Court File and Parties

Ontario Court of Justice

Date: 2019-01-17

Court File No.: 17-33956

Between:

Her Majesty the Queen

— and —

Abby Zikhali

Before: Justice Paul Burstein

Heard on: January 9, 2019

Reasons for Judgment released on: January 17, 2019

Counsel:

R. Connolly — counsel for the Crown

I. Isenstein — for the defendant Zikhali

BURSTEIN J.:

Introduction

[1] On March 16, 2017, Mr. Zikhali was charged with impaired driving and driving "over 80". By January 9, 2019, almost 22 months later, his trial before me on those charges had not yet completed. Consequently, Mr. Zikhali applied to stay the ongoing proceedings on the basis that his s. 11(b) Charter rights had been violated.

[2] The two-day trial in this case was originally scheduled to begin before me on June 7, 2018 and continue the next day on June 8, 2018. Regrettably, due to a family emergency, Crown counsel with carriage of the case was unable to appear on June 7, 2018. The case was adjourned to commence on what was supposed to be the second day of the trial – June 8, 2018. Due to the time requirements of this case and the time requirements of other cases which were already scheduled to be before me that day, the half-day of court time which we were able to devote to Mr. Zikhali's case on June 8, 2017 was not enough to complete the trial.

[3] On June 8, 2018, the parties scheduled Mr. Zikhali's trial to continue before me on November 9, 2018. On October 29, 2018, after months of urging by Mr. Zikhali's counsel, the court also added time for the trial on the afternoon of November 13, 2018. Although a full day was spent on Mr. Zikhali's trial on November 9, 2018, only an hour was available for his trial on the afternoon of November 13, 2018. In other words, by the end of the day on November 13, 2018, the court had not yet been able to spend two days on Mr. Zikhali's trial. While the Crown's case was all but completed by the end of the day on November 13, 2018, Mr. Zikhali had yet to testify as anticipated. Accordingly, further time was scheduled for the completion of the trial on January 9, 2019.

[4] At the end of the day on November 13, 2018, counsel for Mr. Zikhali informed the Court and the Crown of his intention to bring the s. 11(b) application which I must now decide.

Overview of the Crown's Case and the Defence

[5] The facts of the Crown's case in relation to the charges against Mr. Zikhali are relatively simple. Mr. Zikhali was stopped in the early morning hours of March 5, 2017 by Csts. Sheridan and Clements of the DRPS. They noticed Mr. Zikhali when his vehicle seemed to approach them from behind at a high rate of speed before making a left turn. Finding that driving behaviour odd, the officers decided to stop Mr. Zikhali to investigate him.

[6] After making some initial observations suggesting that his ability to drive may be impaired by alcohol, the officers arrested Mr. Zikhali and made a breath demand. When informed of his s. 10(b) rights to counsel, Mr. Zikhali told Cst. Sheridan that he did want to speak to a lawyer and that his lawyer's name was "Affleck". Cst. Sheridan readily understood Mr. Zikhali to have been referring to Mr. Paul Affleck, a senior criminal defence lawyer in Oshawa.

[7] Mr. Zikhali was transported across the street from where the officers had happened to stop him to the West Division detachment. While waiting for the sergeant to attend at the booking area, Cst. Sheridan placed a call to Mr. Affleck's office. Cst. Sheridan was told that Mr. Affleck was not available but that there was another lawyer from Mr. Affleck's office who was available to speak with Mr. Zikhali and that this lawyer would soon call back. Cst. Sheridan claimed that he told Mr. Zikhali that Mr. Affleck was not available and that another lawyer from that office would be calling back instead. Cst. Sheridan further claimed that Mr. Zikhali responded to that by saying "OK, no problem sir".

