R. v. Karimian-Kakolaki, 2016 ONCJ 336

ONTARIO COURT OF JUSTICE CITATION: R. v. Karimian-Kakolaki , 2016 ONCJ 336 DATE: 2016 06 08 COURT FILE No. Toronto Old City Hall Court BETWEEN: HER MAJESTY THE QUEEN ( Applicant) — AND — SEDIGHEH KARIMIAN-KAKOLAKI (Respondent) Before Justice Beverly A. Brown Heard on May 11, 2016 Reasons on Application Released on June 8, 2016 Ms Catharine Finley ........................................................... counsel for the Applicant/ Crown Mr. Michael Bryant .................................................... counsel for the Respondent/ Accused BROWN, B., J. Introduction: 1 .

This is a prima facie application brought by the Crown, in relation to a previous finding of unfitness in relation to the Respondent, and pursuant to s. 672.33 of the Criminal Code . 2 . The Respondent has been charged with Assault Cause Bodily Harm. The complainant was a nurse working in a psychiatric hospital. At the time of the allegation, the Respondent was a patient at the hospital. The alleged offence date was in 2010. 3 . On March 24, 2010, the Respondent was found by a judge of this court to be unfit to stand trial. He was ultimately referred to the

jurisdiction of the Ontario Review Board, and was most recently found unfit to stand trial on August 10, 2015. 4 . Pursuant to

Section 672.33 of the Criminal Code , a prima facie hearing is required to be held “not later than two years after the verdict is rendered and every two years thereafter” until the accused is acquitted, or tried, “to decide whether sufficient evidence can be adduced at that time to put the accused on trial.” 5. A prima facie hearing was last held pursuant to this provision, on May 6, 2014. The Respondent was represented by counsel who was not the counsel on this application.

At that time, the court found that the Crown had met the burden of the convincing the court that there was sufficient evidence which could be adduced at that time to put the accused on trial. 6. This application is the next application, having been brought by the Applicant, and was heard and argued before this court on May 11, 2016.

The Respondent has challenged the timing of bringing this application and setting the hearing date, in that it was brought well beyond the successive 2 year anniversary dates (March 24) of the finding of unfitness and as well the adequacy of the material before this court to establish a prima facie case. Issues: 7. There are two issues for this court to decide. 8. Firstly, the court must consider whether this application has been brought in a timely fashion, within the requirements of s. 672.33 of the Criminal Code .

Bound within this issue, is a determination of what the deadline was for bringing this particular application, and whether the Court will extend the period for holding an inquiry, on the basis that the extension is necessary for the proper administration of justice, pursuant to s. 672.33(1.1) of the Criminal Code .

Section 672.33(1.1) is a relatively new provision which addresses the timing of the two year reviews. 9. The second issue relates to the adequacy of the material filed by the Applicant in support of the application. The Respondent has argued that the Applicant has failed to put before the court in this application appropriate evidentiary material.

In that regard, the Respondent argues that an affidavit from the police officer, which refers to the witness statements, updated by the officer recently contacting the key witness (Complainant) and confirming witness availability for a future trial, and providing testimony pursuant to her prior statement, is not sufficient for a prima facie application. Rather, the Respondent has argued that the court cannot rely upon the officer’s affidavit as it is hearsay evidence, and that the Applicant should have at the very least filed affidavit material from the actual proposed witnesses. Facts : 1 0.

It is important to consider the context of this application. 11. In this case, the Applicant commenced steps to have counsel appear in court on behalf of the Respondent, for this application, on a mutually convenient date.

As often is the case, the Crown / Applicant seeks to contact counsel for the prior prima facie hearing (if there has been one), or if there has not been a prior prima facie hearing upon counsel who last represented the defendant at the Ontario Review Board, with a view to confirming retainer for the upcoming application, and therefore the appropriateness of service of materials upon that counsel. The Respondent is copied on such an application, as is the court. However, the court does not expect an unfit Respondent to respond to such an application.

The court relies instead upon the response of counsel for the Respondent. The court relies upon prior counsel to indicate in a timely manner if they are retained, or not retained, such that the Crown / Applicant can have the application before the court in a timely fashion. 12. In this case, the Applicant took steps to contact Ms. Anita Szigeti, on numerous occasions, by having her office called to arrange a mutually convenient date for this application.

