COURT FILE NO.: CR-21-826-00 DATE: 2022 04 22

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN H. Rim, for the Crown

- and -

NIRMAL KALIRAI T. Wasey Khan, for the defence

HEARD: April 11, 2022 at Brampton

RULING ON 11(b) CHARTER APPLICATION

André J.

[1] Mr. Nirmal Kalirai brings an application pursuant to s. 11(b) and s. 24(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, (the “Charter”) for an order staying the charges against him because of unreasonable delay. The Crown concedes that the overall delay period of 33 months and 10 days exceeds the tolerable delay period established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 47, but insists that much of the delay was caused by Mr. Kalirai and his trial counsel.

CHRONOLOGY OF EVENTS

[2] The Peel Regional Police Force charged Mr. Kalirai on July 18, 2019, with the offences of touching for a sexual purpose and sexual assault.

[3] Mr. Kalirai made his first court appearance on July 29, 2019. He received a detailed synopsis of the allegations against him.

[4] On September 9, 2019, Mr. Gupta, counsel for Mr. Kalirai, appeared in court on his behalf. He complained about outstanding disclosure and adjourned the matter to October 7, 2019.

[5] On October 7, 2019, Mr. Kalirai appeared in court without counsel. He received additional disclosure. He advised the court that he had not retained counsel. He adjourned the matter to November 4, 2019.

[6] On November 4, 2019, Mr. Khan appeared as Mr. Kalirai’s counsel. He advised the court that the Ontario Legal Aid Plan had rejected Mr. Kalirai’s application for legal aid and that Mr. Kalirai was now seeking to privately retain counsel. Mr. Kalirai then set a date of February 19, 2020, for a self-represented Judicial Pretrial (“JPT”) during which he was expected to represent himself.

[7] On November 6, 2019, Mr. Khan held a crown pretrial (“CPT”).

[8] On January 20, 2020, the Crown sought an earlier JPT date but was advised by the trial coordinator (“TC”) that none was available.

[9] On February 19, 2020, Mr. Khan represented Mr. Kalirai in a JPT. Mr. Khan estimated that the preliminary hearing would require three days. The matter was adjourned to March 11, 2020, to enable him to decide issues related to ss. 276 and 278 of the Criminal Code. Prior to the adjournment of the matter, the parties attended at the TC’s office for preliminary hearing dates. The office provided the following dates when a three-day preliminary hearing could be heard:

February 26-28, 2020; March 11-13, 2020; March 16-18, 2020; March 23-25, 2020; March 25-27, 2020; April 19-21, 2021.

Mr. Kalirai was available on all dates offered. The Crown was only available on April 19-21, 2021.

[10] On March 11, 2020, Mr. Kalirai initially indicated his intention to have a trial in the Ontario Court of Justice but ultimately opted instead to have a trial in the Ontario Superior Court. The matter was then adjourned to April 20, 2021, for a preliminary hearing.

[11] On November 27, 2020, a “second stage” JPT was held. Mr. Kalirai’s counsel advised the court that he will no longer be calling three additional witnesses at the preliminary hearing.

[12] The preliminary hearing commenced on April 19, 2021, and ended on April 20, 2021. The parties held an exit JPT. The matter was then adjourned to May 14, 2021, before the SCJ assignment court.

[13] On May 14, 2021, the parties arranged for a JPT on June 3, 2021.

[14] On June 2, 2021, the JPT was adjourned to June 9, 2021.

[15] On June 9, 2021, the parties held a JPT. A further JPT was scheduled for July 20, 2021, to discuss a possible s. 11(b) application.

[16] On July 20, 2021, the parties participated in a JPT. Mr. Khan undertook to obtain court transcripts in preparation for his s. 11(b) application.

[17] On February 9, 2022, Mr. Kalirai filed his s. 11(b) application.

[18] On February 18, 2022, the parties held a JPT. Mr. Khan undertook to perfect his application by filing additional court transcripts of prior court appearances.

[19] On February 28, 2022, Mr. Khan filed transcripts of court appearances for July 29, 2019, and May 14, 2021.

[20] On March 25, 2022, the parties held a scheduling JPT. The court scheduled the s. 11(b) application to be heard on April 11, 2022.