[8] Although there is a video recording of Cst. Sheridan's call to Mr. Affleck's office and of Cst. Sheridan then speaking with Mr. Zikhali, there is no audio of what Cst. Sheridan said to Mr. Zikhali nor any audio of Mr. Zikhali responding. The recording could readily have captured any such audio, but none of the officers present chose to activate the audio recording by "flipping the switch". Once the sergeant arrived for the booking process, the audio was activated.

[9] Based on the Charter application filed on behalf of Mr. Zikhali, it is clear that Mr. Zikhali disputes Cst. Sheridan's claim that Mr. Zikhali was specifically informed that the lawyer who would be calling back to speak with him was not Mr. Affleck. In cross-examination, Cst. Sheridan admitted that he had no note of having informed Mr. Zikhali that a lawyer other than Mr. Affleck would be calling back. Cst. Clements, who was in the immediate area of the alleged exchange between Cst. Sheridan and Mr. Zikhali, did not testify to having heard Cst. Sheridan telling Mr. Zikhali about a different lawyer calling back or about Mr. Zikhali responding in the affirmative. Assuming that a court were to find that Mr. Zikhali was not told that a different lawyer was going to be the one with whom police had facilitated contact, Mr. Zikhali contends that his s. 10(b) right to consult with counsel of choice was violated.

Positions of the Parties on the s. 11(b) Application

[10] The parties agree that the total delay in this case extends from the date the Information was sworn on March 16, 2017 through to January 9, 2019 – 21.8 months. The defence had also initially conceded that a 2.3-month period of "defence delay" relating to Mr. Zikhali's change of counsel in the early stages of the case ought to be deducted from that total delay. In light of that concession, counsel for Mr. Zikhali argued that the "net delay" was 19.5 months.

[11] The main issue originally in dispute between the parties was how to address the 5 months of delay which was occasioned by the Crown's unavailability on June 7, 2018 due to a family emergency. While Mr. Zikhali readily acknowledged that the reason for the Crown's unavailability was a "discrete event" as contemplated by the Supreme Court of Canada in R. v. Jordan, he argued that most, if not all, of the resulting delay should still count towards the "net delay" as the Crown had failed to reasonably mitigate the delays caused by the discrete event. By contrast, the Crown argued that most, if not all, of that 5-month delay should be subtracted from the "net delay" as the Crown had adequately discharged its constitutional obligation to mitigate.

[12] During argument, I raised the question as to whether I could accept Mr. Zikhali's concession about the early change of counsel being characterized as "defence delay" in the circumstances of this case. While delays caused by a defendant's decision to change counsel will typically amount to "defence delay", I queried whether Mr. Zikhali had chosen to change counsel or whether his first counsel, Mr. Affleck, had been forced to withdraw because of the circumstances of this case. Again, while delays caused by defence counsel's withdrawal from a case might still need to be subtracted from the total period of delay in a case (R. v. McManus, 2017 ONCA 188), a closer examination of the circumstances surrounding the change of counsel in this case was warranted. Indeed, both parties provided me with supplementary written submissions on this specific issue.

The s. 11(b) Analytical Framework

[13] The analytical framework for deciding whether an untimely trial has resulted in a violation of s. 11(b) of the Charter was recently recalibrated by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27. In short, according to Jordan, if the total delay in completing a case in the Ontario Court of Justice exceeds 18 months, subject to a consideration of any case-specific exceptional circumstances, the delay will be presumptively unconstitutional.

[14] In calculating the constitutionally relevant period of delay for Jordan's s. 11(b) analysis, periods of "defence delay" must first be deducted from the total delay. In revisiting its Jordan decision in R. v. Cody, 2017 SCC 31, the Supreme Court of Canada expanded its explanation of when delays caused by defence conduct should or should not be characterized as "defence delay" for the purpose of the s. 11(b) analysis. At paras. 28-35, the Court stated:

However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, at para. 65).

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64).

The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge" (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.

Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

This understanding of illegitimate defence conduct should not be taken as diminishing an accused person's right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling. In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time — and the need to balance both — in our view, neither right is diminished by the deduction of delay caused by illegitimate defence conduct.

