Court File and Parties
Ontario Court of Justice
Between:
His Majesty the King
— and —
Muhammad Hamza Baig
Before: Justice David Porter
Heard: August 21, 2025
Reasons on Application for a Stay Pursuant to ss. 11(b) and 24(1) of the Charter
Counsel:
- S. Eta-Ndu, for the Crown
- A. M. Morphew, for the Defendant
Decision
Factual Background
1Muhammad Hamza Baig ("Mr. Baig") applies for a stay of proceedings for an alleged breach of his right to be tried within a reasonable time guaranteed in s. 11(b) of the Charter. Mr. Baig was charged with fraud, and related offences, in an information sworn March 6, 2024. He was charged alone in the information. There was no co-accused.
2According to the summary of the allegations before me, it is alleged that Mr. Baig was an employee at Teletime, and an owner of The Premium Superstore, both of which were involved in the sale of furniture and appliances. It is alleged that Mr. Baig committed fraud in relation to a finance company Flexiti, by submitting fraudulent applications to Flexiti for customer financing for the purchase of products at Teletime and The Premium Superstore, thus resulting in a significant loss to Flexiti. It was alleged that Mian Muhammad Saud acted as a go-between between Mr. Baig and Hasnain Akram, an alleged party in the fraudulent scheme.
3The trial is set to end November 21, 2025, 626 days or 20.5 months after the charges were laid, about 2.5 months above the presumptive ceiling in R. v. Jordan, [2016] 1 S.C.R. 771.
4It is clear from the record filed that counsel for Mr. Baig consistently attempted to move the matter forward and consistently asserted Mr. Baig's reliance on his s. 11(b) Charter rights.
Procedural History
5While Mr. Baig was charged alone in the information, on August 26, 2024, Crown counsel informed counsel for Mr. Baig that Mr. Baig would be prosecuted with Mian Muhammad Saud. Mr. Saud was arrested on February 29, 2024 and charged separately in an information sworn March 6, 2024. Mr. Baig was never charged jointly with Mr. Saud in an information in this matter.
6Counsel represented Mr. Saud in communications with the Crown on behalf of Mr. Saud (hereinafter "Mr. Saud's counsel").
7At a Crown pre-trial on November 14, 2024 with counsel for Mr. Baig, the Crown indicated that a joint information would be laid charging Baig and Saud jointly. In fact, this was never done.
8Mr. Baig's counsel attempted to obtain judicial pre-trial ("JPT") dates in December and dates were offered between December 9 and January 16, 2025. Mr. Baig's counsel was available for dates in December. The Crown supported Mr. Saud's counsel's request to have the JPT on January 10, 2025 as he stated it did not make sense to have a JPT without co-accused's counsel, and Mr. Saud's counsel did not yet have disclosure.
9Mr. Baig's counsel raised concerns about delay. No indication was made by Mr. Saud's counsel that he was not retained for trial. At the request of Mr. Saud's counsel, the JPT was set for January 10, 2025.
10At the January 10, 2025 judicial pre-trial, Mr. Baig's counsel raised s. 11(b) concerns. It was agreed that a 15-day trial would be set for the prosecution of Baig and Saud and a follow-up JPT scheduled for April 17, 2025. Counsel appearing for Mr. Saud said nothing about not being retained for trial.
11On February 11, 2025, when early trial dates were offered for a 3-week trial in a trial scheduling call, Mr. Saud's counsel advised that he was not fully retained for trial.
12At the trial scheduling conference that day, counsel for Mr. Baig was available for the estimated 3-week trial offered by the court starting April 7, 2025. The Crown was not available the week of April 7 and between April 30 and May 9.
13I conclude on the evidence before me that the Court, Crown and counsel for Mr. Baig were available for a 3-week trial starting April 14-30, and continuing May 10-15, 2025. Those dates would have resulted in a trial concluding 14 months and 9 days after the information charging Mr. Baig was sworn on March 6, 2024.
14However, these dates were not set on February 11, 2025 because Mr. Saud's counsel, who was not retained for trial, was not available for the above dates. Mr. Saud was not then, and never was, included as a co-accused in the information charging Mr. Baig. Mr. Saud's counsel was not available for the weeks April 7, 14 and 22, and between May 9 and October 13, 2025. However, on February 11, 2025, he was not retained for trial in any event.
