R. v. Ponnuthurai, 2014 ONCJ 511

Citation: R. v. Ponnuthurai , 2014 ONCJ 511 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — ROBERTTHURAI PONNUTHURAI Before Justice K.L. Mulligan Heard on July 11 2014 Reasons for Judgment released on August 21, 2014 David Steinberg ......................................................................................................... for the Crown Barry Fox ....................................................................... for the accused Robertthurai Ponnuthurai MULLIGAN J.: [ 1 ] On January 7, 2012, just after 10:00 a.m., Mr.

Ponnuthurai’s vehicle was pulled over by police after he allegedly failed to stop for a red light at the intersection of McCowan Road and Middlefield Avenue in Scarborough. Mr. Ponnuthurai was the driver and sole occupant of the motor vehicle. It is alleged that during the traffic stop Mr. Ponnuthurai falsely identified himself to the officer. The officer also came to suspect that Mr. Ponnuthurai had alcohol in his body. As a result of forming that suspicion the officer made a roadside demand. Mr.

Ponnuthurai registered a “Fail” on the approved screening device and, as a result, he was charged with operating a motor vehicle while over the legal blood alcohol limit. A formal breath demand was made and Mr. Ponnuthurai was transported to the police division. It is alleged that once at the police station, Mr. Ponnuthurai refused to comply with the officer’s formal breath demand. [ 2 ] Mr. Ponnuthurai was charged with refusing to provide a breath sample and obstructing police as well as two Highway Traffic Act infractions. All of the interaction between Mr.

Ponnuthurai and the arresting officer at the roadside was captured by the officer’s in-car camera system which began recording approximately one minute prior to Mr. Ponnuthurai’s vehicle stop. The digital recording continued up to the point in time when Mr. Ponnuthurai and the officer pulled into the sally port of the police station where the formal breath samples were to be seized. The in-car video is exactly one hour in length. I am advised that there is also a video recording of the interaction between Mr.

Ponnuthurai and the Breath Technician while at the police station. [ 3 ] The Information containing the two criminal charges was sworn on January 16, 2012. The estimated one day trial commenced before me on June 20, 2013, continued on December 23, 2013, and is set to further continue on September 3, 2014. The Crown has still not finished its case. [ 4 ] Both parties agree that the passage of approximately 2 years and 7 ½ months from the date the Information was sworn to the date set for the continuation and expected completion of Mr.

Ponnuthurai’s trial certainly warrants an examination of the reasons for the delay in order to determine whether Mr. Ponnuthurai’s right to a trial without unreasonable delay has been breached as claimed. HISTORY OF THE CASE January 7, 2012 Date of alleged offences January 16, 2012 Criminal Information sworn February 23, 2012 First court appearance-disclosure provided, applicant appears with counsel who is not yet retained March 12, 2012 Counsel attends 2 nd appearance and files a designation, matter adjourned to allow defence to review disclosure

March 26, 2012 Counsel attends 3 rd court appearance as designate, crown pretrial held, matter traversed to the administrative court to conduct a mandatory in-court judicial pretrial after which a 1 day trial time estimate is made - trial date set for October 29, 2012- Defence instructed by the Court to put its oral request for further items of disclosure into written form for the Crown to address. September 25, 2012 Defence makes written request for numerous items of further disclosure September 27, 2012 Defence serves and files s.8 and s. 10(

b) Charter application October 4, 2012 Crown provides written response to defence’s letter of Sept 25 12, outlining its position with respect to the disclosure of each of the various items sought by defence and seeking clarification or definition of what is meant by its request for “the service and maintenance records of accessory equipment/devices to the approved screening device and the breathalyser machine”- Crown advises that given the timing of the written request, it cannot guarantee provision of the items the Crown agrees are within its disclosure obligations prior to or on the trial date and informs that it will oppose any defence request for adjournment.

October 9, 2012 Defence reiterates its written request for all items of disclosure outlined in its original written request and provides Crown with opinion as to why each is relevant to the case- Defence does not provide a list of or elaborate on the meaning of “accessory equipment/devices” -Defence also requests a copy of the police cell area video October 12, 2012 Crown’s response to Defence’s letter of October 9 2012, reiterating what it will attempt to gather and provide prior to the trial date and what it feels is irrelevant.

Crown advises that all relevant videotaped disclosure has been previously disclosed October 23, 2012 Defence serves and files s. 7 Charter application supported by a toxicologist report dated September 9, 2012, -Defence seeking to compel disclosure of various maintenance and calibration records relating to the approved screening device and “breathalyser”-motion scheduled to be heard October 25, 2012 October 25, 2012 Defence motion for further disclosure-motion commenced but adjourned as Crown intending to cross examine toxicologist but toxicologist not present in court-matter adjourned to October 30 2012, to allow Crown to obtain and disclose those items it had agreed to disclose and to allow Defence to seek further instructions from the Applicant and to secure the toxicologist’s available dates for Motion continuation-October 29, 2012, trial date vacated by the Court October 26, 2012 Letter from Crown to Defence confirming which items of further disclosure it has agreed to provide and what items it deems irrelevant.

Crown again advises that it is unclear as to what Defence is referring to in its request for records pertaining to associated or “accessory devices” to the approved screening device and breathalyser October 30, 2012 New trial date set for June 24, 2013-disclosure motion set to continue on April 25, 2013 January 15, 2013 Crown application to adjourn June 24, 2013, trial date due to unavailability of the arresting officer-Crown application remanded to January 18, 2013, to allow Crown to find an earlier date than that originally scheduled for trial.

Letter from Crown to defence outlining various available motion and trial date combinations as provided by trail coordinator- available trial dates include April 25, May 6, or May 13, 2013- available motion dates include February 21, 22, 25, and March 4, 6, 13, 18, 2013. January 16, 2013 Crown provides certain items of further disclosure

January 18, 2013 Crown motion to adjourn trial date granted-trial date of June 24, 2013, vacated - new trial date set for June 20, 2013-disclosure motion date remains as April 25, 2013 April 10, 2013 Letter from defence again requesting disclosure of “annual and periodic maintenance and calibration records for the roadside and breathalyser machine and calibration, service and maintenance records of the accessory equipment used to service both the roadside and breathalyser machine”- accessory equipment defined therein as “the simulator and the simulator thermometer” April 25, 2013 Defence motion for further disclosure-motion abandoned June 20, 2013 Trial commences- late start as Tamil interpreter not present- interpreter arrives at 11:38 a.m. and Applicant arraigned-Crown’s first witness called at 11:42 a.m.-witness’s testimony in chief not completed- Applicant remanded to December 23, 2013, for continuation of Crown’s case-1 further day set aside October 1, 2013 Defence serves and files 11(

b) Charter application seeking a stay of the charges due to unreasonable delay October 31, 2013 Defence 11(

b) Charter application– application dismissed December 23, 2103 Trial continuation-defence advises that it is expanding its s. 8 Charter motion to include submission that arresting officer did not have grounds to make the roadside demand-at Crown’s request matter held down from 10:14 a.m. to 11:48 a.m. to allow for new Crown to review transcript of first day’s evidence in order to “come up to speed” as Crown who started the trial has been caught up in another trial that has gone longer than estimated-original Crown arrives at 11:48 a.m. and matter recommences-Crown finishes with its first witness at 12 noon –cross examination commences at 12:01 p.m. and continues until lunch-at the request of the Crown the Court recesses for lunch from 12:45 p.m.-2:30 p.m. to allow Crown to attend to an “interview”-cross examination resumes at 2:30 p.m. and is completed at 3:15 p.m.-Crown re-examines its first witness and witness is completed at 3:20 pm-Crown’s second witness, though present in the morning, is now not available due to a medical emergency suffered by a family member over the lunch recess-both counsel sent to trial coordinator to find a trial continuation date-at 4:00 p.m.

