court of Justice.
[2] The conviction stems from charges that were laid on June 4, 2017. During the trial, the Appellant advanced a Charter application under s. 11(b) alleging that the trial was not concluded within a reasonable period of time. The trial judge dismissed the Charter application and found the Appellant guilty.
[3] This appeal alleges that the trial judge erred in three aspects of his decision to dismiss the s. 11(b) Charter application:
a) He misapplied the Jordan test and in so doing omitted from analysis an appreciation for a reasonable timeframe for the matter to conclude;
b) He did not reference evidence that was available to the court to inform the meaning of a reasonable timeframe for 11(b) purposes; and
c) He did not provide sufficient reasons to support his finding that the total net delay was 16 months and one week.
[4] The Appellant’s position is that the total net delay was 17 months and one week. It is his position that this delay was markedly in excess of the time required to get a trial of this nature to completion in the Thunder Bay area and as such the conviction should be quashed, a finding that s. 11(b) of the Charter was breached and the charges should be stayed under s. 24(2).
Summary of the Case
[5] There is no dispute about the number or purpose of the appearances in court. Both Crown and defence summarized these thoroughly in their facta and submissions. In addition, I was provided with transcripts of the entire record. I have only summarized the more significant events:
a) The Appellant was arrested on June 4, 2017 for impaired driving contrary to s. 253(1)(a) of the Criminal Code.
b) Counsel was retained and disclosure occurred over the next several weeks;
c) A judicial pre-trial was held on November 15, 2017 at which the defence sought a one-week remand to obtain instructions. On November 24, 2017 trial dates were scheduled for May 28 and 29, 2018.
d) At the beginning of trial on May 28, 2018 the trial judge recused himself due to a personal connection with one of the police officers who would be testifying. New trial dates were obtained for September 27 and 28, 2018 before a different trial judge. Defence counsel informed the court that he was available on August 28 and 29, 2018, dates offered by the court, however the Crown was not available in August. Defence counsel then informed the court that he intended to bring a s. 11(b) Charter application at the trial.
e) The trial proceeded as scheduled on September 27 and 28, 2018 however an additional trial date was required because a Crown police officer witness was not available to attend trial on September 27 or 28, due to a personal leave of absence from work.
f) The trial was completed on December 10, 2018 together with the s. 11(b) Charter argument.
g) The judgment was rendered on February 15, 2019. The Charter argument was rejected, and the Appellant was convicted of impaired driving.
[6] The total delay from the laying of the charge to the conclusion of the trial was 20 months and one-week. This exceeded the presumptive ceiling of 18 months. The trial judge found that the period between the first trial dates of May 28, 2018 and September 27, 2018 constituted exceptional circumstances and found the total net delay to be 16 month and one-week, below the presumptive ceiling of 18 months.
[7] Defence counsel agreed that the recusal by the original trial judge constituted exceptional circumstances. He argued however, that only three months and one-week should be attributed to the exceptional circumstances because the defence was available during the last week of August to resume the trial and thus the trial judge should have found that the total net delay was 17 months and one-week.
[8] For the reasons that follow, the appeal is dismissed.
The Charter Application and Appellate Review
[9] Section 686 (1) (a) of the Criminal Code provides that on the hearing of an appeal against conviction, the appellate court may allow the appeal where it is of the opinion that:
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law;
(iii) on any ground where there was a miscarriage of justice.
Did the Trial Judge Misapply the Jordan Test?
[10] The standard of review in this appeal is “correctness.” In Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, (recently affirmed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 53) the Supreme Court of Canada set out the standard of review applicable on appeals from judges’ orders:
on questions of law, the standard is correctness (at para. 8);
on questions of fact, the standard is palpable and overriding error (at para. 10); and
on questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.
[11] The first issue raised in this appeal is that the trial judge misapplied the test in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, by omitting from his analysis an appreciation for what a reasonable timeframe should have been to conclude this trial.
[12] The first step in the Jordan framework is to calculate the total delay from the charge to the end of trial, which for the purposes of this appeal has been agreed as being 20 months and one-week. There is no delay that is attributable to the defence and therefore the delay is exceeds the ceiling of 18 months in the Ontario Court of Justice (Jordan, at para. 67) and is therefore presumptively an unreasonable delay.
[13] It is up to the Crown to rebut this presumption by establishing the presence of exceptional circumstances. If it cannot, the delay is unreasonable, and a stay will follow. (Jordan at para. 47).
[14] The Crown and the Appellant both agreed at trial and in this appeal that the recusal of the original trial judge constituted exceptional circumstances. They disagreed on the number of months that should have been deducted from the total delay as a result of that exceptional circumstance.
[15] The trial judge accepted the Crown’s position that the delay due to exceptional circumstances resulted in a net delay of 16 months and one-week, which accounted for the actual delay that occurred before the trial resumed in September 2018 rather than a net delay of 17 months and one-week that the Appellant had submitted had the trial resumed in August 2018 when the defence and the court were available.
