Court File and Parties

COURT FILE NO.: CR-17-30000369-0000 DATE: 20170612 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – MICHAEL MAJEED Applicant

COUNSEL: J. Hanna and Patrick Woods, for the Crown C. Bottomley, for the Defendant

HEARD: May 8 and 9, 2017

JUSTICE NAKATSURU:

A. Introduction

[1] The applicant, Michael Majeed stands charged with a series of fraud-related offences that were laid as a result of a police investigation named Project Terrier. It is alleged that Mr. Majeed participated in a number of fraudulent business loan applications at various financial institutions. He is said to be near the top of this fraud ring. The applicant alleges that his s. 11(b) Charter right has been violated. He submits that these proceedings should be stayed given the unreasonable delay that has occurred. I dismissed the application in court with brief oral reasons. These are the written reasons elaborating upon my decision.

[2] Let me begin by saying this. This case has taken a long time to get to this point. I recognize this. I am sensitive to this. It is a truism that justice delayed is justice denied. At the same time, the course of true justice, like love, does not always run smoothly. The right under s. 11(b) of the Charter is not just about the calculation of time or the attribution of periods of delay. At its heart is the balancing of interests to ensure not only timely but also responsible justice.

[3] The leading case is R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27. In its relatively short juridical existence, it has become a very well-known case. The test to be applied is the following:

• Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial.
• Subtract defence delay from the total delay, which results in the "Net Delay".
• Compare the Net Delay to the presumptive ceiling.
• If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
• Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached.
• If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
• If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
• The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases").

B. Calculation of Net Delay

[4] The initial information was sworn December 6, 2012. This trial is expected to be completed on June 23, 2017. The total delay is therefore 54 months and 17 days. Some 54 and 1/2 months. I find there has been no expressed waiver of any periods of delay.

[5] The Crown argues that there were implicit waivers of delay by the defence. I am not persuaded. Of course, the Crown relies upon the following passage in R. v. Smith, [1989] S.C.J. No. 119, at para. 38:

Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right to subsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver, agreeing to a future date for a trial or a preliminary inquiry would generally be characterized as more than silence. Therefore, absent other factors, waiver of the appellant's s. 11(b) rights might be inferred based on the foregoing circumstances.

[6] Waiver must be clear and unequivocal with full knowledge of the rights guaranteed and the effect waiver has on those rights. While agreement to a future date can in some circumstances amount to an implicit waiver, the comment in Smith is a nuanced one. Implicit waiver will depend upon “other factors” existing at the time. One circumstance is whether the future dates are inevitable or whether the defence has a real choice in its selection. If the dates offered are the first ones available to the court, there is no implicit waiver. Another example would be when the parties are essentially in agreement about the future conduct of the case. If both Crown and defence agree that a period of time is necessary for the proper conduct of the case, in absence of an express waiver, it would be difficult to say the Crown has met its onus of proving implicit waiver. Agreement to a future date is merely a product of what the parties view as reasonable requirements of litigation. Agreement by the defence in such circumstances is neither an unequivocal waiver nor one done with full knowledge of its effects on constitutional rights.

[7] The Crown submits that there were two periods of implicit delay. One was the period after the applicant was committed to trial. The Crown offered a first appearance date in the Superior Court either in September or October of 2015. The Crown argues that when the defence said he was “happy either way”, this amounted to an implicit waiver. I disagree. While it is true the defence did not voice any objection, the Crown stated his belief that both dates were fine and neither date would slow things down. Indeed, it was the Crown who eventually chose the October date. There is no obligation on the part of the applicant to press the case on. In light of the Crown’s assurance that neither date would slow things down, seizing upon this one comment by defence counsel, Mr. Bottomley, to ground implicit waiver, is overreaching.

[8] The other period of implicit waiver, argues the Crown, is after the first judicial pre-trial in the Superior Court of Justice. The applicant’s counsel stated he wanted to discuss an issue with the Crown and the parties agreed to come back within a month to have further discussions with the judicial pre-trial judge. Such judicial pre-trial discussions, even if they need to be continued, are not just of benefit to the parties but to the system as a whole. I would be much loathed to find the onus on the Crown to prove implicit waiver discharged in this type of situation.

[9] The last consideration is that the applicant had brought a s. 11(b) application before the commencement of the first set of dates scheduled in the Ontario Court of Justice. This was before the applicant elected to have the matter proceed as a preliminary inquiry. There was no clearer indication of the applicant’s position that the delay had become unacceptable. The defence actions alleged to be implicit waiver must be assessed in this context.

[10] In addition to waiver, any defence delay must be subtracted from the total delay. The applicant concedes that two periods of time should be considered defence delay. I agree. The first period of defence delay is 30 days. Mistakenly, when initial dates were being set in the Ontario Court of Justice, an agent for Mr. Bottomley advised that Mr. Bottomley would not be available for dates in May and June of 2014. In fact, Mr. Bottomley was available. Based upon the mistaken understanding of counsel’s availability, pre-trial motions were scheduled for July and the trial proper commencing in September 2014. Based upon the record of proceedings, the Ontario Court of Justice had availability in May to hear this case. However, it is not clear exactly when in May. It was the defence error in advising the court of Mr. Bottomley’s availability that caused the dates to be set later in July. Given that I have no greater and more specific information about the May dates that could have been offered to counsel; the fairest approach is to subtract 30 days (the month of June) from the total delay as defence delay.

[11] The second period of time conceded by the applicant as defence delay is a period of 3 months and 22 days from January 9, 2017 to May 1, 2017. This is a period of time when the applicant’s counsel was not available for this trial. He had just scheduled another trial that was commencing in January 2017. The court and the Crown were available. As a result, this time period must be subtracted from the total delay.

[12] The Crown alleges another period to be defence delay. After committal, the Crown had stated that a judicial pre-trial could be scheduled anytime between the date of committal and the first appearance. In other words, that counsel did not have to wait until the first appearance to schedule a judicial pre-trial. However, applicant’s counsel did not schedule a pre-trial until October 29, 2015, the date of the first appearance. The pre-trial was then set for December 4, 2015. The Crown submits that this delay should be discounted as defence delay. While this argument may have force in assessing whether the transitional exceptional circumstance should apply, to accede to it as defence delay would just further the culture of complacency criticized in Jordan. While the defence took no action, neither did the Crown. Or the court for that matter. The responsibility for timely justice rests on all parties. I am not prepared to characterize this as defence delay.

[13] In sum, taking into account the defence delay, the Net Delay in this case is 49 months and 25 days. Or approximately 50 months. This is above the presumptive ceiling of 30 months.

C. Exceptional Circumstances: Discrete Events

[14] The onus is on the Crown to establish exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in the sense that they are reasonably unforeseen or reasonably unavoidable and the Crown cannot reasonably remedy the delays emanating from these circumstances once they arise.

[15] I find that the Crown has proven the following discrete events as exceptional circumstances:

• The last minute election by the applicant from trial in the Ontario Court of Justice to a preliminary inquiry;
• A new justice had to be assigned to the preliminary inquiry due to the illness of the previously assigned justice; and
• The preliminary inquiry took longer than could reasonably be expected.

