R. c.

Thanabalasingham 2017 QCCS 1271

SUPERIOR COURT
(Criminal division)

CANADA
PROVINCE OF QUEBEC
DISTRICT OF MONTREAL

N: 500-01-077003-124

DATE : April 7, 2017

______________________________________________________________________

IN THE PRESENCE OF: THE HONOURABLE ALEXANDRE BOUCHER, J.S.C.

______________________________________________________________________

HER MAJESTY THE QUEEN

Prosecution
v.
SIVALOGANATHAN THANABALASINGHAM
Accused
______________________________________________________________________

JUDGMENT 1
______________________________________________________________________

[1] The accused, Mr. Sivaloganathan Thanabalasingham, is charged with the

second degree murder of his spouse, Ms. Anuja Baskaran. According to the indictment,
the alleged crime would have been committed on August 11, 2012. The accused was
arrested and taken into custody on that same day. He was arraigned before a judge on
August 13, 2012. Lengthy judicial proceedings ensued. The trial is set to begin on April
10, 2017 and is scheduled for a period of seven weeks, before a jury of the Superior
Court of Quebec sitting in Montreal. The overall delay between the laying of the charge
and the anticipated end of the trial exceeds 57 months, the equivalent of nearly five
years.

[2] The accused seeks a stay of proceedings pursuant to s. 11 b) and 24 (1) of the
Canadian Charter of Rights and Freedoms on the grounds that his constitutional right to
a trial within a reasonable time has been violated.

1
Transcript of a judgment rendered orally on April 6, 2017. The Court revised the reasons to
improve their presentation and comprehension (Kellogg's Company of Canada v. P.G. du Qubec
[1978] (CAQ) 258, 259-260).
500-01-077003-124 PAGE :

[3] The Court must consider the new framework laid down by the Supreme Court of
Canada in R. v. Jordan, [2016] 1 SCR 631 as it applies to a transitional case that was
already in the system, on July 8, 2016, when this judgment was released.

[4] In Jordan, the Supreme Court observed that our criminal justice system has
come to tolerate excessive delays to the detriment of the rights and interests of
everyone affected by criminal justice: the accused persons, the victims and their
families and the public as whole.

[5] The Supreme Court found that a change of direction was required and put
forward a reinvigorated conception of the right to be tried within a reasonable delay.

[6] The new test set out in Jordan involves presumptive ceilings beyond which a
delay is presumed unreasonable pursuant to s. 11 b) of the Charter, unless the Crown
justifies it by establishing exceptional circumstances. Prejudice to the accused and
seriousness of the offence are no longer considered. The presumptive ceiling is 30
months from the charge to the actual or anticipated end of the trial for a case tried
before the Superior Court, like the present case.

[7] However, the Supreme Court recognized that change takes time and that a
sudden and abrupt application of the new framework could result in a large number of
charges being stayed at the risk of undermining the integrity of the administration of
justice. Consequently, the Court ruled that the Crown may invoke transitional
exceptional circumstances where the prosecution was brought prior to July 8, 2016. The
new framework must be applied with flexibility and contextually to cases currently in the
system. The transitional regime will not excuse all abusive delays. It remains that the
new framework applies to transitional cases, although with adaptations.

[8] In a transitional case such as this one, where the trial is to be held before the
Superior Court, the Jordan analysis may be set out as follows:

1) First, the Court must determine the total delay from the laying of charges
to the end of trial.

2) Then, the Court must deduct from the total delay any delay waived by the
defence or caused solely by the conduct of the defence. The defence
caused a delay if it was not available when the court and the Crown were
ready to proceed. However, legitimate preparation time and actions taken
to respond to the charges cannot be characterized as defence delay.

3) If the remaining delay is above the presumptive 30 months ceiling, the

delay is presumed unreasonable and the burden shifts to the Crown to
justify the delay as having been due to exceptional circumstances that
were reasonably unforeseen or reasonably unavoidable and that could not
be reasonably remedied, such as (a) discrete events or (b) a particularly
complex case. The Court is to subtract the delay caused by any
exceptional discrete events from the total period of delay to determine
whether the delay is still above the 30 months ceiling. The Court must also
500-01-077003-124 PAGE :

consider whether the case was so particularly complex that delay is

deemed justified and reasonable.

4) If the Crown fails to demonstrate exceptional circumstances, a stay of

proceedings must be ordered.

