



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Jeeva, 2018 ONCA 308

DATE: 20180327

DOCKET: C57439

Feldman, Watt and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Kisantharuby Jeeva

Appellant

Dean Embry, for the appellant

Brett Cohen, for the respondent

Heard: March 16, 2018

On appeal from the conviction entered on July 9, 2013 by
    Justice Peter A. J. Harris of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

Thirty-eight defendants, plus Ms. Jeeva, were charged separately as the
    result of an insurance fraud conspiracy investigation, Project Whiplash, into
    allegedly staged motor vehicle collisions. The charges against Ms. Jeeva were
    laid on March 9, 2012. Until October 12, 2012, her charges were processed
    together with other Project Whiplash defendants, and she had been advised from
    the outset that if a trial was held, she would be tried jointly with other
    defendants. Initially the Crown indicated, on the record, that she would be
    tried with the occupants of the vehicle she allegedly drove. Later, when the Crown
    and those other occupants were working towards a resolution of their charges,
    the Crown announced its intention to prosecute the various alleged drivers together.
    On September 20, 2012, the Crown agreed to Ms. Jeevas first request to process
    her charges alone. A pre-trial was held and on July 9, 2013, the trial took
    place. She was convicted that day of one count of fraud over $5,000.

[2]

Ms. Jeeva now appeals her conviction. She alleges that the trial judge
    erred in rejecting her s. 11(b)
Charter
application. Ms. Jeeva does
    not contest the proposition of law relied upon by the trial judge prior to
R.
    v. Jordan
, 2016 SCC 27, [216] 1 S.C.R. 631 that ordinarily delay caused
    by the actions of co-accused is considered to be neutral in the s. 11(b)
    analysis.
[1]
She says that the trial judge erred by applying that principle, which is confined
    to co-accused persons, to persons individually charged in Project Whiplash, and
    by treating delay caused by these individually charged defendants as delay
    inherent in her prosecution.

[3]

We need not settle the broader legal question of whether individually
    charged but related defendants being processed with a view to joint trials should
    be treated the same as co-accused persons in characterizing trial delay. Even
    if we were to accept Ms. Jeevas position that they should not be treated in the
    same way, there is insufficient institutional or Crown delay in this case to
    support a finding that s. 11(b) of the
Charter

was violated.
    The trial judge identified only two periods of neutral delay in Ms. Jeevas
    case attributable to the actions of other accused. Those two periods total 89
    days. If this approximate three months of delay is not treated as inherent in
    the prosecution of Ms. Jeeva, and is added to the seven months of institutional
    delay the trial judge found, the net delay is still only approximately ten
    months. A ten month net delay falls within the
R. v. Morin
, [1992] 1
    S.C.R. 771 guidelines for provincial court trials and would not be unreasonable
    under the pre-
Jordan
law in place when Ms. Jeevas s. 11(b)
    application was decided.

[4]

If, instead, the
Jordan
regime is applied, the total delay of
    16 months is not presumptively unreasonable. Nor can it be said that a transitional
    case involving 10 months of
Morin

delay is one of those
    exceptional cases where a presumptively reasonable delay offends s. 11(b)
    because the case took markedly longer than required.

[5]

The trial judge came to the correct conclusion. The appeal is therefore
    dismissed.

K. Feldman J.A.

David Watt J.A.

David M. Paciocco J.A.





[1]

In
R. v.
    Gopie
, 2017 ONCA 728, 356 C.C.C. (3d) 36, at para. 142
    this court held that post-
Jordan
, the Crown has the burden of proving that delays caused by
    co-accused persons fall within the exceptional circumstances analysis.


