Her Majesty the Queen v. Pauls et al.
[Indexed as: R. v. Pauls]
Ontario Reports Court of Appeal for Ontario Simmons, Watt and B. Miller JJ.A. March 18, 2020 149 O.R. (3d) 609 | 2020 ONCA 220
Case Summary
Charter of Rights and Freedoms — Trial within reasonable time — Trial judge granting stay to three accused following convictions for assault causing bodily harm and unlawful confinement — Judge attributing most of the delay to Crown's inaccurate time estimate for trial and mishandling of defence production request — Crown was initially responsible for inaccurate time request but once victim began to testify all parties and the court shared in the responsibility — Defence production request was unnecessary and inappropriate — Court of Appeal making further deductions of 17 months resulting in delay below the presumptive ceiling and setting aside stay.
Criminal law — Trial judge — Misapprehension of evidence — Unreasonable verdict — Trial judge granting stay for unreasonable delay following convictions for assault causing bodily harm and unlawful confinement — Crown appealing stay — During argument, accused challenging propriety of findings of guilt — Trial judge did not err as argued by accused.
In August 2014, the three respondents were arrested on charges of aggravated assault and unlawful confinement. The Crown had video footage from the restaurant where the victim was confined and beaten. There was also a witness who saw an altercation between the appellants and the victim outside the restaurant just before the video footage began. The Crown estimated that the trial would take two days. Ultimately, evidence was heard over 14 court days from August 2015 to April 2017. The trial was adjourned to continuation dates five times. The trial was interrupted by a disclosure issue, interpreter problems, late witnesses, health issues and other court commitments. The trial judge delivered reasons in July 2017, finding the respondents not guilty of aggravated assault, but guilty of the included offence of assault causing bodily harm. Two of the respondents were also guilty of unlawful confinement. The respondents applied for a stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms. The trial judge concluded that the primary cause of the overall delay was the Crown's grossly inaccurate time estimate and its mishandling of a defence request for a copy of a blank video from an exterior camera. For two of the respondents a defence delay of three months was deducted. Defence delay for the third respondent was over 12 months due to his illness and unavailability of counsel. The result in each case was a net delay well above the presumptive ceiling of 18 months. The trial judge stayed the proceedings against all respondents. The Crown appealed.
Held, the appeal should be allowed.
The stay was set aside, and the matter remitted for sentencing. A proper calculation resulted in a net delay below the presumptive ceiling such that a stay was not warranted. For two of the respondents, there were two periods of more than a month where they ought to have been treated as proceeding communally with the third respondent and should have shared in the delay caused by the unavailability of his counsel. Although the Crown might have been able to respond more promptly to the blank video disclosure request, the request was unnecessary and inappropriate from the outset. The defence should have immediately applied for, and requested the Crown's consent to, the production order it eventually requested at trial. Although initial responsibility for the misestimate of the trial time was properly attributed to the Crown, once the victim began to testify it was clear how the Crown was proceeding and all parties and the court should have recognized that more than two days would be required to complete the trial. As such, all counsel and the court had to accept responsibility for the misestimate after that time.
Accounting for those factors and other discrete events, the result was a further deduction of more than 17 months, leading to a net delay of 17 months and 29.5 days for two of the respondents, and 16 months and 4.5 days for the other.
While arguing to uphold the trial judge's stay, two of the respondents also challenged the propriety of the findings of guilt against them. Those arguments were rejected. The trial judge did not misapprehend the evidence. The judge did not err in failing to specifically address the mens rea requirement for unlawful confinement. There was nothing to support a conclusion that the judge relied on an injury suffered by the victim outside the restaurant to support the findings of guilt for assault causing bodily harm. Although the judge found that the two respondents occasionally intervened in the third respondent's actions, he also found that such intervention did not detract from the joint efforts of the three of them. The fact that the judge mentioned W. (D.) twice without reciting it did not mean that he failed to apply it. There was no error in the judge's conclusion that self-defence had no air of reality. The guilty verdicts were not unreasonable.
R. v. Albinowski, 2018 ONCA 1084; R. v. Jordan, 2016 SCC 27, apld
R. v. Gopie, 2017 ONCA 728, consd
Other cases referred to
R. v. Antic, 2019 ONCA 160; R. v. Backhouse, 2005 ONCA 4937; R. v. Brissett, 2019 ONCA 11; R. v. Bulhosen, 2019 ONCA 600; R. v. Jurkus, 2018 ONCA 489 [Leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 325]; R. v. Lifchus, 1997 SCC 319; R. v. Morin, 1992 SCC 89; R. v. Narwal, 2009 BCCA 410; R. v. Nurse, 1993 ONCA 14691; R. v. Palombi, 2007 ONCA 486; R. v. Singh, 2016 BCCA 427; R. v. Vu, 2012 SCC 40; R. v. W. (D.), 1991 SCC 93
Statutes referred to
Canadian Charter of Rights and Freedoms, s. 11(b)
APPEAL by the Crown from the stay of proceedings of Gorewich J. of the Ontario Court of Justice dated October 17, 2017.
Philippe Cowle, for appellant. Michael Lacy and Bryan Badali, for respondent Aziz Pauls. Sonya Shikhman, for respondent Jamal Yusuf. Adam Little, for respondent Jamis Yusuf.
The judgment of the court was delivered by
Simmons J.A.: —
A. Introduction
[1] The main issue on appeal is whether the trial judge erred in staying proceedings against the respondents under s. 11(b) of the Canadian Charter of Rights and Freedoms.
[2] In August 2014, the respondents were arrested on charges of aggravated assault and unlawful confinement. The alleged victim was Johni Dawood. The Crown claimed the respondents confined the heavily intoxicated Dawood in a restaurant for over two hours and beat him periodically during that time. Dawood suffered two cuts to his head requiring several staples and an injury to his nose. The Crown had digital video recorder ("DVR") footage of the events inside the restaurant. The video had no sound but depicted the respondents carrying Dawood into the bar area and putting him in a chair. He was subsequently punched, slapped, kicked and hit over the head with a chair.
[3] In addition to Dawood, the Crown called Mr. Sliwa, who had witnessed an initial altercation just outside the restaurant. Both men described Jamal Yusuf beating Dawood and Dawood suffering a head wound while outside the restaurant. According to Mr. Sliwa, the respondents then carried Dawood inside. It was at that point that the Crown's DVR footage began.
[4] Despite the video evidence, the respondents -- who were all sober at the time of the events -- maintained that Dawood was threatening them and that their interactions with him were either consensual or in self-defence. Jamal Yusuf testified at trial and called one other witness. The other respondents did not call evidence.
