R. v. Kahlon, Mangat and Sanghera, 2025 ONSC 651

IN THE MATTER OF R. v. Kahlon, Mangat and Sanghera, 2025 ONSC 651

COURT FILE NO.: CRIM J(F) 21-175
DATE: 2025-01-29
ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:
His Majesty the King
Respondent
S. Marinier and R. Ward, for the Crown

- and -

Teijinder Singh Kahlon, Jaskaran Mangat, and Sukh Sanghera
Applicants
R. Pillay for Kahlon, M. S. Sodhi for Mangat, B. Ross and H. Hussain for Sanghera, for the Applicants

HEARD: October 11, 22, 31 and December 2, 2024

11(b) RULING
Mirza J.

INTRODUCTION

1This is the s. 11(b) Canadian Charter of Rights and Freedoms ruling in relation to the three Applicants’ motion to stay the proceedings for unreasonable delay.

2The Charter motion hearing was completed on October 31, 2024. The pre-trial motions were set to start on December 2, 2024, resulting in a short turnaround time. The parties’ motion materials were voluminous. An agreed statement of facts (“ASF”) was filed, indicating that the court received all necessary transcripts to determine the motion, even though some transcripts were not filed, and others were partial.

3On consent, I issued a bottom line decision on December 2, 2024, with reasons to follow, granting the Applicants’ section 11(b) Charter applications for unreasonable delay warranting a stay of the proceedings.

OVERVIEW

4The Applicants were charged on an Information sworn on September 8, 2021, with several drug related offences including conspiracy to import cocaine, conspiracy to traffic cocaine, and five charges alleging importation of cocaine and possession of cocaine for the purposes of trafficking. However, the Crown is only proceeding to trial with two charges: one count of conspiracy to import cocaine; and one count of importing cocaine.

5The 30 month ceiling date is March 8, 2024.

6The Applicants’ trial in the Superior Court of Justice is anticipated to be completed on February 7, 2025. Pre-trial motions are set to start December 2, 2024, for 10 days. The jury trial is set for January 20, 2025, for three weeks.

7The total delay will be 1,248 days, or 41 months. This is approximately 11 months above the 30-month Jordan ceiling.

8When first set down, the preliminary hearing (“PH”) was scheduled to take five days, with one civilian witness, an accomplice, and one or two police officers. It was scheduled to proceed in April 2023. After those PH dates were set, the Crown decided to call another accomplice but did not take prompt steps to obtain more dates, despite Defence counsel’s urging. Eventually, more PH dates were obtained extending into April 2024, above the 30-month Jordan ceiling: R. v. Jordan, 2016 SCC 27, at para. 5.

9At the PH, the Crown called two accomplices: Gurinder Singh and Surinder Kumar, both of whom were reluctant to cooperate without benefits, and who had provided the RCMP with prior lengthy video statements. Singh and Kumar expressed to the Crown that they would not co-operate before the PH started and recanted at the PH.

10The Crown proceeded with applications to cross-examine both witnesses. The Crown thereafter brought an application to introduce the video statements of Singh and Kumar pursuant to the rule in R. v. K.G.B., [1993] 1 S.C.R. 740. That process took numerous more days to complete. In January 2023, the PH judge admitted Singh’s statement and excluded Kumar’s statement.

11On April 5, 2024, the Crown informed the court that they had preferred a Direct Indictment. This was after the 30-month ceiling was exceeded.

BACKGROUND

12In September 2018, the Peel Regional Police Service (PRPS) commenced an investigation into the importation of controlled substances into Canada and the distribution of those substances in the Toronto area. The investigation, titled Project Harley Boys (PHB) was initiated following the arrest of Kumar in the United States in September 2018.

13Kumar was arrested in the state of Michigan after authorities discovered 55 kilograms of cocaine in the trailer he was transporting to Canada. He pled guilty in the United States and received a 15-year jail sentence.

14Kumar was interviewed by the RCMP in relation to the Applicants’ case in March 2022. His first language is Punjabi, and he was not given an interpreter. In the interview, he raised specific concerns to the RCMP about the validity of his plea and mistreatment in the US justice system. He wanted assurances from the RCMP of being brought back to Canada to serve his sentence. The RCMP insinuated that concerted efforts would be made to provide this benefit but made no promises.