[16] In neither scenario had the presumptive ceiling of 18 months been exceeded.
[17] Continuing with the Jordan framework, when the ceiling of 18 months has not been exceeded, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. (Jordan para. 105).
Was the Reasonable Timeframe to Litigate this Trial 10 to 12 Months?
[18] Counsel for the Appellant alleges the reasonable timeframe to litigate this case should have been between 10 and 12 months. In support of this he referenced the time taken to provide disclosure, the wait for a judicial pretrial hearing and the time between the pretrial and the trial as being excessive for this jurisdiction.
[19] It was his contention that the ultimate delay of 17 months and one week (based upon the Appellant’s calculation) was unreasonable in light of local considerations and the entire delay after September 28, 2018 when the Crown’s witness was unavailable was unreasonable and should result in the granting of the s. 11(b) application.
[20] The Crown argued that the time to conclude the trial was not markedly longer than it reasonably should have been. While the time frame could have been shorter, that is not sufficient to support the contention that the delay was unreasonable.
Were the Trial Judge’s Reasons in finding that the Total Net Delay was 16 months and one-week Insufficient?
[21] The Appellant argued that because the Crown was already aware that he intended to seek a dismissal for delay in September 2018 at the commencement of the trial after the May trial dates had to be vacated, that it was incumbent on the Crown to ensure all the witnesses were available on those new trial dates. The subsequent four-month delay to the conclusion of the trial in February 2019 was therefore unreasonable.
[22] The Appellant submitted that the trial judge’s reasons were insufficient and failed to articulate why he found that this additional delay was reasonable.
[23] The Crown noted that the Supreme Court of Canada in the case of R. v. Sheppard, 2002 SCC 26, [2002] 1 SCR 869 at para. 25 commented that “if deficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention under s. 686 of the Criminal Code.”
[24] In other words, the appellate court does not have the power to intervene simply because it thinks the trial court did a poor job of expressing itself. (Sheppard at para. 26).
[25] Crown counsel, continuing to reference Sheppard, noted that on appeal a contextual approach is required. A deficiency in reasons alone does not entitle success on appeal. If there is a deficiency in the trial judge’s reasons, the deficiency has to occasion prejudice to the exercise of the appellant’s legal right to an appeal. (Sheppard at paras. 33 and 53).
Analysis and Conclusion
[26] While the Appellant has articulated his grounds for appeal in the form of three areas where he alleges the trial judge erred, all of these are grounded in the correct interpretation, application and articulation of the test in Jordan and how it applies to the facts in this case.
[27] The trial judge, after reviewing and applying the test in Jordan, found that he was “far from satisfied that this case had taken markedly longer than it reasonably should have when all is considered.” He commented on the fact that the Crown and defence had done their parts to ensure the matter proceeded expeditiously. As an example, the trial judge referenced the fact that the Crown and defence had worked together to minimize delays by cooperating on obtaining dates. He also commented on the fact that the Crown had not sought to have deducted from the total delay an approximate two-month period in October and November 2018 when defence counsel was unavailable for the continuation of the trial due to his schedule and the fact that defence counsel was getting married during that period, and by inference, no defence delay was deducted to the total net delay.
[28] Counsel for the Appellant found the reference to his impending wedding and lack of availability during that period to be an incorrect assessment of the delay, because but for the Crown’s error in scheduling their witnesses, there would not have been a need for additional trial time.
[29] The Crown also conceded that on this point, the additional delay to schedule the continuation of the trial was due to the Crown’s error in scheduling a witness and accepted that some of the additional delay to the end of trial was attributable to the Crown.
[30] Nonetheless, I am not satisfied that the trial judge made any errors in applying the test in Jordan to the delays in this proceeding. The trial judge was entitled to find that once the net delay, after deducting the delay due to exceptional circumstances, fell below the presumptive ceiling, that the defence had failed to satisfy him that this was a clear case where the net delay was unreasonable (Jordan at para. 105).
[31] I was provided with and reviewed the transcripts of the entire proceeding, including the pre-trial appearances. While the trial judge may have provided brief reasons for dismissing the Appellant’s s. 11(b) application at trial, those reasons identified the evidence that was before the court and explained that none of the delays were excessive after the deduction for the exceptional circumstance.
[32] I do not find that the reasons articulated by the trial judge were insufficient. Even if I am incorrect, the Appellant’s right to appeal was not prejudiced because the Appellant was afforded the opportunity on appeal to identify the gaps or alleged errors in the trial judge’s findings, which after consideration of the entire trial proceeding, I did not accept.
[33] I therefore find no basis on which to interfere with the rulings of the trial judge. The appeal is dismissed.
_“original signed by”
Regional Senior Justice B. R. Warkentin
Released: December 27, 2019
COURT FILE NO.: CR-19-0018-AP
DATE: 2019-12-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GOKUL THIYAGARAJAN
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT ON APPEAL
Warkentin RSJ.
Released: December 27, 2019