We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacy takes its meaning from the culture change demanded in Jordan. All justice system participants — defence counsel included — must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter.

At the risk of oversimplification, the Cody approach to "defence delay" stresses "defence action that is illegitimate" or "not taken to respond to the charges".

[15] The other basis for subtracting periods of delay from the total delay in a case is when those periods of delay can be attributed to some "exceptional circumstance" in the case, such as a case's extreme complexity. Another exceptional circumstance recognized in Jordan is when there is an unforeseeable "discrete event", such as the unexpected illness of a key participant in the trial process. Delays resulting from such discrete events must also be subtracted from the calculation of whether a case has been delayed beyond the presumptive constitutional limit.

[16] Neither Jordan nor Cody addressed the issue of determining how much, if any, portion of rescheduling delay resulting from a discrete event ought to be discounted from the s. 11(b) analysis. As often happens, the parties in this case were unable to secure a timely continuation date to compensate for Crown counsel's unexpected unavailability on the first day of trial. The question is how to apportion a lengthy period of delay caused by an unexpected "discrete event".

[17] The Supreme Court did offer some guidance on this issue in Jordan. Having recognized that delays caused by discrete events should be discounted from the s. 11(b) calculation, the Court reminded us of the Crown's overarching constitutional responsibility for ensuring that cases are brought to trial in a timely manner. In accordance with that responsibility, the Court held that the Crown bears the burden of mitigating any delays caused by an exceptional circumstances, including a discrete event (at para. 75):

The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26). 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). [Emphasis added.]

[18] In this case, the Crown contends that efforts were made to mitigate the delay resulting from Crown counsel's unavailability on June 7, 2018. The Crown says that earlier dates were offered to continue the trial but counsel for Mr. Zikhali was unavailable. I will address the sorry state of the evidentiary record cited in relation to this claim more fully below. However, it is necessary to first try and sort out the correct analytical approach to attributing or discounting delay based on defence counsel's unavailability.

[19] There are a number of pre-Jordan cases which had addressed the issue of allocating delay where a trial had to be rescheduled because it was not completed when expected, such as R. v. Godin, 2009 SCC 26, R. v. Brace, 2010 ONCA 689, R. v. Satkunanathan, R. v. M.(R.), R. v. W.(A.J.), 2009 ONCA 661, and R. v. Tran, 2012 ONCA 18. Two principles seemed to emerge from this line of cases, beginning with the passage at paragraph 23 of the Supreme Court of Canada's decision in Godin. First, it would be unfair to fault a defendant for not having retained counsel with a wide open trial calendar in the event that the trial could not be completed on the dates originally scheduled. To avoid being saddled with responsibility for delay when rescheduling a trial, the defence must have "reasonable availability", not complete availability. Second, there is no set formula for apportioning responsibility for delays occasioned by an unexpected need to schedule further time to complete a trial. Rather, the apportionment of responsibility for "rescheduling delay" involves an exercise of discretion premised on the specific features of a case.

[20] In the aftermath of Jordan, some have questioned whether the Godin approach to apportioning responsibility for scheduling delay remains good law. That issue was very recently considered by the Ontario Court of Appeal in R. v. Albinowski, 2018 ONCA 1084 (at paras. 28-35). Writing for the Court in Albinowski, Roberts J.A. refused to accept that the oft-cited passage in Godin had been implicitly overtaken by the Supreme Court's decision in Jordan. Rather, Roberts J.A. recognized that the approach advanced in Godin was premised on two specific features of that case; namely, "the Crown's responsibility for the need to reschedule and the attempts by the defence to expedite the proceedings". In another very recent appellate decisions, the Newfoundland Court of Appeal in R. v. King, [2018] N.J. No. 366 (C.A.) (at para. 108), has held that the "common sense" approach to assessing responsibility for scheduling delays advanced by the Supreme Court in Godin "still applies after Jordan". In view of these two recent appellate decisions, I am satisfied that the Supreme Court's approach in Godin continues to govern an assessment of responsibility for delays occasioned by "the need to reschedule" a case.