THE CROWN’S POSITION

[21] The Crown submits that the following delay periods are attributable to the defence:

Defence delay = approximately 15 months 1 day

a) October 7, 2019 – November 4, 2019 (28 days) – food dragging in retainer of counsel b) November 6, 2019 – February 19, 2020 (3 months 13 days) – unnecessary JPT and/or inaction in switching from self-represented JPT to counsel JPT c) June 1, 2020 – April 20, 2021 (10 months 19 days) – overestimate of preliminary hearing. June 2020 selected as a result of a more generous contextual analysis even though various other earlier dates were available d) April 20, 2021 – May 14, 2021 (21 days) – unavailability for assignment court

Net defence delay = approximately 18 months and 12 days

[22] The Crown submits that given the amount of defence delay, there has been no violation of s. 11(b) of the Charter. Accordingly, the application should be denied.

DEFENCE’S POSITION

[23] Mr. Khan submits that the delay in bringing the matter to trial was largely the result of the Crown’s actions and/or institutional delay. He submits that he held a CPT within two days of his first appearance in this matter. He further submits that of the six different sets of dates offered by the trial coordinator on February 19, 2020, for a three-day preliminary hearing, the Crown was not available on the first five. Additionally, Mr. Khan submits that it is, therefore, preposterous that this delay period is attributable to the Applicant. Finally, he submits that the Covid-19 pandemic was not a factor in this delay and, therefore, there are no exceptional circumstances to justify it. As a result, the delay exceeds the Jordan guidelines. Accordingly, the charges should be stayed.

APPLICABLE PRINCIPLES

[24] In Jordan, the Supreme Court set out the framework in analyzing s. 11(b) of the Charter at paras. 46-48, 49, and 60.

The following analytical steps are to be taken in applying the framework:

1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial – that is, the end of evidence and argument.
2. Subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”.
3. Compare the Net Delay to the presumptive ceiling.
4. If the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases.
5. Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”).
6. If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
7. If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
8. The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”). If the Remaining Delay exceeds the presumptive ceiling and is not determined to be justified on the basis of the complexity of the case, then it is necessary to consider whether the delay is reasonable under the Transitional Exceptional Circumstance. If not, then a stay of proceedings will ensue.

[25] In R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, paras. 21-23, the Court of Appeal noted that:

[21] In general, exceptional circumstances fall under two categories: (i) discrete events; and (ii) particularly complex cases. Where discrete events give rise to unavoidable delay (i.e., delay that the Crown or the system could not reasonably have mitigated), that delay must be deducted to determine whether the presumptive ceiling has been exceeded.

[22] Where the remaining delay exceeds the presumptive ceiling, the delay may still be reasonable if the case was particularly complex. A particularly complex case is one where the nature of the evidence or the issues "require an inordinate amount of trial or preparation time such that the delay is justified": Jordan, at para. 77.

[23] Where the remaining delay falls below the presumptive ceiling, an accused may still show it is unreasonable by demonstrating (i) the defence took meaningful steps that show a sustained effort to expedite the proceedings; and (ii) the case took markedly longer than it reasonably should have.

[26] The Supreme Court of Canada noted further in Jordan, at para. 65 that:

To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

[27] In R. v. Faulkner, 2018 ONCA 174, 407 C.P.R. (2d) 59, the Court of Appeal noted at paras. 133-136:

[133] Defence delay has two components.

[134] The first is delay waived by the defence. The waiver can be explicit or implicit. But it must always be clear and unequivocal. This requires that the accused have not only full knowledge of his or her rights, but also of the effect waiver will have on those rights. The waiver is not of the s. 11(b) right itself, rather only the inclusion of specific periods in the overall assessment of reasonableness: Jordan, at para. 61.

[135] The second component of defence delay is delay caused solely by the conduct of the defence. This takes in situations in which an accused’s acts either directly caused the delay or were not legitimately taken to respond to the charges, but rather are shown to be a deliberate and calculated tactic to delay the trial: Jordan, at para. 63. Frivolous applications and requests, as well as the failure of the defence to be ready when the Crown and court are prepared to proceed, fall into this category: Jordan, at paras. 63 and 64.