[5] The respondents' trial began in the Ontario Court of Justice on August 5 and 6, 2015, approximately one year following their arrest. It concluded on July 7, 2017 when the trial judge delivered a reserved decision finding the respondents not guilty of aggravated assault, but guilty of the included offence of assault causing bodily harm and also finding the Yusuf respondents guilty of unlawful confinement. 1
[6] Following the guilty verdicts, the respondents applied for a stay of proceedings under s. 11(b) of the Charter. On October 17, 2017, the trial judge granted the application.
[7] The Crown had initially described this as a "press and play case" (referring to the two-and-a-half-hour video of events inside the restaurant) that would take two days to try, with two Crown witnesses and up to three defence witnesses. Ultimately, about 6.5 days of evidence were heard over 14 court days spanning about 21 months (August 5, 2015 to April 26, 2017). The trial was adjourned to continuation dates on five occasions. Four Crown witnesses testified (two police officers in addition to Dawood and Mr. Sliwa), occupying about 4.75 days of evidence; the two defence witnesses gave about 1.75 days of evidence.
[8] In addition to the significant misestimate of time, the trial was interrupted by a disclosure issue, interpreter problems, late witnesses, health issues and other court commitments. The trial judge delivered his reasons within a period of just under 2.5 months (April 26, 2017 to July 7, 2017).
[9] Applying the Jordan framework, the trial judge found the presumptive ceiling for delay was 18 months. For the Yusuf respondents, the total delay from their arrest on August 1, 2014 to verdict was 35 months and five days. After deducting defence delay of three months, the net delay was 32 months and five days. While some discrete events had occurred, in the trial judge's view, they did not impact whether the presumptive ceiling was exceeded. Rather, he concluded the primary cause of the overall delay was the Crown's grossly inaccurate time estimate and its mishandling of a defence request for an additional copy of a blank video from an exterior camera, which led to the adjournment of the original trial dates.
[10] As for Pauls, the total delay from his arrest on August 12, 2014 to verdict was 34 months and 25 days. Defence delay caused by the unavailability of counsel and by Pauls' illness on one of the continuation dates totalled 12 months and seven days, yielding a net delay of 22 months 18 days -- also well above the presumptive ceiling.
[11] Having regard to his view of the primary cause of the delay, the trial judge stayed the proceedings against all respondents.
[12] The Crown appeals from the stay and raises four issues on appeal:
The trial judge erred in his allocation of the delay that flowed from the unavailability of defence counsel. The trial judge erred in his treatment of discrete events. The trial judge erred in his treatment of reserve time. The trial judge erred in failing to conduct a meaningful Morin analysis despite the profound impact of pre-Jordan law in this case.
[13] The Crown submits that once defence delay and exceptional circumstances are properly accounted for, the delay in this case falls below the presumptive ceiling. In the alternative, even if the net delay exceeds the presumptive ceiling, the Crown reasonably relied on the pre-Jordan state of the law, such that a transitional exception should apply to render the delay not unreasonable.
[14] In addition to disputing the Crown's position on the stay, the Yusuf respondents argue that the trial judge made errors in law in finding them guilty such that a new trial should be ordered if the stay is set aside.
[15] For the reasons that follow, I would set aside the s. 11(b) stay for all respondents. On my calculations, the net delay under the Jordan framework is 17 months and 29.5 days for the Yusuf respondents and 16 months and 4.5 days for Pauls. Given that the net delay for all respondents is under the Jordan ceiling and because I have found defence delay, I conclude that a stay is not warranted.
[16] I would not give effect to the Yusuf respondents' alternative arguments. I would therefore allow the appeal, set aside the stay imposed by the trial judge for all respondents and remit the matter to the Ontario Court of Justice for sentencing.
B. The Jordan Framework
[17] To put the main issue into context, I will briefly review the Jordan framework as it applies to this case.
[18] As is well known, Jordan was released on July 8, 2016 and dramatically revised the framework for assessing delay on a s. 11(b) application.
[19] For cases proceeding in the provincial courts, Jordan establishes a ceiling of 18 months beyond which delay is presumed unreasonable. However, to assess whether the presumptive ceiling has been exceeded it is first necessary to deduct defence delay from the total delay. Defence delay can take two forms: (i) delay waived by the defence; and (ii) delay caused solely by the conduct of the defence.
[20] Where the total delay minus defence delay exceeds the presumptive ceiling, the Crown may still show the delay is reasonable by establishing exceptional circumstances. Exceptional circumstances have two components: (i) they are reasonably unforeseen or unavoidable; and (ii) the Crown cannot reasonably remedy the ensuing delay once exceptional circumstances arise.
[21] In general, exceptional circumstances fall under two categories: (i) discrete events; and (ii) particularly complex cases. Where discrete events give rise to unavoidable delay (i.e., delay that the Crown or the system could not reasonably have mitigated), that delay must be deducted to determine whether the presumptive ceiling has been exceeded.
[22] Where the remaining delay exceeds the presumptive ceiling, the delay may still be reasonable if the case was particularly complex. A particularly complex case is one where the nature of the evidence or the issues "require an inordinate amount of trial or preparation time such that the delay is justified": Jordan, at para. 77.
[23] Where the remaining delay falls below the presumptive ceiling, an accused may still show it is unreasonable by demonstrating (i) the defence took meaningful steps that show a sustained effort to expedite the proceedings; and (ii) the case took markedly longer than it reasonably should have.
[24] Finally, where remaining delay exceeding the presumptive ceiling is not explained by complexity, a transitional exceptional circumstance may apply if the charges were laid before Jordan was released on July 8, 2016.
C. Chronology
[25] The following chronology 4 describes the significant events between arrest and judgment. As I have said, the trial was adjourned to continuation dates on five occasions. The original trial dates and continuation dates are bolded.
