Court File and Parties

COURT FILE NO.: CRIM NJ(P) 193/23 DATE: 2023-10-25 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING, Respondent – and – GURPREET SINGH, Applicant

COUNSEL: L. Rasmussen, for the Crown J. Sandhu and R. Sidhu, for the Applicant

HEARD: October 23, 2023

RULING 11B

MILLER J.

Endorsement

[1] Gurpreet Singh is charged with, on March 31, 2019, Dangerous Driving Causing Death and four counts of Dangerous Driving Causing Bodily Harm. He applies for a stay of proceedings as a s. 24(1) remedy due to a violation of his right, pursuant to s. 11(b) of the Charter, to trial within a reasonable time.

[2] The information charging these offences was laid August 2, 2019 and his trial in the Superior Court of Justice is scheduled to commence November 20, 2023, expected to last two weeks. The delay is 1582 days or 52 months, well in excess of the 30 month threshold set in R. v. Jordan, 2016 SCC 27.

[3] Mr. Singh’s position is that even allowing for defence delay and exceptional circumstances the remaining delay is presumptively unreasonable and warrants a remedy in the form of a stay of proceedings.

[4] The Crown concedes that the delay is presumptively unreasonable, and that even allowing for defence delay the net delay is over 30 months. The Crown submits, however, that exceptional circumstances related to the COVID-19 pandemic bring the delay below the Jordan threshold.

Law

[5] The framework for deciding an Application for stay because of unreasonable delay is governed by the Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27. This case sets a presumptive ceiling for matters before Superior Courts of Justice at 30 months.

[6] The crux of the Jordan framework is set out at paragraphs 47 and 48:

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (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. We expect stays beneath the ceiling to be rare, and limited to clear cases.

[7] A useful summary of the process of such an evaluation was set out in R. v. Coulter, 2016 ONCA 704, by Gillese J.A., at paragraphs 34-40 as follows:

34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

35 Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

37 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 (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

38 Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

39 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 (Jordan, at para. 80).

40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

[8] In the present case, the date of the charge was August 2, 2019, and the anticipated end of trial is December 1, 2023.

Analysis

[9] The total delay is 1582 days or 52 months. The onus rests on the Crown to show that defence delay and/or exceptional circumstances bring the remaining delay to less than 30 months.

[10] The parties are agreed that all delay from August 2, 2019 to January 10, 2020 is Crown or system delay.

[11] The Crown submits that the periods between January 10, 2020 to January 24, 2020; between October 9, 2020 to July 2, 2021; between September 17, 2021 to November 19, 2021; between November 26, 2021 to January 28 2022; between February 11, 2022 to April 22, 2022 is defence delay. These periods total 473 days.

[12] The parties agree that this case is not particularly complex.

[13] The Crown submits that the 155 day period from April 2, 2020 to September 4, 2020 and one third of the 270 day period between August 19, 2022 when the preliminary hearing date was set and May 16, 2023 when the preliminary hearing began are discrete exceptional circumstances totalling 245 days.

(i) Defence Delay

[14] The Crown submits that the 14 day period between January 10, 2020 to January 24, 2020 should be considered defence delay as the defence could have used the Crown “R1 system” rather than the Crown “R3 system” to schedule the Crown pre-trial more efficiently.

[15] Defence delay, as defined in Jordan at paragraph 66, “…comprises delays waived by the defence, and delays caused solely or directly by the defence’s conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay.”

[16] I am not persuaded that the 14 day period between January 10, 2020 to January 24, 2020 is defence delay. Both the Crown “R1 system” and the Crown “R3 system” were available to schedule the Crown Pre-trial meeting. The Crown “R3 system” admittedly provided more certainty as to when the Crown pre-trial meeting would occur and the additional delay occasioned by using that system was not great. I find this was not delay caused solely or directly by the defence’s conduct.

[17] Mr. Singh concedes that the 35 day period between October 9, 2020 to November 13, 2020 is defence delay as defence counsel had difficulty getting instructions and waived 11(b) during this period.

[18] Mr. Singh concedes that the 42 day period between December 18, 2020 to January 29, 2021 is defence delay as defence counsel did not appear on December 18, 2020.

[19] The Crown submits that the period between November 13, 2020 to December 18, 2020 (35 days); the period between January 29, 2021 to April 16, 2021 (77 days); and, the period between April 16, 2021 to July 2, 2021 (77 days) for a total of 186 days is defence delay.