15Mr. Saud's counsel suggested in an email to counsel and the trial co-ordinator that the trial dates should be set in court for Mr. Saud on a with or without counsel basis.
16In his submissions before the court in this application, the Crown submitted that the Crown was of the view that, to avoid the possibility of inconsistent verdicts, and to avoid the expenditure of court resources involved in separate trials, the Crown was of the view that a joint trial for Baig and Saud was appropriate. However, the Crown never had an information sworn charging them jointly.
17If this was the Crown's view, rather than setting dates 20.5 months after Mr. Baig was charged, because Mr. Saud's counsel was not available for the earlier dates, the Crown should have had an information sworn charging Baig and Saud jointly, and required Saud to set dates with or without counsel. This was a reasonable step that could have been taken by the Crown to set trial dates that respected Mr. Baig's asserted right to be tried in a reasonable time.
18In my view, this should have occurred, and trial dates should have been set for the April 14-30 and May 10-15 dates available to the Crown, the court and counsel for Mr. Baig who was asserting his 11(b) Charter rights and was available for those dates within the Jordan presumptive ceiling.
19Instead, on February 13, the current trial dates taking into account the schedule of Mr. Saud's counsel were set between October 20-24, November 3-7 and November 12-14, and November 21, resulting in a proposed trial outside the Jordan presumptive ceiling.
20The agent for Ms. Morphew, Mr. Baig's counsel, stated on the record in a court appearance that day:
"I just want to note for the record that counsel does intend to schedule an 11(b) if the trial is over the presumptive ceiling. We have had earlier trial dates and we've been seeking to set trial dates for months."
21A self-represented person judicial pre-trial was scheduled before the pre-trial judge in a busy plea court on March 10, 2025. As the court had a full list of matters, in a busy plea court, the self-rep JPT could not proceed that day. Counsel for Mr. Saud appeared to assist Mr. Saud with putting dates for trial on the record. Ms. Morphew confirmed she was prepared to set trial dates and Crown counsel Mr. Eta-Ndu confirmed that "Saud and Baig are supposed to be tried together."
22A further pre-trial was held on April 17, 2025 in which the pre-trial judge noted that, as Mr. Saud was self-represented, no admissions could be considered to shorten the trial and the parties were asked to try to find earlier trial dates. Ms. Morphew noted the 11(b) issue. Counsel were directed to attempt to find earlier trial dates, and to schedule an 11(b) application.
23Between that date and June 5 matters did not progress as the Crown was engaged in resolution discussions with Mr. Saud, whose resolution was not certain. On June 5, the trial co-ordinator advised there were no earlier dates for a 3-week trial. Counsel for Mr. Baig reiterated her request for a date for a s. 11(b) motion. For the first time, the Crown mentioned he would consider a possible severance, although formally no joint information had been sworn charging Baig and Saud together.
24A further pre-trial was held on June 20, at which time the pre-trial judge agreed that a 2-week trial estimate could be used to find an earlier trial date for Mr. Baig alone as Mr. Saud was pursuing a resolution. The pre-trial judge directed that if earlier dates could not be found a s. 11(b) motion should be scheduled.
25On June 23, 2025, counsel were advised there were no earlier trial dates available for a 2-week trial. The current trial dates were confirmed and the date of August 21, 2025 was set for a s. 11(b) motion.
26An information charging Baig and Saud jointly was never sworn.
Analysis
27The fundamental issue in this case is the treatment of the 6-month delay from the end of the trial dates available to the court, Crown and counsel for Mr. Baig (May 14), a trial within the Jordan presumptive ceiling, and the current trial dates scheduled to finish 20.5 months after the charges were laid against Mr. Baig.
28In my opinion, the delay of 6 months in the trial dates is the responsibility of the Crown for failing to take reasonable steps to ensure that Mr. Baig, who continuously asserted his 11(b) rights, received the trial within the presumptive Jordan ceiling, when this was available to be scheduled for him at the trial scheduling of February 11, 2025.