[16] These discrete events all centered on the conduct of the preliminary inquiry. Looking at the larger picture, it was the conduct of the preliminary inquiry that significantly delayed this case. The first date set in the Ontario Court of Justice was July 7, 2014. Committal was September 2, 2015. Thus, over a year was required to complete the preliminary inquiry.

[17] To start the analysis, the conduct of the case took an unexpected turn on July 7, 2014. Up until then, it was everyone’s expectation that the trial would take place in the Ontario Court of Justice. This was stated on the record. The scheduling took this into account. All accused agreed. At that point in time, there were a number of co-accused with the applicant. Twelve days of court time was scheduled in July 2014 for the hearing of any pre-trial motions. A further 34 days were scheduled commencing in September 2014 for the trial proper. On the morning of July 7, applicant’s counsel asked for a few minutes to speak to the other defence lawyers. This court time had been set aside to hear motions, including a s. 7 and 11(b) application. Upon resuming, Justice Marin inquired whether all the accused had been arraigned and their formal elections taken. Applicant’s counsel advised that he believed so but that now his client wished to re-elect to having a preliminary inquiry. Applicant’s counsel submitted that certain information had been presented in response to the motions that he believed could work a prejudice to his client. This was that new outstanding charges had been laid against the applicant. Justice Marin assured counsel this would not be an issue for her. As the discussion continued, it transpired that due to oversight, the applicant had never been formally put to his election. As a result, the applicant elected to proceed by way of preliminary inquiry. The co-accused was then bound to have a preliminary inquiry. Given that everyone had anticipated that the July weeks were to be used only for motions, the Crown was not prepared to start calling witnesses for the preliminary inquiry. Justice Marin expressed considerable regret for the time lost since court time is such a valuable commodity. She suggested a further judicial pre-trial to see if the issues could be narrowed given that the matter would now proceed by way of a preliminary inquiry.

[18] It could be argued that the applicant’s last minute election to having his matter tried before a judge and jury after a preliminary inquiry should result in any delay being discounted as defence delay. However, I do not believe that would be a proper characterization. The defence was within its rights to make this election. Even if a formal election had been previously taken, it was arguable the defence still had the opportunity to re-elect. Secondly, this eleventh hour change of heart meant that the time set aside in July for motions could not be used, but there was time still scheduled in September and October to complete the case. This was not defence conduct that was meant to deliberately delay the case or was the sole cause of any delay.

[19] On the other hand, it was not a totally benign act without consequences. All the pre-trial appearances and scheduling proceeded on the basis that this was going to be a trial in the Ontario Court of Justice. Pre-trial motions that can only be heard by a trial judge were deliberately set up in advance of the trial dates for that purpose. No notice was given to the Crown or the court about this sudden new course of action. It happened the morning of the first day. I am not criticizing counsel for choosing to proceed in this fashion. No doubt he believed he had a valid reason to do it whether I agree with it or not. But the practical reality of the applicant’s action was the waste of all that time set aside in July for this case. Had the case proceeded from the start on the understanding it would be a preliminary inquiry, this period of time in July when all the parties were available, could have been productively used to hear evidence. This last minute decision by the applicant could not have been reasonably foreseen by the Crown. It came too late for the Crown to have remedied any delay resulting from it.

[20] The second discrete event was Justice Marin became ill. She became unavailable for the preliminary inquiry that commenced on September 9, 2014. This is clear from the transcript of proceedings when Justice Mulligan walked into court and stated:

I am stepping in for a judge that was originally assigned to this matter, so normally I would be embarrassed to say I don’t know a thing about this, but it’s not because I’m not prepared, it’s just that all this came to me this morning.

[21] The applicant does not gainsay that Justice Marin became ill. Justice Mulligan refers to Justice Marin becoming ill in the transcript of proceedings from February 23, 2015. However, the applicant submits that very little detail is provided about the circumstances of that illness to prove this to be a discrete event. In my view, dealing with personal and intimate health issues in open court is always a sensitive matter. Parties can be forgiven for not thoroughly canvassing it for the sake of completeness just in case it becomes relevant to a later s. 11(b) analysis. I will just say that I am satisfied on this record that Justice Marin’s illness was a discrete event. It is clear from Justice Mulligan’s surprise and explanation on the record that this was an unexpected turn of events. She appears to have been simply parachuted in that morning to replace Justice Marin. One can further reasonably infer since the preliminary inquiry was scheduled for several weeks that this was not the type of illness that Justice Marin could have quickly recuperated from and have returned to sit after a couple of days absence. If that were the case, the case could have simply been adjourned to await her return.

[22] This discrete event contributed to the delay given that the scheduling requirements of Justice Mulligan had not been previously considered. Since she was just reassigned, Justice Mulligan had other commitments in her calendar. She advised that she could not sit on September 12 (which the parties had already agreed to vacate earlier), September 18, September 19, October 8-10, October 27, and October 29-30. Thus due to the illness of Justice Marin, a number of scheduled days of court time was lost.

[23] The final discrete event is that despite best efforts, the parties significantly underestimated the amount of time required to complete the preliminary inquiry. In Jordan the court recognized that such circumstances could qualify as a discrete event (at paras. 73 and 74):

Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance. [Emphasis added.]

Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.

[24] When the July sitting dates were vacated, further judicial pre-trials were conducted on July 10, July 29, and September 4, 2014, before Justice Bloomenfeld. A statement of issues was filed. Discussion was had about whether certain committals would be conceded and whether the issues could be narrowed. On July 29, 2014, after a chambers discussion, Justice Bloomenfeld stated on the record that because certain accused were anticipated to resolve their charges and one accused was waiving his preliminary inquiry, the parties had agreed that September 2-4 would not be needed for the inquiry and that the dates would be vacated. Justice Bloomenfeld also confirmed that Justice Marin was not available to sit the morning of September 12, and was not available on September 25 and October 22-24, 2014. Justice Bloomenfeld confirmed with all counsel that they were confident that there would be ample time to complete the preliminary inquiry even if these dates were vacated. This was confirmed and the dates were vacated.

[25] The preliminary inquiry started on September 9, 2014. By September 17, it became apparent that more time would be required. Justice Mulligan suggested counsel attend at the trial coordinator’s office for more dates. On September 22, 2014, the parties secured some February 2015 dates but could not get more since a courtroom that could accommodate all the accused and counsel could not be obtained. On September 29, 2014, more dates were secured for April 2015. On April 22, 2015, further days were scheduled for May 20, July 27, July 30, and August 17, 2015. The evidence was completed on July 30. The parties came to an agreement with respect to committal through discussions. The parties were formally committed on September 2, 2015.

[26] In reviewing these proceedings, I find that the parties believed that the preliminary inquiry could be finished in the allotted time. This belief was held so confidently that court time was initially vacated from the schedule. This was done on consent of the parties and with the approval of Justice Bloomenfeld. When Justice Mulligan was assigned with her own unavailable days and as evidence began to be heard, it became apparent that this belief was unwarranted. When this happened, the court began to secure additional dates.

