COURT FILE NO.: 17-0113
DATE: 2020/11/16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
DEEPAN BUDLAKOTI
Applicant
Matthew Humphreys, for the Crown
Self-Represented with the assistance of Amicus Curiae, Leo Russomanno
HEARD: November 3, 2020
RULING ON STAY APPLICATION
PURSUANT TO S.11(b) OF THE CHARTER
LABROSSE J.
Overview
[1] The Applicant, Deepan Budlakoti, moves for a stay of proceedings on the basis that his right to be tried within a reasonable time as guaranteed by s.11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”) has been infringed.
[2] Mr. Budlakoti was charged on November 6, 2017 with various firearm offences. The parties agree that the time frame under consideration for this Application is November 6, 2017 to the end of trial on December 18, 2020, being 37 months and 12 days.
[3] The application raises the following issues:
a. Does the departure of previous defence counsel, Ms. McInnes, for employment with the Federal Crown’s office constitute an exceptional circumstance as a discrete event?;
b. Has the Crown met its onus of demonstrating that this discrete event lied outside the Crown’s control in that it was (1) reasonably unforeseen or reasonably unavoidable, and (2) that Crown counsel could not reasonably remedy the delay; and,
c. Is any period of delay which is below, the applicable presumptive ceiling still reasonable in the context of this case?
[4] For the reasons which follow, I have concluded that the departure of the Applicant’s counsel for employment with the Federal Crown constituted a discrete event. The Crown has met its burden of establishing exceptional circumstances. The Applicant has failed to discharge his onus of demonstrating that the net delay of 27 months and 24 days remains otherwise unreasonable in the circumstances.
Relevant Evidence
[5] Mr. Budlakoti was charged on November 6, 2017. He initially retained Natasha Calvinho who assisted with disclosure and then he discharged her on February 20, 2018. On April 3, 2018, Mr. Budlakoti retained Genevieve McInnes as his counsel.
[6] On May 2, 2018, a pre-trial motion was set for August 1, 2018, and trial dates were set in the Ontario Court of Justice from October 29, 2018 to November 7, 2018. On June 6, 2018, Mr. Budlakoti re-elected as of right to have a preliminary inquiry and trial in the Superior Court of Justice. On November 26, 2018, trial dates in the Superior Court of Justice were set from February 3, 2020 to February 28, 2020. Pre-trial motion dates were also set for September 5-6, 2019.
[7] On September 27, 2019, Ms. McInnes advised the Court that she had accepted employment with the Federal Crown’s office and that she would be removing herself from the record. Prior to that date, the trial Crown was not advised of Ms. McInnes’ pending employment with the Federal Crown’s office.
[8] On October 4, 2020, Dominic Lamb went on the record for the Applicant and stated that he was unavailable for the February 2020 trial dates. Mr. Lamb also indicated that he would be unable to prepare for the pre-trial applications and the trial, even if he had been available. He stated that he would be available for a trial as of September 2020, which the Crown pointed out was above the presumptive 30-month ceiling date of May 6, 2020.
[9] The Crown asked Mr. Lamb for an s. 11(b) waiver or a formal adjournment application. Mr. Budlakoti was not prepared to waive his s. 11(b) rights.
[10] On October 11, 2019, the Crown confirmed that it would not consent to an adjournment request and that it would oppose any such application. An adjournment application was set for November 21, 2019.
[11] On the return date of the Application, the Court pushed Mr. Lamb about his unavailability and sought evidence to explore the possibility of having the trail scheduled earlier than the fall 2020. The Court encouraged the Crown and Mr. Lamb to work together with trial coordination and see how earlier trial dates could be secured but no solution was found.
[12] On December 13, 2019, the adjournment application proceeded. It was opposed by the Crown who had previously stated that it would make itself available for virtually any dates to have the trial proceed earlier. This Court granted the adjournment application. Pre-trial motions were set for September 8 and September 16 to September 25, 2020. The trial was set for November 23 to December 18, 2020.
Court Proceedings
[13] The parties have not relied on court delays to argue defence delay. The Applicant has conceded that he has only waived his s. 11(b) Charter rights for a 5-day period for the entire length of his proceedings.
[14] Notwithstanding, the issue of defence delay is still part of the factual matrix in this Application. When faced with the need to retain new counsel in September of 2019, Mr. Budlakoti chose Mr. Lamb as his counsel of choice while exercising his rights under s. 10(b) of the Charter. However, Mr. Lamb was not available for the trial until September 2020. In its role to assist in protecting the Applicant’s rights under s. 11(b) of the Charter, the Court went so far as to require Mr. Lamb to set out his trial schedule to see if any dates could be accommodated. This proved to be unsuccessful.
