Court File and Parties

Court File: CRIMJ(P) 586/14 Date: 2017 04 28 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Respondent (A. J. Kingdon, for the Respondent)

- and -

Ayann Elhakim, Applicant (R. Wellington, for the Applicant)

Heard: April 26, 2017 at Brampton

Reasons for Judgment

Section 11(b) Charter Application

Hill J.

Introduction

[1] Mr. Elhakim is scheduled for a 2-week judge-alone trial to commence at the June 12, 2017 sittings in Brampton.

[2] The applicant is charged with three offences relating to accessing, possessing and making child pornography.

[3] By way of a pre-trial application, the applicant sought a stay of proceedings on the basis that his constitutional right to trial without unreasonable delay, as protected by s. 11(b) of the Charter, was breached.

[4] At the conclusion of oral arguments, the application was dismissed with reasons to follow. These are the reasons.

Overview of the Allegations

[5] Following an investigation by the Peel Regional Police Service (PRPS) ICE Unit (Internet Child Exploitation), a search warrant was executed on January 30, 2013 at a Mississauga residence where the applicant resided with his mother. The applicant was arrested the same day.

[6] In the Ontario Court of Justice (OCJ), the applicant was granted bail on February 1, 2013 on a recognizance with conditions.

[7] The police investigation centered upon two computers belonging to the applicant. It is alleged that the applicant had accessed child pornography and that offending photos and video were discovered. There was evidence of peer-to-peer file sharing. The police located 3,517 unique images and 197 videos/movies in one of the computers with varying percentages of accessibility.

Delay to Trial Overview

[8] From the date of the applicant’s arrest (Jan. 30, 2013) to the anticipated end of trial (June 23, 2017) is approximately 53 months. The parties were in agreement, in the circumstances of this transitional case, that a delay of this length properly warranted an inquiry into the reasons for the delay under both the Morin (, [1992] 1 S.C.R. 771) and the Jordan (2016 SCC 27) analytical approaches to s. 11(b) of the Charter.

[9] The period of delay in the OCJ was about 20 months (Jan. 30, 2013) to Oct. 2, 2014). A preliminary inquiry was held in that court.

[10] About two weeks after committal for trial, the applicant made his first appearance in the Superior Court of Justice (SCJ) on October 17, 2014. A June 6, 2016 trial date was lost because of the unavailability of a police witness. By the anticipated end of the applicant’s trial, his case will have been before the SCJ for about 33 months.

[11] The history of the proceedings, including transcripts of the court appearances, is set out in the 2-volume Application Record (Exhibit #s 3 & 4). In their respective factums (Exhibit #s 5 & 6), Mr. Wellington and Mr. Kingdon charted and allocated periods of delay by cause, not fault-based assessments, across the entire period of delay. In this regard, there are both points of agreement and disagreement between the parties, which will be reflected in the discussion which follows.

Proceedings in the OCJ

[12] There were five court appearances in the time period of January 30 to June 7, 2013 (Jan. 30, Feb. 1, March 4, April 26, June 7). During this intake period of 4 months and 1 week, agreed to be neutral intake time, inherent in the conduct of a criminal case, there was a first appearance being made, counsel retained, a bail hearing conducted, and the provision of disclosure. The remand from April 26 to June 7 to permit defence counsel to receive additional disclosure, and to review it, before setting an OCJ judicial pretrial (JPT), was reasonable as was the pace of the disclosure.

[13] On June 7, 2013, the JPT was set for July 11, 2013. This delay of about a month was characterized by the applicant as institutional delay and by the Crown as delay inherent in the process and therefore neutral. This delay was neutral as a delay, of reasonable proportions, to schedule a JPT is an inherent and essential aspect of trial management – see: R. v. Konstantakos, 2014 ONCA 21, at paras. 6-8; R. v. Ralph, 2014 ONCA 3, at para. 11 (leave to appeal refused [2014] S.C.C.A. No. 262); R. v. Tran, 2012 ONCA 18, at para. 34; R. v. Khan, 2011 ONCA 173, at paras. 42, 46, 53 (leave to appeal refused [2011] S.C.C.A. No. 195); R. v. Schertzer, 2009 ONCA 742, at para. 96.