[27] Of course, the Crown must take steps to try and avoid the delay caused by discrete events. I find that the Crown acted reasonably. When the estimates of trial time were made, input was obtained from all parties. On-going judicial pre-trials were conducted to obtain judicial guidance. The Crown had a reasonable plan for the conduct of the preliminary inquiry. When it became apparent that more time would be needed, the court and the parties obtained dates as they were needed and in keeping with the realities of everyone’s calendar. While improper estimates of time should never simply be a carte blanche excuse for endless continuations, when the parties have made a good faith effort, like here, not only to make responsible estimates of time that are agreeable to all involved, but also attempted to complete the case as best they can when initial court time runs out, the delay caused should rightfully be treated as an exceptional circumstance. This is especially so in the Ontario Court of Justice where competition for court time can be at a premium when cases are not finished in their assigned block of time. As noted astutely by the Ontario Court of Appeal in R. v. Allen, [1996] O.J. No. 3175 (C.A.), at para. 27:

No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

[28] In conclusion, all three of these discrete events are intertwined. They were not reasonably foreseeable and led to the preliminary inquiry not concluding when it originally was scheduled to. Had they not occurred, the preliminary inquiry would have been completed by, if not before, the originally anticipated end date of October 28, 2014. I agree with the Crown that the period of 10 months and 1 week from October 28, 2014 (the date the preliminary inquiry was expected to end), to September 2, 2015 (the date the preliminary inquiry actually concluded), should be treated as an exceptional circumstance and be deducted from the Net Delay.

[29] The Remaining Delay in this case is 39 months and 19 days. The Remaining Delay is still above the presumptive ceiling.

D. Exceptional Circumstances: Particularly Complex Case

[30] There is a second category of exceptional circumstances. Jordan elaborates upon this in the following way (at para. 77):

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-accuseds, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

[31] The Crown must show two things in order to rely on this exceptional circumstance: 1. The case was particularly complex such that an inordinate amount of time or preparation is needed; and 2. The Crown had a concrete plan to minimize the delay occasioned by such complexity.

[32] The applicant concedes that this case is bigger than most. However, he submits that it is not particularly complex. He points to the fact that there are only a few experts, no complex pre-trial motions, no novel legal issues, and now at trial, there is only one accused remaining.

[33] While these are valid points, I find that when I look at the entire circumstances, the Crown has proven this is a particularly complex case that required an inordinate amount of time and preparation. When measured by many of the hallmarks set out in Jordan, this case meets the test.

[34] The Crown took the step of introducing the affidavit of D.C. Sarath Thayalan, the lead investigator in the case. The applicant did not challenge this affidavit. While the absence of cross-examination does not mean that I need to accept his evidence, I find D.C. Thayalan’s affidavit to be very probative on the issue of complexity. D.C. Thayalan summarizes some of the factors contributing to the complexity of this case.

[35] The police project involved the investigation of some 28 separate incidents. The frauds are alleged to have occurred between September 2010 and October 2012. There are 11 complainant financial institutions. Over 150 people provided information to the police. This involved 90 recorded interviews totaling 250 hours of recording and over 12,000 pages of transcript. Over 30 police officers from various police services were involved. Some 60 judicially authorized production orders were obtained. Search warrants were executed at two residences. Four search warrants were executed in relation to electronic devices. The data from these devices had to be accessed and searched. The production orders resulted in 23,000 pages of bank records from 400 accounts from 11 financial institutions; 950 pages of Ministry of Government Services records; 800 pages of tax records relating to over 40 people; legal documents from two law firms; transaction records from eight businesses and five landlords; and cell phone records from six companies in relation to over 30 phone numbers. Four separate submissions were made to the Center of Forensic Sciences for document and handwriting analysis. Seven submissions for photographs and fingerprint examination. And a further submission for biological testing. This culminated in a very large amount of disclosure.

[36] I do recognize that it is not every large fraud case that will meet the definition of a particularly complex exceptional circumstance. The volume of documents per se is not always a good indicator of complexity. The sheer accumulation of documents by the police, albeit a factor, is not necessarily a decisive one. It is common in fraud, which by nature are prosecutions based upon paper that many of the documents may be of marginal relevance. Much will depend upon the nature of the issues raised in the case as well as how the litigation is conducted.

[37] In this case, much of the documentary disclosure is very relevant. The allegations are that a ring of co-conspirators fraudulently used false or forged documents of small businesses that did not exist in securing or attempting to secure loans or lines of credit. The loan applications and the allegedly false documents used in support are important pieces of evidence.

[38] In addition, as recognized by the applicant’s counsel at the preliminary inquiry, although this is a bank fraud, it is “heavy on people.” In other words, the fraud cannot be proven just by following a paper trail. It depends upon witnesses. In that regard, 50 people testified at the preliminary inquiry. 94 people have been subpoenaed to the trial.

[39] The case also involved a number of co-accused. It involved an allegation of an elaborate scheme amongst a group of co-conspirators to commit multiple frauds; each playing a different role. The police believed over 60 people were complicit in some way in the overall fraudulent scheme. 40 of them were arrested. Most of the others avoided arrest by cooperating. When this case started out, there were 25 accused. Of those arrested and charged, most provided statements and entered guilty pleas in the Ontario Court of Justice. Many individuals had to be interviewed multiple times. Some individuals complicated matters further by not telling the truth and attempting to obstruct the police.

[40] D.C. Thayalan averred that Project Terrier was the most complex investigation that he has ever investigated due to the following factors:

• The inherent complexity of each incident.
• The number of incidents and the interconnections between and among them.
• The number of people involved (witnesses, complainants, and suspects).
• The time, techniques, resources, and personnel that were required to obtain and analyze the collected evidence.
• The volume of information and evidence collected during the investigation.

[41] A further complicating factor is that police investigation was ongoing even after the arrest of the applicant: See R. v. Chung, 2017 ONSC 13, [2017] O.J. No. 4, at para. 72. As D.C. Thayalan avers: “the fact that the investigation branched out into what I would call a massive network of interconnected evidence stems directly from what was investigated - a large web of interconnected loan frauds, orchestrated and perpetrated by a group of individuals in a planned, sophisticated and serial manner.” As a result, the disclosure process was an ongoing one. In addition, when it came to the timing of the production by the financial institutions, this was largely out of the hands of the police.

[42] A final consideration when it comes to legal complexity is that in the beginning there were multiple accused. Numerous charges existed in relation to each incident of fraud. The offences spanned from 2010 to 2012. I recognize that the applicant now faces a trial alone on reduced counts. However, there are two responses to this. Firstly, the applicant still faces some 31 counts of fraud. This is not a simple prosecution. Secondly, it is artificial to focus on the current state of affairs. For most of the history of the prosecution of this case, this was a multi-accused, large, and complicated proceeding. The case started off with 25 accused. By the preliminary inquiry, it was reduced to 9 accused. By the time the trial had been set in the Superior Court of Justice, there remained 3 accused.

[43] I find that the complexity bears some relationship to the delay occasioned in R. v. Live Nation, 2016 ONCJ 735, [2016] O.J. No. 6591, at paras. 42-43. First of all, the complexity revealed itself in the lengthy period of time required before disclosure was finally completed. Secondly, the complexity impacted the amount of time required to prepare for trial. Thirdly, the complexity contributed to the length of the preliminary inquiry and the amount of time scheduled for the trial.