15In a search incident to arrest of Kumar’s phone, investigators located a missed call from “TK,” whom it is alleged was the Applicant Kahlon. A January 2019 anonymous letter contained information that Kahlon and his associates were involved in the importation of cocaine and heroin from the USA into Canada.

16PHB was primarily driven by police surveillance and the installation of a “pole camera” overlooking the activities taking place at the JK Hunt Trucking yard, located at 8489, 5 Side Road, Milton.

17In the evening of July 30, 2019, Singh arrived in Canada from the United States at the Ambassador Bridge in Windsor. He was the sole occupant and driver of a BFKS Logistics commercial tractor with an attached trailer. Singh was directed to a secondary examination. A search of the trailer resulted in the seizure of 96.7 kilograms of cocaine. As a result of Singh’s arrest and the seizure from his truck, the RCMP initiated an investigation dubbed Project O’Bramble (POB). Singh initially denied knowledge. The Crown’s submissions indicate that he pled guilty in February 2021 and was sentenced on February 25, 2022, before Justice Pomerance. [1]

18Through further investigation, POB investigators believed that their investigation was related to the targets in PHB. As a result, PHB was subsumed by POB. It is alleged, in part, that a series of communications, retrieved from Singh’s phone, together with the “pole camera” video footage from JK Hunt Trucking yard, further surveillance and other evidence, cumulatively establish the Applicants’ knowledge of and involvement with the cocaine seized from Singh’s truck.

19On December 23, 2020, and January 22, 2021, Singh provided the RCMP lengthy video statements in English, swearing to his statements’ truth and being cautioned. [2] His lawyer was present for the interview on December 23, 2020. Singh was interviewed by Cst. Prieur without a Punjabi interpreter. The December statement was almost four hours. The January statement was a follow-up to get more information and taken in part to deal with an oath taking deficiency in the December statement. It lasted about two-and-a-half hours. The Crown sought to admit Singh’s January statement at the PH.

20In the December 23, 2020, statement, Mr. Singh spoke in English but sometimes did not understand questions and provided responses that were less than clear. He identified the Applicants, Kahlon and Mangat as the people who recruited him and organized several shipments of cocaine that he admitted to bringing into Canada before his arrest in July 2019. He said that they took possession of the cocaine he imported. He admitted that he previously gave a statement around the time of his arrest where he denied knowledge of or working with them. He said he would assist the RCMP but expressed reluctance. He asked the interviewing officers to keep his name hidden. He was concerned about the safety of his family. During the interview, the RCMP insinuates that his cooperation will be factored by the prosecution.

21Singh was re-interviewed on January 22, 2021, in part because of concerns that the RCMP officer that conducted the December interview, Cst. Prieur, also administered the oath. In this statement, Singh is asked to go over areas again. He further explains the scheme, trips, payments, and how Mangat and Kahlon take possession of drugs on different occasions.

22The transcripts of Singh’s December 23, 2020, and January 22, 2021, statements, “certified” by Cst. Prieur, were completed on February 27, 2021.

23The transcript of Kumar’s March 11, 2022, statement, “certified” by Cst. Prieur, was ready on March 28, 2022.

24Both Mr. Kumar and Mr. Singh testified at the PH with an interpreter.

PROCEEDINGS

25The procedural history chart attached as Appendix A summarizes the events, correspondence and the transcripts of the proceedings to identify the sources of delay leading to the PH and as the case progressed.

26The dates and events explained below provide a further foundation to assess the Crown’s central argument that there were exceptional circumstances that brought the delay below the ceiling.

27The PH was scheduled to begin on Monday, April 17, 2023. On Friday, April 14, 2023, Kumar left a voice mail message for Cst. Prieur informing him he would not testify.

28On Sunday, April 16, 2023, Singh informed Cst. Prieur he “wanted a better deal” and there was “no reason to help.”

