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Gabarit EDJ

R. c. Thanabalasingham

2017 QCCS 1271

 

SUPERIOR COURT

(Criminal division)

 

 

 

CANADA

 

PROVINCE OF QUEBEC

 

DISTRICT OF

MONTREAL

 

 

 

N°:

500-01-077003-124

 

 

 

 

 

 

DATE :

April 7, 2017

 

______________________________________________________________________

 

 

 

IN THE PRESENCE OF:

THE HONOURABLE

ALEXANDRE BOUCHER, J.S.C.

______________________________________________________________________

 

 

 

HER MAJESTY THE QUEEN

 

Prosecution

 

v.

 

SIVALOGANATHAN THANABALASINGHAM

 

Accused

 

______________________________________________________________________

 

 

 

JUDGMENT [1]

 

______________________________________________________________________

 

 

 

[1]           The accused, Mr. Sivaloganathan Thanabalasingham, is charged with the second degree murder of his spouse, Ms. Anuja Baskaran. According to the indictment, the alleged crime would have been committed on August 11, 2012. The accused was arrested and taken into custody on that same day. He was arraigned before a judge on August 13, 2012. Lengthy judicial proceedings ensued. The trial is set to begin on April 10, 2017 and is scheduled for a period of seven weeks, before a jury of the Superior Court of Quebec sitting in Montreal. The overall delay between the laying of the charge and the anticipated end of the trial exceeds 57 months, the equivalent of nearly five years.

[2]           The accused seeks a stay of proceedings pursuant to s. 11 b) and 24 (1) of the Canadian Charter of Rights and Freedoms on the grounds that his constitutional right to a trial within a reasonable time has been violated.

[3]           The Court must consider the new framework laid down by the Supreme Court of Canada in R. v. Jordan, [2016] 1 SCR 631 as it applies to a transitional case that was already in the system, on July 8, 2016, when this judgment was released.

[4]           In Jordan, the Supreme Court observed that our criminal justice system has come to tolerate excessive delays to the detriment of the rights and interests of everyone affected by criminal justice: the accused persons, the victims and their families and the public as whole.

[5]           The Supreme Court found that a change of direction was required and put forward a reinvigorated conception of the right to be tried within a reasonable delay.

[6]           The new test set out in Jordan involves presumptive ceilings beyond which a delay is presumed unreasonable pursuant to s. 11 b) of the Charter, unless the Crown justifies it by establishing exceptional circumstances. Prejudice to the accused and seriousness of the offence are no longer considered. The presumptive ceiling is 30 months from the charge to the actual or anticipated end of the trial for a case tried before the Superior Court, like the present case.

[7]           However, the Supreme Court recognized that change takes time and that a sudden and abrupt application of the new framework could result in a large number of charges being stayed at the risk of undermining the integrity of the administration of justice. Consequently, the Court ruled that the Crown may invoke transitional exceptional circumstances where the prosecution was brought prior to July 8, 2016. The new framework must be applied with flexibility and contextually to cases currently in the system. The transitional regime will not excuse all abusive delays. It remains that the new framework applies to transitional cases, although with adaptations.

[8]           In a transitional case such as this one, where the trial is to be held before the Superior Court, the Jordan analysis may be set out as follows:

1)            First, the Court must determine the total delay from the laying of charges to the end of trial.

2)            Then, the Court must deduct from the total delay any delay waived by the defence or caused solely by the conduct of the defence. The defence caused a delay if it was not available when the court and the Crown were ready to proceed. However, legitimate preparation time and actions taken to respond to the charges cannot be characterized as defence delay.

3)            If the remaining delay is above the presumptive 30 months ceiling, the delay is presumed unreasonable and the burden shifts to the Crown to justify the delay as having been due to exceptional circumstances that were reasonably unforeseen or reasonably unavoidable and that could not be reasonably remedied, such as (a) discrete events or (b) a particularly complex case. The Court is to subtract the delay caused by any exceptional discrete events from the total period of delay to determine whether the delay is still above the 30 months ceiling. The Court must also consider whether the case was so particularly complex that delay is deemed justified and reasonable.

4)            If the Crown fails to demonstrate exceptional circumstances, a stay of proceedings must be ordered.

5)            If the remaining delay falls below the presumptive ceiling, the defence has the burden to show that the delay is unreasonable by establishing that (a) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and (b) that the case took markedly longer than it reasonably should have.

