Her Majesty the Queen v. Shaikh

[Indexed as: R. v. Shaikh]

Ontario Reports

Court of Appeal for Ontario

Watt, Lauwers and Paciocco JJ.A.

November 13, 2019

148 O.R. (3d) 369 | 2019 ONCA 895

Case Summary

Charter of Rights and Freedoms — Remedies — Stay of proceedings

Accused charged with multiple serious offences subject to delay in obtaining date for preliminary inquiry. Before preliminary inquiry commenced, accused re-elected trial before provincial court. Application judge ruled that net delay of 20 months did not warrant a stay of proceedings. Application judge should not have subtracted 66-day period erroneously conceded by defence to be defence delay. Net delay was closer to 23 months and presumptively unreasonable. Charges stayed on appeal.

Charter of Rights and Freedoms — Trial within reasonable time

Accused charged with multiple serious offences subject to delay in obtaining date for preliminary inquiry. Before preliminary inquiry commenced, accused re-elected trial before provincial court. Application judge ruled that net delay of 20 months did not warrant a stay of proceedings. Application judge should not have subtracted 66-day period erroneously conceded by defence to be defence delay. Net delay was closer to 23 months and presumptively unreasonable. Charges stayed on appeal.

Criminal law — Stay of proceedings

Accused charged with multiple serious offences subject to delay in obtaining date for preliminary inquiry. Before preliminary inquiry commenced, accused re-elected trial before provincial court. Application judge ruled that net delay of 20 months did not warrant a stay of proceedings. Application judge should not have subtracted 66-day period erroneously conceded by defence to be defence delay. Net delay was closer to 23 months and presumptively unreasonable. Charges stayed on appeal.

Facts

The accused was charged with multiple serious offences. The Crown obtained an adjournment of the preliminary inquiry on the ground that the complainant would be out of the country on the scheduled dates. A preliminary inquiry was scheduled for four days, two years after the charges were laid. The court could not accommodate the case on the first two days. On the third and fourth days, the court dealt with the issue of withdrawal by defence counsel. About six weeks later, new defence counsel advised that the accused wished to re-elect to be tried before the provincial court. Trial dates were set for about four months later. In the meantime, the accused applied to stay the charges for unreasonable delay. The application judge calculated the net delay to be about 20 months and applied the presumptive ceiling of 18 months for provincial court cases. However, she found the presumption had been rebutted by the fact that it was a transitional exceptional circumstance case. She found the delay to be troubling although not so serious as to warrant a stay, but added that any further delay would likely cause her to decide otherwise. The trial commenced the next day but the trial judge reserved the decision on the merits for another month. The accused was convicted. While awaiting sentencing he renewed his application for a stay, which was dismissed. The accused appealed the dismissal of his delay applications.

Held: The appeal should be allowed.

The re-election to provincial court did not occur after the preliminary inquiry, but before it commenced. Accordingly, the application judge was right to apply an 18-month period of presumptively unreasonable delay. The application judge made some minor errors in calculating the delay, but also made one significant error to the accused's detriment. A 66-day period between the first pre-trial and the day on which the preliminary inquiry dates were set was erroneously conceded by the defence to be a defence delay. The Crown accepted that the application judge should not have subtracted that time from the total delay when calculating net delay. The result was a delay closer to 23 months. Further, the application judge conducted an inadequate analysis of the transitional exception circumstance. The delay was presumptively unreasonable, and not by a narrow margin. There was no meaningful demonstration that the Crown was mindful of its obligations to try the accused within a reasonable time, and the prejudice was troubling. The charges were stayed.

Legislation and Case Law Cited

Legislation:

• Canadian Charter of Rights and Freedoms, s. 11(b)
• Criminal Code, R.S.C. 1985, c. C-46, ss. 87(2), 90(1), 264.1, 344(1), 561(1)

Case Law:

• R. v. Jordan, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27 — followed
• R. v. Coulter (2016), 133 O.R. (3d) 433, [2016] O.J. No. 5005, 2016 ONCA 704
• R. v. Gopie (2017), 140 O.R. (3d) 171, [2017] O.J. No. 4963, 2017 ONCA 728
• R. v. Jurkus, [2018] O.J. No. 2899, 2018 ONCA 489, 363 C.C.C. (3d) 246 — Leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 325
• R. v. Morin, [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25
• R. v. S. (D.M.), [2016] N.B.J. No. 320, 2016 NBCA 71
• R. v. Williamson, [2016] 1 S.C.R. 741, [2016] S.C.J. No. 28, 2016 SCC 28

Counsel

Ian R. Smith, for appellant

Katie Doherty, for respondent

Judgment

The judgment of the court was delivered by PACIOCCO J.A.:

Overview

[1] Muhammad Daniyal Shaikh appeals his convictions on serious charges arising out of a confrontation he had with a man alleged to have sexually assaulted Ms. Jawairia Amer, his former common law partner. The Crown proved to the satisfaction of a trial judge that on October 4, 2014, Mr. Shaikh threatened the man with a handgun and then robbed him by taking his cellphone. Accordingly, Mr. Shaikh was convicted of robbery with a firearm, contrary to Criminal Code, R.S.C. 1985, c. C-46, s. 344(1); uttering a death threat contrary to Criminal Code, s. 264.1; and carrying a concealed weapon, a handgun, contrary to Criminal Code, s. 90(1). He received a global sentence of five years incarceration, less time served. A charge of pointing a firearm at another person contrary to Criminal Code, s. 87(2), for which Mr. Shaikh was also found guilty, was stayed to avoid double jeopardy.