[44] I should note that the Crown makes the point that the length of trial time is itself an indicator of particular complexity: see R. v. Isaacs, 2016 ONSC 6214, [2016] O.J. No. 5225, at paras. 158-159; R. v. Chung, at paras. 97-98. I am not convinced that length of trial time itself is a sign of complexity. While complexity can contribute to the length of the trial, the reverse is not necessarily true. For instance, many murder trials may involve a significant amount of trial time yet are not particularly complex. The choice of a jury as a mode of trial may contribute more to lengthier trial estimates than the complexity of the evidence or the legal issues. Even the unique litigation personalities of the counsel involved may be a stronger predictor of the length of trial than the complexity of the evidence or issues. In other words, some counsel are notoriously less efficient in their conduct of a trial than others.

[45] In the end, when I look at the whole picture and assess it through my experience as a trial judge, I find that this is a particularly complex case that should qualify as an exceptional circumstance.

[46] I will now turn to the second prong of the analysis. The applicant argues that whatever the Crown’s plan was to deal with the complexity of the case, it was ill-conceived and poorly executed.

[47] I have considered whether the Crown having initiated this type of prosecution, developed and followed a concrete plan to minimize the delay occasioned by the complexity. Let me begin by referring to D.C. Thayalan’s affidavit. He avers that throughout the case care was taken to ensure that the investigation and disclosure process was moving forward appropriately. There was organization and thought put into it from the beginning. Further, the investigation focused on the key players. Comparatively minor or peripheral players were encouraged to cooperate by receiving plea-bargains or offers of immunity. D. C. Thayalan noted the challenges posed by the creation and distribution of disclosure. He responded by customizing a system to provide disclosure in an efficient and accessible manner. He noted the steps that he took in his affidavit. Given the complexity and volume of the disclosure, D.C. Thayalan in a most professional fashion, assisted defence counsel whenever they requested help from him. While conceding the system was not perfect, the officer avers it was a better system than others available. He also noted that after initial disclosure in February 2013, the amount of disclosure dramatically increased due to new materials coming in and further witness interviews being conducted. Further, as individuals made plea bargains, new statement disclosures had to be made. The timing of these interviews was not something that could be controlled by the police.

[48] As I previously noted, this affidavit was not challenged by the applicant. It is a detailed and thoughtful affidavit. It supports the Crown position that a plan was instituted early on, executed with reasonable efficiency and care, and evolved to meet the changing state of the investigation and prosecution.

[49] In addition to the affidavit material, the record shows that the Crown developed a plan to break up the prosecution from a large group to more manageable sized groupings. This was an important aspect of the plan. While the timing of this decision is criticized, I am mindful of the ongoing disclosure. In addition, some accused were still trying to fully retain counsel. Once the matter was ready to be set down for trial, the Crown and the parties conducted a number of judicial pre-trials and case management meetings. When the mode of trial changed in July 2014, there were continuing judicial pre-trials to make sure the case stayed on track. Further, the Crown continued with its plan to reduce the number of co-accused charged by engaging with them and offering agreements in exchange for cooperation. I agree that this is part of the pro-active nature of the Crown’s actions in trying to manage the complexity of the prosecution. The number of charges were further consolidated and reduced at the initiative of the Crown to simplify the prosecution. At the preliminary inquiry, the Crown cooperated with the defence in reducing the charges and gained a consent committal without the need for argument. In terms of presenting the case and seeking continuations, the Crown had a plan and made itself available whenever it could to avoid contributing further to the delay.

[50] I find that the Crown made reasonable efforts to manage this complex case. While I agree it is the Crown who drives the prosecution, the Crown developed and organized a reasonable plan to try and get to the destination, the completion of the trial, by the most direct and quickest route possible. While there will always be unexpected obstacles to overcome and decisions that with reflection the Crown may have wanted to re-visit, the Crown’s response to the particular complexity of this case while perhaps not perfect was reasonable and acceptable within the meaning of a s. 11(b) analysis.

[51] The defence argues that the Crown’s plan to reduce, narrow, and simplify the case came after only intolerable delay. According to the applicant, the Crown should have instituted such a concrete plan far earlier and that this would have reduced the delay. For example, it was not acceptable for the Crown to have waited nearly eight months before organizing the accused into four separate groups to prosecute. Another example raised is that the Crown took months before getting to the point where it is now - prosecuting the applicant alone based upon a simplified indictment.

[52] While I agree there is some merit to the applicant’s submission, I must be mindful that police investigations and prosecutions are not always static affairs. They are organic. Even a well-organized and concrete plan must still be developed and put into place. They do not spring forth for immediate execution the moment arrests are made. In the litigation process, the Crown has to review and digest the evidence collected by the police before instituting a prosecution plan. Sometimes, as in this case, this is a continuing process as new investigations are conducted. Especially when there are multiple accused or potential suspects, the Crown must at times negotiate with counsel or seek input from judicial pre-trials in formulating an efficient plan to prosecute. These plans also require modification or adjustment as the trial process continues and new assessments are made by the Crown in terms of the case’s strengths and weaknesses, in light of the admissions garnered, and the potential for efficiencies to be gained. When there are multiple accused, agreements made with one accused or more may require the plan to be revisited. All of this means that a Crown is entitled to some latitude and flexibility in formulating a concrete plan to deal with the complexities of a case. It is far too easy to play Monday morning quarterback and criticize a plan because it fails to meet some opposing counsel’s standard of perfection based upon hindsight.

[53] In conclusion, I find that the Crown had a concrete plan to deal with the particularly complex nature of the case. The delay that resulted from that complexity was therefore not within the control of the Crown. The delay above the presumptive ceiling is therefore justified as an exceptional circumstance and no further analysis is required.

E. The Transitional Exceptional Circumstance

[54] This case falls within the transitional period as described in Jordan. The Crown argues that it has proven the transitional exceptional circumstance. To invoke this exceptional circumstance, the Crown must prove that the delay is justified on the basis of the parties’ reasonable reliance on the previous state of the law. Further, if the institutional delay was reasonably acceptable under the Morin framework, this delay will be a component of the reasonable time requirement for cases currently in the system. In order to determine whether this exceptional circumstance has been proven, I must undertake a contextual analysis of all the circumstances, sensitive to the manner in which the previous framework was applied and the fact that the parties’ behaviour cannot be judged strictly against the standard of which they had no notice. In this analysis, prejudice and seriousness of the offence can inform whether the parties’ reliance on the former law was reasonable. Further, the fact that a jurisdiction has significant institutional delay problems may be an important factor.

[55] In R. v. Manasseri, 2016 ONCA 703, [2016] O.J. No. 5004, Watt J.A. commented on this exceptional circumstance (at para. 321):

R. v. Williamson, 2016 SCC 28, provides an example of a contextual assessment of the circumstances that inform the decision about whether a transitional exceptional circumstance would justify a delay above the presumptive ceiling. Relevant circumstances included:

i. the complexity of the case; ii. the period of delay in excess of the Morin guidelines; iii. the Crown's response, if any, to any institutional delay; iv. the defence efforts, if any, to move the case along; and v. prejudice to the accused.

