COURT FILE NO.: CRIM(P) 1669/19
DATE: 2020 01 31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Paul Renwick, for the Respondent
Respondent
- and -
ALAN KUMAR
Jag Virk, for the Applicant
Applicant
HEARD: January 27, 2020
SEVERANCE APPLICATION RULING
Justice Thomas A. Bielby
[1] The applicant, who is one of four accused, seeks to have his charges severed from those of his co-accused, and proceed by way of a separate trial, pursuant to s. 591(3)(b) of the Criminal Code of Canada.
[2] The trial against all four accused is scheduled to start on April 6, 2020 and is expected to last approximately three weeks.
[3] It is alleged by the Crown that, on January 30, 2018 the applicant and his co-accused committed a home invasion and as a result all are charged with nine offences.
[4] The date for trial was set on October 18, 2019 and is to be heard before a judge and jury. However, when the trial date was set it was known that Mr. Kumar's counsel of choice, Mr. Virk, was not available on the dates selected for the trial.
[5] In setting the trial date the court was aware of the July 30, 2020, Jordan ceiling date (R. v. Jordan 2016 SCC 27). When the trial date was set, the only time all four counsel were available, at the same time, for a three week trial, was in September 2020.
[6] The applicant seeks a severance on the grounds that if he is forced to proceed to trial on April 6th, his right to counsel and his right to counsel of his choice will be violated.
[7] It is to be noted that the pre-trial motions are set to be heard on March 2, 2020 and are anticipated to take two weeks to complete. All counsel, including Mr. Virk, are available to participate.
FACTS
[8] On September 11, 2019, the matter was before Durno J. for a pre-trial. Mr. Virk was not present but participated by telephone. While Mr. Virk had been retained to represent Mr. Kumar at the preliminary inquiry and pre-trial, for financial reasons, Mr. Virk had yet to be retained to conduct the trial.
[9] At the completion of the pre-trial the matter returned to court for the purpose of setting a trial date. The following facts are extracted from the court transcript for September 11th.
[10] Mr. Kumar had spoken to Mr. Virk about trial dates and advised the court that if the trial was to take two weeks he was available on June 15, 2020, whereas, if three weeks were required to complete the trial, he was not available until September 21, 2020.
[11] Mr. Kumar was asked by the court to contact Mr. Virk and obtain dates for a three week trial. Mr. Lufti, a co-accused was in the process of retaining Mr. Bernstein as trial counsel. Mr. Varlione, who is counsel for the co-accused Sin, also acted as agent for Mr. Bernstein, and advised the court that Mr. Bernstein was available for a three week trial from March 30th to May 1st, 2020. Thereafter, he was not available for a trial until September 21, 2020.
[12] Durno J. was faced with the task of having to set a trial date, while keeping in mind the Jordan ceiling and the availability of four counsel. He commented on the fact that at least two but perhaps three of the accused had yet to retain trial counsel and stated,
"But the idea of doing this trial on multiple occasions is not the first choice" (transcript, pg. 3, l. 25).
[13] The matter was then stood down to allow Mr. Rippell (counsel for Mr. Chey) to contact counsel not in attendance and discuss the issue of their availability for trial. Upon his return the court was advised that all counsel, except for Mr. Virk, were available to commence the trial immediately after the Easter weekend.
[14] It was the submission of Mr. Renwick, on behalf of the Crown, that the trial should be set for dates when retained counsel are available. He expressed that Mr. Bernstein was of the strong belief he would be retained and would seem he was including Mr. Bernstein in the "retained" group of counsel.
[15] The court, commencing at page 6 of the transcript, advised Mr. Kumar that the trial had to be held in a reasonable time and that the dates suggested by Mr. Virk, in September 2020, were past what would be reasonable for the other three accused.
[16] The court went on to advise Mr. Kumar that there is a presumption that individuals who are charged with committing a crime together should be tried together and that it was the Crown's position that there should only be one trial.
[17] Mr. Kumar expressed that his plan was to retain Mr. Virk.
