Court and Parties
DATE: April 16, 2023
ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario
B E T W E E N :
HIS MAJESTY THE KING
-and-
WAQAS QURESHI
Reasons for Judgment
Duncan J.
[1] This is an application for a stay of proceedings under section 11(b) of the Canadian Charter of Rights and Freedoms.
[2] The defendant is charged with 5 indictable offences related to a single handgun.
Background facts:
[3] On or about September 23 2021 police received a report from a young man, JG, who said that he had recently been at the defendant’s residence when a loud gun shot was heard coming from the basement. A minute or so later a man he knew as Waqas or Q came upstairs in a panic and said that a handgun he was holding had fired by accident. He said he didn’t know it was loaded. He and another man, Dawid, went back to the basement and returned with a gun wrapped in a towel. They then took it to the garage and stashed it in a wooden box. Based on this information, on September 24 2021 police obtained and executed a search warrant on the residence and recovered a handgun from the garage.
Total Delay:
[4] The defendant was arrested and charged on September 24 2021. The trial is set for 6 days, June 26-30 & August 4 2023.
[5] Total delay to anticipated end of trial is 680 days (22 months 12 days) – approximately 4.5 months above the presumptive ceiling. [1]
Net delay:
[6] The Crown argues that the net delay is below the ceiling. It relies on two periods that it contends are deductible defence delay:
a. Delay in setting and conducting a JPT – 100 days. b. Delay in defence counsel being unavailable for a rescheduled trial date in March 2023 – 144 days.
a: Delay in setting JPT
[7] This period is between January 11 and May 6 2022. This is 115 days, but the Crown accepts that 15 days of this period was time devoted to legitimate defence steps.
[8] At the initial stages, from charge to release on bail to preliminary discussions between Crown and defence, the case moved quite quickly. A Crown pre-trial was held on January 11, 2022 following which the Crown suggested that they could schedule a JPT. However, there was significant outstanding disclosure and the defence wanted, in particular, to have a CFS report related to fingerprints and DNA on the gun before having a JPT and electing mode of trial.
[9] Initially it was not anticipated that the CFS report would be long in coming and the Crown was not opposed to the defence position. However, on May 2 the Crown emailed defence counsel and said that the CFS report may not be available for months and suggested that if delay was going to be in issue the case should move along without the report. The defence agreed and almost immediately (May 6) set a JPT for June 24.
[10] It later came to light that the CFS analysis had been completed and a report was available as early as December 2021. It was not finally disclosed until September 2 2022.
[11] In my view the defence acted reasonably in waiting the period in question (Jan 11-May 6) for the CFS report before advancing to a JPT but then agreeing to proceed when informed that the report may not be available for months. The results of the analysis would have a pivotal bearing on the strength of the case and the decisions that the defence would have to make: R v Zahid [2020] OJ No 4573
[12] Even without the subsequent revelation that the report had been available before and throughout this questioned period, I would be inclined to find that this was not defence delay. However, that revelation puts the issue beyond question. Clearly the defence was not solely responsible for the delay. The Crown bears primary responsibility for the disclosure chain breakdown and for being unaware that the report was available.
b: Defence unavailability on re-scheduling:
[13] Following the JPT on June 24, a trial date-setting conference was held on July 21. The first dates offered were in November 2023 (defence unavailable) and dates in December 2023 were set for trial with pre-trial motions set for June 29 2023 and October 27 2023. The trial dates were 17 months from the set date and 27 months from the date of arrest and charge.
[14] Almost immediately Crown counsel suggested that earlier dates be sought, and defence counsel agreed. However, no steps were taken to do so by either party until this case was flagged as a “priority” in mid-December 2022. At that time, December 16, a single set of dates – March 6-10 &13 – was offered. Defence counsel was unavailable having been booked for another trial in another jurisdiction. Apart from that, defence counsel noted that the dates were too soon, would not give him time to comply with the Rules for other pre-trial motions (Section 8 Garofoli) and even if those Rules could be waived would put him under undue pressure to prepare for motions and trial.