The court is advised that there were various appearances in April of 2016 for this application, and then it was adjourned to April 15, 2016 to be spoken to in this court. When the Crown/ Applicant did not hear back from Ms. Szigeti in response to the various telephone calls and messages with respect to this matter, and was told to send an email to counsel instead, the Crown did so. On May 6, 2016, the Crown was advised by Ms. Szigeti that she was no longer counsel for the Respondent, and that the Crown should contact Mr. Michael Bryant, who was prepared to step in as counsel for the Respondent.

Following that point, Mr. Bryant advised the Crown that his first available date for this application was May 11, 2016, when the matter was heard by

this court. 13. Counsel for the Respondent has argued that the Applicant is well out of time for bringing this application, arguing that the deadlinefor having this application before this court was 2 years (following the 2 year anniversary date of March 24, 2014), being March 24,2016. The Applicant has argued that the deadline is within 2 years from the prior prima facie determination of the court, being 2 yearsafter May 6, 2014, taking it to May 6, 2016. 14.

The Respondent has argued that the court should go back to the dates of the prior finding of unfitness, such that the two yeardeadline relates to that original date. In that respect, the Respondent argues that the applications should have been brought by March 24,2012, March 24, 2014 and this application, respectively, by March 24, 2016. In response, the Applicant argues that the two year timelimit should run from the last prima facie hearing, which in this case would be from May 6, 2014, to May 6, 2016. 15.

This court does not have any information before it as to the prior reasons for any previous prima facie decision by the court. Accordingly, there is no information as to any prior decision relating to the timing of the applications, or the content of prior applicationmaterial. Has the 2 year Prima Facie Application for a Hearing been brought in a timely fashion ? 16.

The first aspect of the timing requirement for this court to decide is whether the two year time limit should run from the court’s lastprima facie determination, or some earlier point in time when the 2 year anniversary dates of the original finding of unfitness wouldoccur each two years. 17. The purpose of this provision is to ensure that a defendant is not held subject to a prior finding of unfitness and under the jurisdictionof the Ontario Review Board if the Crown is not in a position to prove the allegations giving rise to the charge(

s) which form the basisfor the prior finding of unfitness. If the Crown is not in a position to prove the allegations, an unfit accused should no longer be subjectto the Ontario Review Board, and the accused shall be acquitted by the court, pursuant to s. 672.33(6) of the Code. 18. The rationale behind the provision is to ensure that at least every two years the court make a determination as to whether the Crowncan prove the charges, if the status of unfitness remains. The Supreme Court of Canada in R. v.

Demers, 2004 SCC 46, considered theconstitutionality of s. 672.33, as part of a legislative regime dealing with fitness. The Court ultimately upheld the constitutionality of thisregime (although not the regime relating to permanently unfit accused). As stated in paras 11 and 12 of that judgment, the Crown mustappear before a court to show, every two years, that there still exists a prima facie case against the accused. This is the only way theCrown can justify maintaining the outstanding criminal charge against the accused. As stated in para 13 of that judgment: “13.

The result of the combined operation of ss. 672.33, 672.54 and 672.81(1) is that an accused found unfit to stand trial remains in the“system” established under

Part XX.1 until either (

a) he or she becomes fit to stand trial or (

b) the Crown fails to establish a prima faciecase against him or her.” 19. There has not been a lot of judicial consideration of s. 672.33 of the Criminal Code, particularly related to the issues before thiscourt. In any event, this court has considered the following particular cases. 20. In R. v. G.B., 2014 ONSC 1112, Justice Leitch considered a case involving a young person, which has been considered by variouscourts over the years. For a young person, the prima facie hearing must be held at one year intervals, rather than every two years.

Inthat court’s consideration, the judge noted that following the initial finding of unfitness in 2003, there had been prima facie hearings in2004, 2005, 2006 and 2007. No hearing was brought between 2007 and 2012. In that case, the court held that the judge who heard thes. 672.33 prima facie application in 2012 lost jurisdiction as he proceeded ex parte and made orders that could not be supported. Thesuperior court judge quashed the order of the judge, and remitted the case back to the youth court judge for a further consideration of s.672.33.

In the ruling of the youth court judge in 2015, the court considered that the two year time limit for prima facie reviewsconsidered in R. v. Peecheemow, 2003 ABPC 144 , [2003] A.J. No. 1006 (Prov. Ct.), required hearings to take place each 2years on the anniversary date of the original finding of unfitness.

21. In this case, the Applicant has argued that the 2 year limit should apply from the date of the last prima facie hearing. No cases wereprovided to this court which had ruled to that effect. Considering a purposive reading of this provision, and the S.C.C. consideration ofthe reviews in R. v.

