R. v. Sinnathamby, 2011 ONCJ 212

COURT FILE No.: Toronto DATE: 2011·03·22 Citation: R. v. Sinnathamby , 2011 ONCJ 212 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — SACHCHITHANANTHAN SINNATHAMBY Before Justice H. Borenstein Heard on March 8 and 9, 2011 Reasons for Judgment released on April 19, 2011 Ms. McDonald ............................................................................................................ for the Crown Mr. Sederoff .................................................... for the accused Mr. Sachchitananthan Sinnathamby BORENSTEIN J.: Judgment [ 1 ] Mr.

Sinnathamby is charged with impaired driving and driving with a blood alcohol level over the legal limit. He applies for a stay of proceedings alleging a violation of

section 11(

b) of the Charter . The Crown submits that Mr. Sinnathamby’s approach to this case demonstrates that

section 11(

b) was not violated and that Mr. Sinnathamby did not suffer any prejudice caused by the delay in his case reaching trial. [ 2 ] The framework for analysis is well known. The court first looks at the length of time it has taken to bring a case to trial. If that period is long enough to potentially cause concern, the court must examine the reasons for the delay, any prejudice caused by the delay as well as whether there was any waiver or other action by the accused that contributed to the delay or is otherwise relevant. All of those factors must be assessed in light of the interests

section 11(

b) is meant to protect and the societal interest that trials be heard on their merits. If the delay is unreasonable, a stay of proceedings must be granted. The Supreme Court has held that a delay of 8 to 10 months for a case to reach trial in the Provincial Courts would not be unreasonable. Those are important guidelines, but they are guidelines not fixed limitation periods. [ 3 ] By way of overview, the information charging Mr. Sinnathamby was sworn on December 3, 2009. His trial was initially scheduled to be heard on January 17 and 18, 2011. On January 17 th , his trial was adjourned at the defence request to enable Mr. Sinnathamby to perfect his 11(

b) application. The new trial date was scheduled for March 8, 2011. [ 4 ] The length of time between the swearing of the information on December 3, 2009 and the first scheduled trial date of January 17, 2011, 13 ½ months, is long enough to warrant an inquiry. [ 5 ] It is the practice in Scarborough that

section 11(

b) applications be heard at least three months before the scheduled trial. The rationale for this practice includes saving court time, lessening the prejudice to an accused and lessening the inconvenience to witnesses should the application is granted. As is clear, there are other benefits to this practice as well such as reducing the chances that trials themselves will have to be adjourned due to a failure to properly perfect an 11(

b) application. The defence did not comply with this practice in this case and that has resulted in further delays which the defence argues ought to attributable to the Crown or to institutional delay. The Crown submits that the defence approach reveals that Mr. Sinnathamby was not concerned about delay in this case. Chronology [ 6 ] I will review the chronology in more detail. [ 7 ] On November 26, 2009, Mr. Sinnathamby was arrested and was released on a promise to appear. He was subject to the automatic three month administrative licence suspension (“ADLS”). [ 8 ] The information charging him was sworn on December 3, 2009.

[ 9 ] Mr. Sinnathamby’s first court appearance was on January 8, 2010. He had retained counsel prior to his first court appearance. [ 10 ] On January 8, 2010, his counsel attended court and filed a designation and received disclosure. [ 11 ] The matter was adjourned for one month to February 5, 2010 to enable counsel to a review disclosure and conduct a resolution meeting with the Crown. [ 12 ] On the February 5 th court appearance, the matter began in a court presided over by a Justice of the Peace. In Scarborough, judicial pre-trials are required on every impaired and over 80 case that proceeds to trial.

Those pre-trials can be held on any date the matter is in court. They need not be scheduled in advance. [ 13 ] On February 5, 2010, defence counsel asked that the matter be traversed from the Justice of the Peace’s courtroom to a courtroom presided over by a Judge so that an in court judicial pre-trial could be held. The matter was traversed and the judicial pre-trial was held that same day.