5) If the remaining delay falls below the presumptive ceiling, the defence has
the burden to show that the delay is unreasonable by establishing that (a)
it took meaningful steps that demonstrate a sustained effort to expedite
the proceedings and (b) that the case took markedly longer than it
reasonably should have.

6) The Crown may establish transitional exceptional circumstances if it

satisfies the Court that (a) the delay is justified based on the parties'
reasonable reliance on the law as it previously existed (e.g. prejudice to
the accused and the seriousness of the offence often played an important
role under previous law) or (b) that the case is of moderate complexity in a
jurisdiction with significant institutional delay problems.
See generally: R. v. Jordan, [2016] 1 SCR 631; R. v. Williamson,
[2016] 1 SCR 741; R. v. Bliveau, 2016 QCCA 1549; R. v. Huard,
2016 QCCA 1701; R. v. Dupuis, 2016 QCCA 1930; R. v. Coulter,
2016 ONCA 704; R. v. Manasseri, 2016 ONCA 703; R. v. Singh,
2016 BCCA 427.

[9] The Court now applies these principles to the case at bar.

[10] First, the Court notes, as mentioned above, that the overall delay from the laying
of the charge to the anticipated end of trial is just over 57 months.

[11] From the overall delay, roughly two months must be deducted for adjournments
or delays asked by the defence (on April 28, 2014, April 29, 2014, November 7, 2014,
November 28, 2014, and November 18, 2016). The Court finds that all the other
adjournments consented by the defence amounted to acquiescence in the inevitable
and cannot be said to be caused solely by the defence.

[12] Therefore, the remaining delay (overall delay minus defence delay) is 55 months.

[13] Before going further, a particular aspect of the proceedings must be addressed.

[14] On June 8, 2015 the trial was set to start on February 12, 2018. The trial was
scheduled so far ahead in time due to a lack of judicial resources. Afterward, the
Coordinating judge of the Criminal division of the Superior Court attempted to advance
the trial amid new openings in the docket. On January 21, 2016, at a case management
hearing, the Coordinating judge offered to advance the trial to mid-April 2016 or to
March 2017. The Crown was available on these dates. Defence attorney declined
because of his busy schedule and because he had obligations in another case (a fraud
mega-trial). However, he would have been available for trial in April 2016 if that date had
been offered earlier in the process, in 2015. Later on, in a letter dated June 14, 2016,
500-01-077003-124 PAGE :

the Coordinating judge came back again with an offer to advance the trial. He proposed
to start the trial in September 2016. Again, defence counsel replied that he was not
available because of his involvement in the same case. It is not clear from the record if
the Crown would have been available in September 2016. Finally, on November 18,
2016, at the initiative of the Court and with the agreement of Crown and defence, the
beginning of the trial was advanced from February 12, 2018 to its current date on April
10, 2017.

[15] The Crown calculates that the trial would have been finished by the beginning of
June 2016 if defence had been available to start the trial in mid-April 2016, when that
date was offered by the Court. The Crown submits that the delay after June 2016 was
caused by the defence and must be subtracted from the overall delay.

[16] The Court disagrees.

[17] Under the new framework, a delay is caused by the defence if it was not
available when the Court and the Crown were ready to proceed. To be clear, such delay
will not be attributable to the defence when the Court and the Crown are also
unavailable (Jordan, par. 64; see also R. v. Khoury, 2016 QCCS 5009, par. 19-22).
However, it must be remembered, that defence is allowed reasonable preparation time
(Jordan, par. 65) and that only delays caused solely by the conduct of the defence are
to be subtracted from the overall delay (Jordan, par. 63-66).

[18] In the present case, new trial dates were offered by the Coordinating judge
because the trial was initially set to start at a much later date. Defence attorney would
have been available at an earlier date, in April 2016, if it had been offered previously in
the process. In this context, it cannot be said that the delay related to the unavailability
of defence counsel was caused solely by the defence. Some consideration must be
given to the circumstances leading up to the point when the defence was not available
(Christopher Sherrin, Understanding and Applying the New Approach to Charter Claims
of Unreasonable Delay, 22 Can. Crim. L. Rev. 1, p. 7 (February, 2017)).

[19] Moreover, since this a transitional case, reasonable reliance on the previous
state of the law by the parties must be taken into account. In R. v. Godin, [2009] 2 SCR
3, par. 23, the Supreme Court stated 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. Defence counsel was all the
more not required to be available at all time for a hypothetical change of trial dates.