[14] On July 11, the JPT was adjourned because applicant’s counsel was unavailable attending a law conference. The agent appearing for Mr. Quigley did not have dates as to when counsel would be available for a rescheduled JPT. The case was adjourned to July 22 to be spoken to in terms of setting a new date for the JPT. This 11-day delay, it is agreed, was defence responsibility.

[15] The near-2-month delay from July 22 to the September 19, 2013 successive JPT date was characterized by the applicant as “Defence/Institutional” and by the Crown as “Inherent”. In my view, this is delay for which the defence remained responsible as the JPT ought to have been held on July 11 when the court and the Crown were ready for the JPT.

[16] On September 19, 2013, the JPT was adjourned because there was no assigned prosecutor available and the Crown file could not be located. The 1-month delay, to the rescheduled JPT on October 17, was agreed to be a matter of Crown responsibility.

[17] With a mutual request on October 17 to adjourn the JPT to October 31, the parties agreed that this was a neutral time period.

[18] On October 31, 2013, the OCJ JPT was held and, with a judge-and-jury election by the applicant, September 19, 2014 was selected for a 1-day preliminary inquiry and September 22, 2014 for a ½ day discovery. This is a delay of approximately 10 ½ months.

[19] The applicant and the Crown characterized the entire period of the 10 ½ months as institutional delay. This raises a number of issues. The in-court record for October 31 simply has counsel stating, “… we have secured a one-day prelim and then a half-day discovery” on the relevant dates. This scheduling appears to have been an out-of-court arrangement made through an OCJ Trial Coordinator. It is unknown whether the court had earlier dates available which were rejected by counsel or whether counsel had earlier dates available which the court calendar was not in a position to accommodate. In R. v. Steele, 2012 ONCA 383, at para. 19, the court observed that “defence counsel should put on the record their first available dates to conduct the … preliminary inquiry” – otherwise “it may be impossible to determine how the delay should be allocated”.

[20] There is a second issue. Institutional delay does not start to run until the parties are ready for a proceeding and the system can accommodate them: Konstantakos, at para. 10. Being ready for a proceeding, such as a preliminary inquiry, requires that preparation time be taken into account as a neutral aspect of case management: Steele, at para. 19 (“… the time necessary for counsel to prepare for the preliminary inquiry … must be taken into consideration as part of the inherent requirements of the case”); R. v. Florence, 2014 ONCA 443, at para. 55; Khan, at paras. 34-35. It cannot seriously be suggested that the parties were ready to conduct the preliminary inquiry on November 1, 2014.

[21] Given the volume of disclosure, and the technical aspects in relation to examination of the computer and the file-sharing data, I would allocate 1 ½ months of neutral time to counsel preparation and 9 months to institutional delay to the date of the preliminary inquiry.

[22] On September 19, 2014, two witnesses were questioned at the preliminary inquiry – PRPS Constables Ullock and Arcain. Defence counsel informed the court that committal was in issue. The filed transcript for this date reflects that the proceeding ended between 4:15 and 4:30 p.m. Although this court does not have the benefit of a transcript explaining what occurred, it appears that on this date the scheduled September 22 discovery date was abandoned and October 2 scheduled for a second day of a preliminary inquiry.

[23] On October 2, PRPS Const. Gary Lancaster, a member of the Technological Crimes Unit, testified. The witness had prepared a report and various exhibits were entered during the officer’s evidence. Const. Lancaster presented technical evidence relating to his participation in the examination of one of the applicant’s computers. The defence did not challenge committal for trial which was ordered on this date.

[24] The applicant’s chart refers to Sept. 19 to Sept. 22 as “Inherent” with no reference to the Sept. 19 to October 2 time period while the Crown characterizes the further ½ month delay to complete the preliminary inquiry as “Institutional”. I agree with the respondent’s allocation.

Summary Re OCJ Delay

[25] Based upon the above discussion, the approximate 20-month time period in the OCJ, with some rounding off, may be described as follows:

Morin delay Jordan delay
neutral/inherent 7 months 1 week
defence 2 ½ months 2 ½ months
Crown 1 month
institutional 9 ½ months

Proceedings in the SCJ

[26] On October 2, 2014, the applicant was committed for trial and remanded to appear before the October 17 SCJ Criminal Assignment Court. The presiding judge, Durno J., offered a November 12 JPT date and inquired as to when Mr. Quigley wished to set the trial date. When defence counsel asked, without indicating any reason, for “a little more time” respecting the JPT date, the court scheduled the JPT for December 12. Mr. Quigley expressed a preference to defer setting the trial date until the JPT was held. This defence decision would have significant ramifications as, discussed below, the JPT was not held until July 31, 2015.