At that judicial pre-trial, defence counsel advised the Court that there were “many” Charter motions to be argued in this case and that two days were required for trial. [ 14 ] The earliest trial dates the court could provide were January 17 and 18, 2011, approximately 11 ½ months after the parties were ready to set a date for trial . Those two dates were set for trial. Counsel was advised at the judicial pre-trial that, if Mr. Sinnathamby intended to bring an 11(

b) application, the practice in Scarborough was to bring those applications three months in advance. September 14, 2010 was set as a trial confirmation date. [ 15 ] Twelve days after setting the trial date, defence counsel ordered the transcripts of the January 8 and February 5 court appearances for the purposes of bringing an 11(

b) application. Obtaining those transcripts is an issue in this application. [ 16 ] At the September 14 th confirmation appearance, nothing was said about an 11(

b) application, or about transcripts being outstanding or about any unusual prejudice that Mr. Sinnathamby was suffering pending trial. The parties indicated they were ready to proceed to trial on January 17 and 18, 2011. [ 17 ] One week prior to the January 17 th trial, defence counsel served the Crown with an adjournment application returnable on the trial date. The reason for the adjournment request was that counsel had intended to bring an 11(

b) application but that the transcripts were not yet available. The Crown brought forward the adjournment application to Friday, January 14 th , so that it could be heard prior to the Monday trial date. [ 18 ] That adjournment application was heard before Justice Hackett. Defence counsel indicated that the transcripts of the February 5 set date were not yet available and therefore he could not argue the 11(

b) application. Justice Hackett was critical of the fact that the difficulty with the transcripts and the adjournment application were being raised on the Friday before the Monday trial. Counsel advised Justice Hackett that he had made diligent efforts to obtain the transcript so that his client could assert his 11(

b) rights. [ 19 ] That was not exactly the case. According to an affidavit filed by defence counsel’s assistant in support of the adjournment application, the transcripts were requested on February 17, 2010 and thereafter, no follow up was done from that time until January 14 when the transcripts were re-ordered a second time on the day the adjournment application was heard. [ 20 ] In his submissions before me on the 11(

b) application, defence counsel advised that he re-ordered the transcripts a second time on January 7, not on January 14. The transcripts, which are now available and are certified by the court reporter, state that they were ordered on January 17, 2011. [ 21 ] I suspect what likely occurred was that the original transcript request from February 2010 made its way to the reporter in the Justice of the Peace’s court and not the court in which the judicial pre-trial and set date occurred. This would have been discovered if there had been any follow-up by counsel and if the 11(

b) application was brought three months before the trial. [ 22 ] Not following up on a transcript until January 7 or 14, 2011 is not at all diligent. [ 23 ] Returning to the adjournment application before Justice Hackett, the Crown advised Justice Hackett that its necessary police officer was unavailable, for one or possibly both of the scheduled trial days and the Crown would be unable to proceed on the Over 80 charge and may have difficulty with the impaired charge. Justice Hackett inquired whether the officer’s unavailability was due to a vacation or due to an unforeseen situation.

The Crown was unable to explain the reason for the officer’s unavailability. In light of the confusion, Justice Hackett adjourned the adjournment application to the Monday to be heard before the Trial Judge. [ 24 ] The adjournment application was heard on January 17 th before Justice Finnestad who granted the application to enable counsel to pursue the 11(

b) application. A transcript of the proceeding before Finnestad, J. was not presented to the court. A new trial date was set for March 8 and 9 th and the 11(

b) application was scheduled for February 28, 2011. [ 25 ] The transcript of the January 17 adjournment application was not ordered for a month until February 15. It was not ready on the February 28 th date nor by March 8. That transcript is estimated to be 50 pages in length. Both counsel advised that the Crown had indicated that it was prepared to proceed with the impaired charge alone but the defence obtained the adjournment in order to perfect the 11(

b) application. [ 26 ] That is the chronology of this case. Effect of the delay upon Mr. Sinnathamby [ 27 ] Mr. Sinnathamby swore an affidavit and testified on this application.

[ 28 ] He is 51 years old, married and has three children. He has no criminal record. He swore that he has been anxious since the charges were laid and that his anxiety has increased throughout the year. He has had many sleepless nights since he was charged and he believes that the stress over the last year has been detrimental to his health. His wife does not work nor drive.

