Court and Parties
DATE: April 5, 2021 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario
B E T W E E N :
HER MAJESTY THE QUEEN
-and-
ZEESHAN NASEER
REASONS FOR JUDGMENT
Duncan J.
Background
1The defendant is charged with exceed 80, offence date November 17 2018. This is an application to stay under section 11b.
2The trial dates are now set for May 5-7 2021, almost 30 months (29 months, 21 days) from the date of the charge.
3The parties are far apart with respect to defence delay. The defence concedes only 3 days. The Crown maintains that there has been about 11 months of defence delay and that the net delay is 18 months and 18 days – still in excess of the presumptive ceiling.
Analysis
4The case turns on whether the case can be fit within the exception. Complexity is not suggested. Exceptional circumstances become the issue. Jordan described them as follows:
69 Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.
70 It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful -- rather, just that it took reasonable steps in an attempt to avoid the delay.
71 It is obviously impossible to identify in advance all circumstances that may qualify as "exceptional" for the purposes of adjudicating a s. 11( b ) application. Ultimately, the determination of whether circumstances are "exceptional" will depend on the trial judge's good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
5The Crown argues that the failure of the defence to raise a concern about delay at any time before the date was set, when the date was set, or any time after the date was set deprived the Crown of the opportunity to attempt to find earlier dates within the presumptive period. But even if that was so, I do not think it fits within the exception. It was not an event extraneous to the process. The delay issue was fully foreseeable and avoidable had the Crown been paying attention. Unlike other cases where the delay is modestly over the ceiling, the extraordinary length of time in this case between the date of charge and the trial date should have been its own flag.
6The Crown also argues that the failure of the defence to raise a delay issue in a timely way was then compounded by the advent of the pandemic, though as I understand it the Crown does not argue that the pandemic was in itself a discrete event.1 Rather it is argued that it disrupted the entire system and effectively closed the Crown office for months thereby diminishing or removing any chance that the problem would be caught and corrective measures be attempted. But again, even if that is so, it only satisfies the second requirement in Jordan para 69 above, not the first.
7The Crown points out that at the JPT held November 1 2019, possible Charter applications were canvassed and while some Charter issues were mentioned, there was no mention of 11b. Further, when the trial dates were set, according to practice, the trial co-ordinator should have been alerted to the need to book a separate date for an 11b application to be heard.
8Certainly, counsel is expected to be candid with the Court at a JPT. However, at the time of the JPT in this case, the defence could not have known what trial dates he would be offered and whether they would give rise to an 11b issue or not. As for the second point, alerting the trial co-ordinator to an 11b would not have changed the trial dates, which already were the first dates available.
Conclusion
9I don’t think this case can be saved. The proceedings are stayed.
April 5 2021 B Duncan J
Counsel: A Karapancev for the defence A Heath for the Crown