[2] In the course of the proceedings, Mr. Shaikh brought two Charter applications pursuant to s. 11(b) to have the charges against him stayed for unreasonable delay. The first application was heard by an application judge before the trial. The second application was brought before the trial judge, after the trial judge rendered her decision on the merits, and while Mr. Shaikh was awaiting sentence.

[3] Mr. Shaikh's only ground of appeal is that both judges erred in denying his s. 11(b) applications to stay his prosecution for unreasonable delay.

[4] For reasons that follow, I would allow Mr. Shaikh's appeal, based on errors committed by the application judge. The s. 11(b) application should have been granted, and the proceedings stayed. I would set aside Mr. Shaikh's convictions and the finding of guilt contrary to s. 87(2) of the Criminal Code and stay the proceedings against him.

[5] It will assist in understanding the material facts and issues in this appeal if I provide, at the outset, a brief overview of the legal tests to be used in determining whether the delay in prosecuting charges has been unreasonable, contrary to s. 11(b). The analytical framework to be applied was established in R. v. Jordan, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27, and helpfully synthesized in R. v. Coulter (2016), 133 O.R. (3d) 433, [2016] O.J. No. 5005, 2016 ONCA 704, at paras. 32, 34-40, which I summarize here.

[6] The initial step in the Jordan framework is to calculate the "total delay", the period from the charge to the actual or anticipated end of trial. Then "defence delay" is identified and calculated. The entire "defence delay" is then subtracted from the "total delay" to identify the "net delay". If the "net delay" exceeds the presumptive ceilings identified in Jordan of 18 months for cases going to trial in the provincial court or 30 months for cases going to trial in the superior court or in the provincial court after a preliminary inquiry, the delay is presumptively unreasonable.

[7] To rebut that presumption, the Crown must establish "exceptional circumstances". In general, "exceptional circumstances" will be established in two ways.

[8] First, the Crown may show that "discrete events" have occurred due to unforeseeable circumstances. If deducting the delay caused by discrete events from the net delay produces a "remaining delay" that is below the relevant presumptive ceiling, the delay in prosecuting the charges is presumed to be reasonable.

[9] Or, the Crown may satisfy the court that the case is particularly complex such that the time the case has taken is justified.

[10] In transitional cases, where the charge was laid before Jordan was decided on July 8, 2016, but where the actual or anticipated end of the trial falls after that date, a "transitional exceptional circumstance" will apply if 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: Jordan, at para. 96.

[11] The issues that must be resolved in this appeal include whether the 18-month or the 30-month presumptive ceiling should apply where, before a scheduled preliminary inquiry is completed, the accused re-elects to be tried in the provincial court.

[12] This appeal also raises case specific issues relating to the proper identification of the defence delay, whether a period of delay resulting from a Crown requested adjournment is a discrete event, and whether the delay in this case is justifiable under the transitional exceptional circumstance. It is therefore necessary to set out the material facts in some detail.

Material Facts

[13] On October 6, 2014, Mr. Shaikh was charged with the offences for which he was convicted, as well as other related offences. Ms. Amer, who was present when he threatened the victim with a gun, was also charged on the same information.

[14] After being released on bail, Ms. Amer absconded, leaving the jurisdiction. A bench warrant was issued for her arrest. Matters nonetheless proceeded against Mr. Shaikh.

[15] After the first pretrial, February 24, 2015, the Crown advised the assignment court justice that a further pretrial was required, as the Crown needed to "speak to [his] boss" about a potential resolution. The matter was put over again so that the Crown could arrange to have a new information drafted. Mr. Shaikh's counsel also required time to prepare and get instructions because new disclosure had been received.

[16] By May 1, 2015, Mr. Shaikh had received material disclosure and the second judicial pretrial was completed.

[17] On that date, May 1, 2015, a four-day preliminary inquiry was scheduled. Initially Mr. Shaikh was offered dates commencing on January 18, 2016, but declined those dates because his counsel was not available until March. The next available dates of March 7-10, 2016 were set.

[18] On January 4, 2016, eight months after the preliminary inquiry dates were set, the Crown sought and obtained an adjournment of the preliminary inquiry. The basis for the adjournment was that the complainant had prepaid air fare for a trip out of the country that would overlap with the March preliminary inquiry dates. The Crown did not attempt to preserve any of the March dates to call other witnesses. Mr. Shaikh consented to the adjournment but did not waive his s. 11(b) rights. The preliminary inquiry was rescheduled for October 4-7, 2016.