[15] The issue of defence delay due to the unavailability of counsel was even raised by Mr. Lamb himself. On November 21, 2019, the Court asked the Crown and Mr. Lamb to take more steps to attempt to secure earlier dates. There was some discussion over the need to balance the Applicant’s ss. 10(b) and 11(b) rights. The Applicant did not waive his s. 11(b) rights. In response to the Court’s insistence that earlier dates be canvassed, Mr. Lamb made it clear that if dates earlier than September 2020 were set, he would have to consider not representing the Applicant.
[16] Mr. Lamb indicated that he had reached out to senior counsel to canvass their availability and that he received one negative response. Mr. Budlakoti’s s. 11(b) rights were an issue during the various appearances leading up to the adjournment and Mr. Lamb advised the Court of the following on October 11, 2019:
I’ve explained to Mr. Budlakoti that obviously in the context of 11(b) where it is my unavailability that’s going to push those dates off, that’s going to obviously impact any 11(b) calculation. It is quite clear the defence delay or unavailability in those circumstances is going to impact an 11(b) application, should it ever be brought. He understands that.
[17] For the purposes of this Application, the Crown has chosen not to rely on Mr. Lamb’s unavailability and the minimal evidence that Mr. Budlakoti made efforts to secure counsel who could have been available before September 2020. In this regard, the few contacts made by Mr. Lamb clearly do not establish that there were no other available senior counsel. While it would have been a challenge to maintain the February 2020 trial dates, other counsel may have been able to entertain trial dates before the fall of 2020. Thus, the reasonableness of how Mr. Budlakoti has exercised his s. 10(b) rights is at issue, but the Crown has chosen not to rely on it for the purpose of its opposition to this Application.
The Law
[18] As of July 8, 2016, the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, guides this Court for determining issues of delay and the effect on an accused person’s s.11(b) Charter protected rights. Jordan sets the temporal ceilings for the prosecution of criminal cases in Canada. The decision dramatically changed the law in deciding whether an accused’s right to be tried within a reasonable time had been violated.
[19] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal for Ontario summarized the approach to be taken under the new Jordan framework as follows:
i. Calculate the total delay, from the date the charges were laid to the actual or anticipated end of trial.
ii. Subtract defence delay from the total delay to calculate the net delay.
iii. Compare the net delay to the presumptive ceiling. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. Absent exceptional circumstances, a stay will follow.
iv. Exceptional circumstances can include discrete events or particularly complex cases.
v. Delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the presumptive ceiling has been reached.
vi. Where there is delay resulting from the fact that a case is particularly complex and the presumptive ceiling is exceeded, the court must consider whether the particular complexity was such that the time the case took is justified and the delay is reasonable.
vii. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
[20] Exceptional circumstances are ones that lie outside the Crown’s control in the sense that they are reasonably unforeseen or reasonably unavoidable and Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as the circumstances meet this definition, they will be considered exceptional: see Jordan, at para. 69.
[21] In 2017, two further decisions provided guidance to the Court on the Jordan analysis: R. v. Cody, 2017 SCC 31, [2017] 2017 S.C.R. 659, and R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401. In Cody, the Supreme Court of Canada reaffirmed the Jordan framework, stressing that every actor in the justice system has a responsibility to ensure criminal proceedings are carried out in a manner consistent with an accused’s s. 11(b) Charter rights. Relevant to this Application is the direction of the Supreme Court of Canada with respect to exceptional circumstances. Unlike discrete events, complexity requires a qualitative assessment, not a quantitative assessment: see Cody, at para. 64. Therefore, it would be an error for a trial judge to deduct a specific period of time for complexity.
[22] In Picard, the Court of Appeal for Ontario also provided direction when dealing with exceptional circumstances and particularly the issue of complexity which is relevant to this Application. The Court of Appeal confirmed that complexity must be considered as part of a broader analysis of the case as a whole. Some cases may be particularly complex in the earlier stages and require extensive disclosure, expert evidence and witness statements only to be made simpler and more straightforward when it comes time for trial: see Picard, at para. 62.
[23] On the issue of complexity, the Applicant has relied upon both the fact that Picard directs the Court to look at delay in the context of the entire case and that voluminous disclosure such as in this case, is not sufficient on its own to establish complexity. Despite the voluminous disclosure in this case, the Crown has not advanced that overall, the case meets the definition of complexity as set out in Picard. I agree.
[24] As argued, this Application turns solely on the issue of determining if Ms. McInnes’ departure constitutes a discrete event and if the Crown has met its onus of demonstrating that this discrete event lied outside the Crown’s control in that it was (1) reasonably unforeseen or reasonably unavoidable, and (2) that Crown counsel could not reasonably remedy the delays emanating from those circumstances once they arose.