Was s. 11(b) of the Charter Violated in This Case?

i) History of the Proceedings

[21] Mr. Zikhali first appeared in court on March 30, 2017. He had already retained Mr. Affleck to defend him on these charges. Some initial disclosure was provided to counsel on that day.

[22] On or about April 19, 2017, Mr. Affleck alerted the Crown to his specific request for a copy of the "parade video"; that is, the video recording of Mr. Zikhali being booked in at the West Division detachment. When he appeared in court on April 27, 2017, that video was still not available, even though the Crown recognized that the defence was "presumptively entitled" to it by way of disclosure. The case was adjourned to allow the Crown to provide that key piece of disclosure.

[23] On May 18, 2017, Mr. Affleck returned to court and indicated that he was ready to set a date for trial. He proposed a one-week adjournment so that he could meet with the Crown for the purpose of "screening" the case for trial (i.e., estimating the trial time required).

[24] When the case returned to court on May 25, 2017, Mr. Affleck indicated that the defence would be raising the s. 10(b) issue at trial. The litigation of that issue might involve having the lawyer with whom he was sharing an office and with whom Mr. Zikhali had consulted the night of his arrest as a witness. Consequently, Mr. Affleck expressed a concern that he may have to withdraw from the case. Mr. Affleck requested a four-week adjournment to discuss the matter with Mr. Zikhali.

[25] On June 20, 2017, Mr. Affleck formally withdrew from the case. Mr. Zikhali had already retained new counsel.

[26] By August 1, 2017, Mr. Zikhali's new counsel had already received all of the disclosure, reviewed it, met with Mr. Zikhali and conducted a Crown pre-trial. A two-day trial was scheduled for June 7 and 8, 2017 even though counsel for Mr. Zikhali was available on a variety of earlier dates.

[27] As outlined above, on the morning of June 7, 2018, Mr. Zikhali and his counsel appeared ready for trial. Regrettably, due to a family emergency, Crown counsel assigned to the case was not available. I adjourned the case to commence the next day. Before doing so, however, I alerted the Crown to the fact that there would likely not be anywhere near a full day of court time no June 8, 2018 to devote to Mr. Zikhali's case and invited the Crown to consider whether it would be more efficient to have Mr. Zikhali's case commence before another judge.

[28] We commenced Mr. Zikhali's trial on June 8, 2018. As predicted, the other matters already scheduled to be before me that day consumed approximately one-half of the court day. Consequently, only one-half of that first day was spent on Mr. Zikhali's two-day trial.

[29] At the end of the day on June 8, 2018, the parties attended at the trial co-ordinator's office in an effort to secure a date to continue the trial. The "Record of Court Dates Offered" on June 8, 2018, entered as Exhibit 4 on this Application, shows that the first date offered to the parties was July 24, 2018. Although the defence was willing to accept that date, Crown counsel indicated that he was unavailable. One date was offered in September and another in October, neither of which was available to the defence. The court then offered another date which was less than two weeks away. That June, 2018 date was also unavailable to the defence. Despite the defence having been available on a range of other earlier dates, the next date the court could offer (which was also available to the Crown) was not until November 9, 2018.

[30] When the parties returned before me at the end of the day on June 8, 2018 to formally remand Mr. Zikhali to the November 9th continuation date, I recommended that the Crown consider scheduling an additional half-day of trial time at that juncture rather than waiting to see if the trial would actually be completed by the end of the day on November 9, 2018. No such effort was made by the Crown until less than two weeks prior to the November 9, 2018 continuation date.