[19] On June 27, 2016, Ms. Amer appeared at a bail hearing, having been arrested upon her return to the jurisdiction.

[20] When the first date of the scheduled preliminary inquiry arrived, October 4, 2016, Ms. Amer appeared without counsel. The Crown withdrew the charges against her. The matter could not proceed against Mr. Shaikh because the court could not accommodate the case.

[21] Again, on October 5, 2016, the court could not accommodate the scheduled preliminary inquiry.

[22] Once again, on the morning of October 6, 2016, the court could not accommodate the scheduled preliminary inquiry. It was only on the afternoon of October 6, 2016, the third of four days set for the preliminary inquiry, that the court was in position to commence. It did not.

[23] Here is what happened on October 6, 2016. Counsel for Mr. Shaikh brought an application to get off the record. In his view, Mr. Shaikh was not communicating with him and had lost faith in him, and he was unable to get instructions. After Mr. Shaikh told the preliminary inquiry judge that he had not lost faith in his counsel and wanted to proceed, counsel's application to get off the record was denied. However, the preliminary inquiry judge put the matter over until the next day to permit counsel to prepare to deal with an unexpected change in circumstances, specifically, the Crown's withdrawal of charges against Ms. Amer, and its expressed intention to call her as a witness at the trial. As a result, defence counsel needed time to determine whether to call her as a witness at the preliminary inquiry and how to proceed.

[24] The preliminary inquiry judge commented when adjourning the preliminary inquiry, "[t]his matter is not going to finish tomorrow, given the number of witnesses".

[25] Before the matter was adjourned, the prosecuting Crown explained to the preliminary inquiry judge his reasons for withdrawing the charge against Ms. Amer. I will recount those reasons later, where they bear upon the issues in this appeal.

[26] On October 7, 2016, the last day of the scheduled preliminary inquiry, Mr. Shaikh's counsel advised the preliminary inquiry judge that he and his co-counsel had to withdraw for ethical reasons. The preliminary inquiry judge accepted this, and Mr. Shaikh's counsel and his co-counsel were removed from the record. The matter was remanded to November 1, 2016, and then to November 22, 2016 for new counsel to be retained.

[27] On November 22, 2016, new counsel appeared for Mr. Shaikh and indicated that Mr. Shaikh wished to re-elect to be tried before the provincial court, the Ontario Court of Justice.

[28] On November 28, 2016, that re-election occurred with the consent of the Crown. No s. 11(b) waiver was secured from, or offered by, Mr. Shaikh.

[29] Two days later, on November 30, 2016, trial dates were set for March 27-31, 2017. The court had offered February 13-17, 2017; however, Mr. Shaikh's new counsel declined those dates, as he was unavailable.

[30] On November 30, 2016, Mr. Shaikh's new counsel expressed Mr. Shaikh's intention to bring a s. 11(b) application in advance of the trial. He soon did so, and on March 3, 2017, an application judge heard the motion. The matter was adjourned to the first day set for trial, March 27, 2017. Before that date was reached, however, the case was traversed by the court to March 28, 2017, and the first day set for trial was lost.

[31] On March 28, 2017, the application judge asked the parties several follow-up questions. Noting that the trial could not be reached that day, she notified the parties that they would receive her ruling the next morning.

[32] On March 29, 2017, the application judge dismissed the s. 11(b) application, and the trial was postponed yet another day until March 30, 2017, when it began.

[33] In her March 29, 2017 reasons, the application judge quantified the total delay from the charge (October 6, 2014) to the scheduled beginning of the trial (March 27, 2017) to be two years, five months and 21 days, or 901 days. She then noted that since the case was not reached on the first few scheduled trial dates, the matter would have to be continued and would not end on March 31, 2017, as originally anticipated. She determined based on courtroom availability and the trial estimate that the case would likely conclude on April 12, 2017. She therefore took April 12, 2017 as the end of the trial. The total delay she was working with was therefore 919 days, or 30.2 months.

[34] Having calculated the total delay, she went on to consider the net delay. She accepted the parties' net delay calculation, which was based on the defence concession that there were three periods of "defence delay":

• February 24, 2015 to May 1, 2015, the time that lapsed between the first pretrial and the day on which the preliminary inquiry dates were set (66 days);

• January 18, 2016 to March 7, 2016, the period after Mr. Shaikh declined preliminary inquiry dates because of the unavailability of his counsel until the first date set for preliminary inquiry (49 days); and

• October 6, 2016 to March 27, 2017, the period of delay after Mr. Shaikh's former counsel applied to be removed from the record until the first date set for trial (172 days).

[35] Based on the defence delay concessions, the application judge ultimately calculated the net delay to be 20 months.