6)            The Crown may establish transitional exceptional circumstances if it satisfies the Court that (a) the delay is justified based on the parties' reasonable reliance on the law as it previously existed (e.g. prejudice to the accused and the seriousness of the offence often played an important role under previous law) or (b) that the case is of moderate complexity in a jurisdiction with significant institutional delay problems.

See generally: R. v. Jordan, [2016] 1 SCR 631; R. v. Williamson, [2016] 1 SCR 741; R. v. Béliveau, 2016 QCCA 1549; R. v. Huard, 2016 QCCA 1701; R. v. Dupuis, 2016 QCCA 1930; R. v. Coulter, 2016 ONCA 704; R. v. Manasseri, 2016 ONCA 703; R. v. Singh, 2016 BCCA 427.

[9]           The Court now applies these principles to the case at bar.

[10]        First, the Court notes, as mentioned above, that the overall delay from the laying of the charge to the anticipated end of trial is just over 57 months.

[11]        From the overall delay, roughly two months must be deducted for adjournments or delays asked by the defence (on April 28, 2014, April 29, 2014, November 7, 2014, November 28, 2014, and November 18, 2016). The Court finds that all the other adjournments consented by the defence amounted to acquiescence in the inevitable and cannot be said to be caused solely by the defence.

[12]        Therefore, the remaining delay (overall delay minus defence delay) is 55 months.

[13]        Before going further, a particular aspect of the proceedings must be addressed.

[14]        On June 8, 2015 the trial was set to start on February 12, 2018. The trial was scheduled so far ahead in time due to a lack of judicial resources. Afterward, the Coordinating judge of the Criminal division of the Superior Court attempted to advance the trial amid new openings in the docket. On January 21, 2016, at a case management hearing, the Coordinating judge offered to advance the trial to mid-April 2016 or to March 2017. The Crown was available on these dates. Defence attorney declined because of his busy schedule and because he had obligations in another case (a fraud mega-trial). However, he would have been available for trial in April 2016 if that date had been offered earlier in the process, in 2015. Later on, in a letter dated June 14, 2016, the Coordinating judge came back again with an offer to advance the trial. He proposed to start the trial in September 2016. Again, defence counsel replied that he was not available because of his involvement in the same case. It is not clear from the record if the Crown would have been available in September 2016. Finally, on November 18, 2016, at the initiative of the Court and with the agreement of Crown and defence, the beginning of the trial was advanced from February 12, 2018 to its current date on April 10, 2017.

[15]        The Crown calculates that the trial would have been finished by the beginning of June 2016 if defence had been available to start the trial in mid-April 2016, when that date was offered by the Court. The Crown submits that the delay after June 2016 was caused by the defence and must be subtracted from the overall delay.

[16]        The Court disagrees.

[17]        Under the new framework, a delay is caused by the defence if it was not available when the Court and the Crown were ready to proceed. To be clear, such delay will not be attributable to the defence when the Court and the Crown are also unavailable (Jordan, par. 64; see also R. v. Khoury, 2016 QCCS 5009, par. 19-22). However, it must be remembered, that defence is allowed reasonable preparation time (Jordan, par. 65)  and that only delays caused solely by the conduct of the defence are to be subtracted from the overall delay (Jordan, par. 63-66).

[18]        In the present case, new trial dates were offered by the Coordinating judge because the trial was initially set to start at a much later date. Defence attorney would have been available at an earlier date, in April 2016, if it had been offered previously in the process. In this context, it cannot be said that the delay related to the unavailability of defence counsel was caused solely by the defence. Some consideration must be given to the circumstances leading up to the point when the defence was not available (Christopher Sherrin, Understanding and Applying the New Approach to Charter Claims of Unreasonable Delay, 22 Can. Crim. L. Rev. 1, p. 7 (February, 2017)).

[19]        Moreover, since this a transitional case, reasonable reliance on the previous state of the law by the parties must be taken into account. In R. v. Godin, [2009] 2 SCR 3, par. 23, the Supreme Court stated that «scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability». Defence counsel was all the more not required to be available at all time for a hypothetical change of trial dates.

[20]        The next step of the test, is to consider whether the Crown established exceptional circumstances.

[21]        The Court finds no discrete and exceptional event in the present case that would have been unforeseeable or unavoidable.

