R. v. Sivanandamoorthy, 2010 ONCJ 625

Citation: R. v. Sivanandamoorthy , 2010 ONCJ 625 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) D. Tsagaris ) for the Crown ) — AND — ) ) NIROSHAN SIVANANDAMOORTHY ) P. Connelly for the Applicant ) ) ) ) ) ) lipson J.: RULING ON

SECTION 11(

b) CHARTER APPLICATION [ 1 ] The applicant, Niroshan Sivanandamoorthy, is charged with care or control over 80 mgs. He applies for a stay of proceedings pursuant to section 24(1) of the Charter on the basis that his

section 11(

b) right to be tried within a reasonable time has been infringed.

Summary of the case history [ 2 ] The applicant was arrested on June 25, 2009 for the offence before the court. The information was sworn on July 27, 2009. His first appearance was on August 13, 2009. Some disclosure was available then and further disclosure was provided at subsequent appearances on September 10 and 18 respectively. An in-court judicial pre-trial was held on September 22, 2009 and a trial date of June 16, 2010 was set. The trial did not proceed because an accredited Tamil-speaking interpreter was not available.

A second trial date of August 13, 2010 was scheduled but could not go ahead because of the applicant’s illness. The parties set a third trial date of November 4, 2010. The trial did not proceed on that day because the trial judge found that the conditionally accredited interpreter was not properly qualified to interpret the proceedings. A fourth trial date of January 27, 2011 was set. On December 13, 2010 this Charter application was heard. Legal Principles [ 3 ]

Section 11(

b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time.

Section 11(

b) is primarily directed to the protection of the individual rights of the accused. This protection encompasses security of the person, liberty and fair trial interests. However, there is also an important societal interest protected by s. 11(

b) of the Charter , as the public has an interest in ensuring that accused persons are tried promptly and fairly on the merits. These principles are described in R. v. Morin (1992), 1992 CanLII 89 (SCC) , 71 C.C.C. (3d) 1 (S.C.C.) and in R. v. Qureshi et al. (2004), 2004 CanLII 40657 (ON CA) , 190 C.C.C. (3d) 453 (Ont. C.A.) at pp. 458-9. [ 4 ] In Morin the Supreme Court of Canada comprehensively analyzed the jurisprudence on s. 11(

b) to that date and summarized the method by which the time elapsed from the laying of the charge to the completion of the trial should be analyzed to determine whether s. 11(

b) of the Charter has been contravened. Before balancing the interests that s. 11(

b) is designed to protect, Morin mandates (at p. 13) an examination of the delay under the following categories: 1. The length of the delay; 2. Waiver of time periods; 3. The reasons for the delay, including, (

a) inherent time requirements of the case (

b) actions of the accused (

c) actions of the Crown (

d) limits on institutional resources (

e) other reasons for the delay, and 4. Prejudice

[ 5 ] While the delay is to be analyzed under these categories, the resolution of the issue does not come down to a mathematical formula. Rather, a balancing must take place in order to determine whether or not the delay is unreasonable. The nature of that balancing process was described in R. v. Kporwodu , 2005 CanLII 11389 (ON CA) , [2005] O.J. No. 1405 (C.A.), at paras. 184-197 . Reasonableness is not a precise concept, and its determination requires an assessment of the entire time period in light of the explanations for the constituent parts of the delay: Morin , at p. 13; R. v.

Allen (1997), 1996 CanLII 4011 (ON CA) , 110 C.C.C. (3d) 331 (Ont. C.A.) at p. 345, aff'd. 1997 CanLII 331 (SCC) , 1997, 119 C.C.C. (3d) 1 (S.C.C.); R. v. MacDougall (1998), 1998 CanLII 763 (SCC) , 128 C.C.C. (3d) 483 (S.C.C.); R. v. Smith (1989), 1989 CanLII 12 (SCC) , 52 C.C.C. (3d) 97 (S.C.C.) at p. 105; R. v. Pusic 1996 CanLII 8215 (ON SC) , [1996] O.J. No. 3329 (Ont. Gen. Div.). [ 6 ] The burden of proof is upon the applicant to establish on a balance of probabilities that his right to be tried within a reasonable time was violated.

Analysis [ 7 ] The total length of delay from the time the information was sworn to the January 27, 2011 trial date is approximately 18 months. The Crown concedes that this length of time warrants an inquiry. The first trial date was set two months after the information was sworn. There is no dispute that those two months should be considered as a neutral intake period. The trial had to be adjourned on August 13, 2010, the second trial date, due to the illness of the applicant.

It is agreed that the two month period of delay from August 13, 2010 to the third trial date of November 4, 2010 is attributable to the defence. The parties also agree that the nine month period between September 22, 2009 when the first trial date was set and June 16, 2010, the first trial date, is properly considered institutional delay. [ 8 ] The main areas of controversy in the application concern the characterization of the approximate two month period from the first trial date June 16, 2010 to August 13, 2010 and the 2 ¾ month delay from November 4, 2010 to the fourth trial date of January27, 2011.