29Mr. Baig was charged alone in the information charging him with fraud. Saud was not a co-accused and the Crown had not brought a motion to have Mr. Baig's information tried together with Mr. Saud's information. While the Crown had indicated that "Baig and Saud should be tried together", he had done nothing to formalize this intention.
30One reasonable option was for the Crown to accept that it had done nothing to formalize its intention to have a joint trial for Baig and Saud, and set the early trial date available for Baig alone on February 11, 2025, which was available for a 3-week trial ending 14.5 months after Baig was charged.
31Alternatively, realizing that it did not have a joint information before the court, the Crown could have had an information sworn charging Baig and Saud jointly, and set the trial for the early dates available, on a with or without counsel basis for Saud, ignoring counsel for Mr. Saud's unavailability, as he was not retained for the trial.
32If either of these steps had been taken, the scheduled trial would have been compliant with the presumptive ceiling in R. v. Jordan and the OCJ Practice Direction for Jordan Compliant Scheduling dated November 1, 2023 requiring trial dates to be completed within 15 months of the date the Information was sworn.
33If, in light of its intention to have Baig and Saud tried together, the Crown was prepared to schedule the trial on dates outside the Jordan presumptive ceiling, in order to accommodate the schedule of Mr. Saud's counsel (on the basis that Mr. Saud may retain that counsel for the trial), in my opinion the Crown was required to first formalize its intention that they be tried together, by applying to the court in a timely way, for an order that the informations charging Baig and Saud be tried together: R. v. Clunas, [1992] 1 S.C.R. 595, at page 610.
34This would have given the court an opportunity to consider whether a joint trial was in the interests of justice, in light of Baig's readiness to proceed to trial on Jordan-compliant trial dates, and the fact that Saud had not even retained counsel by February 11, 2025, 11 months after both he and Baig had been separately charged: R. v. Clunas, supra at pp. 610-611.
35Regrettably, the Crown neither agreed to the early trial dates for a trial available for Baig alone, or laid a new information charging Baig and Saud jointly (and setting early trial dates based on Baig's counsel's schedule, on a with or without counsel basis for Saud), or brought an application for Baig and Saud to be tried together to permit a court to decide whether a joint trial was in the interests of justice.
36The Crown was clearly on notice from February 13, and earlier, that if trial dates outside the Jordan presumptive ceiling were set, Mr. Baig's counsel would bring a s. 11(b) Charter application. This required an urgent response which was not forthcoming from the Crown.
37Rather than take any of the above steps, the Crown proceeded with further judicial pre-trials, which were conducted on the basis that the Crown was intending to try Baig and Saud together.
38On April 17, counsel for Mr. Baig proposed an Agreed Statement of Facts ("ASF") on many trial issues to reduce the trial estimate. Mr. Saud's counsel did not attend the JPT on April 17, and counsel for Mr. Baig pressed the Crown to canvass earlier trial dates with Mr. Saud. This did not happen in any timely way as the Crown began resolution discussions with Mr. Saud, which resulted in the Crown ignoring Mr. Baig's attempt to find a new trial date within the Jordan presumptive ceiling.
39The Crown and Counsel for Mr. Baig attended the trial coordinator on June 5th and no earlier trial dates were available for a 3-week trial.
40The Crown solidified an agreement for Mr. Saud to plead guilty through further discussions with his counsel, and after a JPT on June 20, an effort was made to find earlier dates for a 2-week trial for Mr. Baig which were unsuccessful and the current trial dates were confirmed in court on June 23, 2025.
Legal Framework
41In R. v. Jordan, the Supreme Court makes it clear that s. 11(b) considerations may cause the joinder of accused to be unjustified where one accused is responsible for delay prejudicing a co-accused's right to be tried in a reasonable time.
42In R. v. Jordan, the Court discussed the complexity caused by joint prosecutions of co-accused at paras. 77-79:
[77] As indicated, exceptional circumstances also cover a second category, namely, cases that are particularly complex. This too requires elaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.
[78] A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance. However, if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance.
[79] It bears reiterating that such determinations fall well within the trial judge's expertise. And, of course, the trial judge will also want to consider whether the Crown, having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity (R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, at para. 2). Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control. In a similar vein, and for the same reason, the Crown may wish to consider whether multiple charges for the same conduct, or trying multiple co-accused together, will unduly complicate a proceeding. While the court plays no supervisory role for such decisions, Crown counsel must be alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused's s. 11(b) right (see, e.g., Vassell). ...