Demers, supra, it is clear to this court that Parliament intended that there not be delays scheduled beyond the 2 yearanniversary dates of the original finding of unfitness, although Parliament has subsequently specifically made it clear that courts hearingsuch applications beyond the 2 year anniversary dates are not required to acquit a Respondent, and can exercise discretion in permittingdelays beyond those anniversary dates, as considered below. This court finds that the 2 year limit in s. 672.33 requires that the hearingstake place on the 2 year anniversary dates of the original findings of unfitness. 22.

This leaves for this court’s consideration the consequence of this application being brought beyond the successive 2 year anniversaryfrom the original date of unfitness, March 24, 2016, in this case. 23. In R. v. Faraz, [2006] O.J. No. 5612, Justice Schneider considered a prima facie application brought following an original finding ofunfitness on October 7, 2004. On Nov. 27, 2006, the Crown brought an application, for a hearing date of December 1, 2006. This wasthe first prima facie application to take place.

In that regard, the legislation clearly requires the Crown to bring such an application nolater than 2 years following the finding of unfitness. The court considered a number of cases dealing with required periods of time fortaking procedural steps, as provided in the Criminal Code. In that regard, the court considered the mandatory bail review provisions in s.525 of the Criminal Code. The court noted that in the cases of Re Gagliardi and the Queen (1981), (BC CA), 60C.C.C. (2d) 267 (B.C.C.A.) and R. v.

Pomfret (1990), (MB CA), 53 C.C.C. (3d) 56 (Man.C.A.), there was no loss ofjurisdiction for failure to comply with this 90 day time limit. The court also considered the 45 day time limit following a verdict of notcriminally responsible for the Review Board to hold a hearing and make a disposition. In that regard, in Doucet v. Director of AdultForensic Psychiatric Services et al. 2000 BCCA 195, the court held that the trial court order was valid on its face, and there was no lossof jurisdiction without the demonstration of “substantial prejudice” set out in s. 672.53. Likewise, in Martin v.

British Columbia (AdultForensic Psychiatric Services, Director) (2000), 140 B.C.A.C. (B.C.C.A.), the court followed the same reasoning. 24. In Ontario, Justice Schneider in para 7 of Faraz noted that prior to the passing of s. 672.33(1.1), the court reviewed a number ofcases which held that failure to meet the two year time limit for the prima facie reviews. The courts considered whether there wasprejudice to the accused. Overall, in the cited cases in that paragraph, the failure to meet the 2 year requirement was not fatal and did notresult in a loss of jurisdiction. 25.

It is important to note, as stated by Justice Schneider in Faraz, that s. 672.33(1.1) was subsequently passed and now provides thecourt hearing prima facie applications with the ability to extent the two year period where “it is satisfied on the basis of an application bythe prosecutor or the accused that the extension is necessary for the proper administration of justice.” 26.

There is a dearth of jurisprudential consideration of s. 672.33(1.1), although the court in Faraz in para 10, opined that thisdiscretionary power should consider : (1) prejudice to the accused caused by the delay, which will in part be a function of (2) the length of delay, versus (3) the public’s interest in disposing of the case on the merits, which will be informed by inter alia, (4) the seriousness of the allegations. 27. This court agrees with the criteria for consideration of s. 672.33(1.1) as set out by Justice Schneider. The court also considers thereasons of Justice Leitch in R. v.

G.B., supra, which considered a young person, where s. 141(1) of the Y.C.J.A. modifies the s. 672.33review rule to require such a prima facie hearing every year. The court did not consider the provisions in s. 672.33(1.1) as it quashed theorder of the youth court judge which had been made ex parte. 28. In this application, it is clear that the Applicant sought to contact the counsel who had represented the Respondent on the previousprima facie application. This counsel did not respond to the various attempts by the Applicant to contact counsel, until May 6, 2016.

Following confirmation that a new counsel would be appearing for the Respondent in this application, the Applicant served the newcounsel with the material. The matter was then brought before the court in 5 days, on the first date on which the new counsel for theRespondent was available to attend court. 29. This court also considers the matter of prejudice. In that regard, the court notes that application in this case was 5 days beyond the 2year anniversary date of the prior prima facie hearing, on May 6, 2014. This is also a factor for the court to consider on the actual length

of the delay. It was 2 years and approximately 7 weeks beyond the 2 year anniversary dates of the original finding of unfitness. Although the Respondent has stated in its material, and in its oral submissions, that there has been prejudice to the Respondent for thisapplication, there is no particularization of any prejudice suffered by the Respondent. 30. In this case, the Applicant has asked the court to apply s. 672.33(1.1) to extend the period for holding this inquiry, on the basis thatthe extension is necessary for the proper administration of justice.