There is also an issue as to whether the applicant suffered prejudice as a result of the delay in this case. [ 9 ] A brief review of what happened on the first and third trial dates is in order. [ 10 ] On the first trial date of June 16, 2010 the court adjourned the trial because the only available interpreter was conditionally, but not fully accredited. The Crown was prepared to proceed with the conditionally accredited interpreter while the defence was not.

The Crown did not seek a voir dire to determine the competency of the conditionally accredited interpreter, nor did the presiding judge of his own motion order that one be held. The trial was simply adjourned to August 13, 2010. The applicant contends the resulting two month delay resulted from actions of the Crown and limits on institutional resources. The Crown submits that this delay should be viewed as neutral. [ 11 ] On the third trial date of November 4, 2010 a proper competency inquiry was held resulting in a finding that the proposed conditionally accredited interpreter was not qualified.

The case was then adjourned to a fourth trial date of January 27, 2011. The Crown submits that the resulting period of delay from November 4, 2010 is neutral. [ 12 ]

Section 14 of the Charter guarantees the right of an accused to the assistance of an interpreter where required. The purpose of

section 14 is to ensure a fair trial. A request for an interpreter should only be refused where there is compelling evidence of an oblique motive. No such motive is alleged here. Denial of a competent interpreter affects the integrity of the fact finding process. On the other hand there is no constitutional right to an accredited interpreter. The central issue is whether the interpreter is qualified to proficiently discharge the duties of providing continuous, precise, impartial, competent and contemporaneous

interpretation: see R. v. Tran (1992), 1994 CanLII 56 (SCC) , 92C.C.C. (3d) 218 (S.C.C.); R. v Ryback (2008), 2008 ONCA 354 (CanLII) , 233 C.C.C. (3d) 58 (Ont. C.A.); leave to appeal to S.C.C. denied at [2008]S.C.C.A. No 311.

Generally, the preferred practice is that the interpreter be fully accredited by the Ministry of the Attorney General. [ 13 ] It is the responsibility of the Ministry of the Attorney General to ensure that an appropriate interpreter is available. [ 14 ] In her ruling of November 4, 2010 regarding the competence of the proposed interpreter offered for the trial, my colleague Bloomenfeld J., noted that this case was “a somewhat complicated proceeding involving a highly technical charge and a Charter application.

She observed that “there would be some complex arguments and potential evidence that the accused would need to understand.” The Court Services Division of the Ministry of the Attorney General generally assigns conditionally accredited interpreters to bail hearings, guilty pleas, set date appearances, interpreting for a witness who is not the accused or a party, peace bond applications and diversion. That does not mean that a conditionally accredited interpreter cannot be qualified to interpret for an accused at trial.

For a trial proceeding, the court has a responsibility to conduct an investigative voir dire into the competency of the proposed interpreter. As noted earlier, on June 16, 2010 no party requested the requisite voir dire nor did the court hold such an inquiry. The appropriate inquiry took place on the third trial date of November 4, 2010 before Bloomenfeld J., who concluded that the proposed interpreter was not qualified. [ 15 ] An accused can, of course, request an accredited interpreter for assistance at his or her trial.

Once an accused has made this request, he is not required to insist on a competency inquiry when only a conditionally accredited interpreter is offered. Nor, in my view, can an accused’s failure to request an inquiry amount to a waiver of his

section 11(

b) right in as the Crown contends, unless there is clear evidence that by doing so, he is simply attempting to delay the case. Because an accused seeks an accredited interpreter for his trial does not mean that he wants to delay his trial when an accredited interpreter is not available. It is the responsibility of the state to provide a qualified and competent interpreter. It seems to me that if a proposed conditionally accredited interpreter’s qualifications are in issue, it is for the Crown, not the accused, to move for an inquiry.

The court also has a responsibility to conduct an inquiry on its own motion, if necessary. I am satisfied that the failure of the Crown to move for an inquiry is one of the reasons leading to the delay that resulted here. The main reason for the delay is systemic.

As will be discussed later in these reasons, there is a severe shortage of accredited Tamil- speaking interpreters in this jurisdiction. [ 16 ] To be fair to the parties and the court at the June 16, 2010 appearance, the procedure and everyday practice relating to the competency of interpreters in the criminal courts were less clear then than they are today. At that time Court Services Division was introducing new tests for all court interpreters and developing a new accreditation model for its staff to

schedule court interpreters.

Testing of interpreters in Toronto was being completed in the summer of 2009, when the interpreter issue first arose. While the Ministry has clarified and greatly improved its accreditation program since then, justice officials, including some Crowns, defence counsel and judges, remain uncertain as to whether a conditionally accredited interpreter is entitled to participate in a trial. Now the requisite competency inquiry for conditionally accredited interpreters is routinely conducted in trials in this courthouse.