[36] The 20-month period the application judge worked with is clearly an approximation. Unfortunately, it understates the actual net delay that arises from the application judge's own figures. In fact, the total defence delay arising from the identified periods of defence delay was 287 days. If deducted from the 919 days of total delay, the net delay would appear to be closer to 21 months, specifically, 632 days, or 20 months, three weeks and two days, or 20.8 months.

[37] During the s. 11(b) application, the Crown urged the application judge to deduct from the net delay a further period of approximately seven months caused by the Crown requested adjournment to accommodate the complainant's planned trip. The Crown argued that this delay was caused by an "exceptional circumstance", a discrete unforeseeable event outside of the Crown's control. The application judge refused. She noted that the dates had been set ten months down the road and no evidence had been presented as to when the airplane ticket was booked, what the purpose of the trip was, or if efforts were made to ascertain the availability of the complainant. Nor was there evidence of any effort by the Crown to expedite the second set of dates.

[38] Notwithstanding Mr. Shaikh's re-election, the application judge applied the 18-month presumptive ceiling, finding the 20-month net delay she had identified to be presumptively unreasonable. She concluded, however, that the presumption of unreasonable delay was rebutted, as this was a transitional exceptional circumstance case. Until July 8, 2016, the R. v. Morin regime applied. The application judge accepted the agreement of the parties that the institutional and Crown delay under the Morin guidelines was 15.5 months. This amount of delay exceeded the eight to ten months Morin guideline for provincial court trials. But she concluded that this was only a guideline and departed from it because the trial was taking place in a busy jurisdiction lacking institutional resources; the matter was moderately complex; the Crown withdrew charges against Ms. Amer to move the matter along; the trial dates were secured promptly; and the charges were serious. She found the prejudice to Mr. Shaikh from the delay to be "troubling", but decided that "overall, the prejudice in this matter is not so serious as to warrant a stay".

[39] The application judge then concluded:

When I take all issues into account, this matter falls extremely close to the line of what I would consider acceptable delay. Any further delay in this matter, even as much as a month, would likely cause me to decide otherwise.

[40] On March 30, 2017, the case commenced before another judge, the trial judge. Although Mr. Shaikh's lawyer was ill and could not attend on April 7, 2017, the matter concluded on April 12, 2017 as the application judge had expected. The trial judge reserved her decision on the merits. She delivered that decision a little over a month later, on May 17, 2017.

[41] On June 30, 2017, while awaiting sentencing, Mr. Shaikh renewed his s. 11(b) application. Relying on the application judge's comment that even as much as a month of additional delay would likely have caused her to reconsider and stay the proceedings, Mr. Shaikh argued that the month of deliberation delay before conviction mattered and that a stay was now required.

[42] The trial judge dismissed the application on July 20, 2017, finding that deliberation delay is not to be included in calculating periods of trial delay under Jordan.

Issues

[43] Mr. Shaikh appeals both s. 11(b) rulings, arguing that both judges erred in quantifying the net delay: the application judge erred by mischaracterizing periods of delay and misapplying the transitional exceptional circumstance; and the trial judge erred by finding that the deliberation delay is not included in calculating the periods of delay under Jordan.

[44] The appeal Crown has raised another central issue in response. She urges that since Mr. Shaikh initially elected a superior court trial and only re-elected to have a provincial court trial after the dates for the preliminary inquiry arrived, the appropriate period of presumptively unreasonable delay should be the 30-month period that would have applied had the preliminary inquiry been completed.

[45] The analysis will proceed in the following order:

(A) What presumptive period applies, 18 months or 30 months?

(B) Did the application judge err in calculating the period of delay?

(C) Did the application judge err by misapplying the transitional exception?

[46] For reasons that will be explained, these inquiries make it unnecessary to consider the correctness of the trial judge's s. 11(b) ruling or the issue of deliberation delay.

Analysis

A. What presumptive period applies, 18 months or 30 months?

[47] Jordan established two periods for determining whether net delay is presumptively unreasonable: 18 months for trials in the provincial courts, and 30 months for trials in the superior courts: at para. 32. For more than two years, Mr. Shaikh's case proceeded as if it was a superior court matter, until his re-election to trial before the provincial court on November 28, 2016. This raises the question of whether the 30-month presumptive period applicable in superior court proceedings applies, or the 18-month period applicable to provincial proceedings.

[48] If the 30-month presumptive delay period is to be applied, Mr. Shaikh's appeal would be easily dismissed. The delay would not be presumptively unreasonable since the total delay was 30.2 months, and Mr. Shaikh has correctly conceded that the 49 days between January 18, 2016 to March 7, 2016 is defence delay (the period after Mr. Shaikh declined preliminary inquiry dates because of the unavailability of his counsel to the first date set for preliminary inquiry). As explained, under the Jordan regime, this defence delay is to be deducted from the total delay in arriving at the net delay that is to be used in determining whether the delay is presumptively unreasonable. Even leaving aside other contentious periods, the maximum net delay would therefore be 870 days (or 28.6 months), which is less than the 30-month period of delay required to trigger the presumption of unreasonable delay. Mr. Shaikh has offered no evidence and made no argument that, in his case, a presumptively reasonable period of delay should nonetheless be found to contravene s. 11(b).