-- August 1, 2014 -- the Yusuf respondents are arrested. -- August 12, 2014 -- Pauls is arrested; initial written disclosure request is submitted by Jamal Yusuf's counsel. -- August 21, 2014 -- initial Crown disclosure. -- August 28, 2014 -- a York Regional Police ("YRP") technician receives the restaurant DVR. -- September 2, 2014 -- the YRP technician obtains a master password allowing access to the DVR; although camera 15 (the exterior camera) appears to be recording, it is "black"; the technician backs up the DVR data and then transfers it to DVD's for each camera using the backup data. -- October 16, 2014 -- additional Crown disclosure. -- November 25, 2014 -- judicial pre-trial: trial set for August 5 and 6, 2015 (Pauls' counsel was not available June 17 and 18, 2015); the Crown advises that the five separate informations will be combined and the three respondents will be tried together; defence agent, Mr. Bytensky, comments that all necessary preparation has been done and that the defence could proceed almost immediately, calling the case a "'he said, she said' type of matter". -- May 15, 2015 -- letter to Crown from Jamal Yusuf's counsel requesting a further copy of the exterior camera video recording: "Please be advised that DCCTV-CH15 is pitch black. Please provide a new copy of the CD as it should contain a relevant portion of the recording. However, it appears that it was not properly copied. If the Crown's copy is also dark and does not contain the recording, I will be seeking a release of the original recording for defence testing." -- June 18, 2015 -- defence letter following up on the May 15, 2015 request: "I am also writing to inquire about disclosure. Further to my letter, dated May 15th, 2015, I continue to await a response with respect to the DVD disclosure (DCCTV-Ch 15) that is blank. Please review and advise me at your earliest opportunity if the Crown's copy is also blank. If not, please provide me with a new copy. If so, I will need to bring an Application seeking release of the original exhibit." -- June 22, 2015 -- defence counsel follows up in person with the assigned Crown regarding the May and June letters. -- July 13, 2015 -- Crown letter advising its copy of the exterior camera video is blank and not recoverable. 5 -- July 29, 2015 -- defence letter confirming oral advice in June that the defence will require the original exhibit for testing and advising of the possibility of a lost evidence application. -- August 4, 2015 -- defence conference call with proposed video expert who had just returned from vacation. -- August 5, 2015 -- first day of trial; defence requests production of the DVR and an adjournment to permit expert examination; Crown disputes the relevance of the exterior camera video; Jamal Yusuf's counsel claims Mr. Bytensky raised the missing video camera issue at the pre-trial; the Crown disagrees and asserts that the blank video issue was identified in police notes as part of the original disclosure; production order made; defence confirms agreement to a joint trial; Crown witness Mr. Sliwa examined in-chief, adjourned to August 6, 2015 (approximately one hour of evidence heard). -- August 6, 2015 -- second day of trial; joint information filed; unlawful confinement charge withdrawn against Pauls; adjourned to January 11, 12 and 14, 2016 to permit expert examination of the DVR (Pauls' counsel not available August 17, December 7, 8, 9, 15 and 16, 2015; Jamal Yusuf's counsel not available January 4, 5 and 8, 2016 -- Crown asserts August 17, 18 and 19, 2015 were offered as continuation dates) (no evidence heard). -- January 11, 2016 -- third day of trial; court begins at 10:28 a.m. to accommodate Pauls' counsel; Mr. Sliwa is late because of a medical issue; Crown calls two police officers not originally expected to testify while waiting for Mr. Sliwa; Mr. Sliwa's cross-examination is completed; court adjourns at 3:25 p.m. to accommodate Pauls' counsel (approximately 1/2 day of evidence heard). -- January 12, 2016 -- fourth day of trial; court commences at 11:49 a.m. because Dawood is late; Dawood's examination-in-chief begins; interpretation issues (dialect) arise; court adjourns following the lunch break because of a dispute between defence counsel and the interpreter (approximately one hour of evidence heard). -- January 14, 2016 -- fifth day of trial; Dawood's examination-in-chief continues; court adjourns at 4:00 p.m. at the request of the interpreter and Pauls' counsel; adjourned to June 20 and 24, 2016 (Jamis Yusuf's counsel not available for January dates or early June dates; Crown not available for February dates; Pauls' counsel not available for April dates; Jamal Yusuf's counsel not available for May dates); Jamal Yusuf's counsel and the court express concern that additional time may be required; Jamal Yusuf's counsel raises severance issue, the Crown responds that a s. 11(b) waiver would be required from Pauls; trial judge advises he will go per diem as of the end of June (approximately one day of evidence heard). -- June 20, 2016 -- sixth day of trial; court commenced at 10:38 a.m. because the interpreter was late; Dawood's examination-in-chief continues; interpreter dialect issues interrupt the morning's evidence; Pauls' counsel delayed due to another matter in the afternoon; previous interpreter attends for the afternoon (approximately 1/2 day of evidence heard). -- June 24, 2016 -- seventh day of trial; adjourned due to Pauls' illness; Yusuf respondents' severance request dismissed; continuation dates set for September 8 and 9, 2016; Jamis Yusuf's counsel and court express concern that additional time may be required; Jamal Yusuf's counsel requests that a third date be set and the trial judge invites counsel to do so (no evidence heard). -- September 8, 2016 -- eighth day of trial; Dawood's examination-in-chief continues at 10:45 a.m. (counsel and witness late); Crown completes examination-in-chief of Mr. Dawood shortly after 3:00 p.m.; Jamal Yusuf's counsel begins cross-examination of Dawood (approximately 3/4 day of evidence heard). 6 -- September 9, 2016 -- ninth day of trial; Jamal Yusuf's counsel continues cross-examination of Dawood in the morning; the trial judge deals with another matter that was double-booked for this date in the afternoon; adjourned to February 21 and 22, 2017; Jamal Yusuf's counsel requests additional dates be set: April 24, 25 and 26, 2017 targeted (approximately two hours of evidence heard). -- September 20, 2016 -- February and April continuation dates confirmed. -- February 21, 2017 -- tenth day of trial; cross-examination and re-examination of Dawood is completed; Crown's case concludes; Jamal Yusuf's examination-in-chief begins (approximately one day of evidence heard). -- February 22, 2017 -- eleventh day of trial; continued examination of Jamal Yusuf beginning at 10:25 a.m. (Jamis Yusuf's counsel is late and trial judge has a sentencing); Jamal Yusuf's counsel requests that the parties canvas earlier dates so the matter can be finished prior to April, but the trial judge is not available due to his per diem schedule (approximately one day of evidence heard). -- April 24, 2017 -- twelfth day of trial; Jamal Yusuf's evidence is completed; adjourned to April 25, 2017 due to unavailability of final defence witness (less than one hour of evidence heard 7). -- April 25, 2017 -- thirteenth day of trial; adjourned to April 26, 2017 due to unavailability of defence witness (no evidence heard). -- April 26, 2017 -- fourteenth day of trial; evidence of final defence witness (Jamal Yusuf) is completed by 10:30 a.m.; oral submissions by Pauls' counsel indicating Pauls is willing to plead guilty to assault causing bodily harm and suggesting a finding of not guilty of aggravated assault but guilty of assault causing bodily harm; written submissions filed by the Crown and counsel for the Yusuf respondents; adjourned to June 2, 2017 to permit clarification of the written submissions if required and to July 7, 2017 for judgment; (approximately one hour of evidence heard). -- June 2, 2017 -- brief submissions by Jamal Yusuf's counsel. -- July 7, 2017 -- judgment.