Judges often find conditionally accredited interpreters qualified to participate in trials. [ 17 ] As for the third trial date, when the Ministry failed to provide a qualified Tamil-speaking interpreter, the resulting delay was, in my view, clearly institutional. There is no controversy that Scarborough has a large Tamil-speaking community. The GTA has one of the largest, if not the largest, Tamil-speaking populations outside of Sri Lanka. Many cases are heard daily in this courthouse involving Tamil-speaking witnesses and accused persons.

The Ministry of the Attorney General has a responsibility to provide qualified Tamil-speaking interpreters for those who regularly require their assistance. At the competency hearing on November 4, 2010, the Scarborough courthouse interpreter coordinator advised the court that there is only one fully accredited interpreter for the Tamil language for the entire province of Ontario and at the time that individual happened to be in hospital. In addition there were only two conditionally accredited interpreters.

Crown counsel correctly points out that there is no evidence to explain why interpreter assistance in the Tamil language in this courthouse is so limited. Even if there are good reasons for this shortage of competent Tamil-speaking interpreters, the Ministry of the Attorney General is not relieved of its responsibility to provide them.

Whether one characterizes the reason for the delay as a result of the interpreter issue as “limits on institutional resources” or “actions of the Crown”, the delay must count against the prosecution in the context of the Morin analysis. [ 18 ] The present case is not similar to that in R. v. Tamang [1998] N.S.J. No. 289 (N.S.C.A.) , where delay resulted when the court, despite great effort, was unable to provide a Nepalese interpreter for an accused at his trial in Halifax. The Nova Scotia Court of Appeal found this to be novel situation which could not be characterized as an institutional resource problem.

There is nothing novel or unusual about the daily need for Tamil-speaking interpreters in the Scarborough trial courts. There is no doubt that the failure of the state to provide properly qualified Tamil-speaking interpreters in this courthouse is a systemic problem that has yet to be properly addressed. The Crown submitted that the period of delay should be considered neutral because there is no evidence of any unwillingness on the part of the government to commit sufficient resources to prevent unreasonable delay. It seems to me that such an argument should be supported by evidence.

For example, in Tamang there was information before the trial judge that revealed substantial efforts by justice officials to arrange

interpretation services in that case. I cannot agree with the Crown that this court should simply accept the status quo regarding the dearth of qualified Tamil-speaking interpreters in Scarborough and accordingly extend the length of acceptable delay to accommodate the current reality. [ 19 ] The applicant led no evidence of specific prejudice. However, it is also the case that the applicant and the counsel he had retained were ready but unable to proceed on two separate trial dates because of the unavailability of qualified interpreter assistance.

There is also inferred prejudice from this 13 ¾ month delay that was not contradicted by Crown evidence. [ 20 ] The operative delay in this case falls almost four months outside the upper range suggested in the Morin guidelines. As observed earlier in these reasons, the delay is largely institutional and attributable to the inability of the justice system to provide the applicant on two separate trial dates with proper interpreter assistance, a right that is guaranteed by

section 14 of the Charter . As Watt J. A. observed in Ryback at para. 67 : The guarantee in s. 14 serves several important purposes. It ensures that a person charged with a crime hears the case against him or her, and is furnished with a full opportunity to answer it. The right touches on the very integrity of the administration of justice in the country and is intimately related to our basic notions of justice, including the appearance of fairness. Likewise, the right displays an affinity for our claim of multi-culturalism, partially demonstrated by s. 27 of the Charter . [ 21 ] In

summary, the delay in this case obviously interfered with the applicant’s Charter right to be tried within a reasonable time. To compound the problem, much of the delay resulted from limited institutional resources that adversely impacted another important Charter right- the right to competent interpreter assistance [ 22 ] In Quereshi at paras.8-9, Laskin J.A, provided an important overview of the legal framework for the s.11(

b) analysis, as follows:

Section 11(

b) aims to protect both the individual rights of the accused and the rights of society. It protects three individual rights: it protects the accused’s right to security of the person by minimizing the anxiety and stigma of criminal proceedings; it protects the accused’s right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects the accused’s right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available.

Section 11(

b) also seeks to protect two societal rights. First, it protects the public’s interest in having our laws enforced by having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(

b) seeks to protect the public’s interest in having those accused of crime dealt with fairly. [ 23 ] In assessing and balancing these individual and societal goals, I am satisfied that the applicant’s

section 11(

b) right to be tried within a reasonable time was infringed. Once a breach is established, the only remedy available to the court is to stay the proceedings. Accordingly, the charge of care or control over 80 mgs is stayed pursuant to section 24(1) of the Charter . [ 24 ] I would ask Crown counsel to consider forwarding a copy of this ruling to the head of the Court Services Division of the Ministry of the Attorney General. Released: December 17, 2010 Justice T. Lipson