[18] Mr. Kumar was then advised by Durno J. of the following:
"Well, then there becomes a, problem that would have to be addressed. But you know when your trial date is. It's going to be April 14th. Any you've hired a lawyer who's not available for the trial date. It creates an issue for the lawyer accepting the case, and for you hiring a lawyer when the trial is April 14th and your lawyer is not available" (transcript pg. 7, l. 18).
[19] However, discussions continued in relation to trial and pre-trial motion dates that might accommodate all counsel and Durno J. stated, in regard to their effort to set a trial date, that, "it was not working" and that all counsel ought to be present (to set a trial date) (Pg. 9, l. 22).
[20] Durno J. then stated at page 11,
"But I'm going to say it. In a situation where one lawyer isn't available till out for a considerable period of time longer, the knee jerk reaction is not okay, we'll just sever that accused and now we have two trials that will go for weeks and weeks. There's other issues that, that come into play. So, so I don't see how any of these dates work. and if nobody's got any other suggestion, the lawyers that are here. Counsel available next Friday?"
[21] The matter was remanded to September 20th to set dates. All counsel were to appear or have someone appear on their behalf.
[22] The transcript of what occurred on September 20, 2019 was not before me. I can only look to the endorsement of Durno J. A date was set for the pre-trial motions and a trial readiness appearance. It was further endorsed,
"All accused are remanded to (attend) to October 7, 2019, at 2pm to set dates." It was also endorsed that Mr. Virk was still not retained for the trial.
[23] On October 7th the matter was before Durno J. and there was again considerable effort made to find trial dates, prior to July 30, 2020, when all counsel would be able to conduct the trial. However, as noted by Durno J.,
"The date impasse for the trial I take it has not changed in terms of getting a trial date that does not create Jordan issues for anyone." (pg. 3 l. 3).
[24] Mr. Virk indicated that the matter ought to be adjourned a week to allow Mr. Kumar to consider options.
[25] The relevant portions of the October 7th endorsement read,
• All accused are remanded to October 18/19 at 10:30 to set trial date.
• Mr. Virk is retained by Kumar.
• Mr. Bernstein is not retained by Lufti.
• For Lufti motion dates are with or without counsel.
[26] The parties returned before Durno J. on October 18th and the endorsement for that date reads:
• Mr. Bernstein is retained.
• Trial date, April 6/20 sittings (3 weeks jury)
• TRC March 27/20 at 10:00am.
• All accused are remanded to March 2, 2020 sittings for pre-trial motions.
• Mr. Kumar's counsel is not available for April 6, 2020.
• He is remanded to November 15/19 at 10:30 am TBST.
[27] On November 15, 2019, Mr. Kumar was remanded to December 13, 2019 at 10:30 TBST, and his trial date was noted as remaining with or without counsel.
[28] On December 13th, the date of this motion to sever was set along with the time frames for the filing of material.
[29] The Notice of Application to Sever contained the affidavit of Alan Kumar, sworn January 15, 2020. The applicant was cross-examined by the Crown and questioned about, when he was before Durno J. on September 11th he was told that the trial was going to commence on April 14th. It was suggested to Mr. Kumar that, in regard to his efforts to retain Mr. Virk, he knew a trial date would be set for a time when Mr. Virk was not available.
[30] Mr. Kumar conceded that Mr. Virk, on September 11, 2019 was not yet retained by him for the trial. Mr. Kumar agreed with the suggestion that as of September 11, 2019, he knew he might have to represent himself and that he only started looking for other counsel, as set out in the affidavit, after October 18, 2019.
[31] On re-examination Mr. Kumar testified that it was his understanding that after September 11th the matter was coming back before the court to set a date. His efforts to obtain other counsel commenced once the trial date was selected.
ARGUMENT
APPLICANT
[32] Counsel for the applicant submits that on September 11th the end result was that no trial date was chosen. And the parties were to return to court on September 20th, with counsel, to select a trial date. The matter adjourned a further two times and the trial date was not selected until October 18, 2020. Throughout that period efforts were made to find a time to complete the trial, keeping in mind the Jordan ceiling.