[31] On August 20, 2018, counsel for Mr. Zikhali emailed Crown counsel requesting that the Crown seek out the additional half-day of trial time which I had previously recommended. Counsel for Mr. Zikhali proffered ten dates in October, eight in November and eleven more in December. When Crown counsel had still not responded to the email by October 2, 2018, counsel for Mr. Zikhali sent a similar email to the same two email addresses. When there was again no response from the Crown, counsel for Mr. Zikhali sent a third email to the same two email addresses on October 28, 2018. This third email prompted a response from the Crown on October 29, 2018 indicating that he had received the October 2nd email but not the one from August 20th (even though they had all been sent to the same two Crown email addresses). On October 30, 2018, at the request of the Crown, the trial co-ordinator scheduled additional time for Mr. Zikhali's trial on the afternoon of November 13, 2018.

[32] Mr. Zikhali's trial continued before me on November 9, 2018. Even though a full day of court time was devoted to his case, the trial was not completed. It continued on the afternoon of November 13, 2018. However, due to other cases already scheduled to be in court that day, only an hour of the court's time was spent dealing with Mr. Zikhali's case. Accordingly, the trial was scheduled to continue on January 9, 2019, the first date upon which I could be available.

ii) The Avoidable Delay Resulting from the Crown's Failure to Mitigate the Consequences of the Discrete Event

[33] I agree with the Crown that at least some of the 5-month rescheduling delay between June 8, 2018 and November 9, 2018 should be attributed to the defence. The record shows that the defence would not have been available on two of the dates offered in June nor on the nine more offered in July. Irrespective of whether the court and the Crown were also unavailable on those dates, in the absence of clear evidence that the defence would have been available to continue on almost any proximate date, it is reasonable to attribute the first 1.5 months of a rescheduling delay to the realities of defence counsel having other files on the go. Indeed, historically, 1.5 months was commonly used as an estimate of the time reasonably required for the defence to ready itself for trial once it had received disclosure in a straightforward summary conviction case. The record in this case supports the reasonableness of using a 1.5-month benchmark: (1) on June 8, 2018, counsel for Mr. Zikhali would have been available to continue the trial on July 24, 2018; and (2) on August 20, 2018, counsel for Mr. Zikhali offered ten dates to continue the trial in October starting with October 2, 2018. In the absence of any evidence demonstrating that the defence was reasonably available to continue the trial on dates proximate to June 8, 2018, I find that it is appropriate to subtract the first 1.5 months of the 5-month rescheduling delay as it is safe to assume that the defence would have been unavailable even had the court been able to offer other dates proximate to June 8, 2018.

[34] On the other hand, I do not agree with the Crown that the entire period of the rescheduling delay should be attributable to the defence simply because counsel for Mr. Zikhali could not make himself available to continue the trial on June 18, 2018, Sept 17, 2018 or October 23, 2018 – dates upon which both the court and the Crown were available to continue the trial. The evidentiary record in this case shows that, like in Godin, counsel for Mr. Zikhali was reasonably available to reschedule the trial beyond the initial 45-day period. Over the course of the following 3.5 months, the court was able to offer only two dates. On June 8, 2018, counsel for Mr. Zikhali had indicated that, other than the one date offered in September and the one date offered in October, he was available on many other dates prior to the November 9th date which was being proposed to continue the trial. I find that the 5-month rescheduling delay was not entirely attributable to the unavailability of the defence.

[35] Even if the entire 5-month "rescheduling delay" is not attributable to defence counsel's unavailability, the question asked by Jordan is whether any of that delay could have been avoided; that is, whether the Crown in this case adequately mitigated the 3.5 months of rescheduling delay once counsel for the defence became "reasonably available".