The court does consider this request in the context of all of thecircumstances, including the lack of any evidence of actual prejudice, the period of delay being only 7 weeks, the fact that theapplication was held approximately 2 years after the last prima facie application, the fact that after the identity of the new counsel for theRespondent was ascertained the application was scheduled for his first available date and the context of time having been lost in bringingthe application to court arising from the delay in ascertaining the identity of counsel for the Respondent after multiple attempts by theApplicant to confirm retainer of counsel.

The court also considers the public interest in disposing of the case on its merits, in relation tothe serious allegations in this case of assault causing bodily harm. In all of the circumstances, the court is satisfied that the extension isnecessary for the proper administration of justice. The court extends the period for this inquiry, accordingly. Adequacy of material filed by the applicant for the prima facie application:

Section 672.33 of the Criminal Code provides as follows : “…

(4) In an inquiry under this section, the court shall admit as evidence (

a) any affidavit containing evidence that would be admissible if given by the person making the affidavit as a witness in court; or (

b) any certified copy of the oral testimony given at a previous inquiry or hearing held before a court in respect of the offence with whichthe accused is charged. (5)The court may determine the manner in which an inquiry under this

section is conducted and may follow the practices and proceduresin respect of a preliminary inquiry under

Part XVIII where it concludes that the interests of justice so require.” 32. In this case, the Applicant has put before the court an affidavit of a police officer, together with the disposition of the Ontario ReviewBoard on August 10, 2015, which found the Respondent to continue to be unfit. The affidavit also attached the statement of twowitnesses for the case, one of which was the complainant Catherine Glen, with whom the affiant had spoken to on May 1, 2016, andwhom indicated she was prepared to testify pursuant to her statement.

This affidavit by the police officer was sworn before acommissioner for taking oaths for the Toronto Police Service, but the attached exhibits were not signed by the commissioner. Counselfor the Respondent challenges this affidavit as not having properly had affixed the signature of the commissioner on the attachedexhibits. Counsel for the Respondent has also argued that at the very least, the Applicant should have filed an affidavit from thewitnesses on which it seeks to rely for the prima facie application. 32. In R. v. Demers, supra, at para. 35, the Supreme Court of Canada held : “

Section 672.33 requires the court only to examine whether or not the Crown is able to put forward sufficient evidence to put theaccused on trial. In other words, the Crown must adduce some “evidence upon which a reasonable jury properly instructed could returna verdict of guilty”: R. v. Charemski, (SCC), [1998] 1 S.C.R. 679 (S.C.C.), at para. 2; United States v. Shephard(1976), (SCC), [1977] 2 S.C.R. 1067 (S.C.C.), at p.

Section 672.33 does not presume guilt, but rather aims atpreventing abuses of the regime under

Part XX.1 Cr.C. by providing that the accused is acquitted when the evidence presented to thecourt is insufficient to put him or her on trial.” 33. Over the last number of years, there has been in legal circles a call for eliminating the preliminary hearing. Parliament has noteliminated this procedure, but has made modifications to its continued existence. The procedural provisions in the Criminal Code havebeen relaxed as it relates to the calling of evidence in a preliminary hearing in the recent past.

Section 540(7) provides for the receptionof evidence that would not otherwise be admissible, but that the justice considers credible or trustworthy, in the circumstances of thecase, including a statement that is made by a witnesses in writing or otherwise recorded.

34. The affidavit material filed in this prima facie application would be within the category of permissible evidence in s. 672.33(5), and s. 540(7). Counsel for the Respondent had advance notice of the Applicant’s intention to proceed with the affidavit as prepared, having been served with the material in advance of the application. Counsel for the Respondent indicated to the court his contemplation of seeking to potentially cross-examine the affiant, and his tactical decision to not do so in this case.

Although the exhibits of the affidavit should have been specifically signed by the commissioner, and the failure to do so reflects negligent execution of the document, it does not in this court’s view make it lacking in trustworthiness or credibility, and thereby inadmissible, or unsuitable for consideration based on the relevant provisions. In the interests of justice, at this time and in this case, this court will consider this material. 35.

Considering all of the material before this court, this court finds that the Applicant has met the onus, of showing that there is sufficient evidence that can be adduced to put the Respondent on trial. Conclusion : 36. The court finds that there is sufficient evidence to put the Respondent on for trial, pursuant to s. 672.33 of the Criminal Code . “ Justice Beverly A. Brown” Justice Beverly A. Brown Released: June 8, 2016