It has been very stressful and difficult for he and his family. [ 29 ] He was working as a tow truck driver for Co-Op Towing when he was charged. [ 30 ] Upon being charged, he was subject to the three-month ADLS and was therefore unable to work. [ 31 ] In his affidavit, he swore that he lost his job as a result of these charges and that he was unable to obtain new employment because any potential employer would require a copy of his driving “abstract” from the Ministry which would show that he had outstanding impaired driving charges.

He believed that no employer would hire him under these circumstances as they would be unable to obtain insurance for him at a reasonable rate. [ 32 ] Mr. Sinnathamby was cross examined on his affidavit. He testified that, as a result of being charged, he could not continue to work as a tow truck driver because his insurance premiums rose. In chief, he testified that when he told his employer, they told him they had no work for him any longer.

In chief, he testified that he went to two or three other potential employers but they too would not hire him until he dealt with his criminal charges. [ 33 ] In cross-examination, he testified that he was never fired from Co-op. He stopped going to work the day he was charged because of the ADLS. He testified that he did not tell them that he was charged. He was then asked how he knew he could not go back to work for Co-Op once the three month ADLS was lifted. He replied that he had already decided not to return to Co-op as it was located too far from his home.

He was planning on getting another job closer to home. [ 34 ] Mr. Sinnathamby was then asked if he actually applied for other jobs once the ADLS expired. He replied that he went to one potential employer but when he produced the driving abstract, he was told to come back once he had dealt with his charges and they would see if they had any work for him. He did not approach any other employer as he assumed all employers would need to see the driving abstract and he would face the same result. He did not look for any other type of work.

He has been a tow truck driver for 29 years. [ 35 ] There is one further matter. Mr. Sinnathamby testified in late December 2010, he suffered a medical incident, possibly a seizure. As a result, his doctor sent a letter to the Ministry of Transportation which resulted in his driver’s licence being suspended indefinitely pending clearance from his doctor. He has been on medication since December 2010 and hopes to get a doctor’s letter clearing him to drive in the next two or three months.

CROWN AND DEFENCE POSITIONS Defence submissions [ 36 ] The defence submits that the delay between the February 5 set date and the first scheduled trial date of January 17 is long enough to warrant a stay of proceedings given the prejudice suffered by Mr. Sinnathamby. [ 37 ] The defence submits that the Crown and the court ought to have done more to find an earlier trial date given the prejudice Mr. Sinnathamby suffered as a result of being unable to work. [ 38 ] However, the defence said nothing about Mr. Sinnathamby being unable to work at any time in these proceedings.

It said nothing at the set date, or at the September 14 confirmation date and defence counsel never wrote to the Crown. When asked why he never advised the Crown or the Court that his client was unable to work, counsel replied that requiring the defence to do so would be imposing too onerous an obligation on the defence in the context of the Crown’s obligation to bring Mr. Sinnathamby to trial within a reasonable time. [ 39 ] The defence further submits that the Crown ought to bear some responsibility for the delay between January 17 and the new trial date of March 8.

The defence submits that the Crown, upon seeing that the transcripts had not been ordered, ought to have ordered them themselves to minimize the delay. Crown submissions [ 40 ] The Crown submits that both the defence and the Crown proceeded diligently up to the February 5 th set date. Thereafter, the defence lost all momentum in this case. The Crown submits that the actions of the defence demonstrates a desire for a stay of proceedings and not a desire for a trial within a reasonable time.

Not only did the defence not bring this application three months in advance but proceeded in a manner which delayed the trial. Further, the defence said nothing about the unique prejudice at any appearance. [ 41 ] With respect to prejudice, the Crown submits that Mr. Sinnathamby quit his job and simply approached one employer in the entire year since his arrest. He never asked Co-Op whether they would take him back to work after the three month ADLS expired. The Crown submits that it is possible Co-op may have felt some loyalty to Mr. Sinnathamby and would have taken him back. Mr.