Analysis
Discrete Event
[25] Under the Jordan analysis, exceptional circumstances generally fall into two categories: (1) discrete events; and (2) particular complexity arising from the evidence or the issues: see Picard, at para. 38. Discrete events are subtracted from the total period of delay. Conversely, a case identified as being particularly complex can justify a period of delay which exceeds the presumptive ceiling.
[26] The question as to whether or not a change of defence counsel amounts to a discrete event has been seen in various circumstances. In Cody, at para 49, it was conceded that the accused’s former counsel’s appointment to the bench qualified as an unavoidable discrete event and the corresponding delay was deducted. This approach was also followed by Aitken J. in R. v. Bullen 2017 ONSC 6204, at para 32.
[27] However, the Applicant relies on R. v. Zikhali, 2019 ONCJ 24, in support of his contention that a change of counsel is not considered and will not lead to defence delay when the accused is forced to change counsel against his wishes. In Zikhali, the Court clearly saw that the Crown had a role in the delay and that the Crown did not take reasonable steps to remedy the delay or the circumstance in which the conflict for trial Crown was created.
[28] Zikhali cannot stand for a blanket assertion that involuntary counsel changes cannot be attributable to the accused, but there is support for the contention that when that change of counsel occurs, new counsel should have a reasonable opportunity to prepare for upcoming motions and the trial. Zikhali is clearly distinguishable from the present circumstances where the Crown plays no part in the departure of defence counsel.
[29] I conclude that Ms. McInnes’ departure qualifies as a discrete event.
[30] The focus at this point now turns on the following issues:
a. Was Ms. McInnes’s decision to accept employment with the Federal Crown reasonably unforeseen or reasonably unavoidable?
b. Has the Crown met its onus to demonstrate that it could not reasonably remedy the delays cause by the change of counsel?
Foreseeability
[31] Amicus has argued that the departure of defence counsel for the Crown’s office is common and that it should be reasonably foreseen as part of the system as a whole. While Amicus acknowledges that it does not lie at the feet of this trial Crown to foresee such a change, one must look to the Crown’s office as an institution in order to put measures in place to accommodate such changes. Amicus did not suggest what those measures would be but simply stated that the Crown needs to be proactive in dealing with this common situation. Amicus states that the circumstances are much different from an appointment to the Bench given the confidential nature of such an appointment.
[32] I disagree. While an appointment to the bench requires that a lawyer immediately cease the practice of law, there are several parallels with counsel accepting another position, particularly when it is with the Crown’s office. It would be impossible for the Crown’s office to become involved with the hiring practices, possibly in other jurisdictions or as in this case at the Federal Crown’s office. Confidentiality within the employment process is essential and the possibility of delaying the commencement of a new position to protect s. 11(b) rights is fraught with difficulties. One can imagine how a convicted person would feel if they had found out that their lawyer had put her employment on hold with the Crown’s office pending the completion of a trial. There would surely be an obligation on defence counsel to advise their client of the pending employment and this raises more issues.
[33] On the issue of reasonable foreseeability, I disagree with Amicus that the Crown, as an institution, could do more to avoid the discrete event. No concrete examples were provided of how the Crown’s office could do more. Issues surrounding confidentiality, employment mobility rights and the sanctity of the solicitor-client relationship make it virtually impossible for institutions like the Crown to involve itself in employment issues involving defence counsel. I would go so far as to say that it would be no different if Ms. McInnes had sought and accepted employment with the Provincial Crown’s office. Any delay to the commencement date of a position with the Crown’s office to allow for defence counsel to complete a retainer is clearly problematic. It would also be unfair on candidates and the Crown’s office to restrict the Crown’s ability to hire candidates where it may cause s. 11(b) issues. This is precisely what makes it a discrete event. This is not a case as in Zikhali where the Crown failed to demonstrate that it could not reasonably avoid the conflict for defence counsel in that case.
Efforts to Reasonably Remedy the Delays
[34] On this point, Amicus and Mr. Budlakoti do not seem to agree. Amicus discussed the role of trial Crown in this case and agreed that it would be difficult to imagine that trial Crown could have done more. There was no dispute that trial Crown did not know of Ms. McInnes’ acceptance of employment with the Federal Crown until the evening before she advised the Court. The trial Crown proceeded to then oppose the adjournment request, demonstrated complete flexibility to accommodate earlier trial dates and offered to sit down with Mr. Lamb and go through their respective calendars to see if other solutions were available. Amicus stated that trial Crown could have done nothing more. As previously discussed, the issue was with the Crown’s office as an institution under the foreseeability analysis.