D. The Trial Judge's Reasons on the s. 11(b) Applications
[26] After reviewing the Jordan framework and the history of the matter, the trial judge noted that the total delay from indictment to verdict was 35 months five days for the Yusuf respondents and 34 months 12 days for Pauls. He then reviewed the individual periods of delay. In all, he deducted 12 months and seven days from Pauls' overall delay and three months from the Yusuf respondents' overall delay.
a. Review of individual periods of delay
[27] The trial judge deducted the periods set out below from Pauls' overall delay because of the unavailability of Pauls' counsel (six months and 22 days). However, he declined to deduct any portion of this delay from the Yusuf respondents' overall delay as their counsel had available dates during the relevant periods:
-- June 17 and 18, 2015 (the first available trial dates) to August 5, 2015 (one month and 18 days); -- December 7, 2015 (the first reasonably available continuation date following the August 6, 2015 adjournment) to January 11, 2015 (one month and 4 days); -- November 21, 2016 8 (presumed first available continuation date following the September 9, 2016 adjournment) to February 21, 2017 (three months); -- March 24, 2017 9 (presumed first available continuation date following the February 22, 2017 adjournment) to April 24, 2017 (one month).
[28] In addition to the foregoing deductions, the trial judge deducted three months from the overall delay of all respondents because of the combined unavailability of all counsel, including the Crown, between January 14, 2016 and June 20, 2016.
[29] Finally, the trial judge deducted two months and 15 days from Pauls' overall delay arising from the adjournment from June 24, 2016 to September 8, 2016 necessitated by Pauls' illness on June 24, 2016. However, he concluded this delay was entirely Pauls' responsibility and that no deduction from the Yusuf respondents' overall delay was warranted.
[30] The trial judge declined to make any further deductions from the respondents' overall delay.
[31] Although the initial adjournment was requested by the respondents, the trial judge attributed the resulting delay to the Crown. In his view, the delay stemmed directly from the Crown's failure to respond promptly to the defence requests for an additional copy of the exterior camera DVD. This was not a discrete event beyond the control of the Crown. Further, relying on the principle that counsel cannot be expected to be in a constant state of availability, he made no deduction because of Pauls' counsel's inability to continue the trial on August 7, 2015. In any event, he found that, even absent the adjournment, the case would not have finished on August 6, 2015.
[32] Although the trial judge accepted that various discrete events (i.e., late witnesses, interpreter issues and a medical issue) delayed the trial during the first continuation in January 2016, he was not satisfied they delayed the trial by more than 1 1/2 days. Much evidence remained to be called and the case would not have been completed because of the pace of the Crown's case. The misestimate of trial time was not a discrete event. The "Crown knew or ought to have known how it was going to prosecute this case at the outset" but instead had mischaracterized the matter as a "press and play" case that would require only two days to try.
[33] Similarly, although the trial judge accepted that the late arrival of Pauls' counsel and the interpreter problem that occurred on June 20, 2016 were discrete events, he did not attribute any significance to them in terms of ongoing delays.
[34] The trial judge found several hours of trial time were lost on September 8, 2016 because Mr. Dawood was late. Further, as the trial judge gave priority to another case, the matter did not proceed on the afternoon of September 9, 2016.
[35] However, the trial judge rejected the Crown's submission that the five-month 12-day adjournment to February 21, 2017 should be deducted because of discrete events. In his view, responsibility for this adjournment lay at the feet of the Crown and the court system for two reasons. The first reason was the Crown's misestimate of the time required for trial and its failure to deal properly with the blank video disclosure request. The second reason was the overburdened justice system, as a result of which the court was overbooked on September 9, 2016.
[36] The matter proceeded essentially uninterrupted in February 2017. Given the Crown's gross misestimate of the required trial time, the trial judge rejected the Crown's submission that the adjournment to April was caused by a discrete event.
[37] Finally, holding that a trial ends when the verdict is rendered and not upon completion of the evidence, the trial judge rejected the Crown's argument that the reserve period should be excluded from the Jordan ceiling.
b. Not a complex case
[38] Turning to whether complexity created exceptional circumstances, the trial judge concluded this was not a complex case. The video clarified the events, which occurred in one location over several hours. In the circumstances, the presence of three co-accused did not make the case complex. Nor did the case present complex legal issues.
c. No transitional exceptional circumstances
[39] While acknowledging that the case began prior to the release of Jordan, the trial judge was not satisfied the Crown reasonably relied on the previous state of the law such that the delay was justified based on transitional exceptional circumstances. Rather, the Crown's inaction in response to the defence requests for additional disclosure relating to the blank video and gross misestimate of the time required for trial precluded the conclusion that the Crown had prosecuted the matter expeditiously.
E. Analysis of the S. 11(b) Issue
(1) Standard of review
[40] The Yusuf respondents challenged the continuing applicability of the pre-Jordan standard of review in the post-Jordan world. However, several post-Jordan decisions of this court have held the standard of review on a s. 11(b) application is well established. Deference is owed to a trial judge's underlying findings of fact. Characterizations of periods of delay and the ultimate decision concerning whether there has been unreasonable delay are reviewable on a standard of correctness: R. v. Jurkus, 2018 ONCA 489, at para. 25, leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 325; R. v. Albinowski, 2018 ONCA 1084, at para. 27; R. v. Bulhosen, 2019 ONCA 600, at para. 73. Given these decisions, I decline the Yusuf respondents' invitation to revisit the standard of review.
(2) Did the trial judge err in allocating the delay arising from the unavailability of defence counsel? Did the trial judge err in his treatment of discrete events?
[41] I have combined these two issues because the Crown's oral submissions relating to them overlapped.
[42] As a starting point, the Crown relies on the deductions from overall delay made by the trial judge from each respondent. In addition, in oral argument the Crown submitted that the following deductions should be made from the net delay calculated by the trial judge:
-- nine months from the net delay attributed to the Yusuf respondents arising from co-accused delay: -- the unavailability of Pauls' counsel to commence or continue the trial on three dates: -- June 17 and 18, 2015 (resulting in one month and 18 days delay to August 5, 2015); -- December 7 and 8, 2015 (resulting in one month and four days of delay to January 11, 2016); -- November 22, 2016 (resulting in three months of delay to February 21, 2017, 2017); and -- the adjournment on June 24, 2016 to September 8, 2016 caused by Pauls' illness (two months and 14 days of delay); -- four months from the net delay attributed to all respondents arising from the impact of the joint misestimate of trial time by all counsel causing the inevitable adjournment of the August 2015 trial dates calculated to December 7, 2015, the first continuation date offered which the trial judge found was reasonably available to the defence; 10 -- three months from the net delay attributed to all respondents arising from the impact of discrete events that interrupted the trial in January and June 2016 and which prevented the trial from finishing in September 2016 (this three-month deduction assumes the Crown's position on co-accused delay from November 22, 2016 to February 21, 2017 and the trial judge's deduction of one month for co-accused delay from March to April 2017 are accepted, otherwise the claimed deduction from the Yusuf respondents' overall delay is seven months).