[22]        The Crown submits that the extension of the preliminary inquiry beyond the estimated period is an exceptional circumstance.

[23]        Again, the Court disagrees with this argument.

[24]        The duration of the preliminary hearing was hardly an unforeseeable or unavoidable circumstance. It is well known to all participants of the criminal justice system in Montreal that it is virtually impossible to hold a lengthy preliminary hearing continuously in this jurisdiction. In this context, inaccurate assessment of the time required for the preliminary inquiry must be avoided at all cost because it may result in serious additional delays. Here, the preliminary inquiry lasted 20 days instead of the 10 days initially allocated. It was fragmented and had to be adjourned and resumed on several occasions. It spread over a period of time exceeding one year. It started on March 17, 2014 and the accused was committed to stand trial on April 28, 2015.

[25]        The inordinate amount of time taken for the preliminary inquiry was not beyond the control of the Crown. In fact, the reverse is true. The Crown initially charged the accused with second degree murder and it sought to present evidence at the preliminary hearing to have him ordered to stand trial on a charge of first degree murder. The Crown had a weak case on first degree murder. It relied on s. 231 (6) of the Criminal Code. This section provides that, irrespective of whether a murder is planned and deliberate, a murder is first degree murder when the death is caused while committing or attempting to commit criminal harassment pursuant to section 264 of the Criminal Code. The prosecution failed to satisfy its low burden of evidence to obtain committal on first degree murder. In particular, the Crown had no proof on the requirement that murder and criminal harassment were committed concurrently or contemporaneously (R. v. Alaoui, 2009 QCCA 149; R. v. Walters, 2012 QCCA 1417; R. v. Meunier, 2014 QCCA 1681). On this point, the Court refers to the decision of the preliminary hearing judge, rendered on April 28, 2015.

[26]        It results that the Crown must bear some responsibility for the duration of the preliminary hearing.

[27]        Furthermore, the case is not particularly complex. This is a typical murder case (Jordan, par. 78). The expected duration of trial is longer than the ordinary only to take account for translation of the testimonies since the evidence is to be given in French, English and Tamil.

[28]        The Court must now consider whether a transitional exceptional circumstance justifies the delay.

[29]        As mentioned earlier, to establish a transitional exceptional circumstance, the Crown must satisfy the Court that the delay is justified by reasonable reliance on the previous legal framework. A transitional exceptional circumstance may also apply where the case is of moderate complexity in a jurisdiction with important institutional delay problems.

[30]        The analysis must be contextual and flexible (Jordan, par. 96-98). The Court must balance all the circumstances of the case including factors that were relevant under the previous state of the law as laid out in R. v. Morin, [1992] 1 SCR 771: the length of the delay, prejudice to the accused, the seriousness of the charge, the complexity of the case, the conduct of the defence, and whether the Crown sought to expedite the proceedings (Jordan, par. 128-131; R. v. Williamson, [2016] 1 SCR 741, par. 25-30; R. v. Manasseri, 2016 ONCA 703, par. 324-379; R. v. Huard, 2016 QCCA 1701, par. 24-31; R. v. Béliveau, 2016 QCCA 1549, par. 99-138; R. v. Palma, 2016 QCCS 6543; R. v. Louati, 2016 QCCS 3411).

[31]        After thoughtful consideration, the Court finds that the Crown has failed to establish a transitional exceptional circumstance in the present case.

[32]        The Court takes into account the length of the delay. The net delay (total delay minus defence delay) is 55 months. This delay is nothing less than startling. It exceeds the 30 months presumptive ceiling set out in Jordan by 25 months. Also, the Court generally accepts the submission of the defence on the qualification of the delays under the previous law, as stated in R. v. Morin, [1992] 1 SCR 771, and finds that the institutional delay - the delay attributable to the limits of the justice system - is roughly 43 months. This is much longer than 18 months, the upper end of the range of the guidelines set out in Morin. In other words, the delay in this case is just as unreasonable under the previous framework as it is under the new framework (R. v. Huard, 2016 QCCA 1701, par. 26).

[33]        The accused is detained since the beginning of the proceedings, in August 2012, nearly five years ago. The Court takes this infringement to the accused’s right to liberty very seriously. It should be remembered that the accused is presumed innocent of the crime charged. He certainly suffered prejudice from his pre-trial incarceration. In any event, prejudice may be inferred from the length of the delay (R. v. Godin, [2009] 2 SCR 3, par. 30-31).