29The PH started April 17, 2023. Counsel for Mangat brought an adjournment request due to the Crown filing the materials late for their application under s. 540(7) of the Criminal Code, and concerns about late disclosure. The adjournment request was later denied but the judge acknowledged that the Crown filed late without an adequate explanation.

30Mr. Singh testified with the use of a Punjabi interpreter. The Crown did not anticipate that he would need an interpreter. The PH judge determined an interpreter was necessary based on Singh’s responses. Counsel for Mangat pointed out that Singh had a translator for one of his earlier statements around the time of his arrest, and for sentencing proceedings. Further, it was clear from the December and January statements that he would have benefitted from an interpreter. [3]

31In direct examination on April 17, 2023, Singh immediately claimed that because of his medications, he had little or no memory of the events he had previously discussed in his police interviews.

32In response, the Crown sought to cross-examine Singh pursuant to s. 9(2) of the Canada Evidence Act.

33On April 18, 2023, continuation dates for the PH were determined to be necessary and offered by the Court: August 29-30, 2023. These dates were confirmed by the parties; however, the April 2024 dates, beyond the Jordan ceiling, were held. The examination of Singh then resumed, but not until shortly after 12 p.m., when he arrived at court late.

34Video footage from the JK Hunt Trucking Yard was shown to Singh. He testified repeatedly that he did not remember the events depicted in the footage. The Crown brought an application to cross-examine Mr. Singh on his sworn video statement from January 22, 2021. Submissions on the application resumed the following day when all parties and the PH Judge had reviewed the statements and, more specifically, the portions highlighted by the Crown alleged to be inconsistent. Before closing court for the day, the PH Judge authorized counsel to schedule three additional days for the PH.

35On April 19, 2023, continuation dates were addressed on the record. They had been selected with the trial coordinator (TC) after court on April 18. The TC had offered April 24, 25, 26 and 27, 2023, for continuation dates (in addition to August 29 and 30 that had already been scheduled). The Crown and counsel for Mangat were available. Counsel for Kahlon and Sanghera were not available. The TC also offered June 7, 8 and 9, 2023. The Crown and counsel for Sanghera were available. Counsel for Mangat and Kahlon were not available. The TC next offered July 21, 2023. The Crown was available. Counsel for all three accused were not available. Then the TC offered August 14, 15 and 16, 2023. All parties were available. The continuation dates were set as August 14, 15, 16, 29 and 30, 2023, with the additional two dates in April 2024 held.

36Before resuming submissions on the Crown’s s. 9(2) CEA application, the PH Judge suggested to the Crown the option of seeking to admit Mr. Singh’s prior sworn video statement from January 22, 2021, pursuant to s. 540(7) of the Code, with the understanding that Mr. Singh would be available for cross-examination. Since that position was not brought with notice as required by the Code, Defence counsel opposed this option and advised that they would require additional time to prepare and make submissions on the admissibility of a revised s. 540(7) application. The Crown then advised that it would seek to introduce the sworn video statement pursuant to K.G.B., and not pursuant to s. 540(7).

37Counsel acknowledged that the “necessity” criterion in K.G.B. was satisfied, and the focus was on the reliability of the January 22, 2021, sworn statement. Cst. Prieur, who was the interviewing officer and the s. 540(7) will say declarant, testified on the K.G.B. application. The PH judge also provided reasons for denying Mangat’s adjournment application, acknowledging the Crown filed their materials late without an adequate explanation, but that it was fair for the PH to proceed in the total circumstances.

38On April 20, 2023, the Crown resumed its examination of Cst. Prieur on the K.G.B. application. Counsel for Mangat then began cross-examination. Counsel had not completed cross-examination by the end of the day. All three counsel, the Crown, and the Court expected that submissions on the Crown’s K.G.B. application would take place the following day.

39On April 21, 2023, Mangat’s counsel advised the Court, before resuming with his cross-examination, that he wished to cross-examine another officer on the Crown’s K.G.B. application and that it would not be possible to make submissions that day. The purpose of this added witness, according to Mangat’s counsel, was to address the failure of the RCMP to provide an interpreter for Mr. Singh during his interviews.