[43] Finally, the Crown also relies on the position advanced in its factum that the trial judge erred in attributing two months and seven days of delay to the Crown for the period January 14, 2016 to June 20, 2016, when the Crown was unavailable only for February dates during that period and could have accommodated all other dates offered in January, April, May and early June that were unavailable to one or more of the respondents' counsel. To the extent the trial judge attributed more than one month of the delay to the Crown due to its misestimate of trial time, the trial judge erred.
[44] I will review each of these claims in turn.
(a) Delay arising from the unavailability of co-accused's counsel
(i) The Crown's position
[45] The Crown submits that the trial judge erred in deducting delay attributable to the unavailability of counsel only from the delay of the respondent whose counsel was unavailable. Where proceeding against multiple accused is reasonable and severance is not in the interests of justice, the Crown cannot be expected to foresee or mitigate delay caused by the unavailability of co-accused's counsel.
[46] The Crown acknowledges that in R. v. Gopie, 2017 ONCA 728, this court adopted an individualized approach to calculating defence delay and did not directly deduct delay caused by co-counsel's missteps (inadvertent double-booking by one counsel; failure to provide available trial dates by another counsel) from Gopie's delay as defence delay or a discrete event. However, the Crown points out that in Albinowski, this court held that an individualized approach may not be appropriate where accused persons are proceeding through the system as a collective and scheduling challenges arise "directly and inevitably" from their joint situation: at para. 37. This approach, says the Crown, is reaffirmed in this court's decision in R. v. Brissett, 2019 ONCA 11, and is also consistent with the British Columbia Court of Appeal's decision in R. v. Singh, 2016 BCCA 427.
[47] The Crown submits that in this case, proceeding against the respondents jointly was not only reasonable, but was confirmed as the correct approach when the trial judge dismissed the Yusuf respondents' severance application. The delays resulting from any one counsel's unavailability are the direct result of scheduling challenges arising from the joint prosecution and were neither predictable nor within the control of the Crown. Thus, such delays should be deducted as defence delay in relation to the respondent whose counsel was unavailable and as delay arising from a discrete event in relation to the other respondents.
(ii) The Yusuf respondents' position
[48] The Yusuf respondents argue that the Crown's position is inconsistent with both Albinowski and Gopie. First, they say that the Crown's method of calculating defence delay -- by starting the delay clock as soon as an accused rejects a single available date -- was expressly rejected in Albinowski. Further, they adopt Pauls' position that there is no evidentiary support for the trial judge's finding of one month of delay due to the unavailability of Pauls' counsel from February 21, 2017 to April 26, 2017.
[49] Moreover, they assert that Gopie's individualized approach to defence delay is not only a proper reflection of Jordan principles, but also was clearly intended to govern delay arising from the unavailability of counsel for a co-accused. This court confirmed as much in R. v. Antic, 2019 ONCA 160, at para. 8. Further, the Yusuf respondents say Albinowski should be confined to its facts, which involved the combined unavailability of several defence counsel who rejected multiple available dates.
(iii) Discussion
[50] I conclude that the Albinowski communal defence delay approach is appropriate for the following periods of delay arising from Pauls' counsel's unavailability:
(i) the one-month 18-day period from June 17 to August 5, 2015; and (ii) the one-month five-day period from December 7, 2015 to January 11, 2016.
[51] For reasons that I will explain, I find that the other periods of delay the Crown attributes to the unavailability co-accused counsel can be deducted for other reasons. I therefore consider it unnecessary to resolve on this appeal whether they can be deducted based on the unavailability of co-accused's counsel.
[52] I agree that the Gopie individualized approach is consistent with the general principles set out in Jordan concerning defence delay. Apart from waiver, Jordan speaks of defence delay as delay caused solely or directly by the conduct of the defence: Jordan, at paras. 61-66. Further, although Jordan initially involved ten accused, co-accused delay did not factor into the calculation of the net delay in that case. However, while it did not apply the principle in that case, at para. 77 of Jordan the Supreme Court indicated that, where it is in the interests of justice to do so, proceeding jointly against multiple accused can affect the complexity of a case.
[53] Nonetheless, in Albinowski, this court held there may be circumstances where a communal approach to defence delay is more appropriate. These include multiple-accused cases where several counsel are unavailable for different parts of a particular delay period. For example, that was the situation in this case where all counsel, including the Crown, were unavailable for some parts of the period between January 14, 2016 and June 20, 2016. The trial judge allocated three months of the five-month seven-day delay jointly to the defence and the remaining delay to the Crown. Although the Crown challenges the amount of delay allocated to it, no party has challenged the propriety of that approach. Where appropriate, this form of communal allocation may avoid microscopic assessments of delay periods, a practice of which the Supreme Court disapproved in Jordan, at paras. 37, 111.
[54] The two periods of delay I have identified as being governed by the communal approach occurred at a time when the respondents were charged on separate informations. 11 Thus, the Yusuf respondents agreed to trial dates acceptable to Pauls knowing that their counsel, the Crown and the court had earlier available dates and, more importantly, accepting that their trials should proceed with Pauls. Given these circumstances I conclude that, at least for the first two periods I have identified, the Yusuf respondents should be treated as proceeding communally with Pauls and should share in the delay caused by the unavailability of his counsel.
(b) Delay arising from the joint misestimate of time and the impact of discrete events
(i) Crown's position
[55] The Crown submits that the trial judge erred in laying total responsibility for the misestimate of trial time at the Crown's feet and in failing to treat the misestimate as a discrete event. Second, the Crown argues the trial judge erred in failing to attribute the delay caused by Pauls' illness to the Yusuf respondents as a discrete event. Finally, the Crown submits the trial judge erred in failing to recognize that adjournments caused by the discrete events he recognized, such as interpreter problems, late witnesses, medical issues and the illness of Pauls, had consequences beyond the specific trial time lost due to the discrete event.
[56] At para. 73 of Jordan, the Supreme Court of Canada observed that trials "are not well-oiled machines". Accordingly, even where parties have made a good faith effort to establish realistic time estimates, if the trial goes longer than expected, it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.