[36] In assessing the adequacy of the Crown's efforts to mitigate the rescheduling delay, it is important to note that the need to reschedule this case did not suddenly arise at the end of the court day on June 8, 2018. At the start of court on the morning of June 7, 2018, I alerted the Crown to the fact that Mr. Zikhali's two-day trial could not possibly be completed if it was going to now start before me on the morning of June 8, 2018. On the morning of June 7, 2018, I urged the Crown to immediately begin exploring options which may ultimately have allowed Mr. Zikhali's two-day trial to be completed in a more timely manner before another judge. At no point in this proceeding has the Crown ever indicated that any efforts were made on June 7, 2018 to reschedule this case to commence and finish before another judge sooner than I would be able to accommodate an inevitable continuation. In the absence of any evidence suggesting that such efforts were made by the Crown, I am unable to find that any were in fact made. Moving the case to another judge who could have accommodated a two-day trial sooner than I was going to be able to reschedule the second day of that two-day trial could have greatly mitigated the rescheduling delay. However, in the absence of any evidence that such an option was actually available, I am equally unable to quantify how much of the rescheduling delay may have been thereby mitigated. Nevertheless, the absence of any demonstrable response by the Crown on June 7, 2018 (or on the morning of June 8, 2018 before commencing the trial before me) is relevant to my overall assessment of whether the Crown in this case made reasonable efforts to mitigate the delay resulting from that "discrete event".

[37] In a similar vein, given the Crown's burden of proving that it took reasonable steps to mitigate rescheduling delay caused by a discrete event, I am very troubled by the lack of evidence concerning the Crown's rejection of July 24, 2018 as a continuation date for Mr. Zikhali's trial. Both the court and defence counsel would have been available to continue the trial on that date. In view of the Crown's constitutional duty to mitigate rescheduling delays caused by discrete events, it is appropriate to expect that in some cases the Crown will make other counsel available if one counsel is not. Given the prospect of otherwise having to delay the continuation of Mr. Zikhali's trial to November 9, 2018, it is reasonable to expect that the Crown would have presented some evidence on the s. 11(b) application explaining why another Crown counsel who was available on July 24, 2018 could not have assumed carriage of this relatively straightforward drinking and driving case. This is not to say that the Crown must always be willing to substitute an available Crown for the assigned trial Crown. However, this case became "exceptional" when it did not commence on June 7, 2018 as scheduled and was otherwise going to be rescheduled to continue on November 9, 2018. Had another Crown been assigned to take over the prosecution on July 24, 2018 – a date the defence and court were available – the case could have been completed on that day or, at worst, within a couple of weeks of that date (had the Crown also heeded my warning to schedule one and one-half more days of trial time when we had reached the end of the day on June 8, 2018). In other words, there is no evidence before me as to why in the "exceptional circumstances" of this case the assignment of another available Crown would have been an unreasonable way of mitigating the delay resulting from the discrete event.

[38] In the absence of any evidence to the contrary, I am satisfied that another Crown could have, and should have, been made available to take over the prosecution of Mr. Zikhali's case on July 24, 2018. If that had been done, at least 3 months of the 5-month rescheduling delay could have been avoided. Following the approach set out in Jordan, I find that it would be inappropriate to subtract the entire 5-month period of delay occasioned by Crown counsel's unexpected unavailability on June 7, 2018 because at least 3 months of that resulting delay could reasonably have been mitigated by the Crown. Put differently, I would only subtract 2 months of the rescheduling delay as delay which could not otherwise have been mitigated by the Crown. Subject to considerations of any "defence delay", that would leave a "net delay" in this case of 19.8 months.

[39] Alternatively, I would not subtract more than 3 months of the 5-month rescheduling delay as I am satisfied that had Crown counsel made reasonable efforts to respond to defence counsel's August 20, 2018 email, Mr. Zikhali's trial could have been rescheduled for completion within two weeks of that email. The record shows that when the Crown did finally respond on October 29, 2018 to defence counsel's repeated emails to schedule more trial time, the court was able to promptly respond with additional trial time being made available on the afternoon of November 13, 2018, only 2 weeks after the Crown had presented the scheduling request to the trial co-ordinator. Had Crown counsel responded in a timely manner to defence counsel's August 20, 2018 email, a series of two similar afternoon sessions could likely have allowed for the completion of this trial before the end of the first week of September, 2018; that is, within 3 months of when the trial had commenced on June 8, 2018. On this analysis, the "net delay" would still be 18.8 months.