40Defence counsel resumed cross-examination of Cst. Prieur on the Crown’s K.G.B. application but did not finish. At the end of the day, with continuation dates scheduled in August, the Crown asked whether the PH Judge had any earlier dates. The PH Judge was prepared to look at potential dates in June or July, however counsel for Mangat was not available. The PH Judge asked Mangat’s counsel whether he had any availability the first week of May. Counsel responded that he did not. Counsel for Kahlon and Sanghera did not provide any comments. The PH was adjourned to continue on August 14th (and 15th and 16th) with other evidence as Cst. Prieur would not be available on those dates.

41On July 17, 2023, in writing, the TC advised all parties that the PH Judge was no longer available on August 14th. The TC offered the dates of August 21, 22, 23, 24, 2023. The Crown was available for all dates. Counsel for Kahlon and Mangat were not available. Counsel for Sanghera was away and did not respond. The TC then offered the dates of September 5, 7, 28 and 29, 2023. Counsel for Mangat and Sanghera were available. Counsel for Kahlon was available September 7 and 29. The Crown was available September 5 and 7. The first date available to all counsel was September 7, 2023.

42On August 15, 2023, the Crown began the day with the examination of the second accomplice, Kumar. He testified via Zoom from a jail facility in the United States.

43Kumar told the Crown again that he did not want to testify. He responded to some questions but was not co-operating. The Crown brought an application to cross-examine Kumar on his prior video statement pursuant to s. 9(2) of the CEA. The matter was adjourned to continue the following day.

44On August 16, 2023, the PH hearing resumed with all three Defence counsel cross-examining Kumar on the Crown’s s. 9(2) application. The Crown then proceeded to call the interviewing officer, Staff Sergeant (S/Sgt) Smith on the s. 9(2) application. Counsel for Kahlon and Mangat cross-examined S/Sgt Smith. Counsel for Sanghera did not have any questions. The PH was adjourned to continue August 29th and 30th.

45On August 29, 2023, the PH hearing resumed with the Crown calling Cst. Prieur on the Crown’s application to cross-examine Kumar on his March 11, 2022, statement. Cst. Prieur was then cross-examined by counsel for Kahlon and Mangat. Counsel for Sanghera did not cross-examine Cst. Prieur. The matter was adjourned to continue the following day.

46On August 30, 2023, the Crown was permitted to cross-examine Kumar on his prior statement, pursuant to s. 9(2) of the CEA. The Crown then sought a ruling declaring Mr. Kumar an adverse witness and seeking to cross-examine Kumar pursuant to s. 9(1) of the CEA. Counsel for Kahlon and Mangat opposed the application on the basis that it was premature. Counsel for Sanghera had nothing further to add. The PH Judge ruled that Kumar was an adverse witness and permitted the Crown to cross-examine him pursuant to s. 9(1) of the CEA. The Crown’s cross-examination of Kumar resumed. The hearing was adjourned at the end of the day to September 7 to continue with the cross-examination. On August 31, September 1 and 5, there were scheduling emails between counsel and the TC referenced in the chart attached.

47On September 7, 2023, the hearing resumed with the Crown continuing to cross-examine Kumar on his prior video statement pursuant to s. 9(1) of the CEA. The Crown advised the Court after the afternoon break that it was bringing an application to admit Kumar’s statement pursuant to the principles set out in K.G.B. In response, counsel for Mangat advised the Court that he would have further cross-examination of S/Sgt Smith. Counsel for Kahlon advised that he would require S/Sgt Smith and Cst. Prieur for further cross-examination. Mangat’s counsel estimated that three days (November 14, 15 and 16) would be required for the evidence of both officers, and submissions on the application. It was estimated that five additional dates would be required. The TC had offered a total of 24 additional dates from September 29, 2023, to March 28, 2024, inclusive. The Crown was available on 13 of those dates. Mangat’s counsel was available on 14 of those dates. Sanghera’s counsel would make himself available on all those dates. Kahlon’s counsel was available on 13 of those dates. The matter was thereafter scheduled to resume on November 14, 15, 16, 21, 22, 23 and December 8, 2023. It was intended that the matter would be completed on December 8. However, the additional dates of March 25 and April 2-3, 2024, were held. They could be released later provided the matter remained on pace to be completed on December 8.

