



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Kugathasan, 2012
    ONCA 545

DATE:  20120822

DOCKET: C54161

Doherty, Watt and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Mylvaganam Kugathasan

Respondent

Matthew Asma, for the appellant

Adam Little, for the respondent

Heard and released orally: August 2, 2012

On appeal from the order of Justice Nakatsuru of the Ontario
    Court of Justice, staying proceedings against the respondent, dated July 22,
    2011.

ENDORSEMENT

[1]

The Crown appeals from the order of the trial judge staying the
    proceedings based on his finding that the respondents right to trial within a
    reasonable time, as guaranteed by s. 11(b) of the
Charter
, had been
    infringed.  The Crown contends that the trial judge erred in law in coming to
    that conclusion and advances several arguments in support of that position.

[2]

As always in s. 11(b) cases, the chronology is important and I will
    attempt to summarize it in a way that will make the issues necessary for the
    determination of this appeal apparent.

[3]

The respondent was charged with impaired driving and blowing over in
    November 2009.  He first appeared on November 18, 2009.

[4]

On February 5, 2010, trial dates were set in the Ontario Court of
    Justice for January 20, 2011.  On April 20, 2010, the parties agreed to move
    the trial date forward to November 22, 2010.

[5]

On November 9, 2010, the respondent served a notice of motion on the
    Crown. The respondent indicated that he would be bringing a motion at the
    outset of his trial for an order quashing the information on the basis that the
    appearance notice compelling his attendance was not properly confirmed.  As the
    law stood at the time, it is fair to say that the motion was an arguable one. 
    The issue was unclear.  It was, however, clear that even if the motion were
    successful, nothing would stop the Crown from relaying the charge and
    proceeding with the allegation.

[6]

On November 10, 2010, the day after the Crown received the notice of
    motion, Crown counsel wrote to defence counsel indicating that if defence
    counsels motion to quash were successful, the Crown would relay the charges. 
    Crown counsel also suggested that the motion to quash should be moved forward
    to some date before November 22
nd
so that if the motion were
    successful, the Crown could relay the charges and the matter could proceed to
    trial on the scheduled trial dates of November 22
nd
and 23
rd
. 
    The defence was not available to argue the motion before November 22
nd
.

[7]

The motion was argued on November 22
nd
and the defence was
    successful.  The trial judge quashed the information as a nullity.  The
    respondent, on counsels instructions, left the courtroom as soon as the trial
    judge indicated that the information was a nullity.  He was not under any
    obligation to remain in the court.  The Crown indicated in court on November 22
nd
that it would relay the charges and hopefully proceed on November 23
rd
,
    the second day that had been reserved for the trial.

[8]

The Crown could not relay the charges and serve the respondent before
    November 23
rd
.  The respondent was served on November 24
th
with a process returnable on December 16, 2010.  The respondent did not appear
    on December 16
th
.

[9]

There were various appearances between December 16, 2010 and February
    18, 2011.  On February 18
th
, everybody was in court ready to set a
    date for trial.  The court offered dates in March.  Unfortunately, counsel for
    the respondent was not available.  Counsel for the respondent offered other
    dates in March, but there was no court space available on those dates. 
    Ultimately, the matter got adjourned for trial to July 19, 2011.

[10]

We
    see no need to revisit the trial judges analysis as it relates to the events
    before the motion to quash on November 22, 2010.  We agree with counsel for the
    respondent that this appeal turns on whether the trial judge properly assessed
    the delay between November 22, 2010, when the first information was quashed and
    July 19, 2011, the scheduled trial date on the re-laid charges.

[11]

The
    trial judge held that the time between November 22
nd
and December 16
th
,
    about three weeks, was the responsibility of the Crown.  This was the time
    needed to relay the information and get the respondent back before the courts. 
    The trial judge next determined that the almost three weeks between December 16
th
and January 5, 2011 was attributable to the respondent because he had failed to
    attend court on December 16
th
.  The trial judge further concluded
    that the time period between January 5 and February 18, 2011 should be regarded
    as neutral and part of the inherent time requirements of the case.  Most
    significantly, the trial judge concluded that the five months between the set
    date in February 2011 and the trial date in July should be characterized as
    institutional delay.