iii) There Was No "Defence Delay" in This Case

[40] As noted above, this was not a typical case where a defendant has caused delays because of his decision to fire one lawyer and hire another. Mr. Affleck was clearly Mr. Zikhali's counsel of choice. Mr. Zikhali named Mr. Affleck at the time of arrest and then retained him almost immediately thereafter to defend him on these charges. There is no indication anywhere in the record that Mr. Zikhali had ever lost faith in Mr. Affleck or that there was any breakdown in communication.

[41] The first mention of Mr. Zikhali changing counsel actually came after Mr. Affleck had already indicated on May 18, 2017 that the defence was ready to set a date for trial. On that day, Mr. Affleck indicated that he would return in a week to schedule trial dates after meeting with Crown counsel to sort out a trial time estimate. It was only after Mr. Affleck had met with the Crown during that following week to discuss the issues and the time requirements of the case that he made mention of the potential conflict of interest. Indeed, when Mr. Affleck had indicated on May 18, 2017 that he was ready to schedule the trial, he expressed no concern about a conflict of interest or about the potential complications arising from the defence calling another lawyer as a witness at Mr. Zikhali's trial. It was only after Mr. Affleck had alerted the Crown to the s. 10(b) issue concerning the alleged denial of Mr. Zikhali's right to counsel of choice that Mr. Affleck became aware that the lawyer with whom he shared an office could be called as a witness on that proposed Charter application.

[42] In view of this potential conflict of interest, Mr. Affleck sought an adjournment in order to arrange a meeting with Mr. Zikhali to discuss the prospect of Mr. Affleck withdrawing from the case. The initiative to change counsel came from Mr. Affleck, not from Mr. Zikhali. Mr. Affleck was proposing to withdraw from the case in order to avoid being disqualified later if the lawyer from his office was to be called by the Crown as a witness at Mr. Zikhali's trial. As it turns out, the Crown did later (on January 9, 2019) seek to call the lawyer from Mr. Affleck's trial to testify at Mr. Zikhali's trial in regards to the s. 10(b) issue. Had Mr. Affleck still been counsel for Mr. Zikhali, Mr. Affleck would likely have had to withdraw from the case at that point. This would have resulted in a mistrial and the need for Mr. Zikhali to retain new counsel at that point in the proceedings – a point which was more than 15 months after Mr. Affleck had proposed simply withdrawing from Mr. Zikhali's case.

[43] Mr. Affleck's actions fall well outside the parameters of "defence delay" as defined by Jordan and Cody. His actions were not only "legitimate", they were aimed at avoiding delay, not causing it. Indeed, but for Mr. Affleck's foresight and professionalism, Mr. Zikhali's case would have suffered extreme delays occasioned by the need for a change of counsel mid-trial. Moreover, Mr. Affleck's actions were "taken to respond to the charges". Contrary to the submissions made in this case, the proposed s. 10(b) application to exclude evidence was not a "tactic" but rather a direct response to the charges. Equally, Mr. Affleck's withdrawal from the case was in response to an indication that Mr. Affleck's office-mate may be called as a witness in Mr. Zikhali's trial. Had there been no chance of that lawyer being called as a witness, the record makes clear that Mr. Affleck would have had no reason to withdraw from Mr. Zikhali's case. There is nothing in the evidence to suggest that Mr. Zikhali would not readily have continued to have Mr. Affleck, his lawyer of choice, continue to represent him.