[33] It is submitted that Mr. Virk was retained prior to Mr. Bernstein being retained yet the availability of Mr. Bernstein was accommodated.
[34] Mr. Virk submitted that if a severance is granted his client will waive his s. 11(b) rights.
[35] Counsel for Mr. Kumar submits that it was impossible for his client to retain other counsel, on relatively short notice, for a three week trial. His client therefore will have to represent himself on numerous, very serious, charges.
[36] Finally, it is submitted that if the severance is granted, the trial of his client will likely take two weeks and, as such, the impact of a severance will not be that onerous.
THE CROWN
[37] It is submitted by the Crown attorney that on September 11, 2019, everyone knew the trial would commence April 6, 2020 and that this fact was known by Mr. Kumar. The Crown referred to the decision of Fairburn J., as she then was, in R. v. Ny 2016 ONSC 8031, in which the trial scheduling issues arising as a result of the Jordan decision were discussed.
[38] The Crown submits that knowing the likely trial date it was unreasonable of Mr. Kumar to wait until after October 18, 2019, to find other trial counsel available to conduct a three week trial in April, 2020.
[39] The Crown recognizes an accused's right to counsel of choice but the right is not unlimited and has to be balanced with the post-Jordan realities.
[40] The Crown submits that Mr. Kumar did not diligently pursue other counsel.
[41] It is conceded however that there were May and June dates in 2020 considered for the commencement of the trial and all counsel but Mr. Bernstein may have been available.
THE LAW
[42] I have had regard to the decision of Fairburn J., as she then was, in R. v. Ny 2016 ONSC 8031. The applicants, Ny and Phan, had been charged on March 26, 2013, with a number of drug offences. The trial, it was anticipated, was expected to conclude around April 7, 2017, more than 48 months later.
[43] Originally there were four accused to be tried together, but the two applicants were severed from the other two on September 30, 2016.
[44] The applicants sought a stay of proceedings on the basis that their s. 11(b) Charter rights had been infringed. Justice Fairburn agreed.
[45] Between the date the arrests were made and the anticipated completion date, the Jordan decision of the Supreme Court of Canada had been released which changed the inquiry in regard to, unreasonable delay.
[46] Commencing at paragraph 34, Fairburn J. discusses multiple accused trials. From paragraphs 42 and 43, I quote,
"The jurisprudence is replete with sound policy reasons for conducting joint trials. It is a well-recognized principle of law that the interests of justice are most often best served by having people who are alleged to have committed crimes together, tried together and their guilt or innocence determined together.
The presumptions of a joint trial, particularly where individuals are said to have worked in concert, will only be displaced where the interests of justice require separation...The interests of justice encompass those of the accused, the co-accused, and the community as represented by the prosecution."
[47] Fairburn J., when considering the issues of severance with a Jordan ceiling approaching said, at paragraph 46,
"The implications of proceeding too quickly to sever the accused, simply because the ceiling is approaching, are obvious and striking. This is particularly true in jurisdictions like Brampton, where judicial and courthouse resources are long stretched to beyond their limits. The implications of conducting virtually the same trial more than once would be profound and potentially add to delay in the system."
[48] From paragraphs 48 and 49, I quote,
"There may come points, though, where the interests of justice may no longer be served by proceeding jointly. Among other things, s. 11(b) rights will inform this assessment. The Crown has an obligation to continually assess whether the decision to proceed jointly remains in the interests of justice. While an accused who is being proceeded against jointly is not necessarily entitled to a trial in the same time as an accused proceeded against on his own, an accused cannot be held "hostage" by his or her co-accused's actions and inactions: Vassell, at para. 7; Manasseri, at para. 323.
The Crown must stay vigilant about assessing the interests of justice and whether they continue to be served by a joint approach. Of course, in cases where some accused are pushing forward and others, doing the opposite, remedies short of severance may be explored. Each case is unique. While there are different mechanisms that can be resorted to when dealing with a co-accused for whom "trial within a reasonable time seems anathema", including the potential of forcing him or her on to trial with or without counsel or without counsel of choice, severance is one mechanism that lies within the Crown's control."