Applicant remanded to May 28, 2014-1 day further day set aside for trial continuation April 24, 2014 Defence serves and files 11(

b) Charter application for stay due to unreasonable delay May 28, 2014 Trial and 11(

b) motion adjourned due to insufficient court time –no evidence heard-matter remanded to continue September 3, 2014-1 day set aside July 11, 2014 Defence’s second application for stay -11(

b) argued-matter remanded to August 21, 2014, for judgement September 3, 2014 Scheduled date for 1 day trial continuation THE POSITION OF THE PARTIES [ 5 ] The defence seeks a stay of proceedings based on the 31 ½ months that has passed from the time the Information was sworn to the date scheduled to complete the trial and the prejudice suffered by the Applicant as a result. On July 11, 2014, an affidavit was filed in which the Applicant swore that he suffered prejudice as a result of the delay consisting of the following: 1.

An extreme amount of stress, anxiety and depression on a daily basis resulting from the uncertainty of the outcome of the trial and as a result of the trial being prolonged over an inordinate amount of time. 2. An inability to concentrate which affected his “duties of employment in the manner expected of him.” 3. Disrupted sleep affecting “day to day activities including work and personal life.” 4. “Additional legal expenses as a result of additional court appearances.” 5. A diminution of memory as to the specifics of what occurred both directly before and after the time of arrest.

These “specifics” are identified as being “crucial” to his defence.

[6] The Crown chose not to cross examine Mr. Ponnuthurai on that affidavit. In addition, on October 31, 2013, when the11(

b) motion was first argued and dismissed, Mr. Ponnuthurai testified and described the prejudice suffered by him as a result of thedelay up to that point as consisting of the following: 1. Problems at work in that he was not able to perform his work as well as he was able to prior to the charges and a general lack ofinterest in his work. He did confirm that he was still working for the same company, working the same hours and making the samemoney as he did before the charges were laid. 2.

Sleep disruption, anxiety and depression though he agreed that he had not seen a doctor and was not on any medication for same. 3. No “happiness at home in the family”. 4. Being “taken in for questioning” at the airport upon returning to Canada after March Break 2013 and being asked about hisoutstanding charges. Mr. Ponnuthurai described how that incident “increased his anxiety from then on in.” [7] The Crown’s position is that the case is a simple one which should have and could have been completed in one day.

Itsuggests that the Applicant’s assertion that his memory has been affected by the passage of time is baseless given that the entirety of thecriminal acts alleged is captured on the in-car video and the formal breath test procedure video. It submits that that since the Defencehas “made no admissions, has asserted an array of Charter violations and has required the Crown to call officers whose evidence iscompletely and accurately captured on video and then cross examined extensively,” any delay in the proceedings lies at the feet of theApplicant and not the Crown or the court.

The Crown also asserts that the trial time estimate of 1 day was “wildly off base” given thenature of the defense and argues that had the Applicant given a realistic trial time estimate, a block of days could have been set aside andthe matter completed in a timely fashion.

Section 11(

b) of the Canadian Charter of Rights and Freedoms [8]

Section 11(

b) of the Charter guarantees the right to be tried within a reasonable time. The Supreme Court of Canadahas interpreted that right as one which protects not only the individual accused but overall societal interests as well. As explained in R v.Morin, (SCC), [1992] 1 S.C.R. 771, the rights contained in s. 11(

b) protect the accused by reducing the risk of overlongexposure to the anxiety, concern and stigma that accompany any criminal charge, minimize an accused person’s exposure to pre-trialdetention or restrictive bail conditions and help ensure a fair trial by increasing the likelihood that the hearing will take place whenevidence is still available and memories are fresh. The societal interests served by s.11(b)’s guarantees are described as our collectiveinterest in ensuring accused persons are treated fairly and humanely.

They also form the basis of the maintenance of public confidencein the administration of justice by ensuring our laws are enforced promptly and that those who break the law are swiftly heldaccountable. [9] In order to determine whether an accused’s right to trial without unreasonable delay has been violated the court mustbalance these individual and societal goals with the length and causes of the delay in question.

The issue is framed in terms ofreasonableness in light of all circumstances and as such, requires something more nuanced than the simple application of a mathematicalformula based on desirable or “ideal” timelines related to particular offences. The relevant factors to consider are set out in R. v. Morinas follows: 1. Length of the delay 2. Waiver of time periods 3. Reasons for the delay and; 4. Prejudice to the accused [10] As already stated, the length of the delay in this case certainly calls for an examination of the reasons therefore.

A reviewof the transcripts that form part of the materials in support of this application confirms that there was no explicit waiver of any of portionof the delay by the Defence. On these two points the parties agree. It is with respect to the third and fourth “Morin factors” that theCourt is being asked to make determinations. Analysis-Reasons for the delay [11] In R. v. Morin the Court identified five relevant areas of consideration in assessing the reasons for delay.

The five areasconsist of: (1) the inherent time requirements of the case; (2) the actions of the accused; (3) the actions of the Crown; (4) limits oninstitutional resources and; (5) any other reasons for delay. [12] Not surprisingly, a certain amount of delay is inevitable and attaches to the resolution of any criminal charge whether bytrial or otherwise.

This inherent delay includes the time required by an accused person to find and retain counsel, to allow the Crown togather and provide disclosure, and to provide both parties with the necessary time to review disclosure, engage in pretrial discussions andprepare for and conduct the trial. However, the administration of justice cannot and does not function in a vacuum.

Lawyers’ schedulesare often booked months in advance, accused persons and witnesses have prescheduled and unexpected commitments that often have tobe accommodated and court house resources, whether they be financial, administrative or labour, are finite. As a result of this reality,the past few years have seen increased attention paid to husbanding institutional resources. This has led to an emphasis on judicial casemanagement in an attempt to produce realistic trial time estimates thus ensuring efficient use of court time.

[13] In this jurisdiction, the local practice protocol requires that all drinking and driving cases be judicially pretried before atrial date can be set. These judicial pretrials are held in open court before the judicial officer presiding in the practice/plea court locatedin courtroom #406. The parties are expected to be familiar with the disclosure and their respective cases in order to meaningfully engagein conversations aimed at identifying those issues that aren’t in contention and those that are.

Generally, the Court will enquire as towhether disclosure is complete, whether pretrial, evidentiary and/or Charter issues are expected to be litigated, the number and types ofwitnesses to be called, and the type of and manner by which evidence is to be adduced. In addition, both parties are expected to informthe Court of any special needs that an accused or witnesses may have so that accommodations can be made before the trial date to ensurethat the trial proceeds as scheduled.

At the completion of the judicial pretrial a trial time estimate is given by both parties and thenassessed and confirmed or adjusted by the Court. A trial date is set thereafter. [14] This protocol is in keeping with judicial pronouncements in cases such as: R. v. Tran, 2012 ONCA 18 , [2012] O.J.