[44] The delay resulting from Mr. Affleck's need to avoid the potential conflict of interest occasioned by the prospect of the other lawyer being called as a witness included the need for Mr. Zikhali to retain new counsel and for that counsel to become ready to set a date for trial. Apart from the fact that Mr. Zikhali accomplished all of that with great dispatch, I would not characterize any of that delay as "defence delay". Despite the Crown's claim that it was "ready" to set a trial date before Mr. Zikhali had retained new counsel, that claim is unsustainable. Once Mr. Zikhali had been forced to retain new counsel, that new counsel was entitled to a reasonable amount of time to receive and review the disclosure. More importantly, unless and until the Crown had met with Mr. Zikhali's new counsel and arrived at a mutually agreeable trial time estimate based on the issues which the new counsel intended to raise, the Crown was not "ready for trial".

[45] The Crown claims that it was already prepared to schedule a date for trial by the time Mr. Affleck had raised the potential conflict issue. It was not. In the circumstances of this case, the Crown was equally responsible for resolving the potential conflict of interest before scheduling Mr. Zikhali's trial. If the Crown was intent on calling the other lawyer as a witness in Mr. Zikhali's case, for the reasons outlined above at Paragraph 42, the Crown would have been obliged to ask the court to resolve the potential conflict issue before scheduling the trial date with Mr. Affleck acting as Mr. Zikhali's counsel.

[46] In his supplementary submissions on this issue, Mr. Zikhali suggested that the delay occasioned by Mr. Affleck's need to withdraw should properly be characterized as delay caused by a "discrete event". Assuming that the potential conflict of interest should be characterized as a "discrete event", I am satisfied that the Crown did nothing to mitigate the delays caused by the "event". Most of the "2.3 months" from May 25, 2017 to August 1, 2017 was required because Mr. Zikhali's new counsel needed time to get ready for trial. Mr. Zikhali only had to retain new counsel because Mr. Affleck had to withdraw from the case. Mr. Affleck only had to withdraw from the case because of the intention to call the lawyer in Mr. Affleck's office to testify at Mr. Zikhali's trial. Despite the concern raised by Mr. Affleck, there is no evidence that the Crown reconsidered whether it would necessary to call the lawyer to testify. Had the Crown undertaken to not call the lawyer, there would have been no need for Mr. Affleck to have withdrawn from the case. Alternatively, there is no evidence of the Crown ever having proposed an agreed statement of the lawyer's evidence in lieu of him testifying so that Mr. Affleck would not have to withdraw. Indeed, even on the morning of January 9, 2019 when the Crown indicated that it would in fact be calling the lawyer to testify, the Crown had still not turned its mind to presenting the lawyer's evidence by way of an agreed statement. After a very brief meeting with Mr. Zikhali's counsel in the hallway, the Crown was able to negotiate an agreed statement of the lawyer's evidence on the s. 10(b) issue and the lawyer was excused from having to testify. Had that very modest effort been made some 17 months earlier, Mr. Affleck would still have been representing Mr. Zikhali and his trial would have been completed long ago.

Conclusion

[47] Sadly, the administration of justice has failed Mr. Zikhali. From the very start of the case, he and his lawyers have done everything they could to move this case along. By contrast, there is no evidence that the Crown's office has shown much, if any, concern about the pace of this litigation. Regrettably, the record on this application demonstrates a very complacent approach by the Crown to the delays which have seemed to plague this case.

[48] The "net delay" in this case was close to the constitutional line. Nevertheless, this was a clear case of a defendant who was always interested in a speedy trial and who did everything he reasonably could to accomplish that. While it may not have been the Crown's "fault" that Mr. Zikhali's trial was unreasonably delayed, it was the Crown's constitutional responsibility to try and prevent that from happening. Unfortunately, the evidence on this application shows that the Crown did very little to prevent this case from taking as long as it did. Had the Crown made reasonable efforts, I am satisfied that Mr. Zikhali's trial would have been completed within the limits imposed by Jordan.

[49] In view of the s. 11(b) violation, the proceedings against Mr. Zikhali will be stayed pursuant to s. 24(1) of the Charter.

Released: January 17, 2019

Signed: Justice Paul Burstein