[57] The Crown submits that is exactly what happened in this case. The case was pre-tried, and the two-day time estimate was set at the pre-trial. Everyone had the same information: they knew there was a video of events inside the restaurant; they knew the Crown would play the video and that the duration of the video was two and a half hours; they knew the Crown would have to ask the complainant some questions about the video; and they knew there was a second Crown witness who had seen the initial altercation outside the restaurant. All counsel were aware three defence counsel would be cross-examining. All counsel were aware that some, all or none of the respondents might testify. While it was not known that the complainant would require an interpreter until shortly before the trial, no one could have predicted the interpreter issues that ultimately arose. And the issue of how many questions the Crown would have to ask the complainant was a matter of common variability that impacts the length of almost every trial.
[58] The Crown concedes it could have mitigated the initial delay caused by the August 2015 adjournment by responding more promptly to defence correspondence. However, the Crown also points out that (as acknowledged by the trial judge) the trial would not have finished on August 6, 2015 in any event because of the misestimate. In the circumstances, the Crown concedes responsibility for 12 days of delay from August 5, 2015 to August 17, 2015 (the first continuation date offered) but submits the remaining delay -- to either December 7, 2015 (if its argument concerning co-accused delay is accepted) or January 11, 2016 -- should be deducted from the Jordan ceiling as the result of a discrete event, namely, a joint good faith estimate of trial time.
[59] Similarly, while the Crown acknowledges responsibility for one month of delay for the period January 14 to June 20, 2016 due to its unavailability in the month of February, it submits the trial judge erred in attributing slightly more than an additional month of delay to the to it based on the misestimate.
[60] Finally, the Crown submits that the trial judge erred by allocating responsibility to it for any further delays in the trial caused by misestimation, when any such misestimates were the product of good faith errors by all counsel and the court so as to amount to discrete events.
[61] As for the impact of discrete events, the Crown submits that the trial judge erred in failing to attribute the delay from June 24, 2016 to September 8, 2016 (two months and 14 days) caused by Pauls' illness to the Yusuf respondents as a discrete event. This was an unanticipated event the Crown could not be expected to mitigate.
[62] In addition, the trial judge failed to recognize that absent the discrete events he did acknowledge, the trial would have finished by the end of September 2016. In this regard, the Crown relies on the 1.5 days of discrete events identified by the trial judge during the first continuation (January 11, 12 and 14, 2016) and the additional 1.5 days of discrete events identified by the trial judge during the second continuation (June 20 and 24, 2016). Had the trial continued during those three days, the trial judge undoubtedly would not have given precedence to the other case on September 9, 2016. The trial time consumed in February and April 2017 was at most three days. Absent the discrete events, the trial would have finished by the end of September. Any period between September 2016 and April 2017 not attributed to co-accused delay should be subtracted from the Jordan ceiling as discrete event delay.
(c) Respondents' position
[63] The respondents say the trial judge made no error in laying responsibility for the misestimate of trial time solely at the feet of the Crown. It was the Crown who described this matter as a press and play case and estimated it could be completed within two days. As the trial judge found, the defence reasonably relied on the Crown's description of how it intended to prosecute the case. It was the Crown's job to consider how it intended to proceed before attending the pre-trial -- or at least well in advance of trial -- so that an appropriate amount of trial time could be set. It was also the Crown's job -- as part of the time-estimation process -- to determine in advance whether any of its witnesses would require an interpreter.
[64] The Crown misestimated the trial time not only at the time of the pre-trial, but also when continuation dates were set. The Crown's misestimate in June 2016 was particularly egregious. Prior to the September 2016 dates being set, the Crown claimed it would complete its examination in-chief of the complainant before the court's morning break. In fact, the Crown did not complete that examination until approximately 3:00 p.m., making it impossible for the respondents to complete even their cross-examination of the complainant in September 2016.
[65] The respondents dispute the Crown's claim of a discrete event on June 20, 2014 and submit that, because of the interpretation problems previously experienced, the Crown should have arranged for the one satisfactory interpreter to continue to attend.
[66] In addition to the misestimation, the respondents assert the trial judge was correct to consider the Crown's tardiness in responding to the defence requests for an additional copy of the black video as a complicating factor that dramatically increased the trial time. Had the parties been able to put the first scheduled dates for trial to appropriate use, that would have reduced not only the overall delay, but also the time required for continuations.
[67] Finally, the respondents submit the trial judge was correct in giving minimal weight to the impact of individual discrete events. As the trial judge repeatedly recognized, while various discrete events occurred and caused specific delays in the trial, because of the initial misestimate, the case was not going to finish in any event on the scheduled continuation dates on which those events occurred.
(d) Discussion
[68] I agree with the Crown that the trial judge erred in laying responsibility for much of the delay following the original trial dates at the feet of the Crown, but I approach the nature of the trial judge's errors differently.
[69] Concerning the period from August 5, 2015 to December 7, 2015, I conclude that the trial judge erred in attributing responsibility to the Crown for the adjournment of the original trial dates (August 5 and 6, 2016) based on the Crown's tardiness in responding to the blank video disclosure requests. Although the Crown may have been able to respond to the requests more promptly, the difficulty with laying responsibility on the Crown is that the defence request was unnecessary and inappropriate from the outset.
[70] As set out in the chronology, the Crown's disclosure to the defence included a YRP technician's notes. The notes indicate that on September 2, 2014 the technician obtained a master password from the DVR manufacturer that enabled him to access the restaurant's DVR. The technician's notes outline the recording locations for cameras 11 to 13, but in relation to camera 15 state: "CAM 15 = BLACK". In his next notation, the technician observes "all other channels do not appear to be recording". The next notation states he began USB backup of cameras 10 to 13 and 15. Once backup was complete, he "verified [USB] files on PC" with the manufacturer's player and then "secured USB data to DVD".
[71] In the face of these notes, there was no basis for defence counsel to assert to the Crown that it appeared that "the CD" had not copied properly. Rather than asking for an additional copy of the recording, the defence should have immediately applied for, and requested the Crown's consent to, the production order it eventually requested at trial.
[72] I acknowledge that the Crown did not seek to relitigate on appeal the trial judge's ruling granting the adjournment of the original trial dates and conceded responsibility for the delay until August 17, 2015, the first available continuation date. However, the propriety of the adjournment is not the issue. The issue is characterizing the reason for the delay arising from the adjournment. As I see it, it is the defence that is responsible for the adjournment of the original trial dates. As I have said, rather than make unnecessary requests of the Crown, upon reviewing the disclosure the defence should have applied immediately for a production order if it wished to have the DVR tested. Particularly in an era of scarce resources, the defence should not be entitled to pass off responsibility for delay to the Crown by making unnecessary and inappropriate disclosure requests and then complaining that the Crown did not attend to them promptly. I would allocate responsibility for the five-month and seven-day delay between August 5, 2015 and January 11, 2016 to the respondents as defence delay and therefore deduct it from the overall delay of all respondents.