[27] The applicant allocated the time to get to the SCJ from the OCJ as “Inherent”, and the delay to the offered JPT date of November 12 as “Institutional”, and the further delay to the scheduled JPT date of December 12 as “Defence”. The Crown characterized the entire time period from Oct. 2 to Dec. 12 as “Inherent”. As stated earlier respecting the scheduling of the OCJ JPT, the delay to the holding of a JPT is neutral intake time. The inability of the defence to participate in a JPT on November 12, when the court and the Crown were ready, without any articulated reason, attracts defence responsibility for the Nov. 12 to Dec. 12 delay.

[28] The applicant continued to appear in the SCJ through counsel by a Designation of Counsel filed with the court. The defence filed its Form 17 Pre-Trial Conference Report dated Dec. 8, 2014 in which it identified that (1) disclosure was complete, (2) the voluntariness of the applicant’s statement to the police was in issue, (3) a s. 8 Charter pretrial motion would be brought challenging the validity of a search warrant, (4) the defence “need further consultation with expert”, (5) the need for a 3rd party records application, (6) that a defence computer expert would be called at trial.

[29] There were SCJ appearances on December 12, 2014 and February 5, March 5, April 8, May 15, and June 24, 2015. While the allocations of responsibility for the delays during this time period are not identical as charted by the parties, they are in agreement that each delay in this 6 ½ month period is either defence responsibility or defence waiver.

[30] On Dec. 12, 2014, the defence secured an adjournment of the JPT because the defence had not yet consulted its own expert. On Feb. 5, March 5 and April 8, 2015 Mr. Quigley was represented by agents. On Feb. 5, the court was informed that counsel was otherwise occupied preparing “a major application” in another case. As to the process, Crown counsel stated, “we’d like to move it along”. On March 5, when the Crown stated that it was ready to set a trial date, a further 4-week adjournment was sought by Mr. Quigley’s agent. On April 8, the court was informed that the defence was seeking to retain a different expert. On May 15, with the Crown present, no one appeared for the applicant. A Bench Warrant With Discretion issued for the applicant’s arrest and the case was adjourned to be spoken to on June 24, 2015.

[31] On June 24, an agent appeared on Mr. Quigley’s behalf to say that he had “some ongoing health issues” but that he expected to be available to participate in the JPT by July 27. Durno J. rescinded the bench warrant and scheduled the as-yet-unheld JPT for July 31. The applicant characterized this delay as “Neutral (Defence)” while the Crown allocated this 1 month and 1 week time period as “Defence”. In the circumstances of counsel’s ill health, the delay should be seen as neutral/inherent.

[32] On July 31, the JPT was held. In court, this exchange took place between Durno J. and Mr. Quigley:

THE COURT: On the Elhakim matter, we’re going to set two weeks for trial. And I understand, Mr. Quigley, you say there’s no delay issues if the trial were the two weeks of May 16th to the 30th, June 6th or June 13th. MR. QUIGLEY: That’s right, Your Honour. THE COURT: Okay. Which of those dates would be agreeable to you? MR. QUIGLEY: Your Honour, what was the June date that you were offering? THE COURT: The 6th or the 13th. MR. QUIGLEY: The 6th of June, Your Honour. (emphasis added)

[33] In the circumstances, Durno J. set the trial date for the sittings of June 6, 2016 for a 2-week trial, understandably endorsing the indictment that the new trial date was set “on consent”. A Trial Readiness Court (TRC) appearance was scheduled for May 27, 2016 pursuant to SCJ Criminal Proceedings Rule 28.04(18)(a). It was further agreed that another JPT would be held on October 16, 2015.