No.83 ONCA where in paragraph 34 the Court held: “…it seems to me that requiring a judicial pre-trial to set trial dates is a reasonable and necessary case management tool in busy judicialcentres designed to ensure overall timeliness of the system and thus protect the Charter rights of accused generally in the presentation oftheir cases. “ [15] R. v. Ignani, 2013 ONSC 5030 , [2013] O.J. No. 3531 ONSC where in paragraph 45 the Court stated: “As indicated in R v. Mahmood, pretrial conferences serve many useful purposes.

They require the parties to wrestle with real issues inthe case before setting the matter down for trial. Admissions can be made. Issues can be narrowed and focussed. Pretrial motions canbe discussed and efficiently planned. Potential problems can be addressed, if not resolved. Practical issues regarding the trial can beanticipated. Such conferences not only permit the parties to better prepare themselves for trial, they inevitably reduce the court timenecessary to try the matter, and ensure that the trial proceedings move as efficiently as justice permits.

It is hardly surprising, therefore,that busy judicial centres require, as a matter of court policy, that before valuable court time and resources are scheduled and committedfor the trial of particular kinds of cases, such pretrial conferences must be held.” [16] Mr. Ponnuthurai’s case is a perfect example of how necessary informed, realistic, trial time estimates are and thedifficulties associated with scheduling a hearing date for a trial that doesn’t complete in the time originally estimated. [17] A transcript of the in-court judicial pretrial held in Mr.

Ponnuthurai’s matter shows that the defence had originallyasserted during a Crown pretrial meeting conducted beforehand, that disclosure was complete. During the subsequent judicial pretrialhowever, the defence changed that position and requested further disclosure relating to certain images viewed by the arresting officer onhis scout car’s computer terminal in order to confirm Mr. Ponnuthurai’s initial verbal identification. A copy of a letter supposedly seizedfrom the accused at the time of his arrest was also requested. Apart from these two items, defence confirmed that disclosure wascomplete.

The Court directed defence to put their disclosure request into written form so that the Crown could address the matterproperly to ensure that “we don’t end up on the day of trial with the issue unresolved, … because I know these kinds of (disclosure)issues are easy to just sort of leave hanging.” The defence agreed to do so and the Crown confirmed it would respond accordingly oncethe letter was received. The Crown was then canvassed as to whether it intended to tender any of Mr. Ponnuthurai’s statements as part ofits case and issues of voluntariness were addressed and narrowed.

The defence indicated that there would be motions filed allegingbreaches of s. 8 and 10(

b) of the Charter and seeking exclusion of certain evidence as a remedy. A thumbnail sketch of the basis for thes. 10 (

b) Charter motion was provided to the Court and the Crown. Defence was less clear as to the basis of the s. 8 Charter motion. There was also some discussion between the Crown the Court and defence as to what evidence might be sought to be excluded in orderto remedy the alleged Charter violations with the matter left as requiring more specificity. Defence made it clear that there were noadmissions on their part except for the fact that it was conceding jurisdiction. Both the Crown and defence indicated that no expertwitnesses formed part of their respective cases.

The Crown indicated that it would be calling three police witnesses. The defenceestimated “zero to one” and the Court was advised by same that a Tamil interpreter would be required. There was no mention by theCrown of any video or digitally taped evidence that it would tender as part of its case.

The Crown’s trial time estimate was “one daywith 3 police witnesses” and the defence agreed that “one day should be enough but, well, with the Charter too, maybe a day and a halfdepending on how long the Charter takes.” Defence counsel then went on to say that trial counsel, for whom she was acting as agent, “ispretty quick. He is straight forward and to the point.” Upon hearing that the Court replied, “All right. Let’s say a day then.” Bothparties were sent to the trial coordinator to obtain a one day trial date.

The parties returned before the Court and set October 29, 2012, asthe trial date. [18] Though the transcript is silent as to what dates were offered to the parties on March 26, 2012, the Verification of TrialDate Provided by Trial Coordinator’s Office form (Trial Verification form) attached to the Information indicates that the first available court date for a full day trial was October 16, 2012. The dates of October 17 and 18th 2012, were also offered but defence was notavailable on any of those three dates. Both parties were available on October 29, 2012, that being the fourth date offered.

The TrialVerification form is this jurisdiction’s attempt to make the setting of trial dates as transparent as possible without requiring the often timeconsuming task of finding a date agreeable to all parties to be conducted on record. Though the latter is the ideal process, it has beenfound to be an inefficient use of court time in the Metro East Court location. [19] On September 27, 2012 the defence served and filed a Charter motion putting the Crown and the Court on notice that itwould be seeking an Order excluding “evidence obtained and observations made in breach of Mr. Ponnuthurai’s s. 8 and 10(

b) rights”. The motion alleged that “the breath samples were not taken as soon as practicable as required by the Criminal Code” and that there wasan unexplained delay in reading the Applicant his rights to counsel upon arrest and a failure to afford him his counsel of choice. Thedefence indicated in its motion that it would rely on a brief statement of legal argument, case law or legislation, oral testimony and“other” in support of its motion.

These four supporting sources are part of the list of seven choices contained under the heading “IndicateBelow Other Materials or Evidence You Will Rely On In This Application” preprinted on the Form 1- General Application provided forin Rule 2.1 of the Criminal Rules of the Ontario Court of Justice. Though the form instructs the Applicant to provide specifics for threeof those four areas, none were provided by the defence.

[ 20 ] Contrary to defence’s judicial pretrial representations, no letter was sent to the Crown outlining its request for further disclosure until one month prior to the scheduled trial date. The letter that was eventually sent made no mention of the items identified by defence during the judicial pretrial as outstanding disclosure. Instead, the letter focussed largely on disclosure of maintenance and calibration records for various devices and instruments used in the screening and taking of breath samples by the Toronto Police Service.

In that letter and those that passed between the defence and the Crown thereafter, the nature of Mr. Ponnuthurai’s trial changed dramatically from that presented to the Court at the judicial pretrial. [ 21 ] That defence counsel’s request for further disclosure was untimely is an understatement.

Though it’s true, as the defence asserts, that the items they requested were likely already in existence at the time of their request, the format in which they are kept is unknown, their manner of storage and retrieval is unknown and it is trite to say that although the Crown forwarded to the Toronto Police Service a request for those items it deemed relevant the day it received the letter from the defence, it is unrealistic to assume that its request was the sole request that the Toronto Police had to attend to at that time.

In fact, on the evidence before me, the Crown was not able to provide those items it had agreed were properly disclosable until January 16, 2013, some 3 ¾ months later. Assuming solely for the sake of argument that the intervening holiday season didn’t also impact on the ability of the Toronto Police Service to locate, collate and then forward to the Crown the materials in question, had the defence request for these materials been made in a timely fashion following the judicial pretrial there would have been ample time to resolve this matter prior to the October 29, 2012, original trial date.

As such, it was incorrect for the defence to assert, as it did on October 25 2012, that the timing of the new disclosure request was “somewhat irrelevant.” On the contrary, it is as a result of the late disclosure request that the trial date of October 29, 2012, was lost. As it turned out, the Court’s comments during the judicial pretrial made in an attempt to ward off any trial delays were unfortunately, depressingly accurate. [ 22 ] In scheduling a new trial date for Mr. Ponnuthurai, the trial coordinator’s task was made more difficult by the change in the nature of the Defence’s case.