[56] In assessing this transitional exceptional circumstance, I will examine deeper into the history of the proceedings and apply some of the contextual factors referred to.

[57] To begin, as I have already explained, this is a complex case. The factors that led me to conclude that the particularly complex exceptional circumstance was proven by the Crown also support the contextual analysis required for a transitional exceptional circumstance. The complexity led to increased times for disclosure, more preparation, more active judicial management, a lengthy preliminary inquiry, and a long trial.

[58] Secondly, if this case was analyzed under the old Morin framework, no violation of s. 11(b) would result. I have attached to my reasons Appendix A which sets out a summary of the various court appearances as found in the application record.

[59] From the history of the proceedings, this is the Morin analysis. The length of delay requires inquiry. There was no waiver of any time periods.

[60] In terms of the reasons for the delay, I have found the following. The initial intake period was a period of 4 months and 3 weeks. This is from the date of the original information, December 6, 2012 to April 26, 2013, the date of the first judicial pre-trial in the Ontario Court of Justice. During this period of time, bail was addressed and the vast majority of the disclosure was made. By March 28, 2013, the Crown was ready for and sought a judicial pre-trial. This was set for April 26, 2013.

[61] I appreciate that the disclosure was not complete by April 26, 2013. The disclosure was ongoing as it was prepared. Some further disclosure was the result of the ongoing police investigation. From April 26, 2013 to October 4, 2013, a number of judicial pre-trials were conducted as disclosure continued to be made. In addition, during this time, the Crown organized the 25 accused individuals into four separate groups to conduct a more efficient and manageable prosecution. I would have normally characterized this entire period as neutral, reflecting the time necessary to schedule, prepare, and conduct judicial pre-trial conferences in the Ontario Court of Justice. However, I would exempt the time period from August 28, 2013 to October 4, 2013. On August 28, for an unexplained reason, the judicial pre-trial judge was absent and therefore no judicial pre-trial was held. This 1 month and 6 days should be considered institutional. The remaining time, approximately 4 months and 2 days, should be treated as neutral.

[62] In allocating these periods of time to intake, I observe that the more complicated the case, the greater inherent time requirements will be. A complex fraud case involving multiple accused constitutes a complicated case requiring greater time requirements: see R. v. Cranston, 2008 ONCA 751, [2008] O.J. No. 4414 at paras. 37-38.

[63] On October 4, 2013, time was set aside for a trial in the Ontario Court of Justice. Pre-trial motions were to be heard July 7, 2014. The preliminary inquiry was to commence in September. The earliest date offered was July 7, 2014. However, not all of the time from October 4, 2013 to July 7, 2014, should be considered institutional delay. As held in R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83, at para. 32:

[P]arties should not be deemed automatically to be ready to conduct a hearing as of the date a hearing date is set. Counsel require time to clear their schedule so they can be available for the hearing as well as time to prepare for the hearing. These time frames are part of the inherent time requirements of the case. Institutional delay begins to run only when counsel are ready to proceed but the court is unable to accommodate them.

[64] The Crown argues that because Mr. Bottomley through an agent originally indicated that he was unavailable for a two-month trial until August 18, 2014, the time up until that date should be treated as inherent. The difficulty I have with this argument is that this information was in error. It was corrected at a subsequent appearance. Mr. Bottomley was in fact available in February. While this may have contributed to the setting of the trial dates in the summer and fall of 2014, it would be artificial to describe all this time as being required by counsel to be ready for trial. In other words, Mr. Bottomley’s availability actually started in February and not August. The inherent requirements for preparation should not include errors of this nature. This requirement is based upon the realities of the case. That is, the actual availability of the parties and the need for preparation.

[65] It has always struck me that there is a certain amount of arbitrariness in calculating the amount of time for the inherent requirement. However, based upon this record, it is my view that approximately 5 months should be attributed to the need for preparation. This is based upon the complexity of the case and the amount of disclosure. In addition, the case was originally scheduled for trial and not a preliminary inquiry. A trial requires more preparation than a preliminary inquiry. Further, Mr. Bottomley’s retainer was not confirmed until March 6, 2013, and he was only available for trial in February. Finally, this amount of time is consistent with the authorities and the particular circumstances of this case. Thus, the period from October 4, 2013 to April 4, 2014, should be treated as neutral.

[66] While I have already determined that the error in advising the court of Mr. Bottomley’s availability when setting the dates should not be characterized as an inherent requirement of the case, it is not free of consequence when it comes to a s. 11(b) analysis. I have already considered 30 days to be defence caused delay under the Jordan analysis. This is because the first availability of the court was in May. The error committed resulted in the pre-trial motions being scheduled in July. Therefore 30 days should be considered defence delay under the Morin analysis as well. This leaves the actual institutional delay in the Ontario Court of Justice to be about 2 months. That is, from April 4, 2014, the date when the parties were ready for trial, to the end of May 2014, when the court had available dates to provide, according to my interpretation of the record.

[67] On July 7, 2014, due to the last minute election to a preliminary inquiry, the time set aside in July was lost. In my view, this was a result of defence conduct. Legitimate tactical decisions by the defence that have the consequence of delaying the trial is either considered defence delay or neutral: see R. v. Kugathasan, 2012 ONCA 545, [2012] O.J. No 4258 at paras. 12-15. The resulting delay was out of the control of the Crown. Given the timing of the re-election and its consequences to the litigation in terms of delay, I characterize from July 7, 2014 to September 9, 2014, the start of the preliminary inquiry, as defence delay. This is a period of 2 months and 2 days.

[68] The time required to complete the preliminary inquiry, from September 9, 2014 to September 2, 2015, should be treated as neutral for a number of reasons. First of all, the time normally required to finish a scheduled preliminary inquiry and/or trial has been considered as neutral under the old analysis: R. v. Shertzer, 2009 ONCA 742, [2009] O.J. No. 4425, at para. 114. In addition, as already explained, the length of the preliminary inquiry was the result of various factors including the illness of the assigned justice and the good faith underestimating of time. Once additional dates for the preliminary inquiry were required, the calendars of the court and counsel had to be accommodated. As a result, the period of time of approximately 1 year is treated neutrally.

[69] After committal, there was an intake period in the Superior Court of Justice. This was to accommodate a first appearance and a judicial pre-trial. While I found that the defence did not implicitly waive delay by stating they were “happy” with either date suggested by the Crown for the first appearance, by their attitude, they were not objecting to the pace of the proceedings or the time taken by the intake in the Superior Court. On October 29, 2015, counsel for the co-accused indicated that none of the three accused had retained counsel for the judicial pre-trial. This may further explain why the applicant did not request a judicial pre-trial before his first appearance as suggested by the Crown at committal. Further, after the December 4, 2015 judicial pre-trial, it was the applicant who requested the judicial pre-trial be continued as the parties agreed that further discussions would be beneficial. Consequently, in my view, the period of time from the date of committal to January 11, 2016, a period of 4 months and 9 days, should be considered intake and treated neutrally: see R. v. Khan, 2011 ONCA 173, [2011] O.J. No. 937, at para. 53.