[34]        While it can be argued that a murder trial before a jury is never a straightforward business, there is no indication that the present case is complex. No particular difficulty arises from the evidence or the issues to be debated. Complexity cannot account for the unreasonable delay in the present matter.

[35]        In addition, the defence was cooperative and reasonable in the conduct of the proceedings, although it seemed that defence had been resigned to live with the delays, without being able to do much about it, until the release of the judgement in Jordan. It must be noted that the defence would have consented to committal at preliminary inquiry on second degree murder pursuant to s. 549 of the Criminal Code and would have been satisfied with a limited preliminary inquiry. Also, the defence agreed, along with the Crown, to have the trial advanced from February 2018 to April 2017.

[36]        The Court takes into consideration that the accused is charged with second degree murder, a very serious offence. The Court is mindful that a woman lost her life in tragic circumstances and that Society has an interest in having a serious case tried on its merits.

[37]        Nevertheless, in R. v. Williamson, [2016] 1 SCR 741, par. 33-37, the Supreme Court, in a judgement released with Jordan, indicated clearly that seriousness of the offence charged is a factor of very limited relevance in the analysis. Seriousness of the charge cannot in itself diminish the accused’s right to a trial within a reasonable time. Moreover, in the interest of justice, serious cases are precisely the kind of cases that must be prosecuted promptly with the strongest evidence. Also, the seriousness of an offence does not sit well with the notion of reasonable time. There is no evident logical link between the seriousness of a charge and the duration of proceedings.

[38]        Still on the subject of the seriousness of the offence, the Court takes note that stay of proceedings orders have been rendered in murder and manslaughter cases since the release of Jordan (R. v. Regan, 2016 ABQB 561; R. v. Picard, 2016 ONSC 7061; R. v. Manasseri, 2016 ONCA 703).

[39]        Further, the Crown did little to mitigate the lengthy institutional delay and to fulfill its duty to bring the accused to trial within a reasonable delay (R. v. Vassell, [2016] 1 SCR 625, par. 7). On the contrary, the Crown made questionable procedural choices that contributed to the delay when it initially charged the accused with second degree murder and later attempted in vain, based on weak evidence, to have him committed on first degree murder by the preliminary hearing judge (R. v. Manasseri, 2016 ONCA 703, par. 367). This is not to point the finger at anybody, but a better cost-benefit analysis in prosecution decisions making would have better served the justice system (R. v. Rodgerson, [2015] 2 SCR 760, par. 45-46).

[40]        It appears from the record that most of the delay in the present case was caused by the chronic institutional delay problem that have plagued the criminal justice system in the district of Montreal, for the past several years. The Court must account for this reality. The transitional exceptional circumstance criteria established in Jordan provides for some degree of tolerance for institutional delay in cases that were already in the system (Jordan, par. 94-98).

[41]        Nevertheless, transitional exceptional circumstances cannot be invoked to excuse every institutional delay in every case. Here, the delay is too long and it is unjustified. Again, the delay vastly exceeds the presumptive ceiling of 30 months. The institutional delay also greatly surpasses the Morin guidelines. Reliance on previous law cannot justify the nearly five years it took to bring the accused to trial. The accused awaited trial in custody for an unreasonable amount of time while being presumed innocent of the charge against him. The case is not complex. The charge is very serious but this factor cannot alone justify the delay. The Crown failed to be proactive and even contributed to the delay.

[42]        The accused’s right to a trial within a reasonable time has been violated.

FOR THESE REASONS, THE COURT:

[43]        GRANTS the application;

[44]        ORDERS a stay of proceedings.

 

 

__________________________________

ALEXANDRE BOUCHER, J.S.C.

 

 

Me Catherine Perreault and Me Richard Audet

Directeur des poursuites criminelles et pénales

Attorney for the prosecution

 

Me Joseph La Leggia and Me Xavier Pringle
Morneau L'Écuyer La Leggia & Associés

Attorney for the accused

 

 

Date of hearing:

April 3, 2017.

 



[1]     Transcript of a judgment rendered orally on April 6, 2017. The Court revised the reasons to improve their presentation and comprehension (Kellogg's Company of Canada v. P.G. du Québec [1978] (CAQ) 258, 259-260).

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