43In R. v. Tran, 2023 ONCA 532 at paras. 39-40, the Court of Appeal stated with respect to the impact of delay caused by a co-accused on an accused's s. 11(b) breach claim:
[39] To be sure, where a trial is being conducted jointly, delay caused by a co-accused is not "defence delay" by the accused that counts against the accused. Therefore, the delay caused by Mr. Nguyen and Ms. Vu's change of counsel continues to form part of the period of prima facie delay in Mr. Tran's trial. As Gillese J.A., recognized for the majority in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at paras. 128, 136, an individualized approach must be taken in calculating delay. The trial judge fully appreciated that. The delay in Mr. Tran's trial was therefore in prima facie breach of s. 11(b).
[40] However, the majority in Gopie also accepted that delay caused to the accused by the conduct of a joint trial can qualify as an "exceptional circumstance" that may permit delay in excess of the prima facie unreasonable delay period: Gopie, at paras. 142, 170. For delay caused by a joint trial to qualify as an exceptional circumstance it must first be in the interests of justice to conduct a joint trial: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 373, leave to appeal denied, [2017] S.C.C.A. No. 37322. To qualify as an exceptional circumstance in any context, the delay must arise from "circumstances [that] 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" (emphasis in the original): Jordan, at para. 69. Therefore, to rely upon exceptional circumstances to excuse delay that has been caused as the result of the prosecution of a joint trial, the Crown must establish that: (1) the joint trial is being undertaken in the interests of justice; (2) the delay has arisen because of the joint trial; (3) the delay is unforeseen or reasonably unavoidable; and (4) the Crown could not reasonably have ameliorated that delay.
44In my opinion, the decision of the Supreme Court of Canada in R. v. Vassell, 2016 SCC 26, is of particular relevance on the facts of this case in establishing the obligation of the Crown to apply to sever the charges (where several accused are jointly charged) to preserve the s. 11(b) Charter rights of an accused whose trial is delayed by the conduct of a co-accused.
45In R. v. Vassell, 2016 SCC 26, Moldaver J., stated at paras. 5-7:
In this case, the Crown chose to prosecute all seven accused jointly, as it was entitled to do. But having done so, it was required to remain vigilant that its decision not compromise the s. 11(b) rights of the accused persons (see, for example, R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, and R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 146).
[6] In many cases, delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial. But here, it was clear from the outset that the delay caused by the various co-accused not only prevented the Crown's case from moving forward, it also prevented Mr. Vassell from proceeding expeditiously, as he wanted. Importantly, this is not a case where Mr. Vassell simply did not cause any of the delay; rather, it is one in which he took proactive steps throughout, from start to finish, to have his case tried as soon as possible. In this regard, his counsel reviewed disclosure promptly, pushed for a pre-trial conference or case management, worked with the Crown to streamline the issues at trial, agreed to admit an expert report, made the Crown and the court aware of s. 11(b) problems, and at all times sought early dates.
[7] In these circumstances, I believe that a more proactive stance on the Crown's part was required. In fulfilling its obligation to bring all accused to trial within a reasonable time, the Crown cannot close its eyes to the circumstances of an accused who has done everything possible to move the matter along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates. ....
46Similarly, in R. v. Mannasseri, 2016 ONCA 703, the Court of Appeal stated at para. 323:
Where the proceedings are a joint trial, delay caused by a co-accused cannot be ignored in assessing whether an individual accused's right to be tried within a reasonable time has been reached: Vassell, at para. 4. Where the Crown, as here, chooses to prosecute both accused jointly, it must remain vigilant that its decision to proceed jointly does not compromise the s. 11(b) rights of an individual accused: Vassell, at para. 5. The Crown is disentitled to close its eyes to the circumstances of an accused who has done everything possible to move a case along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates: Vassell, at para. 7. Sometimes, the Crown may have to sever accused jointly tried to vindicate the s. 11(b) interests of one burdened down by another for whom trial within a reasonable time seems anathema: Vassell, at para. 10.