[70] An adjournment from January 11 to 13, 2016, a matter of two days, was necessitated since the case had to be spoken to in a different court as it was a long trial matter. While the two days are of limited significance, it should be considered institutional delay.

[71] On January 13, 2016, a trial date of May 1, 2017, was set. The first date available to the court was January 2017. As indicated in the Jordan analysis, applicant’s counsel was not available for the January dates. Thus in my view, due to the unavailability of defence counsel, the time taken to May 1, 2017 should be treated as either defence delay or neutral: a period of 3 months and 22 days. The remaining delay would be from January 13, 2016 to January 9, 2017.

[72] Finally, some further consideration has to be given for the Tran analysis. I recognize that 6 months were subtracted for defence preparation before the start of the preliminary inquiry. At the setting of the date in the Superior Court, the applicant’s counsel did not indicate exactly when he would be available for trial but it was said there were much earlier dates. In my view, some further time must be taken into account for defence preparation and availability. I disagree with the Crown’s position that this should include all the time up to September 12, 2016, which was the date that Mr. Bottomley was able to confirm he was retained for trial. The trial was set with or without counsel. The applicant would have been ready to conduct his trial even if he had no lawyer. The fact that it took some time to retain Mr. Bottomley did not impede the setting of the date or cause any delay. The confirmation was merely a matter of process as it was anticipated all along that Mr. Bottomley would be retained. That said, I accept that some time for preparation must be considered here. Defence counsel and/or the applicant could not be immediately available and ready for trial. Despite having conducted the preliminary inquiry and being familiar with the case, it would still take counsel some time to properly prepare for the trial and the pre-trial applications. However, given how most of the preparation would already been done by applicant’s counsel for the preliminary inquiry, I believe a fair assessment would be to subtract a couple of months from the overall institutional delay. Thus the overall institutional delay in the Superior Court would be about 10 months.

[73] The operative delay for the purposes of this case is institutional. Under the Morin framework it amounts to about 13 months and 8 days. This is below the Morin guidelines.

[74] Turning to the third factor, I have already elaborated upon the efforts of the Crown in responding to the delay in this case. It was a reasonable effort and they had a concrete plan. Also, in terms of the Crown’s reliance on the previous state of the law, given how the various time periods would have been characterized under the Morin framework, I find that the Crown’s reliance was reasonable. In this regard, it is important to note there was no real Crown delay in this case.

[75] With respect to the defence efforts, I cannot criticize the applicant’s conduct. While it is true that the issue of the retainer of counsel came up repeatedly throughout the litigation, this was no doubt a result of the applicant’s difficulty in coming up with the financial resources to retain counsel for this lengthy and complex case. This retainer issue neither caused any significant delay nor was it a deliberate attempt to delay the case. I am mindful that the applicant did bring a s. 11(b) application in the Ontario Court of Justice. While the applicant did not proceed with the application, this was a clear indication by the applicant that he was not content with the pace of the proceedings. That said, this is counterbalanced by the fact that there were discrete periods of defence delay. It was not because the defence was deliberately delaying the trial. Rather the defence made mistakes and took actions that were responsible for certain periods of discrete delay.

[76] No evidence of actual prejudice has been presented by the applicant. He has been on bail pending his trial. No affidavit material setting out any fair trial prejudice or prejudice to the security of the person has been presented. I find no actual prejudice incurred by the accused in this case. While the delay has been lengthy, given the history of the proceedings and the record that has been presented here, I am not prepared to infer any significant prejudice. As a result, this contextual factor supports the transitional exceptional circumstance.

[77] The charges here are numerous and serious. This is allegedly a sophisticated fraud ring. The losses suffered by the financial institutions were significant. There was a real potential for even greater losses. The total amount of loans and credit applied for was approximately $10.4 million. The total amount of money obtained was $4.2 million. The total monetary loss is estimated to be approximately $3.5 million.

[78] In conclusion, I find that the Crown has proven the transitional exception. This is a complex case. The charges are serious. The analysis under the Morin framework would result in an operative delay well below the guideline. The Crown made reasonable efforts to confront the delay in this case. There was no significant prejudice. In my view, the Crown reasonably relied upon the pre-existing state of the law. In conducting this contextual analysis, sensitive to the way the old framework was applied and the fact that the parties could not conduct themselves under the new framework for which they had no notice, I find there to be no violation of s. 11(b).

[79] The application is dismissed.