[136] The presumption of unreasonableness that follows from the net delay exceeding the presumptive ceiling is rebuttable. The onus of rebuttal is settled on the Crown and is discharged where the Crown establishes the presence of exceptional circumstances. The failure of the Crown to discharge this onus leaves the delay as unreasonable and entry of a stay of proceedings as its consequence: Jordan, at para. 47.

ANALYSIS

[28] Whether or not the Applicant’s s. 11(b) rights have been infringed requires an assessment of the length of the delay periods and to whom the delay should be attributed - to Mr. Kalirai or the Crown and the institution. Each of the five delay periods identified by the Crown will be examined in turn.

October 7, 2019, to November 4, 2019

[29] The Crown attributes this delay period to “foot dragging in retainer of counsel.” I disagree. Mr. Kalirai sought to obtain a legal aid application to enable him to retain counsel. The Legal Aid Plan rejected his application. Therefore, he had to retain private counsel. Mr. Kalirai cannot or should not be punished because his legal aid application was rejected.

[30] His application to adjourn the matter cannot be construed as frivolous and must be regarded as a necessary request that should not be counted against him. To that extent, this delay period cannot be construed as defence delay.

November 6, 2019, to February 19, 2020

[31] The Crown attributes this delay on account of Mr. Kalirai’s “inaction in switching from self-represented JPT to counsel JPT”.

[32] I disagree with the Crown’s characterization of this delay period. Mr. Kalirai’s counsel first appeared in court in this matter on November 4, 2019, and held a CPT two days later. While he did not request an earlier JPT on that date, neither did the Crown. As the Supreme Court of Canada noted in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 33-36, the Crown and defence counsel must strive to advance an accused’s “right to trial within a reasonable time”. In any event, on January 20, 2020, the Crown sought an earlier JPT but was advised that no earlier dates were available.

[33] Additionally, on November 4, 2019, Mr. Kalirai took the first available date for a JPT which the Court offered. To that extent, this delay period cannot be attributable to the Applicant.

June 1, 2020, to April 20, 2021 (10 months 13 days)

[34] The Crown submits that this delay period is attributable to the Applicant if a “more generous contextual analysis” is applied to analyze it. Specifically, he submits that Mr. Kalirai estimated that the preliminary hearing would require three days because he intended to call three witnesses. The Crown submits that but for this estimate given by Mr. Kalirai’s counsel, the preliminary hearing would have required two days and, therefore, an earlier preliminary hearing date would have been offered by the court. The Crown submits that given Mr. Kalirai’s overestimation of the length of the preliminary hearing, at least fifty (50%) percent of this delay period, i.e., June 1, 2020, to April 20, 2021, is attributable to the defence (relying on R. v. Faulkner, 2018 ONCA 174, at paras. 127-128).

[35] Assuming, without deciding that the Crown is correct that the overestimation of the length of a hearing is a factor to be weighed against a defendant, this factor is not applicable in this case. The preliminary hearing date was set on February 19, 2020. The trial coordinator offered February 26 to 28, 2020; March 11 to 13, 2020; March 16 to 18, 2020; March 23 to 25, 2020, and March 25 to 27, 2020, as dates when a three-day preliminary hearing could be held. The Crown was not available on any of these three-day periods offered. The trial coordinator could not have offered any earlier dates if the time estimate for the preliminary hearing had been two days. The preliminary hearing was scheduled for April 19 to 21, 2021, because the Crown was not available on any other dates offered. To that extent, this delay period, or any portion of it, cannot be attributed to the Applicant.

April 20, 2021, to May 14, 2021

[36] The Crown attributes this delay period to Mr. Kalirai’s “unavailability for assignment court”. Mr. Khan concedes that the court had offered the date of April 20, 2021, but Mr. Kalirai’s counsel declined this date. He, therefore, concedes that this twenty-one-day delay period is attributable to the defence.

Exceptional Circumstances

[37] The Crown submits that there are no exceptional circumstances he can rely on to justify the overall delay period in this case.

CONCLUSION

[38] The overall delay period in this case, less defence delay, is 32 months and three weeks less one day. This period of delay exceeds the Jordan limit and cannot be justified on the basis of exceptional circumstances. As a result, the charges against Mr. Kalirai, while very serious, are stayed.

André J. Released: April 22, 2022