[34] The 10 ½-month time period from July 31, 2015 to June 6, 2016 was described by the applicant and the Crown as “Institutional”. The applicant also sought to characterize a couple internal periods of time, each of about a months’ duration, as also being “Defence” and “Crown” delay respectively. Given that the October 16, 2015, and the February 2, March 8, and April 12 JPT (date of re-election to judge-alone trial) continuations fall within the 10 ½-month delay to trial, the entire period would amount to institutional delay subject, again, to recognition of the reality that the parties were not ready for trial on August 1, 2015 – preparation was required – see Morin, at paras. 41, 69-70; Ralph, at para. 12; Steele, at paras. 19, 20, 24; R. v. Williamson, 2014 ONCA 598, at paras. 35-37, 43-44 (affd 2016 SCC 28); R. v. Tran, 2012 ONCA 18, at paras. 32, 38, 40; Konstantakos, at paras. 10-11; Florence, at para. 63.

[35] Given the nature of the case, its expected length, including the pre-trial motions, and the necessity for expert evidence, and in the absence of any input from counsel on the record as to preparation time, I would again allocate 1 ½ months for prep time.

[36] During the ongoing JPTs in early 2016, and on May 13 and 19, there was ongoing discussion about pretrial motions, the defence was getting input from its computer expert, the Crown secured an order to assist the defence authorizing release of an “image” from the PRPS to the defence expert, and there were discussions about disclosure and accessing items within the electronic disclosure provided by the prosecution. There were no disclosure motions argued by the defence and the record here does not support any disclosure issue impairing the trial from being held on June 6, 2016.

[37] A week prior to the May 27, 2016 TRC appearance, PRPS Const. Lancaster suffered a heart attack. The court and applicant’s counsel were advised of this circumstance. There were May 27 and May 31 court appearances and a May 30 conference call with Durno J. On May 31, Durno J. endorsed the indictment “TRC: Trial will not proceed. New date to be set June 6/16”.

[38] On June 6, 2016, the in-court record reads as follows:

MR. KINGDON: I can address the Elhakim matter, Your Honour. THE COURT: Right. MR. KINGDON: Mr. Quigley is here. MR. QUIGLEY: Yes, good morning, Your Honour. THE COURT: Good morning. MR. KINGDON: This is a matter that was set to begin its trial today. THE COURT: Right. MR. KINGDON: As I informed, Your Honour and my friend in the pre-trial last week, there’s a very serious health issue with one of the officers who is at the moment an essential witness. And I believe, it was agreed that we would be adjourning… THE COURT: Right. MR. KINGDON: …the trial. I’ve discussed the matter with my friend and we’re asking for the matter to return in the June 24th, assignment court. Hopefully I will have more better information about the officer’s future availability at that time. THE COURT: Mr. Elhakim is remanded by designation to the June 24th assignment court. MR. QUIGLEY: Thank you very much, Your Honour. MR. KINGDON: Thanks, Your Honour. (emphasis added)

[39] On June 24, Crown counsel provided this information to the court:

Your Honour will recall this is, this trial was adjourned due to an officer having health issues. The latest word I have is that the officer might be back by mid to late November. Given my schedule and in regard to putting a safety margin, I’m going to suggest we start looking at new dates in January. (emphasis added)

[40] On this date, Mr. Quigley’s agent informed the court that:

Your Honour, I can indicate that Mr. Quigley has dates available starting July 11th through to August 5th of this year, August 15th to September 2nd of this year. And as of 2017, his availability doesn’t commence until June. (emphasis added)

[41] When Crown counsel inquired of Mr. Trombly as to Mr. Quigley’s availability in November or December of 2016, counsel replied:

No. He’s unavailable from October 4th until the end of this year. He’s in a jury trial. (emphasis added)

[42] In the circumstances, the trial was scheduled for the June 12, 2017 sittings.

[43] The chart in the applicant’s factum allocates the period of June 6, 2016 to June 12, 2017 entirely to Crown delay. This is effectively the focus of the applicant’s complaint of unreasonable delay. Crown counsel describes the delay of just over 12 months, under the Morin regime, as “Neutral/Defence”, and as “Exceptional Circumstances” in a Jordan analysis.

[44] In Exhibit #7 in this application, an April 26, 2017 Affidavit of Gary Lancaster, he states that as of September 12, 2016, he was allowed to return to duty on a half-day basis for two weeks and then full-time thereafter.