[49] However, on the authority of Jordan, the 30-month presumptive ceiling does not apply in this case. The 18-month presumptive ceiling does. The Jordan majority described how the appropriate ceiling is to be selected, at para. 46:

At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).

[50] Later in the decision, at para. 49, the Jordan majority repeated this:

We note the 30-month ceiling would also apply to cases going to trial in the provincial court after a preliminary inquiry.

[51] Then again in footnote three of the majority decision:

While most proceedings with a preliminary inquiry are eventually tried in the superior court, this is not always the case. For example, a case may go to trial in the provincial court after a preliminary inquiry if the province in which the trial takes place offers this as an option (such as Quebec), or if the accused re-elects a trial in the provincial court following a preliminary inquiry. In either case, the 30-month ceiling would apply.

[52] Here, the re-election to provincial court did not occur after the preliminary inquiry, but before it commenced. Applying the standards expressed in Jordan, the 18-month period applies.

[53] I appreciate that Jordan did not involve a re-election, and so this issue was not directly before the court. However, Jordan was not about delay in a provincial court trial either. In the interests of certainty and simplicity, the majority nonetheless established an authoritative framework for provincial court trials as well, setting a presumptive period of unreasonable delay of 18 months. In the circumstances, I do not feel at liberty to interpret the criterion specifically identified by the Jordan majority as a passing comment when it is manifest that the majority was delineating how its presumptive delay framework was to apply.

[54] I understand the attraction of the appeal Crown's submission that, instead, a case-by-case approach should be used to determine whether a re-election occurs late enough to warrant imposing the 30-month period of presumptive delay. The difference in substance between a re-election after a four-day preliminary inquiry, and a re-election during the scheduled dates but before the preliminary inquiry is completed does seem negligible. However, it would grate against the objective of Jordan to evaluate which presumptive ceiling applies on an after-the-fact, case-by-case basis during s. 11(b) motions. The Jordan majority was attempting to establish a bright line structure for s. 11(b) cases using a framework that "accounts for case-specific factors": at para. 5. The Jordan majority established the regime it did to overcome the previous, "highly unpredictable", "unduly complex" and endlessly flexible approach that does little to prevent delay by giving clear guidance in advance: Jordan, at paras. 31-37. The formula thrice stated in Jordan for when the 30-month period applies to provincial court trials must therefore be taken at face value and used as the bright line measure. Since re-election occurred before and not after the preliminary inquiry, this case falls on the wrong side of that bright line for the Crown.

[55] In advocating for a 30-month period of presumptive delay, the appeal Crown relied upon the decision in R. v. S. (D.M.), [2016] N.B.J. No. 320, 2016 NBCA 71. In S. (D.M.), on the date set for the preliminary inquiry, the accused waived his preliminary inquiry and re-elected to be tried in the provincial court. The parties agreed that in these circumstances, the presumptive ceiling was 30 months. Quigg J.A. accepted this position, commenting, at para. 17:

In my view, when an accused makes an election and requires the Provincial Court to schedule a preliminary inquiry, barring exceptional circumstances such as a very early re-election to be tried by a Provincial Court judge, the case should be treated as one that included a preliminary inquiry even if the preliminary inquiry is eventually waived.

[56] With respect, the case-by-case approach applied in S. (D.M.) cannot be squared with the language or ethic of Jordan. This issue does not appear to have been fully litigated before the New Brunswick Court of Appeal because of the agreement between the parties, and the guidance provided by the Jordan decision as to when the 30-month presumptive period applies in provincial court trials may not have been brought to the court's attention.

[57] The bright line approach that I consider myself compelled to follow does not enable the defence to manufacture a s. 11(b) delay by re-electing into a shorter presumptive period of delay. Section 561(1) of the Criminal Code requires Crown consent before the accused can re-elect to a trial by a provincial court judge. Where re-election would create the risk of s. 11(b) problems, the Crown has the authority to, and should, refuse consent, absent a s. 11(b) waiver.

[58] The application judge was therefore right to apply an 18-month period of presumptively unreasonable delay.

B. Did the application judge err in calculating the period of delay?

[59] The appeal Crown agrees that the application judge erred in calculating the period of delay, although in the appeal Crown's view, those errors caused the application judge to exaggerate the remaining delay. The appeal Crown argues that since the remaining delay is shorter than the delay the application judge was working with, her ultimate decision remains correct and should not be disturbed. Specifically, the appeal Crown claims three errors, two that would benefit the Crown, and the other, Mr. Shaikh. I will begin with the alleged errors that would benefit the Crown.