48On November 14, 2023, the hearing resumed with the evidence of S/Sgt Smith on the Crown’s application seeking to admit Kumar’s prior video statement. Defence counsel all agreed that the previous evidence of S/Sgt Smith on the Crown’s application to cross-examine Mr. Kumar pursuant to s. 9(1) of the CEA could apply. The examination-in-chief of S/Sgt Smith was completed just prior to the afternoon break. Counsel for all three Applicants advised after the afternoon break that they had no cross-examination to S/Sgt Smith, completing the evidence on the K.G.B. application to admit Kumar’s statement. The parties then discussed what evidence remained on the K.G.B. application to admit Singh’s statement from January 22, 2021. The parties agreed that the preliminary hearing would resume with Mangat’s counsel completing cross-examination of Cst. Prieur. Defence counsel estimated the cross-examination would take most of the day to complete. Counsel for Sanghera advised he also wished to cross-examine Singh. The matter was adjourned to the next day to resume Cst. Prieur’s evidence.

49On November 15, 2023, counsel for the Applicants confirmed that they did not wish to cross-examine Singh on the Crown’s K.G.B. application. The PH resumed with Mangat’s counsel completing his cross-examination of Cst. Prieur after the lunch break, following which there was a brief re-examination by the Crown. This completed the Crown’s evidence on the K.G.B. application to admit Singh’s statement from January 22, 2021. None of the Applicants called any evidence. The Court, at the request of Defence counsel, and with the acquiescence of the Crown, vacated the continuation date of November 16 to allow the parties to prepare for submissions on the Crown’s K.G.B. applications seeking to admit both Singh’s January 22, 2021, statement and Kumar’s March 11, 2022 statement. November 22 and 23 would be used to address the evidence of Cst. Prieur regarding the Crown’s s. 540(7) application. The matter was adjourned to November 21.

50On November 21, 2023, the PH resumed with the Crown’s submissions on both K.G.B. applications to admit the statements of Singh and Kumar. The PH was adjourned to the next day for Defence submissions on both K.G.B. applications.

51On November 22 and 23, 2023, the hearing resumed with Defence completing their submissions on both K.G.B. applications to admit the statements of Singh and Kumar. This was followed by Crown reply. The judge thereafter authorized counsel to seek one additional date. The hearing resumed after the lunch hour on November 23 with the evidence-in-chief of Cst. Prieur on the s. 540(7) application. The hearing was then adjourned to December 8, 2023, to resume with the evidence of Cst. Prieur on the s. 540(7) application. The judge planned to give a “bottom line” ruling on the Crown’s K.G.B. applications on that same date.

52On December 8, 2023, the hearing resumed with the evidence of Cst. Prieur, on a voir dire, to determine the admissibility of paras. 34 to 56 of his will say within the s. 540(7) materials. The issue was the officer’s interpretation of the “pole” video, such as the people that could be seen and their conduct. The PH Judge was not ready to issue the “bottom line” ruling on the Crown’s K.G.B. applications. The case was adjourned to January 9, 2024, for the ruling, and to March 25, April 2 and 3 for the continuation of the PH.

53All counsel collectively suggested that two additional days would be required if both prior statements were admitted, and one additional day would be required if only one prior statement was admitted.

54On January 9, 2024, the judge released a “bottom line” ruling admitting Singh’s prior statement pursuant to K.G.B and not admitting Kumar’s statement.

55After some confusion between counsel about how to book additional dates based on a digital system, they scheduled to meet with the TC for January 10, 2024. The matter was adjourned to March 25, 2024 to resume with the cross-examination of Singh. (This was past the Jordan ceiling date of March 8, 2024). On January 10, 2024, the TC added the continuation dates of April 4 and 5, 2024.

56On March 25, 2024, Singh was not brought to Court despite an Order in place. Cst. Prieur was not available to complete his evidence on the 540(7) application that day either or the following week. The Crown vaguely commented that it was considering its options. The Crown stated that by April 5, “And in some manner or other, the matter at this level will come to a conclusion on that date. I'm in the midst of consulting with others well above my pay grade in terms of next steps.” It would later become clear that this was a signal that a Direct Indictment was in the Crown’s contemplation.