Sinnathamby did not even try to approach Co-op because he wanted to find a job closer to home. The Crown submits that the defence actions demonstrates that he was not suffering prejudice. Finally, the Crown submits that Mr. Sinnathamby was unable to drive in any

event since December 30 th . ANALYSIS AND FINDINGS [ 42 ] I view the delay in this case as follows: • Dec 3, 2009 to February 5 th – neutral intake (2 months) • Feb 5 th set date to January 17 th scheduled trial date – institutional (11 ½ months) • January 17 th to March 8 – caused by the defence (2 months) [ 43 ] I reject the defence characterization of the delay after January 17 th as either institutional delay or delay attributable to the Crown. That delay is entirely the fault of the defence.

The defence submission that it is too onerous to require the defence to advise the Court or the Crown of any unusual prejudice allegedly caused by the delay is meritless. It is not an onerous obligation. [ 44 ] I also reject the argument that the Crown bears any responsibility for the delay subsequent to January 17 th as a result of their failure to order the transcripts. Prior to the filing of the January 14 adjournment motion, there was no indication from the defence that they were bringing an 11(

b) application. Had the defence acted with any diligence, with respect to ordering the transcripts or bringing the 11(

b) application three months prior to trial, the issue of the transcripts would have been discovered and dealt with. [ 45 ] All of that delay subsequent to January 17 is attributable to the defence. [ 46 ] Accordingly, the operative delay is 11 ½ months, which is beyond the Morin guidelines suggested by the Supreme Court of Canada. [ 47 ] The 8-10 month period referred to in Morin and other cases was never intended to act as a judicially created limitation period beyond which charges could not proceed. As the Supreme Court recently stated in R. v.

Godin , [2009] the mere fact that guidelines have been exceeded in a particular case does not, on its own, make the delay unreasonable. It is a guideline. [ 48 ] What constitutes a reasonable period of time is not a fixed period. It may be expanded or contracted depending on all the circumstances bearing in mind the interests

section 11(

b) seeks to protect. Waiver, conduct short of waiver and the presence or absence of prejudice, must be considered in assessing whether the delay in bringing a matter to trial has resulted in a violation of the right be tried within a reasonable time. [ 49 ] The right to a trial within a reasonable time seeks to minimize the prejudice to an accused that can be caused by delays in a criminal case reaching trial.

That prejudice can relate to the ability to defend oneself or have a fair trial (fair trial interests), it may relate to continued restrictions on one’s liberty pending a trial (liberty interests) or it could relate to prolonged stress and anxiety while awaiting trial (security of the person). Prejudice can be inferred or specifically proven. [ 50 ] In this case, there is no prejudice to Mr. Sinnathamby’s ability to make full answer and defence nor to his liberty interests.

It is prejudice in the form of stress and anxiety that is alleged. [ 51 ] It is well known that, for many people charged with a criminal offence, they suffer stress and anxiety as a result of the uncertainty associated with outstanding criminal charges. In a very real sense, they put their lives and future plans on hold. While that stress and anxiety is caused by the fact that they have been charged, the longer the delay in reaching trial, the longer they suffer. [ 52 ] That is obviously not true for everyone.

Some people, by their words or conduct, demonstrate that they are not interested in having their case heard quickly. For those people, it can be inferred that they are not suffering the prejudice associated with the delay in their case reaching trial. [ 53 ] Where a court concludes that there is an absence of prejudice to any of the interests

section 11(

b) is meant to protect, that largely undermines the basis of the right. The absence of prejudice can be inferred from conduct. [ 54 ] The Crown submits that Mr. Sinnathamby has not proved that he has been prejudiced by the delay in this case and that his conduct demonstrates otherwise. [ 55 ] It is clear that Mr. Sinnathamby proceeded with considerable diligence up to the set date thereby demonstrating a desire to be tried as quickly as possible. However, the manner in which he has pursued this 11(

b) application raises the question whether he was concerned about the delay in this case or was suffering prejudice as he now claims. [ 56 ] Ultimately, I do not find that the manner in which the 11(

b) was brought demonstrates a desire on Mr. Sinnathamby’s part to delay the trial or that it reveals an absence of prejudice. [ 57 ] There is much to criticize in the manner in which this 11(

b) has proceeded, from the failure to follow up on the

transcripts, to the failure to advise the court or the Crown about alleged unusual prejudice, to the failure to bring the 11(