[60] Most significantly, the appeal Crown argues in her factum that the delay caused by the adjourned preliminary inquiry to accommodate the complainant's travel plans should have been treated as a discrete event and deducted from the net delay, thereby reducing the remaining delay by approximately seven months. The appeal Crown was right not to press this submission in oral argument. Leaving aside that the Crown had the lawful authority to compel the complainant to attend the scheduled court dates and testify notwithstanding his scheduled trip, the application judge was correct. The evidentiary record presented by the Crown was inadequate to show that the delay could not have been foreseen, or that the Crown made efforts to expedite the second dates. Notably, the Crown did not seek to preserve any of those dates for other evidence.

[61] The appeal Crown also argues that the application judge erred in not deducting the single trial date that was lost when defence counsel became ill on April 7, 2017. I agree that this one day should have been deducted from the net delay as a discrete event, but this is de minimis, which may be why the application judge did not address it.

[62] In contrast, the error conceded by the appeal Crown that benefits Mr. Shaikh is material. Specifically, the application judge erred in calculating the net delay by treating as defence delay the 66-day period between February 24, 2015 to May 1, 2015, the time that lapsed between the first pretrial and the day on which the preliminary inquiry dates were set. Defence delay consists of two components: periods waived by the accused and periods of delay solely caused by the defence: Jordan, paras. 61-63. Mr. Shaikh did not waive this period of delay, nor was it solely attributable to him.

[63] In fairness to the application judge, this error was triggered by an erroneous concession made by defence counsel during the s. 11(b) submissions that this period was defence delay. However, the Crown accepts that the application judge was wrong to treat this period as defence delay. This error did not arise from a factual finding made by the application judge or an inference drawn, but from an improper designation of the period of delay by the application judge based on uncontentious facts. As counsel for Mr. Shaikh points out, in R. v. Jurkus, this court held that the designation of periods of delay is a matter of law, attracting a standard of correctness: [2018] O.J. No. 2899, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 325. An application judge errs by accepting incorrect concessions relating to the characterization of delay.

[64] Those 66 days should not have been considered defence delay, and therefore, should not have been subtracted from the total delay when calculating net delay. This results in an even longer net delay, above and beyond the presumptive period of 18 months. Even if we assume that the entire 172-day delay after Mr. Shaikh's former counsel applied to be removed from the record could be attributed to the defence or treated as delay arising from a discrete event (this period is discussed in greater detail below), the net delay would be 697 days, which is close to 23 months, as opposed to the 20-month period the application judge worked with.

[65] Mr. Shaikh argues that the application judge also erred in accepting as defence delay most of the period between October 6, 2016, when Mr. Shaikh's former counsel applied to be removed from the record, and March 27, 2017, the first date of trial (172 days in total). I do not agree entirely with Mr. Shaikh. Most of this period should be characterized as either defence delay or discrete exceptional circumstance. For reasons that I will explain, I need not resolve whether the balance of this delay is also properly considered defence delay. I will divide the 172-day period of delay into three distinct periods, which I will approach chronologically.

[66] First, Mr. Shaikh concedes that the 55-day delay between October 6, 2016, when Mr. Shaikh's former counsel applied to be removed from the record, to November 30, 2016, when the March trial dates were set after re-election to provincial court, is a discrete exceptional circumstance. This period of delay resulted because Mr. Shaikh's former counsel applied to get off the record, which was an unforeseen development. During that period, Mr. Shaikh was obtaining new counsel and providing instructions, and therefore, could not move the case along. Mr. Shaikh was correct to make this concession and Crown counsel agreed with this characterization.

[67] The second period of delay is the 79-day period between November 30, 2016, when Mr. Shaikh re-elected to provincial court, and February 17, 2017, the final day in the first set of trial dates offered to Mr. Shaikh. Mr. Shaikh contends that this delay cannot fairly be ascribed solely to him as defence delay. In the unusual circumstances of this case, I agree. Ordinarily, delay following re-election, will have been caused solely by the defence and will qualify as defence delay. However, in the unusual circumstances of this case, not all the delay that followed his re-election was triggered by these events. Delay was inevitable even if re-election had not occurred because no court was available for the first two and one-half days of the scheduled preliminary inquiry. As the presiding preliminary inquiry judge recognized, given the number of witnesses to be called, the preliminary inquiry could not be completed in the remaining time and therefore had to be rescheduled, in any event. It is not appropriate to treat a period of delay that would have occurred anyway because of institutional delay as defence delay.

[68] However, as the Crown points out, it is impossible to know whether the trial would have been scheduled more promptly had Mr. Shaikh's former counsel not been removed from the record and had continuation dates been set immediately. Responsibility for precise periods of delay within that 79-day period cannot be calculated with perfect confidence. Perhaps the uncertainty could be resolved pragmatically by splitting responsibility for the delay equally, or it may be that it should be resolved by endeavoring to determine what would probably have happened. If the proper determination would have a material bearing on the outcome of this appeal, I would have to resolve how this 79-day period is to be allocated. Since the characterization of this period of delay will have no impact on the appeal outcome, I will refrain from determining whether the application judge erred in treating this period as defence delay. I will assume, for the purposes of this appeal, that her treatment of this delay as defence delay was correct.