[49] It has also been said that, within reason, the court will protect a person's right to choose counsel (R. v. Bacon 2011 BCSC 135, para. 26).
[50] However, it has been said that a right to counsel of choice is a right to counsel of choice who can proceed with the trial on the date set for trial (Chimienti (Re) [1980] O.J. No. 400).
[51] R. v. Dhaliwal 2017 BCSC 2215, is a decision of The Honourable Madam Justice Ross. In this case a trial date was chosen that accommodated a greater number of defence counsel (there were six accused). A severance application was filed by one of the accused whose counsel was not available for the chosen dates.
[52] Commencing at paragraph 16, Ross J. stated,
"For severance to be granted, a trial court must be satisfied in the exercise of its discretion that the interests of justice require severance. The interests of justice include the interests of all participants in the criminal justice system, including those of the accused, the co-accused, and the community as presented by the prosecution.
The interests of justice "encompass the accused's right to be tried on the evidence admissible against him, as well as society's interest in seeing that justice is done in a reasonably efficient and cost-effective manner."
The onus is on the accused seeking a separate trial to show, on a balance of probabilities, that the interests of justice require severance."
[53] It was noted that severance is not a panacea when delay issues arise in a multi-party indictment (para. 24).
[54] At paragraph 21, the following policy reasons for joint trials were reviewed and included:
• Joint trials are more likely to uncover the truth.
• Joint trials avoid inconsistent verdicts.
• Joint trials are more efficient.
• Joint trials are less disruptive for witnesses.
[55] At paragraph 27 Ross J. considered the applicable principles with respect to the right to counsel and to counsel of choice which include;
• The right to retain and instruct counsel must be exercised with reasonable diligence.
• The right to counsel of choice is not absolute. It is subject to reasonable limitations. In considering such an issue, the court must balance the individual right, public policy and public interests in the administration of justice and basic principles of fairness.
• The right to counsel of choice in a joint trial must be balanced against the right of the co-accused to be tried within a reasonable time.
• The right to counsel of choice is a right to counsel of choice who can proceed with the trial on the date set for a trial.
[56] Further, within reason the court will protect the right to counsel of choice and absent compelling reasons will not interfere with choice of counsel. Courts will avoid actions that result in accused persons being improperly or unfairly denied the opportunity to be represented by counsel of choice (para. 28).
[57] In R. v. Last 2009 SCC 45, [2009] 3 S.C.R. 146, Deschamps J. delivered the judgment of the court. At paragraph 18 he wrote, in regard to severances:
"The factors identified by the courts are not exhaustive. They simply help capture how the interests of justice may be served in a particular case, avoiding an injustice. Factors courts rightly use included: the general prejudice to the accused; the legal and factual nexus between the counts; the complexity of the evidence; whether the accused intends to testify on one count but not the other; the possibility of inconsistent verdicts; the desire to avoid a multiplicity of proceedings; the use of similar fact evidence at trial; the length of the trial having regard to the evidence to be called; the potential prejudice to the accused with respect to the right to be tried within a reasonable time; and the existence of antagonistic defences as between co-accused persons."
ANALYSIS
[58] The applicant seeks the right to use counsel of choice. In this case the counsel is Mr. Virk.
[59] As noted by Durno J., there is no suggestion that the delay in retaining of trial counsel by Mr. Kumar was suspicious. His counsel of choice, Mr. Virk, conducted the preliminary inquiry and appeared, albeit by phone, for the pre-trial. He was therefore familiar with the case and the evidence.
[60] Mr. Virk is available to participate in the pre-trial applications, the hearing of which commences on March 2, 2020, for two weeks.
[61] There is no suggestion that Mr. Kumar, and his choice of counsel, caused any undue delay at anytime prior to the setting of the trial date. Mr. Virk provided dates within the Jordan ceiling, when he was available to conduct the trial.