Having brought a motion to compel disclosure, the trial coordinator now had to find dates specific to the

schedule of the judge before whom the disclosure motion had commenced. That is certainly not the fault of the defence but a result of the rules of the criminal process of which counsel would have been well aware. [ 23 ] I am mindful that the goal of assessing delay and the reasons therefore in any s. 11(

b) analysis is not to assign blame. That the Court is required to consider whether any actions by the defence or the Crown may have contributed to the delay is simply an acknowledgment of the reality that the manner in which a party to a proceeding conducts its case may play a role in adding to the inherent time requirements of a case or prolonging the proceedings. In the Applicant’s case, the first available trial date specific to the seized judge’s

schedule that was offered to the parties on October 30, 2012, was January 25, 2013. The defence was not available on that date nor were they available on February 8, 2013, the second date offered, nor the third date of May 13, 2013. The defence was available on the 4 th date offered, that being June 24, 2013, and so that date was set for Mr. Ponnuthurai’s trial. The date of April 25, 2013, was scheduled for the continuation of the disclosure motion.

The evidence before me establishes that the defence did have “earlier dates available in both December 2012 and January 2013” that were not available to the Court, though these dates were never specified on the record. I do note that though there is a document included in defence’s s.11(

b) application record filed April 24, 2014, that appears to show that defence had thirteen possible available trial dates in December 2012, and January 2013, as well as twenty two other possible trial dates available in his

schedule for the months of February-June 24 2013, the document has no evidentiary basis as it was not referred to in any affidavit or transcript, there is no evidence as to if, when, or to whom it was sent or provided, and it is not attached to the Information nor referred to in any transcript. [ 24 ] On January 15, 2013, the Crown brought an application to adjourn the second scheduled trial date due to its conflict with the arresting officer’s leave dates. The motion was brought well in advance of the trial date. At this hearing the trial judge was advised by Defence that delay was now an issue and that Mr.

Ponnuthurai was suffering prejudice as a result. Quite properly, the trial judge advised counsel that he was adjourning the application for a few days to allow counsel to consult with the trial coordinator to find earlier disclosure motion and trial dates than those already scheduled. Because of the information provided to him by defence he advised that the Crown’s application would only be granted if those conditions could be met.

The trial judge also secured the consent of both parties to have the disclosure motion started anew and the trial conducted before another judge being as no rulings had been made on the disclosure motion and their consent would allow the trial coordinator to source the availability of other judges thereby increasing the pool of potential earlier available dates. [ 25 ] The Crown was able to acquire earlier dates for both hearings from the trial coordinator and provided those earlier dates to defence by letter faxed January 15, 2013.

The earlier trial dates included April 25, May 6 and May 13, 2013, with 9 possible available motion dates ranging from February 21 to March 18, 2013. Unfortunately, the record is silent as to how the new date of June 20, 2013, was selected as a trial date and why April 25, 2013, was kept as the disclosure motion date and there is no Trial Coordinator’s Verification Form to shed light on this issue.

What the transcript of January 18, 2013, does indicate is that defence was “content” with the new trial date and with maintaining April 25, 2013, as the disclosure motion date, that the new trial date of June 20, 2013, was a date available Defence and “the expert” and that the matter would henceforth proceed before a different judge. As far as I can tell, this is the first time that the Court was advised that an expert witness would now be called as a witness by the defence at Mr. Ponnuthurai’s trial. [ 26 ] On April 25, 2013, the defence abandoned its disclosure motion.

That motion had been scheduled to proceed before me. The defence indicated that it had advised the trial coordinator of its decision to abandon the motion “a few weeks back” and had left a telephone message to the same effect for the assigned Crown. The decision to abandon the disclosure motion is curious given that defence had written to the Crown just two weeks prior requesting the very items it was seeking the Court to compel the Crown to provide. There was no reason given by the defence for the abandonment of the motion that had caused the first trial date to be vacated.

Because the defence has not had to resort to the

schedule of availability of any expert witness in selecting subsequent continuing trial dates, I will assume that the additional disclosure provided as a result of defence’s written requests was now satisfactory in the opinion of the defence and/or the case for the defence had reverted back to the scenario initially presented by both parties to the judicial pretrial Court. [ 27 ] On June 20, 2013, Mr. Ponnuthurai’s estimated one day trial commenced before me.

In this court house a typical court sitting day is generally four and three quarter hours (10:00-11:30 a.m.; morning recess; 11:45 a.m.-1:00 p.m; lunch; 2:15-3:30 p.m. afternoon recess; 3:45-4:30 p.m.). Though the trial was scheduled to commence at 10:00 a.m., a review of the digital court recording

shows that Mr. Ponnuthurai was not arraigned until 11:38 a.m., as no arrangements had been made for an interpreter to assist him at his trial. [ 28 ] The Information shows that the interpreter problem appears to have been related to the fact that no interpreter was noted as being necessary when the original trial date of October 29, 2012, was set on March 26, 2012. This appears to have been due to an administrative error as defence clearly indicated during the judicial pretrial that a Tamil interpreter was required.

In fact, there is no notation on the Information that a Tamil Interpreter is required for this matter until June 20, 2013, the day Mr. Ponnuthurai’s trial actually commenced. A review of the Information and relevant transcripts shows that this error was compounded by the fact that when the October 29, 2012, trial date was vacated on the record and the new disclosure motion date and trial date were scheduled for April 25 and June 24, 2013, respectively, the defence did not request nor confirm that an interpreter had been noted for either hearing.

When the Crown’s application for adjournment was granted on January 18, 2013, and the trial date of June 20, 2013, was set and the disclosure motion date of April 25, 2013, confirmed, again there was neither a request nor mention by defence of the need for a Tamil interpreter. On April 25, 2013, the date the disclosure motion was abandoned, there was no Tamil interpreter present and again, no mention of the need for one when counsel remanded the matter to the June 20, 2013, trial date acting as Mr. Ponnuthurai’s designate. [ 29 ] When Mr.

Ponnuthurai’s trial did finally commence the Crown called its first witness and was not finished his examination-in-chief by the time the Court took the afternoon break. The trial did not resume after the break as the parties were sent to the trial coordinator’s office to obtain a trial continuation date. The digital court recording shows that between 3:40-4:20 p.m. the parties were at the trial coordinator’s office trying to

schedule a continuation date. At some point the trial coordinator asked me to attend her office as she was having great difficulty in finding a continuation date available to all. She did so knowing that there is usually some flexibility in my

schedule in terms of my vacation and non-preside dates. Both types of dates were offered to counsel as possible trial continuation dates though none were available to both parties.

Eventually the date of December 23, 2013, was chosen. [ 30 ] The record is silent as to how the December 23, 2013, trial continuation date was chosen but for a few comments from myself about the difficulty in finding a date agreeable to five people (the Crown, the defence, myself and two police officers) with very busy schedules despite trying to “think outside the box”( referring to offering vacation and scheduled non preside days for the trial continuation), the Crown’s comments that the continuation date was “shocking” and the defence’s statement that he didn’t feel it necessary for either the Crown or himself to read into the record the fact that “we had lots of dates, but it just didn’t coincide,” and that “an additional motion may find its way before the Court.” The Crown did seek to file the Trial Date Verification form and defence agreed that there were no issues with the documentation. [ 31 ] An examination of the Trial Date Verification form filed on June 20, 2013, shows that the first date offered to the parties for trial continuation was July 19, 2013.