[15] On January 23 2023 the Crown offered seven additional six day blocks for trial: [2]
- April 3-6 & June 26-27
- April 17-21 & 24
- May 1-4 & 16,17
- May 1-5 & June 5
- May 16-19& June 12- 13
- June 5-9 &12
- June 12-16 & 19.
[16] Defence counsel was not completely available for any of these blocks though he was available for 1,2 or 3 days of each block and had availability on other dates in those months that were not being offered.
[17] Ultimately, on February 8 2023, the present dates were set for trial – June 26-30 & August 4. Pretrial motion dates were set for May 8 and June 15. To make himself available for these dates defence counsel had to adjourn a pending trial in Newmarket and cancel 3 days of a planned family vacation.
Unavailability for first block in March 2023:
[18] The Crown argues that the defence is responsible for the delay from after the last day of the first block of dates initially offered – March 13 – to the anticipated end of the trial as eventually set, August 4 2023 – 144 days.
[19] While Jordan is clear that defence unavailability for trial will be considered as defence delay, that strict rule is subject to an exception: The offered date cannot be so soon as to leave inadequate time for preparation. R. v. Albinowski, 2018 ONCA 1084, [2018] O.J. No. 6892 (CA) R v Dhillon, [2019] OJ No 3148; R v Dhindsa infra para 31. In my view it follows that if the date is too soon, the defence can decline it without being saddled with responsibility for the ensuing delay.
[20] How soon is too soon? It is self-evident that an offer of a new date or dates as early as, say, the next week, would be too soon. But what would be the outer limit of “too soon”? Here the time from the offer (December 16) to the first day [3] of the offered block (March 6) was 80 days. I don’t think that is too soon.
[21] It could be argued that 80 days is not even sufficient to bring and serve a pre-trial motion which must be brought 60 days before trial and served 30 days before that – unless otherwise ordered by the Court: Rules 2.4 and 3.1. The reality is that in Brampton both rules are treated as quite flexible, provided that the application is brought in a reasonably timely fashion. [4]
[22] The Rules only require an Application in Form 1 to be filed within the specified times and specifically say that no other material (except transcripts if likely required) needs to be filed unless the Court orders it: Rule 2.3. In practice however many applications are accompanied by addition material including a factum and books of authorities. But the point is that complying with time requirements does not require preparation of voluminous material.
[23] Also, in this case the intended application – Garofoli – is not a pre-trial application but rather is an application to exclude evidence to be brought at the start of or during the trial: Rules 2.4; 2.5. However due to the length of such applications, in practice they are usually given their own date or dates and are therefore treated as pre-trial applications. But the point is that, strictly speaking, the defence in this case did not need 90 days before trial for Rule compliance. He was only required to serve a Form 1 thirty days in advance.
[24] I recognize that re-scheduling a trial for a much earlier date than previously set is very disruptive for the defence and will often put counsel under the gun to get ready in time. Unfortunately, that is nothing unusual in the practice of law and is in fact pretty much the trial lawyer’s lot in life. The Crown will also be under the gun to respond, and the Judge will often be under time pressure to issue rulings. This is the price that all participants sometimes must pay to provide defendants with their right to trial within a reasonable time.
[25] I conclude that the defence was required to accept the March dates offered in December or accept the consequences.
What are the consequences?
[26] In Jordan (Para 64) the Court said:
64 As another example [of defence delay], the defence will have directly caused the delay if the court and the Crown are ready to proceed and the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable…..
[27] Is the defence responsible for all of the delay that ensued after declining the March trial dates? The passage from Jordan above says that it is defence delay when the defence unavailability is the sole cause of delay but where court or Crown are also not available it is not defence delay. But wouldn’t that mean that all the dates not offered by the court between March and August should not be considered defence delay? And if so, shouldn’t the defence delay be only those dates offered but rejected solely due to defence unavailability?