[20] The next step of the test, is to consider whether the Crown established
exceptional circumstances.

[21] The Court finds no discrete and exceptional event in the present case that would
have been unforeseeable or unavoidable.

[22] The Crown submits that the extension of the preliminary inquiry beyond the
estimated period is an exceptional circumstance.
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[23] Again, the Court disagrees with this argument.

[24] The duration of the preliminary hearing was hardly an unforeseeable or

unavoidable circumstance. It is well known to all participants of the criminal justice
system in Montreal that it is virtually impossible to hold a lengthy preliminary hearing
continuously in this jurisdiction. In this context, inaccurate assessment of the time
required for the preliminary inquiry must be avoided at all cost because it may result in
serious additional delays. Here, the preliminary inquiry lasted 20 days instead of the 10
days initially allocated. It was fragmented and had to be adjourned and resumed on
several occasions. It spread over a period of time exceeding one year. It started on
March 17, 2014 and the accused was committed to stand trial on April 28, 2015.

[25] The inordinate amount of time taken for the preliminary inquiry was not beyond
the control of the Crown. In fact, the reverse is true. The Crown initially charged the
accused with second degree murder and it sought to present evidence at the
preliminary hearing to have him ordered to stand trial on a charge of first degree
murder. The Crown had a weak case on first degree murder. It relied on s. 231 (6) of the
Criminal Code. This section provides that, irrespective of whether a murder is planned
and deliberate, a murder is first degree murder when the death is caused while
committing or attempting to commit criminal harassment pursuant to section 264 of the
Criminal Code. The prosecution failed to satisfy its low burden of evidence to obtain
committal on first degree murder. In particular, the Crown had no proof on the
requirement that murder and criminal harassment were committed concurrently or
contemporaneously (R. v. Alaoui, 2009 QCCA 149; R. v. Walters, 2012 QCCA 1417; R.
v. Meunier, 2014 QCCA 1681). On this point, the Court refers to the decision of the
preliminary hearing judge, rendered on April 28, 2015.

[26] It results that the Crown must bear some responsibility for the duration of the
preliminary hearing.

[27] Furthermore, the case is not particularly complex. This is a typical murder case
(Jordan, par. 78). The expected duration of trial is longer than the ordinary only to take
account for translation of the testimonies since the evidence is to be given in French,
English and Tamil.

[28] The Court must now consider whether a transitional exceptional circumstance
justifies the delay.

[29] As mentioned earlier, to establish a transitional exceptional circumstance, the

Crown must satisfy the Court that the delay is justified by reasonable reliance on the
previous legal framework. A transitional exceptional circumstance may also apply where
the case is of moderate complexity in a jurisdiction with important institutional delay
problems.

[30] The analysis must be contextual and flexible (Jordan, par. 96-98). The Court
must balance all the circumstances of the case including factors that were relevant
under the previous state of the law as laid out in R. v. Morin, [1992] 1 SCR 771: the
length of the delay, prejudice to the accused, the seriousness of the charge, the
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complexity of the case, the conduct of the defence, and whether the Crown sought to
expedite the proceedings (Jordan, par. 128-131; R. v. Williamson, [2016] 1 SCR 741,
par. 25-30; R. v. Manasseri, 2016 ONCA 703, par. 324-379; R. v. Huard, 2016 QCCA
1701, par. 24-31; R. v. Bliveau, 2016 QCCA 1549, par. 99-138; R. v. Palma, 2016
QCCS 6543; R. v. Louati, 2016 QCCS 3411).

[31] After thoughtful consideration, the Court finds that the Crown has failed to
establish a transitional exceptional circumstance in the present case.

[32] The Court takes into account the length of the delay. The net delay (total delay
minus defence delay) is 55 months. This delay is nothing less than startling. It exceeds
the 30 months presumptive ceiling set out in Jordan by 25 months. Also, the Court
generally accepts the submission of the defence on the qualification of the delays under
the previous law, as stated in R. v. Morin, [1992] 1 SCR 771, and finds that the
institutional delay the delay attributable to the limits of the justice system is roughly
43 months. This is much longer than 18 months, the upper end of the range of the
guidelines set out in Morin. In other words, the delay in this case is just as unreasonable
under the previous framework as it is under the new framework (R. v. Huard, 2016
QCCA 1701, par. 26).