The defence was not available.

According to the form the dates offered and the parties’ availability, where noted, were as follows: • July 19, 26, 2013 (Defence not available) • August 6, 7, 8, 2013 (Crown not available) • August 9, 2013 (Crown available-defence not available) • August 12, 13, 2013 (Defence not available) • August 19, 2013 (Crown available-defence not available) • August 20, 2013 (Crown not available-defence available) • August 21, 2013 (Crown available-defence not available) • August 22, 2013 (Defence not available) • August 28, September 4, 22, 2013 (Crown not available) • September 30, 2013 (Defence not available) • October 3, 2013 (no notation as to either counsel’s availability) • October 7, 2013 (Crown not available-defence available) • October 16, 22, 23, 2013 (Crown available-defence not available) • October 30, 31, 2013 (Crown not available-defence available) • November 1, 2013 (Crown available-defence not available) • November 13, 2013 (neither party available) • November 18, 19, 20, 2013 (Defence not available) • December 6, 2013 (Crown not available) • December 23, 2013 (available to both Crown and Defence) [ 32 ] The struggle to find an agreeable continuation date for Mr.

Ponnuthurai’s trial perfectly illustrates the difficulties often encountered when a trial does not finish in the time estimated. Justice Durno noted this fact in R. v. Purewal , [2014] ONSC 2198 where,

at paragraph #92 he wrote: “once a trial has started, obtaining continuation dates becomes more challenging than setting a first trial date because now it requires coordinating both counsels’ dates, the witnesses’ available dates, courtroom availability and the trial judge’s schedule.” [ 33 ] Where a judicial pretrial is held prior to the setting of the trial date or a trial continuation date is required, R. v. Purewal makes it clear at paragraph #93 that the continuation trial time estimate is the responsibility of counsel and the trial judge: “Crown and defence counsel have a vital role to play.

To be sure, both counsel have more information than the trial judge regarding the nature of the witnesses’ evidence and issues to be argued. However, the trial judge also plays an important role based on his or her experience in general as well as the trial judge’s observations of the manner in which the case is being prosecuted and defended.” [ 34 ] At the end of the first day both counsel were of the opinion that a further full day of trial time would be required and that appeared to be accurate based on the information available to me.

The Crown had indicated that it was almost finished with the arresting officer and had only the Breath Technician to call and the video from the breath testing room to play before it closed its case. Apparently it was not calling a third police witness as noted on the judicial pretrial form attached to the Information. The judicial pretrial notes indicated that the original trial estimate was one full day and that the defence had indicated that would call no more than one witness if any. When asked at the end of the first day of trial, the defence indicated that it had no witnesses that needed to be bound over.

Neither counsel, in my more than 20 years of experience in the courts, has a reputation for loquaciousness and both were experienced lawyers. I was aware that there were s. 8 and 10(

b) Charter motions to be argued and final submissions to be made but it had been agreed that the hearing would proceed as a blended one so the trial continuation estimate of 1 further day appeared to be reasonable. [ 35 ] On October 31, 2013, the defence argued that the charges should be stayed due to unreasonable delay. I did not call on the Crown for submissions and dismissed the motion for reasons that were delivered orally from the bench that day. [ 36 ] On December 23, 2013, the second day of trial, the defence appeared promptly at 10:00 a.m.

Unfortunately, the Crown was not prepared to proceed and asked that the matter be held down. I was advised that the original assigned Assistant Crown Attorney had had to transfer Mr. Ponnuthurai’s matter to another of his colleagues as he was involved in a trial at the Superior Court of Justice that had gone longer than expected. Unfortunately, that colleague had come down with the flu and was unable to come to work.

As it happened, the original Assistant Crown Attorney happened to be at the court house in any event and just needed some time to review the transcript of the first day’s proceedings in order to “get up to speed.” The matter was held down until 11:48 a.m.

When the Crown did attend before me he asked if the Court might break early for lunch at 12:45 p.m., and return later than usual at 2:30 p.m., in order to accommodate an interview that had been previously scheduled in relation to the ongoing aforementioned Superior Court of Justice matter. [ 37 ] At 12:00 noon the defence commenced their cross examination of the Crown’s first witness and court was recessed for lunch at 12:41 p.m. in order to oblige the Crown’s request.

The case resumed, as requested, at 2:30 p.m. at which time the Crown advised that its second witness, the breath technician, had had to leave the court house during the lunch break due to a medical emergency suffered by his father-in-law. Defence completed its cross examination at 3:15 p.m., at which time both parties were sent to the trial coordinator to select a continuation date. When it appeared again that there were problems reaching an agreeable trial continuation date the trial coordinator was asked to come into the court room so that the procedure could take place on the record.

A review of the transcript shows the available court dates that were offered and the parties’ availability, where stated, were as follows: • February 12, 14 (Crown witness not available-defence available) • February 13, 14 (Crown witness not available-defence available) • February 25, 14 (Crown witness not available-defence available) • March 7, 2014 (Crown ?-defence not available) • March 19, 2014 (Crown available-defence not available) • April 9, 2014 (Crown ?-defence not available) • April 28, 2014 (Crown witness not available-defence available) • May 7, 2014 (Crown not available-defence available) • May 28 2014 (Crown and defence available) [ 38 ] The transcript further shows that the date eventually selected for the trial continuation, that being May 28, 2014, was not a date originally offered by the trial coordinator given that I had already been scheduled to preside over a “three day matter” commencing May 27, 2014.

Because all of my sitting dates in June 2014, and some part of July 2014’s presiding dates, had already been fully scheduled by the trial coordinator as well as the fact that May 28, 2014, was one of the few dates available to the final Crown witness, the trial coordinator suggested that the May 28, 2014, date be provided to the parties in the hope that “the three day matter” would resolve or complete earlier. She also indicated that she would attempt to reassign the “three day matter” so that May 28, 2014, would be a clear day.

Though the parties both estimated a further half day of trial should be set aside it was my opinion, given the history of the case thus far, the delay issue, and the matters still left to be addressed, that one full day be set aside.

The parties were both fully aware that the day of May 28, 2014, was a “soft full day” as I described it on record, and that it was being scheduled hoping that all the pieces of the trial coordination puzzle would fall into place even though, technically speaking, it was not an available continuation date. [ 39 ] On May 28, 2014, the parties attended for the trial continuation and for argument on the renewed 11(

b) Charter

application. There is no evidence before me that either counsel made any enquiries beforehand as to whether the prescheduled “three day matter” had resolved or rolled out in such a fashion as to allow Mr. Ponnuthurai’s matter to proceed as hoped. In the end neither Mr. Ponnuthurai’s motion nor his trial proper could proceed given that the matter over which I had originally been scheduled to preside was a preliminary hearing for a charge of first degree murder and charges of attempted murder involving an accused and a number of complainants and witnesses who were quite elderly.

As it turned out, this “three day matter” could not have been reassigned given that it was actually a continuation of a three week preliminary hearing that had commenced on May 13, 2014, but which had been divided into four “blocks” of hearing days spread out over the months of May and June 2014, at the time it was originally scheduled on August 28, 2013. [ 40 ] From reviewing the transcript of the May 28, 2014, proceedings it appears that the Assistant Crown Attorney assigned to the preliminary hearing had apparently had some discussions with the Assistant Crown Attorney assigned to Mr.