[69] The final period of the 172-day delay is straightforward. Had Mr. Shaikh's counsel been available for the period from February 13-17, 2017, the trial dates Mr. Shaikh was offered, the period of delay between February 17, 2017 and March 27, 2017 would not have occurred. This period of 38 days is therefore defence delay.

[70] In sum, there are 38 days of defence delay and 55 days of exceptional circumstance delay caused by a discrete event. As indicated, I will proceed, for the purposes of this appeal, on the basis that the application judge was correct in treating the remaining 79 days as defence delay without determining the matter. The application judge should therefore have quantified the delay, as follows:

Total Delay: 919 Days (October 6, 2014 to April 12, 2017 — Date of Charge to End of Trial)

Defence Delay: 166 Days

• 49 Days (January 18, 2016 to March 7, 2016 — the period after Mr. Shaikh declined preliminary inquiry dates because of the unavailability of his counsel to the next date set)
• 79 Days (November 30, 2016 to February 17, 2017 — the period after Mr. Shaikh re-elected to provincial court to the final day of the first set of trial dates available)
• 38 Days (February 17, 2017 to March 27, 2017 — the period after the earlier set of trial dates that Mr. Shaikh was offered to the date that defence counsel was available)

Net Delay (Total Delay — Defence Delay): 753 Days

Exceptional Circumstance: 56 Days

• 55 Days (October 6, 2016 to November 30, 2016 — when Mr. Shaikh's former counsel applied to be removed from the record to the date on which the March trial dates were set after re-election to provincial court)
• 1 Day (April 7, 2017 — when defence counsel was ill)

Remaining Delay (Net Delay — Exceptional Circumstance): 697 Days (22.9 months)

[71] The remaining delay in this case was therefore not the 20 months the application judge worked with. At the very least, it was 697 days, closer to 23 months. This is a material difference. Although I am not bound to follow the application judge's lead, had she quantified the remaining delay as close to 23 months rather than 20 months, given her comment that "any further delay in this matter, even as much as a month, would likely cause [her] to decide otherwise" and find a s. 11(b) breach, she herself would have stayed the proceedings. She therefore erred in her analysis.

C. Did the application judge err by misapplying the transitional exception?

[72] The burden is on the Crown to satisfy the court that a presumptively unreasonable delay can be saved based on a transitional exceptional circumstance. The application judge erred in finding that the Crown had discharged this burden.

[73] The transitional exception depends on the Crown having complied with the Morin framework in the pre-Jordan period. If the Crown has not, it is not in a position to demonstrate that it has relied reasonably with respect to delay on the law as it previously existed. The Supreme Court summarized the Morin framework in Jordan, at para. 30:

The Morin framework requires courts to balance four factors in determining whether a breach of s. 11(b) has occurred: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused's interests in liberty, security of the person, and a fair trial. Prejudice can be either actual or inferred from the length of the delay. Institutional delay in particular is assessed against a set of guidelines developed by this Court in Morin: eight to ten months in the provincial court, and a further six to eight months after committal for trial in the superior court.

[74] Although the application judge did not break down her "length of delay" calculations, she premised her decision on a Morin delay of 15.5 months. It is not necessary to do a precise calculation of the Morin delay to confirm this quantification because even using the 15.5 month-Morin delay, the decision cannot stand. The heart of the transitional exception is the unfairness in staying proceedings where the delay occurred because of the trial Crown's reasonable reliance on the law as it previously existed: Jordan, at para. 96. The application judge erred by failing to give adequate scrutiny to whether the delays that occurred were reasonably incurred.

[75] I also agree with Mr. Shaikh that the application judge gave inadequate or at times improper attention to the "relevant considerations informing the transitional exceptional circumstances analysis", as identified by this court in R. v. Gopie (2017), 140 O.R. (3d) 171, [2017] O.J. No. 4963, 2017 ONCA 728, at para. 178, citing R. v. Williamson, [2016] 1 S.C.R. 741, [2016] S.C.J. No. 28, 2016 SCC 28. Those considerations include "(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".

[76] More specifically, the application judge did not properly evaluate the complexity of the case, failed to consider whether the period of delay in excess of the Morin guidelines was reasonably incurred, gave undue credit to the Crown for responding to institutional delay, failed to give adequate recognition to the defence effort to move the case along, and improperly minimized the prejudice. I will explain.

Complexity of the case

[77] The application judge gave undue emphasis to the complexity of the case, identifying it as "a moderately complex matter" because the trial estimate was four days. While the time a case requires is not immaterial in judging its complexity, much more is required. This was a simple credibility case. This case did not require an elaborate intake period to accomplish disclosure or to await forensic or expert evidence. It did not need significant preparation time, nor present scheduling challenges because of the number of accused persons. It was a straight-forward matter, and in all the circumstances, the complexity of the case should not have been used as a material makeweight in favour of the transitional exception.