[62] In order to have Mr. Virk represent him at trial Mr. Kumar had to come up with the necessary financial retainer. Such a consideration is not unique. I have no doubt it was the same reason for the delay by Mr. Lufti in retaining Mr. Bernstein. Such is the reality of criminal law.
[63] With respect, I disagree with the Crown's submissions that Mr. Kumar knew on September 11, 2019 that the trial was going to proceed commencing April 6, 2020. While he was told this initially by Durno J., and knew it to be a possibility, the decision as to the trial date appears to have been reconsidered and the matter adjourned to September 20th with Durno J. concluding that attempting to set a trial date without all counsel being present was not working.
[64] The actual trial date was not set until October 18, 2019. Mr. Kumar was not acting unreasonably in not seeking out other trial counsel until after the trial date was set. Until the actual date was chosen how could he know if other trial counsel was required or how could he advise prospective trial counsel when the matter was to proceed and be able to determine their availability?
[65] In setting a trial date, the court, and rightly so, wanted to ensure the trial was completed within the Jordan ceiling. Any date chosen within that period would not accommodate all four counsel. The dates considered and the date chosen would accommodate counsel of choice for three out of four co-accused.
[66] However, why should Mr. Kumar be denied counsel of choice for that reason? Why should Mr. Kumar be the one to seek other counsel or represent himself? Why is he the only one to be denied counsel of choice? He was not the last to retain counsel.
[67] While I agree that the right to counsel of choice has limitations, I am cognizant of Fairburn J.'s above-noted reference in the Ny case, stating that an accused cannot be held hostage by his co-accused's actions or inactions. I am not suggesting that Mr. Kumar's co-accused did anything wrong. But the trial date chosen, for valid reasons, accommodated Mr. Kumar's co-accused's counsels of choice. On the facts of this case, taking into account the interests of justice, I cannot find a reason that Mr. Kumar ought to be "held hostage" with respect to the chosen trial date, in the sense that he is to be denied his counsel of choice.
[68] Mr. Kumar is not asking to change counsel mid-stream and to accommodate the new counsel's trial availability. Rather, his choice is the counsel who had represented him to the point of setting a trial date.
[69] Section 591(3)(b) of the Code, provides me with a discretion to order a severance if I am satisfied that the interests of justice so require. I believe such interests include the principles of fairness.
[70] As noted in the Ny case, when attempting to comply with the Jordan time lines, in multiple accused trials, the severance of an accused from the co-accused is an option. It is also an option to require a co-accused to seek counsel who are available or to require an accused to act on his own.
[71] On the facts of this case, to require Mr. Kumar to seek other counsel or to act for himself would violate the principles of fairness. In order not to run afoul of the Jordan ceiling, a date had to be chosen in which one out of four counsel would not be available. In fact, as noted above, the court engaged in a number of court attendances in an effort to find a date acceptable to all counsel within the Jordan ceiling. In the end the court, in its efforts to remain within the Jordan ceiling, could only exercise the option of choosing a trial date which accommodated three out of four counsel, the exception being Mr. Virk, Mr. Kumar's counsel of choice.
[72] However, why should that necessity limit Mr. Kumar's right to counsel of choice? I see no reason to do so and say that otherwise, it would offend the principles of fairness, especially when Mr. Kumar is prepared to waive his s. 11(b) rights if a severance is granted.
[73] Given the s. 11(b) waiver it can be said that all 4 co-accused are being tried within a reasonable amount of time.
[74] In my opinion, on the facts before me, it is in the interests of justice to grant the severance. The presumption in favour of a joint trial has been overcome. Mr. Kumar is therefore severed from his three co-accused for trial purposes and a trial date will have to be chosen to accommodate Mr. Kumar and his counsel, Mr. Virk. The severance is to occur after the completion of the pre-trial applications scheduled to commence on March 2, 2020, and for which all four counsel, which includes Mr. Virk, are available.
Bielby J.
Released: January 31, 2020
COURT FILE NO.: CRIM(P) 1669/19
DATE: 2020 01 31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
ALAN KUMAR
SEVERANCE APPLICATION RULING
Bielby J.
Released: January 31, 2020