Ponnuthurai’s trial prior to the commencement of court. When the parties to the latter case appeared before me later that morning, the Assistant Crown Attorney assigned to the former case advised that “the interpreter coordinator had been by earlier to find out what was happening and I advised him that the [Ponnuthurai] matter wouldn’t be in a position to proceed today.” Though that decision was ultimately not hers to make, I am in no way critical the Crown’s actions. Its application to adjourn Mr.

Ponnuthurai’s case would have been granted by me in any event given the special circumstances of the accused and witnesses in the preliminary hearing. The Crown often has to prioritize its prosecution caseload and I do not, and did not, disagree with its decision that day. The preliminary hearing not only dealt with far more serious charges, but the in-custody accused in that hearing had mobility issues which limited the court rooms available in which his case could be heard and made it difficult to transport him both to and from the court house and to and from the court room.

He required special seating arrangements within the prisoner’s box and certain days had specifically been set aside to accommodate elderly witnesses and complainants in wheelchairs. As Mr. Ponnuthurai’s counsel noted at the time, “we agreed to put [this case] to today’s date, notwithstanding the fact that we knew it was being double booked, in an attempt to get it on in a speedier fashion.

Obviously it can’t go ahead today; there’s a homicide before the Court and that’s continuing.” [ 41 ] The Assistant Crown Attorney and defence counsel had earlier attended the trial coordinator’s office and had received two dates; one for a renewed 11(

b) argument and one for the actual trial continuation. Those two dates were July 11, 2014, (two hours set aside) and September 3, 2014, (a full day set aside) respectively. Once again the record was silent as to how the dates were chosen but the Trial Verification Form was filed.

That form shows that the following dates were offered for trial and counsels’ availability for those dates were as follows: • July 8 and 10 2014 (Crown available, defence not available) • July 15 2014 (Crown not available, defence available) • August 8, 26, and 27 2014 (Crown available, defence not available) • September 3 2014 (both parties available) [ 42 ] Though I canvassed the idea of having the trial continue on the July 11, 2014, and then hearing the s. 11(

b) Charter application at the completion of the trial, the idea was scuttled as the Crown was uncertain of its remaining witness’ availability for that date and by the fact that only two hours of court time was available that day. The Crown’s remaining witness is the breath technician to whom Mr. Ponnuthurai’s allegedly failed to provide breath samples and is therefore crucial to the Crown’s case. As a breath technician, he is crucial to a number of prosecution cases and his

schedule is, not surprisingly, booked well in advance. In scheduling continuation dates his calendar of available days was so limited that I allowed a cell phone to be used in court while in session so that he could advise us via cell phone of his availability as potential continuation dates were called out by the trial coordinator. This avoided the Crown having to step outside court to contact him as we tossed around potential dates. [ 43 ] On July 11, 2014, the s. 11(

b) motion was argued and, at about 11:20 a.m., judgment on the motion was adjourned to August 21, 2014, being as the remaining docket was considerable and afforded no opportunity for me to recess to consider the submissions and apportion the periods of delay that day. INHERENT TIME REQUIREMENTS [ 44 ] Dealing first with the inherent time requirements of the case it is clear that Mr. Ponnuthurai’s matter initially proceeded with efficiency and diligence on the part of both parties. Defence counsel was on board as of the first appearance and retained by the second.

Disclosure was provided and reviewed in a timely fashion. Crown pretrial discussions and the judicial pretrial were both completed in a reasonable time period and a one day trial was set thereafter. The original trial time estimate was not accurate though I hasten to add it was reasonable none the less. Unfortunately, drinking and driving cases are extremely prevalent in the Ontario Court of Justice. The case presented to the judicial pretrial judge was not atypical in neither the number of witnesses expected to be called nor the Charter motions initially identified as anticipated. Mr.

Ponnuthurai’s need of the services of a Tamil interpreter was the only factor that would have added to the inherent trial time requirements of such a case and so defence counsel’s initial trial time estimate of a day and a half was, in hindsight, likely the more accurate of the two. Her assertion that trial counsel’s “to the point style” made the Crown’s one day estimate acceptable was, not surprisingly, confirmed by the Court.

By March 26, 2012, both parties were apparently ready for trial but for the minor outstanding disclosure issue and the service of the Charter motions as per the Rules of the Criminal Court.

I refer to the disclosure issue as a minor one being as it was never pursued and the trial eventually proceeded without those items having been disclosed. [ 45 ] The necessity for the service of the Charter motions as per the Rules of the Criminal Court also adds to the inherent time requirements of the case as the Rules set out time frames within which written materials are to be served by the Applicant upon the opposing party and filed with the Court and a written response are to be served and filed as well.

Since no such motions were filed at the judicial pretrial it is reasonable to add on an additional month to the inherent time requirements in this context. The trial date set was exactly seven months from the date of the judicial pretrial. The first date offered by the court was six and three quarter months out from

the judicial pretrial.

As a result the delay from the date the Information was sworn to the first trial date is apportioned, at this juncture , as follows: • inherent delay ( intake): January 7, 2012-March 26, 2012 = 2 ½ months • inherent delay (achieving trial readiness): March 26, 2012-April 26 2012= 1 month • institutional delay: April 26, 2012-October 16 2012 = 6 ¾ months • defence delay: October 16-October 29= ½ month [ 46 ] The actions of the defence thereafter were totally inconsistent with its general assertion of a desire for a speedy trial and its implicit confirmation of trial readiness as of the judicial pretrial.

I find that by the date of the first scheduled trial the defence was still crystalizing its defence strategy and not trial ready. It clearly needed more time and should have, in those circumstances, requested an adjournment of the October 29, 2012, trial date in a timely fashion. Without meaningful consideration by each party as to how they intend to approach their respective cases, the goal of judicial pretrials is frustrated as it was here. That is not to say that parties are yoked to the representations made at a judicial pretrial.

The vigorous pursuit of justice and the thorough defence of an accused will often lead to a reconsideration of, or change in, a party’s trial strategy. When that occurs prior to the commencement of the trial, as long as those changes are made known to the opposing party and the court in a timely fashion, accommodations can be made. [ 47 ] What is clear in this matter is that at some point subsequent to the judicial pretrial, the defence decided to investigate and possibly mount an attack on the working condition of the alcohol screening device and the breath test instrument.

There is no evidence before me as to when the defence changed its tack but I do know that, as a result of this new focus, it was still receiving opinions from a toxicologist and requesting further disclosure in that regard in September 2012, through to early April 2013. It is obvious that this defence strategy was not a part of its initial approach to the case as disclosure of the records relating to the device and instrument in question was never sought from the Crown prior to September 25, 2012. Obviously when defence reviewed Mr.

Ponnuthurai’s file in preparation for the judicial pretrial it was not troubled by, as the defence referred to it in the transcript of October 25, 2012, the lack of “C-2 disclosure”. That phrase was used in reference to the Federal government’s omnibus Bill that came into effect in July, 2008. Without going into details, Bill C-2 changed the nature of the defence previously available to an accused in some drinking and driving cases by strictly defining “evidence to the contrary” as used in s. 253 of the Criminal Code thereby eliminating resort to the judicial

interpretation formerly accorded to the same, undefined phrase in the section’s prior incarnation. It also had the effect of making the disclosure of certain technical records relating to the devices and instruments used by law enforcement to detect and analyse alcohol content in the human body, part of the standard disclosure policy of the Crown in many courthouses such as Metro East.