[45] In our pre-Jordan s. 11(b) Charter jurisprudence, trial delay on account of the unavailability of a justice system participant was uniformly treated as a neutral or inherent circumstance required to complete the case. While this frequently involved a presiding judge (R. v. MacDougall, [1998] 3 S.C.R. 45, at para. 46; R. v. Witen, 2014 ONCA 694, at para. 15; R. v. Vandermeulen, 2015 MBCA 84, at paras. 16, 36-43; R. v. Shepherd, 2014 SKCA 123, at paras. 3, 5), at times it was an important witness who was unavailable due to unexpected illness: R. v. Roncaioli, 2011 ONCA 378, at paras. 28, 30 (Crown expert witness); R. v. C.D., 2014 ABCA 333, at paras. 22-23, 55, 60 (complainant); R. v. A.J.W., 2009 ONCA 661 (Crown witness); and R. v. Feeney, [2014] O.J. No. 1634 (C.A.), at para. 4 (police officer). Such a circumstance amounts to “an extraordinary, unforeseeable event”: Shepherd, at para. 5.

[46] At para. 72 of the Jordan decision, in describing an “exceptional circumstance”, which might be said to be “discreet”, the court stated:

Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify.

[47] In R. v. Coulter, 2016 ONCA 704, at paras. 81 to 84, the court accepted, as a discreet exceptional circumstance, an unavailable delay of a number of months to a rescheduled trial date when Crown counsel was involved in a motor vehicle accident on the morning of the first trial date.

[48] Under either a Morin or a Jordan analysis, the loss of the June 6, 2016 trial date was not Crown responsibility but on account of an exceptional and unforeseeable event.

[49] Operating within the Morin framework, two weeks before the Jordan judgment was released, the parties recognized the unfortunate loss of the trial date and rescheduled the trial. There was no suggestion at the time, from experienced counsel fully familiar with the brief, that Const. Lancaster could be eliminated as a witness, or replaced, or his evidence reduced to an agreed statement facts.

[50] Const. Lancaster was an important witness, described by the prosecutor as “essential” on June 6 without disagreement by Mr. Quigley on that date or thereafter prior to a new trial date being set. In June 2016, it was predicted that Const. Lancaster’s recovery from his heart attack might permit his attendance at a trial at the earliest by mid to late November. Mr. Quigley’s professional schedule could not accommodate the case, variously described as from either September 2 or October 4, 2016 to mid-June 2017.

[51] The applicant was intent on remaining with his original counsel of choice. That was his decision. As a result, while the court would undoubtedly have made efforts to relist the case for trial in December 2015 or January 2016, a point after the witness’ expected return to duty, Mr. Quigley’s schedule foreclosed this option. By June 6, 2016, applicant’s counsel well knew that Durno J., whenever trial dates are set, wanted to be apprised of any delay-to-trial Charter issues. For example, counsel had been present on May 15, 2015, when Durno J. announced to assembled counsel on that day’s docket: “When dates are being set today, if, as a result of events before today or as a result of the dates that I am setting, there are potential 11(b) issues, it is counsel’s responsibility to let me know so that I can attempt to address them”.

[52] Where a trial date is lost on account of illness, as in the instance of a mistrial (see, for example, R. v. Brace, 2010 ONCA 689, at paras. 14-16; R. v. Satkunananthan (2001), 152 C.C.C. (3d) 321 (Ont. C.A.), at para. 55), reasonable efforts are expected to reschedule the case for trial as expeditiously as possible without putting the matter into the ordinary cycle of cases coming into the SCJ after committal for trial. This has long been the practice in Peel. In the A.J.W. case, where a trial date was lost on account of witness illness, the court stated at paras. 35. 37, 41 and 43:

The Delay Following the Adjournment due to the Illness of the Witness

35 Delay as a result of the illness of a witness is ordinarily attributed to the inherent time requirements of the case. As Hill J. said in R. v. Hoffner, [2005] O.J. No. 3862, at para. 41: "Such a contingency, while unfortunate and unexpected, is nevertheless an inherent feature of the litigation process. In turn, therefore, reasonable delay to a new trial date is prima facie considered neutral." Hill J. went on to make the important point that not all the ensuing delay is necessarily neutral. If the time to the next trial date is itself unreasonable, some portion of the delay is properly considered institutional delay.

37 The respondent supports the trial judge's approach and fairly makes the point that if delay following illness of a witness was always considered neutral, cases could drag on forever despite the mounting prejudice to the accused's interest in a speedy trial. In effect, the accused would be held hostage to the vagaries of the health of prosecution witnesses.