[12]

In
    reviewing the trial judges assessment of the time period between November 22,
    2010 and July 2011, we acknowledge several important points made by counsel for
    both the Crown and the respondent.  First, the Crown has the obligation to
    bring the accused to trial.  The accused has no obligation in that regard.  Second,
    nothing done by counsel in bringing the motion to quash can be criticized as
    improper.  Third, the Crowns decision to oppose the motion to quash on the
    merits and the Crowns timely advice to counsel that it would relay the charge
    if the motion were successful cannot be criticized.  Finally, in assessing
    responsibility for delay for the purposes of s. 11(b), the court does not
    distinguish between the respondent and his counsel.  Tactical decisions made by
    counsel that have an effect on the progress of the proceedings are attributable
    to the defence.

[13]

In
    our view, one has to take a practical common sense view of what was going on
    here.  Counsel for the respondent knew that if he were successful in his motion
    brought at the outset of the trial on November 22
nd
, there would be
    no trial on November 22
nd
.  Counsel also knew that if the motion were
    successful, it would not be the end of the matter and that the Crown fully
    intended to continue the litigation and had the right to do so.  Counsel also
    took steps to avoid the possibility of the trial proceeding on November 23
rd
. 
    Again, this observation is not intended as a criticism of counsel, but simply
    as a  recognition that the steps taken by counsel inevitably had the result of
    avoiding a trial on November 22
nd
and November 23
rd
.

[14]

It
    seems an irresistible conclusion that the motion to quash was part of a defence
    strategy intended to avoid a trial on November 22
nd
and November 23
rd
. 
    Perhaps, counsel hoped to avoid a trial altogether should the Crown conclude,
    contrary to its original position, that it would not relay the charge, or
    should the Crown be unable to get the matter back to trial before s. 11(b)
    foreclosed a trial on the merits.

[15]

The
    steps taken by the defence to bring a motion to quash the information on the
    scheduled trial date inevitably resulted in a delay of the trial for the time
    needed to reassemble the parties and, in effect, recommence the proceedings. 
    In the context of the s. 11(b) calculus, the defence, like the Crown, must take
    responsibility for the delays that are the consequences of its tactical
    choices.  We stress again that the exercise is not about criticizing defence
    counsel or assigning fault.  It is about a realistic attribution of causes for
    delay in the context of considering whether the overall time period in issue is
    such as to result in a breach of the respondents rights under s. 11(b).

[16]

The
    defence tactic effectively put the process back at the starting position as of
    November 2010.  In our view, the time needed to get the parties back in the
    position they were in on November 22, 2010, that is ready for trial, should be
    attributed to the defence.  On this record, the defence was available for trial
    in March 2011.  We would characterize the period between November 2010 and
    March 2011 as defence delay.  At best, it was neutral in the sense that it was
    the time inherently required to put the proceedings back on track after the information
    was quashed.

[17]

Counsel
    for the respondent forcefully and effectively argues that even if the period
    between March and July in 2011 is the only institutional delay, that delay
    still puts this case beyond constitutional limits.  He stresses that whatever
    the explanations, this case was in the system for almost a year and one half as
    of February 2011 when the defence was prepared to set a trial date in March
    2011.  He emphasizes that this was not a complicated case.  Counsel contends
    that given the history of the case, the system had to give it priority as
    defence counsel was prepared to do, and fix a very early trial date.  He
    submits that a trial date in July was simply too far in the future.

[18]

There
    is force to these submissions.  We do not, however, agree.  First of all, the
    system was able to offer the respondent earlier trial dates.  Unfortunately,
    counsel was not available.  The fact that these dates were offered to the
    defence is some indication of attempts to set an early trial date no doubt in
    recognition of the fact that the case had been in the system for some time.  Second,
    we do not think a period of four to five months to set a trial date for a two-day
    trial is inordinate even given the prior history of the case.  Certainly, four
    to five months is not ideal.  However, s. 11(b) does not demand that the system
    operate to that standard.  We note Crown counsels observation that the trial
    date offered in February 2011 contemplated a trial delay of about half of the delay
    contemplated when the initial trial date was set in February 2010.

[19]

Having
    regard to the totality of the time period and properly attributing the reasons
    for the delay between November 2010 and March 2011 to either the defence or, as
    neutral, we are satisfied that there was no violation of s. 11(b).  The order
    staying the proceedings is set aside and the matter is remitted to the trial
    court for trial.

Doherty J.A.

David Watt J.A.

S.E. Pepall J.A.”