47On February 11, 2025, it should have been obvious to the Crown that its proposal to try Baig and Saud together, not yet formalized by court order or an information charging them jointly, doomed Baig to a trial beyond the Jordan presumptive ceiling. Baig's intention to seek a stay of proceedings for a s. 11(b) Charter breach for any trial beyond the presumptive ceiling was confirmed in court on February 13, 2025, when I infer the Jordan compliant dates for Baig's trial (either alone or with Saud as a self-represented co-accused) available on February 11 would still have been available.
48In R. v. Jordan, supra, the court stated, in describing the Crown's obligation to address exceptional circumstances that threaten to prevent a trial within a reasonable time, at paras. 69-70:
[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.
49And further at para. 75:
Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).
50In my view, the 6-month delay resulting from the Crown failure to schedule the trial for Baig either alone or with Saud as a self-represented co-accused, on the early dates available on February 11, 2025 cannot be justified as an exceptional circumstance.
51The 6-month delay was not outside the Crown's control. As noted above, it had several reasonable options it could have pursued shortly after it learned counsel for Mr. Saud was not retained for Mr. Saud's trial, any one of which would have ensured Baig's trial was scheduled to be completed within the Jordan presumptive ceiling of 18 months.
52The failure of the Crown to set the trial dates available for Baig alone on February 11, 2025, or to obtain a joint information for Baig and Saud and set those same trial dates (on a with or without counsel basis for Saud), or alternatively to bring an application for an order that Baig and Saud be jointly tried, in which a court could have considered whether this was in the interests of justice in light of Baig's s. 11(b) Charter rights, means that the Crown failed to take reasonable available steps to avoid and address the problem before the delay exceeded the ceiling: R. v. Jordan, at paras. 69-70.
53I have considered this failure in the context of a record of other evidence of the Crown's casual approach to moving this case forward, which resulted in the first Crown pre-trial ("CPT") being held on November 14, and the first JPT being held January 10, 10 months after Mr. Baig was charged.
54For example, the assigned Crown did not respond to correspondence from Baig's counsel sent May 30, 2024 until August 26, 2024. Mr. Baig's counsel's email of May 30, 2024 noted that disclosure was incomplete and asked whether Mr. Baig would be prosecuted in a group, and offered to speak with the Crown. The email was not responded to until August 26, 2024 (after follow-up requests had been sent by Mr. Baig's counsel on July 9, 2024 and August 14, 2024). Crown counsel indicated an intention to prosecute Baig with Saud.
55In an appearance of October 3, the Crown in court advised that disclosure was complete. This was incorrect. After counsel for Mr. Baig advised the assigned Crown that disclosure was not complete, and requested a CPT, a CPT was not held until November 14, after counsel for Mr. Baig attended JICMC court and raised a concern about delay and the lack of a pre-trial. The CPT was held on November 14. Additional disclosure was sent on a USB on November 28, 2024.
56While JPT dates were available to the JPT judge, the Crown and Mr. Baig's counsel, in December, the Crown deferred to Mr. Saud's counsel's request to defer a JPT until Jan 10, as he had just received disclosure. The JPT was held on January 10, 2025, a month after the earlier dates available to the Crown, the JPT judge, and counsel for Mr. Baig.
Conclusion
57On the totality of the evidence, I conclude that the s. 11(b) Charter rights of Mr. Baig were breached. The delay of 20.5 months is outside the Jordan presumptive ceiling. It is not justified as an exceptional circumstance or by case complexity. The Crown and the court and counsel for Baig had available dates for the trial within 14.5 months which the Crown could have set, but for an unreasonable attempt to accommodate the dates of Mr. Saud's counsel, who was not retained for trial, and when Saud was not a co-accused in a joint information.
58The Crown had available several reasonable methods of ensuring that Mr. Baig's s. 11(b) rights were respected, none of which were pursued. This occurred in the context of a casual approach by the Crown to moving the case forward towards a trial for Mr. Baig within the Jordan presumptive ceiling.
59I have concluded that Mr. Baig's s. 11(b) Charter rights were breached. Accordingly the charges before the court against Mr. Baig are stayed pursuant to s. 24(1) of the Charter.
Dated: September 16, 2025
Justice David Porter