41 … Presumptively then, the resulting delay was neutral. That is not to say that all the ensuing delay should be considered neutral. Given the delay that had already occurred through no fault of the respondent, he was entitled to expect the system to respond with some urgency by offering dates for the trial as soon as reasonably possible. He was entitled to have the system give his case priority. My review of the record indicates that this is exactly what occurred.

43 The burden of proof was on the respondent to establish the violation of his rights: see Morin at p. 788. In the circumstances of this case, given that delay following an adjournment due to illness of a witness is prima facie neutral, it was for the respondent to show that the delay was unreasonable. He could not do that simply by putting on the record that he was intending to exercise his s. 11(b) rights. In my view, the trial judge erred in attributing the delay to Crown actions or institutional delay; while it was not waived by the defence, it should be considered neutral.

[53] Durno J. set a date accommodating defence counsel’s schedule. Though perhaps disappointed by the delay, the applicant was apparently content to proceed in the manner agreed upon on June 24, 2016 until after the Jordan case was released when, about 7 months later, a s. 11(b)/24(1) Charter application was launched.

[54] Assuming the court would have provided a January 30, 2017 trial date, then in Morin terms, the delay from June 6 to December 31, 2016 is properly classified as neutral/inherent time on account of the impact of the police witness’ heart attack on the first trial date. The December 31, 2016 to January 30, 2017 date would be inherent delay allowing trial preparation and the time period of the trial itself (Jan. 30, 2017 to Feb. 10, 2017) would again be neutral time to conduct the rescheduled trial. The further delay beyond the notional trial date from Feb. 10 to June 23, 2017 is defence responsibility on account of counsel’s schedule – “[w]hen the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay”: Coulter, at para. 44; Jordan, at para. 64; R. v. McManus, 2017 ONCA 188, at para. 32.

[55] Under the Jordan regime, the delay between the two trial dates would be entirely due to an exceptional circumstance or a combination of that cause and defence delay.

Summary Re SCJ Delay

[56] Based upon the above discussion, the approximate 33-month period in the SCJ (Oct. 2, 2014 to June 23, 2017), with some rounding off, may be described as follows:

Morin delay Jordan delay
neutral/inherent 12 months 1 week exceptional circumstance/
defence 12 months defence 12 months
Crown 0
institutional 8 months 3 weeks

Analysis

[57] “It must be remembered that the onus rests on the Crown to ensure that a matter proceeds expeditiously to trial: R. v. Askov, [1990] 2 S.C.R. 1199, at p. 1225”: Florence, at para. 47.

[58] At paras. 19 and 20 of the Khan case, the court stated:

19 Section 11(b) of the Charter aims to protect both the individual rights of the accused - the right to security of person, the right to liberty and the right to a fair trial - and the collective rights of society to have criminal charges dealt with on the merits: Morin, at pp. 786-87.

20 Whether the delay is unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect: R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 18.

[59] As observed in Coulter, at para. 60, “Jordan fundamentally changed the way that the courts are to decide s. 11(b) applications”.

[60] The Jordan framework requires the reviewing court to address these questions:

(1) what is the total delay from the date of arrest to the presumptive or anticipated end of the trial? (2) to arrive at the “net delay”, what, if any, defence delay, whether characterized as waiver or defence conduct, is to be subtracted? (3) if the net delay exceeds the 30-month presumptive ceiling for a case tried in a superior court of criminal jurisdiction, can the Crown establish an “exceptional circumstance”, and if so, what delay is accounted for by such circumstance which must then be subtracted from the net delay? (4) if the delay continues to exceed the presumptive cap, and the case is a transitional case bridging across the Morin and Jordan eras, can the Crown advance a “transitional exceptional circumstance” justifying the delay to trial?

See Jordan, at paras. 47, 60-61, 66, 68-73, 75, 81, 93-96, 98, 102-105; McManus, at paras. 20-24.

[61] On the basis of the assessments summarized above at paras. 25 and 56, the response to the first three questions is:

(1) 53 months (2) 53 mon. total delay -14.5 mon. defence delay 38.5 mon. net delay (3) 38.5 mon. net delay -8 mon. exceptional circumstance (June 6/16 to Feb. 10/17) 30.5 mon. adjusted/remaining delay

[62] On this basis, the adjusted delay is only marginally above the presumptive ceiling. At paras. 96, 101 and 102 of the Jordan case, the court stated:

96 First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties' behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties' reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.