Justice S. Nakatsuru Released: June 12, 2017

Appendix A: Summary of Trial Transcripts

Date of Proceeding	Summary of What Occurred	Time in Days (calculated from date until next appearance)
Dec 6, 2012	Application for bail with conditions, on consent of the Crown. Proposal was for surety release. Bail with conditions and surety approved. Return scheduled for 26 December as several of co-accused were attending that day.	0
Dec 6, 2012	Bail proceedings continued. Court refused to process bail on the grounds that there was a clause for non-communication with complainants but the names of the complainants were not provided. Accused ordered to return the next day and detained in the interim.	1
Dec 7, 2012	Bail proceedings continued. Crown clarified that it did not seek a non-communication clause with regards to financial institutions. Non-communication clause with complainants (financial institutions) struck. Non-communication clause amended to remove individual who is not a co-accused on consent of the Crown.	20
Dec 27, 2012	Counsel for defence did not appear. Discretionary bench warrant issued. No disclosure available. Matter put over to January 24, 2013.	1
Dec 28, 2012	Explanation for non-appearance of Defence counsel the day before was a car accident.	27
Jan 24, 2013	Disclosure. No crown disclosure. Matter set over to February 14, 2013.	21
Feb 14, 2013	Disclosure. Disclosure provided for the accused including the Applicant. Crown notes that it is a “large-scale fraud” involving 71 witnesses. Crown notes that the disclosure (which included audio recordings of witness statements as well as statements of the accused and some documents), while significant is not complete and there will be further disclosure. Crown requests one month adjournment for further disclosure. Matter set down to March 28, 2013.	42
March 28, 2013	Disclosure. Crown states that it has disclosure for all 17 persons on the docket. Disclosure contains 4 DVDs with new interviews, as well as a synopsis. Crown acknowledges that the investigation is still ongoing and thus some disclosure remains outstanding, but that what was provided constitutes “the vast majority of disclosure”. Crown states that it is prepared to proceed with JPTs in two weeks’ time. Crown requests all parties return the same date. Court adjourns the matter for three weeks, on account of unavailability of court time. April 26 is ultimately agreed to in order to accommodate availability of counsel for co-accused.	29
April 26, 2013	JPT. Crown states that a case management judge has been assigned and requests an adjournment to May 17, 2013. Expects a “fulsome discussion with counsel on how to proceed [with the] JPT” and to set a date for a JPT on May 17.	21
May 17, 2013	JPT/Disclosure. Crown indicates that there are 17 accused and the primary purpose for the JPT is to set a further date. The JPT will be held off the record. July 18, 2013 is set for the next JPT. Crown indicates that a new round of disclosure containing 9 DVDs was provided rendering disclosure complete except for Ms. Rassi, Mr. Kebbe and the Applicant. Further notes that none of the ITOs of the bank records or cell records are provided but will be disclosed at the “earliest opportunity”.	62 Days (2 months, 1 day)
July 18, 2013	JPT/Disclosure. JPT is held off the record. Feldman J. indicates that the Crown undertook to provide defence counsel with a proposed structure and organization of the evidence as well as a willingness to discuss resolution in relation to any of the accused. Crown further undertook to provide “five or six more discs of disclosure”. Counsel for the applicant indicates that once the disclosure is received they will consider how to elect. A further judicial pre-trial is scheduled for August 28, 2013. A new information, charging the applicant with 8 offences appeared in court.	41
Aug 28, 2013	JPT/Disclosure. Crown indicates that the prosecution involves 25 accused persons. The Crown explains the plan it reached with defence to divide the 25 accused into four different trials and to set separate JPT dates for each group. As Feldman J. was unable to attend the proceeding, no JPT was conducted. Counsel for the Applicant indicates that further disclosure was received, though it may have just been previous disclosure in a redacted form. Crown counsel confirmed that the disclosure produced had already been disclosed; what was distributed was a redacted version of the previous disks. October 4, 2013 is the date set for the next JPT which involved the Applicant.	8
Sept 5, 2013	Counsel for Ms. Khan appears to make an application on consent to vary Ms. Khan’s undertaking.	29 (37 days from Aug 28, 2013)
Oct 4, 2013	JPT/Disclosure. Crown indicates that pre-trial motions will be heard in court on 12 dates in July, commencing on the 7th. All matters are remanded until Nov 12, 2013. The Crown indicates 34 dates for trial and/or preliminary inquiry have been set down in September and October. These matters are remanded to November 12, 2013 for election. Counsel for the Applicant (by way of designation) indicates that he was available for trial as of August 18. Similar indications are made by other defence counsel. Further disclosure was provided by the Crown. The disclosure related to statements provided by accused persons since the last appearance. Earlier that week, the Applicant was arrested on a second set of charges.	39
Nov 12, 2013	Retainer Agreement The Crown withdraws all separate information and combines them into one global information, consisting of 93 counts and 9 accused. All accused attorn to the jurisdiction of the court. All accused, other than Mr. Sharma and Mr. Rassi elect to proceed to trial in the OCJ. Counsel for Mr. Sharma indicates that a resolution is on the table with the Crown. Counsel for Mr. Rassi asks for adjournment to November 19 so he can make the election as he has not yet. Mr. Kebbe, Ms. Khan and Mr. Raja indicate a willingness to proceed to trial with or without counsel. The Court indicates that the Applicant must be present to agree to a trial on a with or without counsel basis. The Applicant’s matter is set over to November 28 on account of their non-attendance and unavailability prior to that date.	16
Nov 28, 2013	Retainer Agreement. Counsel for the Applicant confirms the trial dates on a with or without counsel basis. Counsel for the Defence states that the earliest dates offered by the court were May and June of 2014. Counsel was available as early as February 2014. Applicant is remanded to February 24, 2014 to confirm retainer.	88 Days ( 2 months, 27 days)
Feb 24, 2014	Note: transcript indicates Feb 2013. Retainer Agreement. Counsel for the Applicant confirms his willingness to set the matter down on a with or without counsel basis. Counsel indicates a hope to confirm a retainer on March 6. Matter adjourned to March 6, 2014 in order to confirm retainer.	10 days
March 6, 2014	Retainer Agreement. Counsel for Applicant indicates that a retainer agreement has been agreed to for the entire the trial period. Adjourned to July 7 for pre-trial motions.	124 Days ( 4 months, 2 days)
July 7, 2014	Pre-Trial Motions. The purpose of the proceedings was purportedly to deal with pre-trial motions. Martin J. inquired into whether all of the accused had made their formal elections. Counsel for the Applicant advised that it is unclear whether the Applicant ever formally elected and in any event wishes to elect or re-elect as the case may be, for trial in the Superior Court with a preliminary inquiry. The Crown initially took the position that it was not open to the Applicant to re-elect. However, he subsequently conceded that the Applicant never made a formal election, and thus the Applicant is entitled to elect to have a preliminary inquiry. The Applicant formerly elects at this time. The effect of the election was to render unnecessary the roughly three weeks of court time which had been set aside in the Provincial Court. Martin J. commented on the fact that court time is a valuable commodity and the trial coordinator should have been notified that it would not be required. Crown takes the position that the Defence should have notified that trial coordinator that time which had been previously set aside was not required. Pre-trial motions are abandoned on consent. The remaining July trial dates are vacated and the matter is adjourned to July 10 in order to conduct a JPT regarding what evidence the Crown intends to lead through the officer in charge of the investigation.	3
July 10, 2014	JPT/Disclosure. Crown discloses an expert report pertaining to handwriting. It is noted that one other expert report remains outstanding. The matter is set over to July 29, 2014.	20
July 29, 2014	JPT. Mr. Erickson appeared on behalf of counsel for the co-accused including counsel for the Applicant. Mr. Erickson presented to the court defence counsels’ individual statements of issues. Counsel for the Applicant had already faxed a statement of issues to the Crown. As a result of some accused entering into resolutions with the Crown, the dates set aside for the preliminary inquiry were reduced by three (Sept 2, 3 and 4 were removed). Bloomenfeld J. informed Mr. Erickson that Martin J. would be unavailable for 4.5 days set aside for the preliminary inquiry (Sept 25, Oct 22, 23 and 24, and a half day on Sept 12). Mr. Erickson confirmed that this would still leave ample time to complete the preliminary inquiry. A further JPT is scheduled for September 4 prior to the preliminary inquiry.	38 days (1 month, seven days)