This policy was discussed and acknowledged by both the Crown and defence during the disclosure motion hearing on October 25, 2012. [ 48 ] What is also clear is that defence abandoned or modified its tack again on or just prior to April 25, 2013. The record is silent as to why the disclosure motion was formally abandoned that day. I do know that some further disclosure had been provided to defence by the Crown as of January 16, 2013. Presumably these were the items the Crown had agreed to gather and disclose once it had been informed of defence’s desire for same in September-October 2012.

However, on the record before me it is reasonable to assume that the defence was not satisfied with this further disclosure provided as it continued to pursue its motion to compel even further disclosure up until April 2013. Given this scenario, I find that the defence was not trial ready until sometime early April 2013. I am prepared to find that it was trial ready as of April 1, 2013, as defence informed the Court on April 25, 2013, that it had advised the trial coordinator and the Crown “a few weeks back” by a telephone message left for both, that the disclosure motion was to be abandoned.

Unfortunately, a review of the transcript shows that neither the Crown nor the trial coordinator seemed to have received that voice message. [ 49 ] Though in my experience, achieving trial readiness in these types of cases, does not normally require this much preparation on the part of defence, the record shows that it did in this particular case.

Allowing for the possibility, though I am not prepared to find as a fact, that the defence decision to pursue further disclosure was ill conceived, a delay tactic or just plain poor file management, apportioning the delay given this changed scenario leads to the following amended findings regarding the reasons for delay : • inherent delay (intake): January 7, 2012-March 26, 2012 = 2 ½ months • inherent delay (for defence to achieve trial readiness) or defence delay: March 26, 2012-April 1 2013= 12 ¼ months • defence delay: April 1 2013-May 13, 2013 = 1 ½ months • institutional delay: May 13, 2013-June 20, 2013 = 1 ¼ months [ 50 ] On June 20, 2013, Mr.

Ponnuthurai’s trial commenced. As discussed earlier, the matter was expected to take 1 full day to complete with the expectation that the Crown intended to call 3 police witnesses, the defence “zero to one” and that neither party was tendering any expert evidence. It was also clear that a s. 8 and 10(

b) Charter motion would be argued by defence. The arraignment of Mr. Ponnuthurai was delayed all morning however, by the fact that no interpreter had been arranged for his hearing. Though the failure to note the need for an interpreter for the initial October 29, 2012, trial date was initially an administrative or institutional error, I find that the failure to request an interpreter for the numerous hearing dates thereafter namely; October 25, 2012, April 25, 2013, June 24, 2013 and June 20, 2013, lies at the feet of the defence.

I say this as the Crown did not elect to proceed summarily until the June 20 2013, trial date and counsel had been and could only have been appearing by way of designation for the set date and speak to appearances leading up to that date. The four hearing dates just referred to were hearings at which the Applicant would have been required to personally attend. [ 51 ] A review of the digital tape recording of that first day of trial shows that the arresting officer, the first Crown witness, was called to the stand at 11:42 a.m.

His evidence in-chief was not completed by the start of afternoon break which took place from 3:23-3:40 p.m. The parties then spent from 3:40 p.m. until 4:20 p.m. at the trial coordinator’s office trying to arrange a continuation

date. In total, 2 ½ hours of evidence was heard and 2 ¼ hours was lost due to the interpreter issue and the not unexpected difficulties involved in finding a continuing trial date. On the continuation date of December 23, 2013, the Crown finished its examination in chief in ten minutes. Therefore, the witness’s examination in chief, took approximately 2 ¾ hours. Cross examination took place from 12:01 p.m. until 12:41 p.m. and then again from 2:33 p.m. to 3:15 pm- just under 1 ½ hours in total.

I do not find that either counsel’s questions of this witness were repetitive, lacking focus or unduly lengthy. [ 52 ] What is clear is that the Crown’s initial trial estimate of one day was off base considering it took over a half day for it to elicit evidence from its first of three expected witnesses. Perhaps it didn’t factor in the hour long video it adduced through its first witness. Indeed, no video was ever mentioned to the judicial pretrial judge. As a result, its existence could not have factored into the judicial pretrial judge’s affirmation of the trial time estimate.

Even considering that the Crown has since cut back its proposed witness list to two officers from three, one and a half to two full days would have been a realistic time estimate on the Crown’s

part in the circumstances of Mr. Ponnuthurai’s case. I find the one day trial time estimate was also overly optimistic on the part of the defence. Since the only admission the defence was willing to make at the judicial pretrial was that of jurisdiction, it is not unreasonable for it to have expected that the lengthy in-car video would form part of the Crown’s case. I am mindful as well, that the in-car video is also best evidence and as such, generally helpful to a Court in making its ultimate decisions. [ 53 ] As demonstrated in Mr.

Ponnuthurai’s matter, each party’s approach to their case is fluid and may change prior to the start or during the course of a trial. That is why judicial pretrials only attempt, amongst other goals, to produce realistic trial time estimates. Criminal law being what it is, it would be pure fiction to believe that trial times could ever be carved in stone and forcibly strictly adhered to.

That is so even assuming other reasons for delay such as illness on the part of witnesses and counsel, vacation schedules, interpreter availability, the need to prioritize special cases, audio/video or court reporting equipment malfunctions and the like were removed from the equation. The defence decision to add further grounds to support its s. 8 Charter motion in Mr. Ponnuthurai’s case is a perfect example of this reality.

Something unanticipated in the evidence-in-chief of the arresting officer provided during the first day of trial must have led defence to add to its s.8 Charter violation allegation at the commencement of the second day of trial.

I must assume that the grounds for this new alleged s. 8 Charter violation had not presented themselves to defence prior to trial as there was no such claim made either to the judicial pretrial judge or in the written of Charter application filed on September 27, 2012. [ 54 ] I do not anticipate that this additional s. 8 Charter argument will add to the type or content of evidence to be presented at this trial. At the time the defence notified the Crown of the expanded grounds, the Crown had already adduced the in-car video in its entirety.

The Crown posed only ten minutes of questions to the arresting officer after being notified of the additional s. 8 grounds and it did not bump its witness list back up to three from two. As such, the oral amplification of the s. 8 Charter motion on day two of the trial does not appear to have significantly added to the issues the Crown needed to address with its first witness nor to have affected the number of witnesses that might be expected to be called by it or the defence.

The additional defence argument will however, certainly add to the time required for final arguments with respect to the determination of whether there have been any Charter breaches and, if so, whether evidence is to be excluded to remedy same. Mounting a vigorous defence is in no way inconsistent with the desire for a trial within a reasonable time. However, as noted in R. v. Purewal at para.114, it may contribute to the inherent time requirements of the trial in question. Because of this and the manner in which the case for the Crown has been presented to date, it is clear at this point in time in Mr.

Ponnuthurai’s trial, that the inherent requirements of the case required two full days to be set aside and not one. [ 55 ] There were thirty dates covering a six-month time span offered by the trial coordinator to the Crown and defence on which to continue with this trial when it did not finish on June 30, 2013. It was only the thirtieth date that found common ground among the two. Being as both counsel underestimated the inherent time requirements of this trial in the first place, the entire time between the first trial date and the second is properly defined as neutral.

Thus I find that the Crown is only half correct to assert as it did in its response to Mr.