[73] The next period of delay is between January 14, 2016 and June 20, 2016 (five months and seven days). Taking account of the combined unavailability of all counsel, the trial judge attributed three months of delay to the defence and deducted it from the overall delay. The Crown argues that the trial judge attributed an extra one month and seven days of delay to it because of the misestimation and disclosure issues. Although the trial judge did refer to those matters, he concluded this section by saying:
However, given the state of the lawyers' schedules, including that of the Crown, I apportion as evenly as I am able an average of unavailable and available days and conclude that a period of three months be subtracted from the total timeframe, rather than the 5 months 5 days the Crown seeks.
[74] In so doing, in my view, the trial judge took a proper approach to apportionment of delay caused by the unavailability of counsel, including the Crown, and I would not interfere with this aspect of his assessment.
[75] I would add, however, that the trial judge ought to have given greater consideration to the impact of the interruptions of the trial that occurred on January 11, 12 and 14, 2016 to the overall delay due to discrete events (late witnesses, medical issues and interpreter problems).
[76] The trial judge concluded that up to one and a half days of trial time had been lost because of those events. What he did not consider was that, had those interruptions not occurred, and had the trial proceeded on the originally scheduled trial dates, five days of trial would have been completed by January 14, 2016.
[77] Without getting into the minutiae of the debate between the Crown and the defence concerning the precise computation of discrete events in January and June 2016, absent the initial adjournment and the subsequent discrete events, there can be no doubt the evidence would have finished by September 2016 at the latest (i.e., seven trial days were available to the end of June, nine to the end of September: August 5 and 6, 2015; January 11, 12 and 14, 2016; June 20 and 24, 2016; and September 8 and 9, 2016).
[78] How then to allocate the delay between September 2016 and April 2017? The reality is that the discrete events did occur. The further reality is that until the September 9, 2016 adjournment, the parties did not set sufficient future continuation dates to give themselves a chance to finish. The final reality is that even with the discrete events, without the initial defence delay, the evidence would have finished by the end of February 2017.
[79] Although I would allocate initial responsibility for the misestimate of the trial time solely to the Crown, in my view, all counsel and the court must accept responsibility for the misestimate once Dawood began to testify (January 2016). By that point, it was clear how the Crown was proceeding. When Dawood's examination-in-chief had not been completed as of the end of the January trial dates, all parties and the court should have taken a hard look at the original trial estimate and recognized that more than two days would be required to complete the trial. The same comment applies with even more force to the June 24, 2016 adjournment. Dawood's evidence in-chief was still not completed, moreover, the trial had been beset by problems.
[80] The Crown argues that all delay subsequent to June 24, 2016 should be treated as being the result of discrete events including joint good faith misestimation or co-accused delay. I do not accept that Jamal Yusuf's counsel suggested in June 2016 that a third continuation date should be set aside. No explanation has been provided concerning why that did not occur. In my view, the Crown must bear some responsibility for failing to ensure that additional continuation dates were set sooner than the September adjournment, when five continuation dates were set or targeted.
[81] In the end, I would allocate joint responsibility to all parties for the delay from September 9, 2016 to February 21, 2017. However, I would attribute sole responsibility to the respondents for the delay from February 24, 2017 to April 24, 2017. Absent the initial adjournment of the trial, even with all the other problems, the April 2017 continuation simply would not have been necessary.
(3) Delay allocation
[82] Based on the foregoing discussion, I would deduct the following periods of delay from the overall delay of the respondents:
-- June 17/18 to August 5, 2015 (first trial dates offered to first day of trial) -- one month and 18 days: defence delay for Pauls due to his counsel's unavailability; delay arising from a discrete event (co-accused delay) for the Yusuf respondents; -- August 6, 2015 to January 11, 2016 (second day of trial to first continuation date) -- five months and six days; defence delay, failed to make a timely request for a production order for the DVR (Pauls counsel also unavailable for next trial dates offered, August 17, 2015, December 7 and 8, 2015); -- January 11 to 14, 2016 -- 1.5 days due to discrete events, as found by the trial judge (interpreter and health related issues during second continuation dates); -- January 14 to June 20, 2016 -- three months allocated to defence delay by the trial judge, an allocation based on the combined unavailability of all counsel (total delay five months and five days); -- June 20, 2016 -- one half-day due to discrete events, including interpreter issues and the late arrival of Pauls' counsel; -- June 24 to September 8, 2016 -- two months and 14 days, defence delay for Pauls arising from his illness; delay arising from a discrete event for Yusuf respondents; -- September 8, 2016 -- one quarter of a day, discrete events arising from late arrival of counsel and a witness; -- September 9, 2016 to February 21 and 22, 2017 -- two months and 21 days, for the Yusuf respondents (failure of trial to finish because of discrete events and defence delay including: joint misestimation of time; interpreter issues; co-accused's illness; and failure to make timely application for a production order -- 50-50 allocation of the total five months and 12 days of delay); four months and six days for Pauls (three months of defence delay due to unavailability of Pauls' counsel plus 50-50 allocation of the remaining delay (two months and 12 days)); -- February 22, to April 24, 2017 -- two months and two days (failure of the trial to finish because of defence delay); -- April 24, 25, and 26, 2017 -- two and one quarter days (discrete event arising from unavailability of defence witness).
[83] On my calculations, the Jordan framework deductions for the Yusuf respondents total 17 months and 5.5 days yielding net delay of 17 months and 29.5 days while the deductions for Pauls are 18 months and 20.5 days yielding 16 months and 4.5 days of net delay. As the net delay for all respondents is below the Jordan ceiling and as I have found defence delay, I conclude a stay is not warranted.
[84] Given these conclusions, it is unnecessary that I address the Crown's arguments concerning reserve time and the Morin analysis.
F. Analysis of the Yusuf Respondents' Arguments Concerning the Findings of Guilt
[85] In addition to arguing that the stay imposed by the trial judge should be upheld, the Yusuf respondents raised several arguments challenging the propriety of the findings of guilt made against them. In particular, they argue that Pauls was the person who injured Dawood and that the force they used was minimal, aimed at protecting Dawood from Pauls or taking reasonable steps, in self-defence or with consent, to restrain Dawood. They say that the trial judge misapprehended the evidence and made legal errors that tainted his analysis of the offences. I will address their arguments in turn.
(1) Alleged misapprehensions of the evidence
[86] The Yusuf respondents submit that the trial judge misapprehended the evidence in two ways.