Period of delay in excess of the Morin guideline

[78] On the application judge's own calculation, the delay in this case was 15.5 months, more than one and one-half times as long as the outer edge of the Morin guideline of eight to ten months. That excess can easily be identified. That period, and more — seven months of delay, in fact — was attributable to the Crown's adjournment request to facilitate the complainant's trip. As the application judge recognized, she was presented with no evidence that could justify this delay. This delay therefore cannot be said to have been reasonably incurred.

[79] Then when the second set of preliminary inquiry dates did arrive, having been scheduled nine months down the line, the court could not accommodate the hearing. Two and one-half days were lost. A further adjournment was inevitable because of this institutional delay. This additional delay was not reasonably incurred either.

[80] Nor was the short adjournment of the trial caused by the loss of two and one-half days of trial time reasonably incurred.

[81] Yet the application judge did not consider any of this when conducting the holistic examination that the transitional exception requires.

Crown's response to institutional delay

[82] The application judge did consider appropriately that counsel, including Crown counsel, "were able to secure trial dates" relatively swiftly; however, even this 117-day delay (3.8 months) from November 30, 2016 to March 27, 2017 was unduly minimized. The period of delay is much closer to four months than "the just over three months into the future" described by the application judge.

[83] No other evidence was led of any steps taken by the Crown to ameliorate the delay, although the application judge credited the Crown with addressing delay by withdrawing charges against Ms. Amer. With respect, this is an incomplete characterization of the trial Crown's reasons, which were the following:

[G]iven that she was not in a position to proceed, I could have asked for an adjournment; that was, that was not an option given the length and history of the matter . . . Second possibility was to apply to sever Ms. Amer's matter. I reviewed the case, given the strength of the case the fact that she played a minor role, if she played any role at all, other than being present at the time . . . I determined that that was not in the interest of justice, nor was it in the public's interest to do that. That left me in a third option of simply not proceeding with Ms. Amer if I determined that the prospect of conviction against her was pretty weak. And, and so it was in I that determined it was in the interest of justice to simply withdraw against Ms. Amer and proceed against Mr. Shaikh, who was facing more serious charges.

[84] As can be seen, the trial Crown did recognize that an adjournment was not an option because of delay, but he explained that he withdrew the charges because he concluded that he had a weak case against Ms. Amer. Since Ms. Amer may not have played any role in the offences, it was contrary to the interest of justice and the public interest to maintain her prosecution. In the circumstances, it was not appropriate to treat this decision as a delay reducing measure.

Defence efforts to move the case along

[85] There is no indication of defence efforts to move the case along prior to when Mr. Shaikh's former counsel applied to be removed from the record on October 6, 2016. However, after his first counsel was released from the record, Mr. Shaikh expressed concern about the delay and asked if his trial would occur on the next date if he re-elected and represented himself. On November 22, 2016, his new defence counsel, speaking of the serious s. 11(b) issue that had developed, advised the court that Mr. Shaikh would re-elect to have a provincial court trial, and he did so formally on November 28, 2016. There is no doubt that the re-election shortened the proceedings. This should have been considered by the application judge but was not.

Prejudice

[86] The application judge recognized that the prejudice to the accused was "troubling". And it was. Mr. Shaikh was either under custody or house arrest for the first year, and then under curfew pending trial. He provided uncontradicted evidence of the strain this matter put on his family, his psychological wellbeing, and his ability to work.

Conclusion on transitional exception

[87] In all the circumstances, the transitional exception should not have been applied. This delay was presumptively unreasonable; not by a narrow margin but exceeding the Jordan guidelines by nearly five months. Even the Morin guidelines were exceeded substantially. There was no meaningful demonstration that the Crown had been mindful of its s. 11(b) obligations even as they existed prior to Jordan, and the prejudice was troubling. The seriousness of the charges and the finality of a stay cannot fairly outweigh these considerations.

[88] The application judge called this a close case even when using a 20-month net delay calculation and she gave every indication that she would have stayed the charges had she properly quantified the period of delay. That was the outcome she should have ordered.

Conclusion

[89] I would allow the appeal, set aside the convictions, and stay the charges against Mr. Shaikh. It is therefore unnecessary to consider whether deliberation delay is included in the Jordan period, or to examine the trial judge's s. 11(b) decision.

Appeal allowed.

Notes

1 It appears the application judge made a counting error. The number of days between October 6, 2014 to March 27, 2017 is 903 days. When calculating this, and other periods of delay between two dates, I do not include the first or last day of the period. The first day is not considered delay and the last day should not be counted either because it is the date on which proceedings resume.

2 I have converted days to months by dividing by 30.417, which is approximately 365/12. I have also rounded month figures to one decimal point.

3 The preliminary inquiry was initially scheduled to begin on March 7, 2016, but it was rescheduled to October 4, 2016 to accommodate the complainant's trip. This is a 211-day or 6.9-month delay.

4 Total delay of 919 days subtracted by the 49 days conceded by the defence, the one day that counsel was ill, and 172 days, is 697 days.