Ponnuthurai’s delay application, that “had the Applicant given a realistic trial time estimate based on how they intended to conduct the defence, a block of days could have been put aside and the matter would have been long over.” [ 56 ] Having made these findings, the apportioning of the delay between the end of the first trial date and the commencement of the second is as follows: • Inherent delay-June 20 2013-December 23, 2013 = 6 months [ 57 ] One December 23, 2013, another morning of court time was lost due to the Crown’s circumstances of being double booked.

Though the record shows that the Crown made appropriate arrangements to have another colleague take over the trial and continue on, the stand-in fell ill and could not attend on the continuation date. During the lunch hour that same day, the Crown’s second and last witness had to leave due to a medical emergency involving his father-in-law. Disruptions of trial schedules caused by illness or an unexpected emergency effecting the availability of counsel, an accused or a defendant is considered neutral in the assignment of delay: see R. v. A.J.W., 2009 ONCA 661 at para. 35 .

Unfortunately, the continuation date of December 23, 2013 was plagued by both. As a result, only 1 ¾ hours out of the four and three quarter hours of court time set aside for the continuation of this case was able to be used. [ 58 ] The trial coordinator offered the parties nine possible continuation dates starting February 2014 through to May 2014. As already discussed, the date of May 28, 2014 was chosen as the continuation date despite the fact that it was actually a date on which another ongoing matter was scheduled to continue for a full day.

Though hope sprang eternal for all of us when the date was selected at the end of the day on December 23, 2013, the day did not turn out as imagined. What is of note however is that both counsel were actively attempting to move the matter along and were ready to commit themselves to a date that was uncertain at best. Both should be commended for that approach though I’m sure that’s of cold comfort to Mr. Ponnuthurai. The fact is however, that as of the end of the second day of Mr. Ponnuthurai’s trial, only 4 ½ hours of evidence had been heard.

For the reasons described, it took two court days to get in one day’s worth of evidence. [ 59 ] Apportioning the delay between December 23, 2013, and May 28, 2014, I count the time period between December 23, 2013, and February 12, 2014, the first date offered, as part of the inherent time requirements of the case. As noted by the Court in R. v. Tran 2012 ONCA 18 , at paragraph #60:

“….the challenges involved in rescheduling a case in the Ontario Court of Justice in the Greater Toronto Area once a trial judge has become seized of the matter are not insignificant. Where an additional full day is required, a delay of one to two months is not unreasonable for an out-of-custody matter provided reasonable efforts are made.” [ 60 ] Of the nine possible dates offered by the trial coordinator thereafter, the defence was available for six and the Crown was not available for five. On two of the dates offered the Crown’s availability was not noted on the record.

Most of the Crown’s problems proceeding on the dates offered was due to the unavailability of the breath technician due to previously scheduled court commitments. Bearing in mind that the illness of a witness or witness’s family member is viewed as neutral in apportioning delay I find that the three and half months of delay between February 12, 2014, and the May 28, 2014, continuation date should be viewed as follows-one and a half months inherent delay, one month Crown delay and one month defence delay.

I have not attributed any delay to institutional delay as I keep in mind that the original trial estimate was off by 100 per cent, nine dates were offered by the trial coordinator between the end of the second continuing trial date and the beginning of the third and the record does not show that counsel were both ready to proceed on any date that the court was unable to accommodate them. [ 61 ] As such, the

summary of the delay from December 23, 2013 and May 28, 2014 is as follows: • Inherent delay (necessary in the scheduling of a trial continuation)-December 23, 2013-February 12, 2014 = 1 ½ months • February 12, 2014-May 28, 2014: o Inherent delay (witness unavailability)=1 ½ months o Crown delay = 1 month o Defence delay = 1 month [ 62 ] For the remaining period of delay, that being from May 28, 2014, the date of the third scheduled but foiled continuation date to the September 3, 2014, scheduled trial and anticipated completion date, the parties were offered seven possible dates between July and September.

Since I know from the transcript of the December 23, 2013, proceedings that I was not available in the month of June due to other scheduled court cases, the time period between May 28, 2014 and July 8, 2014, will be assessed as institutional delay. Since neither counsel should be prejudiced in the delay apportionment by the fact that they chose a “soft continuation date” in an attempt to keep the case moving forward, the remaining two months will be factored in as inherent delay involved in scheduling a trial continuation.

I say that as I am certain that there would have been more available dates that could have been offered by the court to the parties in order to continue the trial in July and August 2014, on December 23, 2013, than available to be offered on May 28, 2014. Though I am mindful that of the first six dates offered by the trial coordinator the Crown was available for five and the defence, only one, I also recognize, as did the Court in R. v. Godin, [2009] 2 S.C.R. at para. 21 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.” It should surprise no one that the months of July and August are typically difficult months in which to

schedule trial dates given that most people are on summer vacation schedules. [ 63 ] As such, this last period of delay is broken down as follows: • Institutional delay- May 28, 2014-July 8, 2014 = 1 ½ months • Inherent delay-July 8, 2014-September 3, 2014 = 2 months [ 64 ] Having made these findings with regard to the reasons for the delays to date it is clear that the majority of the significant delays in Mr. Ponnuthurai’s case to date have not been found to be the result of either the actions of the Crown or a lack of institutional resources.

The institutional delay is well within the Morin guidelines of 8-10 months and the overall delay is largely attributable to the inherent time requirements of the case and/or the actions of the defence. With respect to the former, the failure of both parties to provide a realistic time estimate to the judicial pretrial judge based on the information known to them at the time has added much to the total delays experienced.

In regard to the latter, though this case does not appear at this point to be complex in terms of the legal arguments to be made, it has taken a significant time period of time to prepare for and finally try. All in all, Mr. Ponnuthurai’s case is a perfect example of what Justice Code was referring to when he said in R. v. Cranston, [2008] ONCA 751: “…a drinking and driving case in 2014 bares very little resemblance to trials on similar offences referenced in Morin .

The ninety minute pre-Charter era trial and the ½ day or four hour time estimates are a thing of the past.” [ 65 ] Given the delay calculations, I am not prepared to find that Mr. Ponnuthurai has been denied a trial within a reasonable time. In fact, the amount of institutional delay and Crown delay are such that I need not even consider the extent and effect of the prejudice the Applicant claims to have suffered. However, if I am in error in some of my calculations, I will note that the prejudice Mr.

Ponnuthurai asserts he has suffered is, for the most part, prejudice he’s suffered as a result of the charges and not as a result of the delays. The questioning he complains of by Immigration officials would not have occurred had his first trial date proceeded as scheduled. It didn’t because of the change in tack that he chose to take. The same is true with respect to his assertion that his memory as to the specifics of what occurred both directly before and after the time of arrest having been diminished by time.

On this point specifically, I note in addition, that the in-car video is a veritable “screen capture” of that very point in time as are, I would assume, the breath test room video and the video of his parade before the officer in charge of the station to which he was transported assuming this last video exists or existed. Though he complains of his employment being negatively affected, he has the same job, makes the same amount of money and works the same hours.

In fact, the only specific prejudice I can find is the additional legal expenses he has incurred as a result of “additional court appearances.” Having made the finding that his 11(

b) Charter rights were not breached I will comment only that these additional expenses were not quantified, there was an absence of evidence as to Mr. Ponnuthurai’s net worth, and no evidence what so ever as to what impact these additional legal expenses had, if any, on his life. Released: August 21, 2014

Signed: “Justice K.L. Mulligan”