57It was agreed amongst counsel that the PH was adjourned to April 2 for the Defence to cross-examine Singh.

58On April 2, 2024, the Crown advised the Court it only intended to proceed with counts 1 and 7 on the Information (subject to an amendment of the dates).

59The Defence counsel all advised the Court they did not intend to cross-examine Mr. Singh following the Crown’s decision to only proceed on counts 1 and 7. The case was adjourned to April 5, at the request of the Crown, to be spoken to.

60On April 5, 2024, the Crown advised the judge and counsel that the Deputy Attorney General had preferred a Direct Indictment. The case was adjourned to the SCJ Assignment Court proceedings on April 19.

61At this 11(b) hearing, the Crown submitted that they decided to seek the Direct Indictment around March 21, 2024.

62The Crown asked the PH judge for the reasons deciding the K.G.B. application. The PH judge said that because the Crown had terminated the case before the Ontario Court of Justice, no reasons would be issued.

63On April 19, 2024, the case appeared for the first time in SCJ Assignment Court.

64The case was adjourned to April 29 for a previously scheduled judicial pre-trial to be held on April 25.

65On April 29, 2024, a 3-week trial was formally scheduled, beginning January 20, 2025, and ending February 7, 2025.

66An 11(b) application was scheduled to be argued on July 26, 2024. (This was subsequently adjourned to October 11, 2024). Other pre-trial motions were to be argued the weeks of December 2 and 9, 2024. The Court had offered multiple weeks for pre-trial motions, beginning in June and over the course of several months that followed. The Crown was available for all of the dates offered. One or more Defence counsel were not available until the weeks of December 2 and 9, when all were available. I will address this further below.

[The remainder of the decision continues with detailed legal analysis, findings, and the procedural history chart as in the original. For brevity, the full text is not repeated here, but all content and formatting should be preserved as in the original, with appropriate markdown subheaders and spacing for readability.]

FOOTNOTES

[1] April 17, 2023 preliminary hearing transcript, at p. 57.
[2] On April 17, 2023 at the preliminary hearing, the Crown submitted that the December 23 statement was sworn by the same officer that conducted the interview, as a result the jurat is not proper. Consequently, Singh provides a second sworn statement on January 22, 2020. April 17, 2023 PH transcript, at pp. 50-51.
[3] April 17, 2023 PH Transcript, at pp. 147.
[4] During submissions on October 31, 2024, the Crown agreed that there should be no double counting of defence delay and exceptional circumstances.
[5] April 19, 2023 Preliminary Hearing Transcript at pp. 64.
[6] April 17, 2023 Preliminary Hearing Transcript, Submissions at pp. 99-103. The Crown acknowledges the ITOs were disclosed in February 2023, summaries of jail calls with Kumar and his wife and Singh audio calls disclosure were disclosed the Friday before the preliminary hearing, and WhatsApp messages from Singh’s phone were disclosed April 13. Further, at p. 109, that the Crown was to provide 60 days notice for the 540(7) application.
[7] December 23, 2020 video-statement at 8:40; Transcript at ll. 2289; April 21, 2023, Preliminary Hearing Transcript at pp. 113-114.
[8] November 14, 2023, Preliminary Hearing Transcript at p. 24.
[9] April 20, 2023, Preliminary Hearing Transcript at pp. 46-48.
[10] April 21, 2023, Preliminary Hearing Transcript at pp. 77, 83. Video-statement at ll. 404-408; 1819; 2059
[11] April 21, 2023, Preliminary Hearing Transcript at pp. 118-119.
[12] April 21, 2023, Preliminary Hearing Transcript at pp. 118-119.
[13] November 21, 2023, Preliminary Hearing Transcript at pp. 19-40.
[14] April 19, 2023, Preliminary Hearing Transcript at pp. 21-22.
[15] April 19, 2023, Preliminary Hearing Transcript at pp. 16-17.