[33] The accused is detained since the beginning of the proceedings, in August 2012,
nearly five years ago. The Court takes this infringement to the accuseds right to liberty
very seriously. It should be remembered that the accused is presumed innocent of the
crime charged. He certainly suffered prejudice from his pre-trial incarceration. In any
event, prejudice may be inferred from the length of the delay (R. v. Godin, [2009] 2 SCR
3, par. 30-31).

[34] While it can be argued that a murder trial before a jury is never a straightforward
business, there is no indication that the present case is complex. No particular difficulty
arises from the evidence or the issues to be debated. Complexity cannot account for the
unreasonable delay in the present matter.

[35] In addition, the defence was cooperative and reasonable in the conduct of the
proceedings, although it seemed that defence had been resigned to live with the delays,
without being able to do much about it, until the release of the judgement in Jordan. It
must be noted that the defence would have consented to committal at preliminary
inquiry on second degree murder pursuant to s. 549 of the Criminal Code and would
have been satisfied with a limited preliminary inquiry. Also, the defence agreed, along
with the Crown, to have the trial advanced from February 2018 to April 2017.

[36] The Court takes into consideration that the accused is charged with second
degree murder, a very serious offence. The Court is mindful that a woman lost her life in
tragic circumstances and that Society has an interest in having a serious case tried on
its merits.

[37] Nevertheless, in R. v. Williamson, [2016] 1 SCR 741, par. 33-37, the Supreme
Court, in a judgement released with Jordan, indicated clearly that seriousness of the
offence charged is a factor of very limited relevance in the analysis. Seriousness of the
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charge cannot in itself diminish the accuseds right to a trial within a reasonable time.
Moreover, in the interest of justice, serious cases are precisely the kind of cases that
must be prosecuted promptly with the strongest evidence. Also, the seriousness of an
offence does not sit well with the notion of reasonable time. There is no evident logical
link between the seriousness of a charge and the duration of proceedings.

[38] Still on the subject of the seriousness of the offence, the Court takes note that
stay of proceedings orders have been rendered in murder and manslaughter cases
since the release of Jordan (R. v. Regan, 2016 ABQB 561; R. v. Picard, 2016 ONSC
7061; R. v. Manasseri, 2016 ONCA 703).

[39] Further, the Crown did little to mitigate the lengthy institutional delay and to fulfill
its duty to bring the accused to trial within a reasonable delay (R. v. Vassell, [2016] 1
SCR 625, par. 7). On the contrary, the Crown made questionable procedural choices
that contributed to the delay when it initially charged the accused with second degree
murder and later attempted in vain, based on weak evidence, to have him committed on
first degree murder by the preliminary hearing judge (R. v. Manasseri, 2016 ONCA 703,
par. 367). This is not to point the finger at anybody, but a better cost-benefit analysis in
prosecution decisions making would have better served the justice system (R. v.
Rodgerson, [2015] 2 SCR 760, par. 45-46).

[40] It appears from the record that most of the delay in the present case was caused
by the chronic institutional delay problem that have plagued the criminal justice system
in the district of Montreal, for the past several years. The Court must account for this
reality. The transitional exceptional circumstance criteria established in Jordan provides
for some degree of tolerance for institutional delay in cases that were already in the
system (Jordan, par. 94-98).

[41] Nevertheless, transitional exceptional circumstances cannot be invoked to

excuse every institutional delay in every case. Here, the delay is too long and it is
unjustified. Again, the delay vastly exceeds the presumptive ceiling of 30 months. The
institutional delay also greatly surpasses the Morin guidelines. Reliance on previous law
cannot justify the nearly five years it took to bring the accused to trial. The accused
awaited trial in custody for an unreasonable amount of time while being presumed
innocent of the charge against him. The case is not complex. The charge is very serious
but this factor cannot alone justify the delay. The Crown failed to be proactive and even
contributed to the delay.

[42] The accuseds right to a trial within a reasonable time has been violated.

FOR THESE REASONS, THE COURT:

[43] GRANTS the application;

[44] ORDERS a stay of proceedings.

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__________________________________
ALEXANDRE BOUCHER, J.S.C.

Me Catherine Perreault and Me Richard Audet

Directeur des poursuites criminelles et pnales
Attorney for the prosecution

Me Joseph La Leggia and Me Xavier Pringle

Morneau L'cuyer La Leggia & Associs
Attorney for the accused

Date of hearing: April 3, 2017.