b) application three months in advance, to the failure to bring the adjournment application in advance of the trial, and finally, to the failure to order the January 17 transcripts for a month. However, those failures ultimately only added approximately two months to these proceedings and that period will not be considered as part of the operative delay in this case. [ 58 ] Everything Mr. Sinnathamby did at the front end of this case, with the notable exception of this 11(

b) application, has demonstrated a desire to proceed to trial quickly. Any criticism relates to the manner in which the 11(

b) was brought and nothing more. It reflects a poor approach to bringing this application and not a desire to delay the trial. [ 59 ] I disagree with the Crown’s submission that Mr. Sinnathamby’s decision to seek an adjournment in January, rather than abandoning the 11(

b) application and proceeding to trial at that time, demonstrates that he was not interested in a trial within reasonable time. [ 60 ] Mr. Sinnathamby maintains that his right to be tried within a reasonable time has been violated. His failure to follow up with the transcripts caused him to have to bring an application for an adjournment. That adjournment application was contested but he succeeded and obtained an adjournment to enable him to bring this application. It would be unfair to now hold that his obtaining an adjournment to argue the 11(

b) demonstrates a lack of interest in a trial within a reasonable time. To so find would be to convert his assertion of his rights and his successful adjournment application into a weapon to be used against him. [ 61 ] Therefore, I am considering the period up to January 17 th , or 11 ½ months as the operative period of delay, untainted by the way this 11(

b) application has been brought. [ 62 ] Eleven and a half months of operative delay is outside the upper end of the guidelines. The only reason for a delay was the inability of the court to provide a two day trial any earlier. [ 63 ] I accept Mr. Sinnathamby’s evidence concerning the stress and anxiety he has suffered. While his evidence in this regard is similar to the prejudice that is often inferred with delay, his testimony reinforces that he has indeed suffered that prejudice. I did not find that he was embellishing his evidence. [ 64 ] As for his inability to work, I place little weight that claim.

While Mr. Sinnathamby could not work as a tow truck operator for the first three months due to the ADLS, the evidence is much less clear that he could not have worked as a tow truck operator thereafter. He did not approach Co-op and I am left to speculate as to what they would have said had he done so. [ 65 ] I accept that the one potential employer he approached told him to come back once the charges were resolved and I accept that that caused Mr. Sinnathamby to not approach other tow truck companies.

There would likely be little point approaching other prospective employers only to have to show them the driving abstract which would likely have resulted in his not getting hired. However, given that he was not working, and he claims to have suffered prejudice as a result, his failure to approach Co-op undermines his claim. So does his failure to seek any other type or work. [ 66 ] His stress and anxiety while awaiting trial must be balanced with the societal interest in having Mr. Sinnathamby’s guilt or innocence determined in a trial heard on the merits.

There is a strong societal interest that those who are alleged to have committed crimes have their guilt or innocence determined in court. Society also has an interest that those charged, and who are presumed innocent, are prosecuted within a reasonable time as is their constitutional right. It is in society’s interest to minimize the prejudice accused persons face while awaiting their criminal trial. A trial within a reasonable time benefits the accused and the public by ensuring that

summary trials are heard quickly, when witnesses’ memories are fresh. [ 67 ] In 2005, the Ontario Court of Appeal in R v Rego upheld a stay of proceedings in a case where the delay was just over 12 months of operative delay stating: “This twelve months is well outside the eight to nine month guideline for a straightforward case in Peel Region Ontario Court of Justice”. [ 68 ] Counsel have presented cases in this jurisdiction and elsewhere in Ontario where delays of a roughly similar length of time have resulted in both stays and refusals to stay proceedings. Again, this shows that the determination of whether

section 11(

b) has been violated is not a mere mathematical determination. It is the result of balancing the relevant factors to determine whether the right to be tried within a reasonable time has been violated. [ 69 ] Balancing these factors, particularly, the fact that Mr. Sinnathamby retained counsel prior to his first appearance and, by the second appearance, reviewed it, conducted a Crown and a judicial pre-trial and set the earliest possible trial date, coupled with the fact he has suffered from stress and anxiety over the last year, the 11 ½ month delay in took to provide Mr.

Sinnathamby with his two day trial violated his right to be tried within a reasonable time. The charges will be stayed. Released: April 19, 2011 Signed: “Justice H. Borenstein”