[28] But this has never been the way defence delay has been interpreted. Instead, the defence has been saddled with the whole time to the next trial date. There is unassailable logic to this approach. Simply put, if he had been tried on the first dates he declined because of unavailability, the case would have been over. He therefore was the sole cause of the ensuing delay.
[29] This approach would seem to be quite harsh on the defence. But other features of the over-all Jordan framework are skewed in the defence favour – the major one being that he is entitled to a stay in any case where the net delay exceeds 18 months without having to show any prejudice. Another example might be the calculation of over-all time to the anticipated final day of trial – a date that might never be reached. This case is a good example, where an extra month plus is added to the delay on the far-from- certain prediction that the case will take 6 days rather than 5.
[30] In any event, recent case law starting with R v Boulanger 2022 SCC 2, [2022]SCJ No 2, has provided some relief and recognized that that there can arise circumstances in which a more flexible approach is appropriate. This was well summarized by Ducharme J in R v Rahi [2023] OJ No 580:
17 The amount of delay deducted for defence unavailability will depend on the circumstances. A contextual approach should be applied. Only in instances where it can be said that there were additional causes of the delay besides defence unavailability will the delay be parsed out as between those causes. For example, in Boulanger, the Crown's change in strategy, which led to the need for continuation dates, and the court's lack of initiative in looking for dates when the need for a new date became apparent, as well as institutional delay, contributed to the delay. Accordingly, all of the delay to the next scheduled date was not properly characterized as having been defence-caused. As the defence was not the sole cause of the delay in that instance, it was appropriate to deduct only some of that delay. Similarly, in Hanan, because a last-minute adjournment request arose due to the unexpected refusal of the victim to testify and late Crown disclosure, and because the court could not reschedule the trial any sooner, only a portion of the delay was deducted as defence-caused: see R. v. Boulanger; R. v. Hanan, 2022 ONCA 229, 161 O.R. (3d) 161, at paras. 47-59. (bolding added)
[31] The defence argues that there was an “additional cause” in this case in that the Crown did not seek to reschedule this case until December 2022 when it had been known and discussed between counsel as early as July and September 2022 that delay was a problem.
[32] It is not known why there was this delay. It may have been that there simply were no available dates to offer before December (when four additional judges were appointed to Brampton). But even if the Crown inaction was the result of a less benign explanation, its impact was on delay that occurred before the offer of dates on December 16. It did not cause or contribute to delay after the March dates were declined due to defence counsel’s unavailability.
[33] Beyond that, this is not a case where it could be considered unfair to saddle the defence with all of the delay. Counsel’s unavailability was not an isolated instance but rather continued over the intervening months to the trial dates that were eventually set. Seven sets of earlier dates were offered and declined.
[34] I conclude that the time between March 13 and August 4 2023 is deductible defence delay.
[35] Net delay is therefore 680 – 144 = 536 days. Under the presumptive ceiling (549).
Below the ceiling:
[36] Assuming my analysis and calculations are correct, I must consider whether it is an appropriate case for a sub-ceiling stay.
[37] I don’t think it is. This is to be a six-day trial with two extra days for motions being brought in the shadow of a pandemic. Even assuming that the defence has been sufficiently diligent to satisfy the meaningful steps requirement, I am unable to conclude that the case took or will take markedly longer than it should have.
Conclusion:
[38] The application is dismissed.
April 16 2023 B Duncan J.
M Sodhi for the defendant: C Tarjan for the Crown
[1] An average month is 30.417days rounded up to 30. 5 days
[2] All of these blocks were beyond the presumptive ceiling, the earliest being the second block at 19 months from the date of the charge. While mildly interesting I don’t think it has any significance to this application since they do not reflect net delay.
[3] For calculation of this period I think it is appropriate to measure to the start of the trial, not the end.
[4] It can be expected that the Crown will consent to reasonable abridgment of time in order to keep the case within the presumptive ceiling.