[35] On the other hand, Mr. Budlakoti argued that it was incumbent on the trial Crown to have canvassed senior defence counsel to find someone who was available to accept the retainer and complete the trial within the presumptive ceiling. This argument is untenable and leads to multiple additional problems, the least of which would be how it would be perceived to have the Crown finding counsel for an accused.
[36] One additional point was validly raised by Mr. Budlakoti in that there was no evidence that trial Crown made efforts to simplify the Indictment and possibly reduce the total number of charges to reduce the trial time. This is something that the Court would have expected, but it was not addressed by the trial Crown. However, given the nature of the case and the manner that weapons’ offences are typically prosecuted, a reduction in the number of charges does not necessarily reduce trial time or the volume of evidence required to make out the offices. I therefore conclude that in this case, while the option of simplifying the indictment should have been addressed by the trial Crown, it does not change my overall view of the efforts made by the trial Crown to remedy the delay.
[37] I am of the view that the Crown has easily met the onus of establishing that it could not reasonably remedy the delay caused by the discrete event and that it took reasonable steps to assist in recognizing Mr. Budlakoti’s s. 11(b) rights.
[38] It is for these reasons that I conclude that the Crown has satisfied me that it was reasonably diligent in attempting to preserve the February 2020 trial dates and in attempting to explore other dates that could have minimized the impact on Mr. Budlakoti’s s. 11(b) rights. Ms. McInnes’ acceptance of employment with the Federal Crown’s office qualifies as a discrete event which reduces the overall period of delay by 9 months and 18 days. Consequently, the net delay is 27 months and 24 days. It is therefore below the 30-month ceiling and is presumptively reasonable.
Delay below the presumptive ceiling
[39] Where the delay is under 30 months, the Applicant must establish the following two things to show that the delay was nonetheless unreasonable: (1) the defence “took meaningful steps that demonstrate a sustained effort to expedite the proceedings”; and (2) the case took markedly longer than it reasonably should have: see Jordan, at para. 82.
[40] In support of his contention that the net delay of 27 months and 24 days is still unreasonable, Mr. Budlakoti simply repeats the criteria set out in Jordan in the written submission filed at the hearing of this Application. He states that he took meaningful steps and demonstrated a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have.
[41] Mr. Budlakoti cites no examples of his efforts to expedite the proceedings. While I do note that Mr. Budlakoti did act promptly in finding Mr. Lamb as his new trial counsel, he has provided no evidence of calling other lawyers or other steps to expedite the proceedings.
[42] There is evidence on the record that the Crown and the Court made efforts to push Mr. Lamb on his availability but that getting the pre-trial motions completed by October 2020 and the trial started in November 2020 was certainly the earliest dates available since Mr. Lamb became Mr. Budlakoti’s lawyer.
[43] The Court acknowledged its responsibility to take proactive measures in order to avoid unreasonable delay in the manner that it dealt with Mr. Lamb’s adjournment request and the manner that it balanced Mr. Budlakoti’s ss.10(b) and 11(b) Charter rights.
[44] In Jordan, the Court emphasized the need for a shift in culture among all justice system participants (including the courts) from a “culture of complacency within the system towards delay” to one “fostering proactive, preventative problem solving” to avoid delay: see Jordan, at paras. 4, 40-41, and 112.
[45] In these proceedings, I was not directed to any shortcoming in how the Crown or the Court conducted these proceedings. Mr. Lamb was pushed about his unavailability. Mr. Budlakoti was advised about the need to balance his ss. 10(b) and 11(b) rights.
[46] When Mr. Budlakoti says that the case has taken too long, I disagree. The matter was to have been concluded at the end of February 2020. This was a duration of 27 months in a matter where Mr. Budlakoti re-elected and thus, we saw a change of course in June 2018. All parties have agreed that the disclosure is extensive, and this is reflected by the need for a four-week trial. While this may not meet the threshold for complexity as set out in Picard, it certainly provides an argument against a bald assertion that the matter took too long to prosecute.
[47] In the end, Mr. Budlakoti has failed to discharge the onus on him to establish that the net delay of 27 months and 24 days is unreasonable.
Conclusion
[48] For the reason set out above, I conclude that the overall delay applicable for Mr. Budlakoti at 27 months and 24 days is below the presumptive ceiling and this is not a case in which the Applicant can establish that a delay below 30 months is unreasonable under s. 11(b) of the Charter.
[49] For all these reasons, I find that the Applicant’s rights under s. 11(b) have not been infringed and the Application for a stay of proceedings is dismissed.
Justice Marc R. Labrosse
Released: November 16, 2020
COURT FILE NO.: 17-0113
DATE: 2020/11/16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
DEEPAN BUDLAKOTI
Applicant
RULING ON STAY APPLICATION
PURSUANT TO S. 11(B) OF THE CHARTER
Justice Marc R. Labrosse
Released: November 16, 2020