Her Majesty the Queen v. Sivaloganathan Thanabalasingham
(Que.) (Criminal) (As of Right)
Criminal law - Appeals, Right to be tried within a reasonable time (s. 11(b)) - Charter of Rights - Right to be tried within reasonable time - Criminal law - Appeals - Mootness - Accused charged with second degree murder - Delay of five years between charges and anticipated end of trial - Trial judge finding that right of accused to be tried within reasonable time had been infringed, and granting stay of proceedings - Crown appealing against stay - Accused removed from Canada despite pending appeal - Court of Appeal dismissing appeal on basis that it was moot - Criteria to apply in deciding whether to rule on moot appeal where accused is not deceased, but has simply been removed from Canada - Whether respondent’s right to be tried within reasonable time was infringed.
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The respondent, Sivaloganathan Thanabalasingham, a refugee from Sri Lanka and a permanent resident, was charged with the second degree murder of his wife. He was arrested on August 11, 2012, the day of the murder. After lengthy legal proceedings, his trial was scheduled to begin on April 10, 2017. He applied for a stay of proceedings on the ground that his right to be tried within a reasonable time had been infringed. The trial judge ruled in his favour, ordering a stay after having applied the framework from R. v. Jordan, 2016 SCC 27,  1 S.C.R. 631.
The Crown appealed that decision. Three days after the proceedings were stayed, a deportation order was issued against Mr. Thanabalasingham, and he was removed to Sri Lanka on July 5, 2017. Despite his removal, the Crown continued its appeal. The Court of Appeal considered the preliminary questions, namely whether the appeal had become moot and, if so, whether it should exercise its discretion to adjudicate the appeal as if it were not moot. The majority of the Court of Appeal held that the appeal was moot and that there were no valid reasons to justify the court exercising its discretion to adjudicate the appeal, which they dismissed. Duval Hesler C.J.Q., dissenting, would have allowed the appeal, annulled the stay and ordered a trial.
On April 17, 2019, the Court allowed the appeal and remitted the matter to the Court of Appeal for a decision on the merits, finding that the majority of the Court of Appeal had erred in concluding that the case was moot.
The majority dismissed the Crown’s appeal, holding that the Crown had not proven any errors that would open the door to intervention by the court. Before arriving at his decision, the trial judge had applied the law and considered all the circumstances, including the nature of the offence and society’s interest in having a case of spousal homicide heard on the merits. He had not erred in not subtracting a delay caused by counsel for Mr. Thanabalasingham being unavailable, in concluding that the delay attributable to the excessive time it took to complete the preliminary inquiry was not an exceptional circumstance, and in declining to apply the transitional exceptional circumstance. Duval Hesler C.J.Q. and Gagnon J.A., dissenting, would have allowed the appeal, set aside the Superior Court’s judgment, returned the matter to the Superior Court for trial and ordered that Mr. Thanabalasingham be arrested if he were to return to Canada.
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