101 We note that given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system.

102 Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one. (emphasis of original)

[63] On the totality of the record here, there has been no breach of s. 11(b) of the Charter. I would note in particular the defence decision on October 17, 2014 to defer setting a trial date and that, on July 31, 2015, when Durno J. set the first trial date of June 6, 2016, the defence confirmed that there were “no delay issues” implicated by the setting of this trial date. Then, with the exceptional and unforeseen circumstance of an important police witness suffering a heart attack, a factor outside the control of the Crown, that trial date was lost resulting in the current trial date accommodating the witness’ recovery and defence counsel’s schedule.

[64] Retrospective examination of multiple court appearances necessarily presents a range of difficulties. At times, counsel did not fully express their positions, earliest availability, required preparation time, etc. Accordingly, in this application, certain reasonable assumptions must be made. As well, a s. 11(b) evaluation is not about precise mathematics and, as said, there has resulted some rounding off of days within various time periods.

[65] Alternatively, even if the allocations could reasonably be viewed somewhat differently as exceeding the 30-month ceiling by a few months, I would not find a Charter violation for these reasons relating to transitional exceptional circumstances.

[66] Again, having regard to the allocations summarized in paras. 25 and 56 above, using the former Morin framework, this profile exists for the approximate 53-month delay to the anticipated end of trial:

neutral/inherent 19.5 mon.
Crown 1 mon.
Defence 14.5
Institutional 18 mon. 1 wk.

[67] The new framework of Jordan must be applied contextually and flexibly.

[68] A 53-month delay to trial is certainly not a standard of diligence or of robust case management by the parties to be desired for a case of at best modest complexity. Be that as it may, the respondent correctly submitted that the record reflects that the parties, operating entirely within the Morin framework by the point of the June 24, 2016 setting of the second trial date, were conducting themselves with reasonable reliance upon the law as it then stood. The Jordan era had yet to begin.

[69] With the overall delay allocated by this court to institutional delay (18 months and 1 week) barely exceeding the Askov/Morin flexible administrative guideline of 18 months for trials in a superior court of criminal jurisdiction, and the Crown-responsibility delay amounting to only a further one month, the bulk of the overall delay was inherent or defence delay.

[70] In the present case, there were no mistakes or missteps by the prosecution nor any attitude of complacency in the delays. On more than one occasion, Crown counsel sought to accelerate the pace.

[71] Neither is there any suggestion that the defence impeded the progress of the case. The applicant did however consent to the trial dates. The record fails to reflect any sustained eagerness on the part of the defence to quicken the pace of the process. And, of course, in a pre-Jordan analysis, defence acquiescence is relevant to whether any inference of prejudice should be inferred: McManus, at para. 53.

[72] The case involves a 2-week trial of serious charges with pretrial motions, and though, in Morin terms, prejudice can be inferred from the total length of delay, the Exhibit #2 affidavit of the applicant, specifically paras. 5 and 6, are relatively generic and undetailed in terms of describing any actual prejudice occasioned by alleged undue delay in disposing of the charges. The applicant, who is presumptively innocent, was on bail and the majority of court appearances were by counsel as a Designation of Counsel was filed at both levels of court.

[73] In the fact-specific circumstances of this case, the necessary balancing, under the Morin approach, having regard to the interests s. 11(b) of the Charter seeks to protect, would not have resulted in a finding of a Charter breach. On a contextual assessment of the history of the case and the conduct of the parties, the Crown has met the onus of demonstrating the case to properly be within the “traditional exceptional circumstance” category described in Jordan.

Conclusion

[74] The application is dismissed. The trial shall commence at the June 12, 2017 sittings in Brampton. The TRC court appearance remains for June 2, 2017 at 10:00 a.m. Should counsel wish to arrange a further JPT or case management meeting with Durno J., they may contact the SCJ Trial Coordinator to arrange an appointment.

Hill J. DATE: April 28, 2017

COURT FILE: CRIMJ(P) 586/14 DATE: 2017 04 28 ONTARIO SUPERIOR COURT OF JUSTICE RE: R. v. AYANN ELHAKIM COUNSEL: J. Kingdon, for the Respondent R. Wellington, for the Applicant REASONS FOR JUDGMENT S. 11(b) CHARTER APPLICATION Hill J. DATE: April 28, 2017