Sept 4, 2014	JPT. Upon returning from the JPT, the Court requests on update regarding Mr. Sharma’s (co-accused) resolution discussion. The Crown is unable to provide any other update other than that discussions are ongoing and appear likely to resolve.	5
Sept 9, 2014	Preliminary Inquiry The parties appeared for the first day of the preliminary inquiry. Mulligan J. indicates they were required to step in for Martin J. Mulligan J. indicates that as a result of two judges suddenly taking leave, things are disorganized and they haven’t had time to prepare. Mulligan J. notes that 9 days are lost due to scheduling conflicts on the part of their honour. Mulligan J. indicates two further dates may have to be cancelled. The conflicts arise on account of Mulligan J.’s need to fill in for Martin J. Counsel for the Applicant indicates that the JPTs were successful in producing a “large number of concession that will significantly focus this preliminary inquiry”. Crown details the order of witnesses it intends to call. It is estimated that between 15 and 25 witnesses will be called. Several witnesses are called and remanded to a particular date. The circumstances of the Applicant’s election are reviewed. A publication ban is requested and agreed to. It is agreed that Officer Thayalan is excluded from the witness ban. Evidence is heard and the matter adjourned to September 10, 2014.	8
Sept 10, 2014	Preliminary inquiry. Transcript indicates that Mulligan J. concluded the day at 2:30 pm. No further witnesses were available.	1
Sept 11, 2014	Preliminary inquiry. Indicates that court broke at 4:25 pm and that it would not resume until September 15, 2014.	4
Sept 15, 2014	Preliminary inquiry. Transcript only indicates that court broke for the day.	1
Sept 16, 2014	Preliminary inquiry. Transcript indicates that court broke at 4:40 pm without finishing the witness’s evidence.	1
Sept 17, 2014	Note: there is no transcript for several preceding days of preliminary inquiry Preliminary inquiry. Transcript indicates that court sat through the break. Crown counsel estimates that 7-10 more days are required for the preliminary inquiry. The Court suggested that the parties attend at the trial coordinator’s office to schedule more prelim dates. Counsel agree to go to the trial coordinator’s office on Monday, on account of the fact that some counsel were not present, in order to schedule more preliminary inquiry hearing dates.	9
Sept 22, 2014	Preliminary inquiry. The trial coordinator advises that some of the dates selected in two blocks in February 2015 were not available. Five days are scheduled in the last week of February, though it is indicated that more dates will be required.	7
Sept 29, 2014	Preliminary inquiry. This is a document dated Sept 29, 2014 indicating that six days are set aside in April 2015 to continue the preliminary inquiry.	1
Sept 30, 2014	Preliminary inquiry. No relevant discussion.	1
Oct 1, 2014	Preliminary inquiry. The matter is adjourned to Oct 6.	5
Oct 6, 2014	Preliminary inquiry. No relevant discussion.	10
Oct 16, 2014	Preliminary inquiry. Matter adjourned to Oct 21, 2014	5
Oct 21, 2014	Preliminary inquiry. No relevant discussion.	1
Oct 22, 2014	Preliminary inquiry. No relevant discussion.	1
Oct 23, 2014	Preliminary inquiry. No relevant discussion (illegible transcript)	1
Oct 24, 2014	Preliminary inquiry. No relevant discussion.	4
Oct 28, 2014	Preliminary inquiry. Matter is adjourned to February 24, 2015.	119 days (3 months 27 days)
Feb 23, 2015	Preliminary inquiry. No relevant discussion.	1
Feb 24, 2015	Preliminary inquiry. No relevant discussion.	2
Feb 26, 2015	Preliminary inquiry. No relevant discussion.	1
Feb 27, 2015	Preliminary inquiry. Matter adjourned to April 8, 2015.	1
April 7, 2015	Preliminary inquiry. Bench warrant for Applicant is rescinded	40
April 8, 2015	Preliminary inquiry. No relevant discussion.	1
April 9, 2015	Preliminary inquiry. Matter adjourned to April 20, 2015.	1
April 20, 2015	Preliminary inquiry. No relevant discussion.	11
April 21, 2015	Preliminary inquiry. No relevant discussion.	1
April 22, 2015	Preliminary inquiry. Applicant’s bail is amended on consent. Court indicates that further court dates are available: May 27 -28; June 1, 3, 10, 23, 24, 30; July 14-17, 20, 21, 27 and 30. Counsel break to meet with the trial coordinator and upon returning indicate that they secured: May 29, July 27 and 30, and August 17.	38
May 29, 2015	Preliminary inquiry. No relevant discussion. Matter adjourned to July.	12
June 9, 2015	Counsel for Applicant indicates that the Applicant was charged with fresh charges that will be dealt with at the same time of the original charges following the preliminary inquiry.	49 (1 month 19 days)
July 27, 2015	Preliminary inquiry. Counsel for co-accused (Ms. Oja) indicates that she is unable to make the August 17 date. Counsel subsequently attend at the trial coordinator’s office and schedule September 2 as a replacement date if August 17 does not work.	4
July 30, 2015	Preliminary inquiry. The Crown completes its evidence and defence does not call any. Counsel for the Applicant indicates that they will discuss the scope of committal with the Crown.	6
August 4, 2015	Matter is adjourned to September 23 in order to allow for the completion of the preliminary inquiry.	30
Sept 2, 2015	Applicant is committed to stand trial on a variety of counts on consent. The remaining charges are withdrawn. The Court puts to counsel whether the Applicant’s first court appearance should be scheduled for end of September or end of October. The Crown submits that they are content to “leave it to counsel for the defence”. Counsel for the Applicant replies that they are “happy either way”. The Crown indicates that “there’s no great urgency…why don’t we put it to the October date…I don’t think its going to slow things down.” The matter is adjourned to October 29, 2015.	22
Sept 23, 2015	Matter is adjourned to October 29 so the new charges can be joined with the original ones.	37
Oct 29, 2015	Counsel for the co-accused (Ms. Oja) indicates that “[n]one of the three counsel are actually retained for the judicial pre-trial but we fully expect to be before the next date” Matter is adjourned to December 4 for a JPT.	37
Dec 4, 2015	JPT. Counsel for the Applicant indicates that “[t]his matter has just been judicially pre-tried, Your Honour, before your brother Justice O’Mara and we’ve had some discussions there and would, I think it’s agreed, would benefit from further discussions with His Honour continuing to guide us. He’s available to see us and we’re available to see him on January 11th, 2016….” A second JPT is scheduled for Jan 11, 2016.	39 (1 month 8 days)
Jan 11, 2016	JPT The Crown indicates that the JPT has been completed and the trial coordinator requires the parties to speak to the length required for the trial because the estimate is 8 weeks. The matter is adjourned to January 13 to accommodate this.	2
Jan 13, 2016	JPT The Court indicates that the earliest available trial date is January 2017. Counsel for the Applicant indicates that they are unavailable. Counsel for the co-accused indicate they are available “much earlier”. The Crown indicates they are available “anytime in 2017”. May 1, 2017 is selected as the first available date for an 8 week trial. April 1 is set aside as the date to return to court in order to discuss retainer issues. The Applicant indicates that he is willing to retain Counsel for the start of trial or proceed without counsel.	80 (2 months, 20 days)
April 1, 2016	Retainer Counsel for the Applicant indicate that they expect to be retained but the trial will remain on a with or without counsel basis. He indicates that the failure to complete the retainer is a result of him being “extraordinarily busy over the last month”. The matter is adjourned to June 21.	82 (2 months, 21 days)
June 21, 2016	Retainer The Applicant indicates that he is in the process of retaining counsel (Mr. Bottomley). A representative for Mr. Bottomley requests a one month adjournment. The Applicant requests an additional month in order to arrange financing. September 12 is agreed upon and the matter is adjourned until then.	84 days (2 months, 23 days)
Sept 12, 2016	Retainer Mr. Bottomley indicates that he has been fully retained by the Applicant. Co-accused indicate they will represent themselves at trial. The matter is adjourned to March 27 for a trial readiness date.	197 Days (6 months, 16 days)
March 27, 2017	JPT Counsel for the Applicant indicates that pre-trial motions were to be done on May 1 and will be filed on April 1.

COURT FILE NO.: CR-17-30000369-0000 DATE: 20170612 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MICHAEL MAJEED Respondent

REASONS FOR JUDGMENT NAKATSURU J. Released: June 12, 2017