Court of Appeal for Ontario

Date: 2018-03-16 Docket: C63288

Judges: Feldman, Watt and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Inayat Al-Nashir Kassam Appellant

Counsel

Mark Hogan, for the appellant

Andrew Cappell, for the respondent

Heard and Released Orally

March 15, 2018

Appeal Information

On appeal from the conviction entered on December 21, 2016 by Justice R. Cary Boswell of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

Overview

[1] Mr. Inayat Kassam, the appellant, appeals his convictions on two counts of fraud, and a count of uttering a forged document. He claims that application judges erred in denying his pre-Jordan s. 11(b) application, and his Rowbotham application for state funded legal representation.

Section 11(b) Challenge – Trial Delay

[2] Dealing first with the s. 11(b) challenge, both counsel on this appeal agree that this is a transitional Jordan case. Its outcome essentially turns on whether the application judge's decision complied with the Morin regime, in place when the s. 11(b) decision was made.

[3] The total delay from charge until the end of trial was 35 months. After removing inherent and neutral delay, the application judge identified under six months' of institutional delay, and held that, given the seriousness of the offences and the degree of prejudice caused by the delay, a stay was not appropriate.

[4] The appellant takes issue with the application judge's prejudice evaluation. He also disputes the application judge's delay calculation. Although the appellant has not raised issue with respect to 14 months' of the delay, his essential complaint is that the remaining 21 months' of delay exceeded the Morin 18 month guideline and is unreasonable, given the prejudice he has suffered.

[5] We do not agree. We can find no error with the application judge's prejudice findings. Moreover, after consideration of the appellant's challenges to the application judge's delay calculations, the period of delay remains far under the Morin guidelines, making a stay of proceedings inappropriate.

Delay Attributable to Appellant's Unavailability

[6] One of the periods of delay the appellant identifies as unreasonable runs from January 27, 2016 when the superior court trial date was set, to June 16, 2016, when the impugned s. 11(b) application was argued and denied. We do not agree that this delay counts against the Crown as institutional delay. It is clear from the record that the date of the s. 11(b) application was agreed to by the parties to accommodate the appellant, who was studying law in the United Kingdom for most of this period, and who required the balance of this period to prepare for the s. 11(b) application, upon his return. As he was unavailable during this period, we cannot attribute this period of delay to the Crown.

Neutral Delay Period

[7] Another period of delay the appellant argues for is the eight months and 12 days of delay between December 12, 2014 and August 24, 2015 that the application judge found to be neutral. The appellant argues that the application judge concluded improperly that this delay was attributable to the appellant's re-election to have a preliminary inquiry instead of a provincial court trial. He submits that there is no evidence that earlier dates would have been available if he had elected a preliminary inquiry from the outset.

[8] Again, the application judge characterized this period as neutral delay on the basis that the appellant was not ready to proceed with the preliminary inquiry until August 24, 2015, making it impossible for the case to move forward before then. We see no error in that characterization. During the relevant period the appellant was initially attempting to retain counsel, and then preparing, as a self-represented litigant, for the filing of a Statement of Issues and a focus hearing.

Conclusion on Section 11(b)

[9] Neither of the impugned periods of delay, which together total 13 months, count against the Crown as institutional delay. When this 13-month period is deducted from the 21 months' of total delay complained of, the net delay is dramatically under the Morin guideline. In this context, given the seriousness of the charges and the absence of significant prejudice, the application judge's decision to reject the s. 11(b) application was inevitable.

Rowbotham Application – State-Funded Legal Representation

[10] The Rowbotham ground of appeal fares no better. A Rowbotham application for court-ordered, state-funded legal representation can succeed only if the applicant demonstrates that he is indigent and has no means to retain counsel otherwise. The application judge properly held that the appellant had not established this, as he had not filed supporting documentation confirming his claims of indigence. Simply put, the record offered by the appellant was insufficient to meet the burden he carried on this point. On this basis alone the Rowbotham appeal must be denied.

[11] Nor has the appellant demonstrated that the application judge erred in finding that the appellant had not established that his fair trial right would be materially compromised if forced to proceed to trial without counsel. The application judge made considered findings about the appellant's capability for self-representation in light of the complexity of the trial, properly noting the duty of the trial judge to assist the appellant, when necessary. The appellant has provided no basis for concern that the trial that was conducted proved to be unfair.

Disposition

[12] The appeal is therefore dismissed.

K. Feldman J.A.

David Watt J.A.

David M. Paciocco J.A.