[20] During this time the defence was waiting on Crown disclosure, specifically the ITO for the search warrant for the black box of the subject vehicle. The Crown relies on evidence that the defence sent only two emails about the missing disclosure; one April 8, 2020 and the other June 30, 2021. The Crown does not agree that the preliminary hearing could not have been set without it.

[21] Counsel for Mr. Singh submits that the requested disclosure was essential to Mr. Singh’s election as to mode of trial and to setting proper time for the preliminary hearing. Further, the transcript of the appearances demonstrates that the defence was continuing to seek the disclosure and the response from the Crown at each appearance was to the effect that the Crown was working on production of the requested disclosure.

[22] I am not persuaded that that the period between November 13, 2020 to December 18, 2020; the period between January 29, 2021 to April 16, 2021; and, the period between April 16, 2021 to July 2, 2021 totalling 186 days is defence delay as they are not delays caused solely or directly by the defence’s conduct. I note that throughout this period there was outstanding disclosure that I accept was essential to Mr. Singh’s election as to mode of trial and to give an accurate estimate of time for the preliminary hearing.

[23] Mr. Singh concedes that the 63 day period between September 17, 2021 to November 19, 2021 is defence delay as his former lawyer was taking time to bring a motion to get off the record. The motion scheduled for November 19, 2021 could not proceed as the incorrect information was before the court. The motion was heard and granted on November 26, 2021.

[24] The Crown submits that the 63 day period between November 26, 2021 and January 28 2022 is defence delay as the Crown Pre-Trial and Judicial Pre-Trial process began again with new counsel. Mr. Singh’s position is that as requested disclosure was still outstanding this cannot be counted as defence delay. I am persuaded that this is defence delay as it is directly related to Mr. Singh’s change of counsel and cannot be laid at the feet of the Crown or the court system.

[25] Mr. Singh concedes that the 7 day period between February 11, 2022 to February 18, 2022 is defence delay as defence counsel did not appear February 11, 2022. Mr. Singh further concedes that the 63 day period between February 18, 2022 and April 22, 2022 is defence delay as there was an 11 (b) waiver.

[26] I find that the total defence delay was 273 days. The Net Delay is 1309 days or 43 months. The delay remains presumptively unreasonable and the onus rests on the Crown to establish exceptional circumstances.

(ii) Exceptional Circumstances

[27] As identified in Jordan at paragraph 71, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. Both parties agree that there are no exceptional circumstances related to this being a particularly complex case.

[28] The Crown relies on two distinct COVID-19 pandemic related periods as discrete events amounting to exceptional circumstances.

[29] The first is the 155 day period from April 2, 2020 to September 4, 2020 during which there were three COVID administrative adjournments due to courts being shut down. Mr. Singh submits that this remains Crown delay due to the fact that this period encompassed the timeframe during which there remained outstanding disclosure.

[30] The second discrete event the Crown submits amounts to exceptional circumstances is 90 days of the 270 day period between August 19, 2022 when the preliminary hearing date was set and May 16, 2023 when the preliminary hearing began. The Crown submits that this period is “COVID-19 ripple effect” due to a backlog of cases resulting from the period of court shutdown. This phenomenon was recognized in R. v. Toor, 2022 ONCJ 8. Mr. Singh submits that “COVID-19 ripple effect” cannot extend for years post-pandemic.

[31] I need not decide these issues as even if the Crown were to successfully establish these 155 and 90 day periods as exceptional circumstances, they would not cumulatively amount to an exceptional circumstance sufficient to bring the delay below the presumptive ceiling, as the total Remaining Delay would be 1064 days or 35 months.

[32] I do note, in favour of the defence position, that for months following the January 28, 2022 Judicial Pre-Trial defence counsel was repeatedly reaching out to the Crown for the Trial Estimate Form (‘TEF’). This was essential to setting dates for the preliminary hearing and there was no response from the Crown over multiple court appearances. The TEF was not provided by the Crown until June 23, 2022. This is likely to have contributed to the preliminary hearing having been set so far out.

[33] I find therefore that Gurpreet Singh’s right to trial within a reasonable time as protected by s. 11(b) of the Charter has been violated, and he is entitled to the remedy of a stay of proceedings pursuant to s. 24(1) of the Charter. The Application is granted.

MILLER J. Released: October 25, 2023