[87] First, they argue that the trial judge erroneously rejected Jamal Yusuf's evidence that the photographs of Dawood's injuries were enlarged and relied improperly on this finding in assessing Jamal Yusuf's credibility.
[88] Second, they say that, in assessing Jamal Yusuf's credibility, the trial judge improperly relied on a police officer's evidence concerning a statement allegedly made by Jamal Yusuf when the statement had no probative value.
[89] I would not accept these submissions. The trial judge rejected Jamal Yusuf's evidence concerning the size of Dawood's injuries based on his examination of the photographs of the injuries. Even if the trial judge made some error in this finding, he did not link this finding to his overall assessment of Jamal Yusuf's credibility, nor was his finding as to the size of the injuries, material in any other way to his analysis of the offences.
[90] Further, the police officer testified that Jamal Yusuf made a statement to the effect that he believed Dawood was involved in break and enters at the restaurant. During cross-examination, Jamal Yusuf said, "[i]f I told him that I would be lying". The Yusuf respondents contend the statement was inadmissible because the officer did not have accurate notes of it. However, the Yusuf appellants conceded voluntariness of the statement at trial. The absence of a verbatim record of a statement does not necessarily render it inadmissible: R. v. Backhouse, 2005 ONCA 4937, at paras. 117-119; see, also, R. v. Narwal, 2009 BCCA 410, at para. 39. In any event, the trial judge referred to this statement only when reciting the evidence. As I read his reasons, the statement played no role in his subsequent assessment of Jamal Yusuf's credibility or analysis of the offences. Even assuming the trial judge erred in admitting the statement, any such error was not material.
(2) Mens rea for unlawful confinement
[91] The Yusuf respondents argue that the trial judge erred in failing to specifically address the mens rea requirement for unlawful confinement. They point out that the trial judge rejected Dawood's claim that Jamal Yusuf confined Dawood to extract a confession from him for stealing money. Absent this motivation, they say the trial judge erred in failing to address whether the Yusuf respondents' actions which the trial judge relied on as constituting the actus reus of the offence were carried out with a lawful purpose or intention.
[92] I would not accept these submissions. The Yusuf respondents concede that unlawful confinement is a general intent offence. Although the trial judge rejected Dawood's evidence about Jamal Yusuf attempting to extract a confession from him, the trial judge was satisfied that some form of dispute existed between Jamal Yusuf and Dawood. He also found that the actions of the respondents in regularly pushing Dawood back onto the chair when he attempted to get up and leave prevented Dawood from leaving. For reasons that I will explain, I do not accept the Yusuf respondents' other arguments that could lead to any doubt about the lawfulness of these actions. Read fairly, the trial judge's reasons reflect a conclusion that the Yusuf respondents' actions, which had the effect of confining Dawood against his will, were intentional and could not be justified by any defence.
(3) Dawood's injury suffered outside the restaurant and alleged W. (D.) 12 errors
[93] It was undisputed at trial that Dawood suffered a head injury (one of the two cuts to his head) during an initial incident outside the restaurant that was not captured on video. What happened during the incident was very much in dispute at trial.
[94] The Yusuf respondents submit that the trial judge erred in finding that Jamal Yusuf inflicted Dawood's initial head injury, and further erred in finding Jamal Yusuf guilty as a principal and Jamis Yusuf as a party to assault causing bodily harm based on that finding. In addition, they assert that, in making the finding that Jamal Yusuf caused this specific injury, the trial judge ignored reliability issues concerning Dawood's evidence and wrongly treated Dawood's evidence and Jamal Yusuf's evidence concerning what happened outside the restaurant as a credibility contest.
[95] I would not accept these submissions. As a starting point, I reject the Yusuf respondents' argument that the trial judge found, at para. 97 of his reasons, that Jamal Yusuf inflicted the injury that occurred outside the restaurant and relied on this finding as a basis for the assault causing bodily harm findings of guilt as against the Yusuf respondents.
[96] I acknowledge that, at para. 97 of his reasons, the trial judge accepted Dawood's evidence that Jamal Yusuf struck Dawood in the face outside the restaurant. However, the trial judge went on to say: "[Dawood] was not able to tell the court if he suffered any injury because he lost consciousness." The trial judge had earlier made a similar observation at para. 20 of his reasons.
[97] Reading the trial judge's reasons as a whole, I conclude the trial judge was unable to determine the mechanism of the head injury that occurred outside the restaurant. He made no specific finding in that regard. Further, I see nothing in the trial judge's reasons to support a conclusion that he relied on Dawood's injury suffered outside the restaurant to support the findings of guilt for assault causing bodily harm. For example, at para. 114 of his reasons, the trial judge said, "I do not have to find that Jamis did anything to Mr. Dawood while outside the restaurant". Nowhere did the trial judge make a finding that the injuries outside the restaurant supported the findings of guilt for assault causing bodily harm. In any event, on my review of the reasons, the reliability of Dawood's evidence was front and centre in the trial judge's mind. At para. 98 of his reasons, the trial judge stated explicitly that "[i]n assessing Mr. Dawood's credibility, the issue of his reliability must be factored in any such assessment". I see no indication of the trial judge treating the credibility issue as a contest. Further, for reasons that I will explain more fully below, I reject the Yusuf respondents' position that the trial judge made any other W. (D.) error.
(4) Dawood's injuries suffered inside the restaurant and liability of the Yusuf respondents
[98] The Yusuf respondents submit that the trial judge found that Pauls caused the injuries to Dawood's head and nose suffered inside the restaurant. Further, they say that the trial judge's findings that they kicked, slapped, punched and pushed Dawood could not support findings of guilt for assault causing bodily harm unless they intended to aid or abet Pauls in committing the specific acts that caused Dawood's injuries (hitting him over the head with a chair and striking him in the face) or shared an intention in common with Pauls to commit some offence.
[99] The Yusuf respondents point to the trial judge's finding, at para. 114 of his reasons, that Dawood's injuries could have been much worse but for their intervention. They say this finding demonstrates they lacked the intention to aid or abet Pauls' acts that caused injuries to Dawood. Further, they rely on the trial judge's rejection of Dawood's claim of a plan on Jamal Yusuf's part to extract a confession from Dawood to say the Crown failed to prove a common intention to commit an offence that would support the findings of guilt for assault causing bodily harm.
[100] I would not accept these submissions. At para. 114 of his reasons, the trial judge rejected the submission that the Yusuf respondents' overall actions were aimed at impeding Pauls from assaulting Dawood. His specific finding concerning the Yusuf respondents' intervention was that it occurred "from time to time". This happened, for example when Jamis Yusuf took a lit blow torch away from Pauls. However, the trial judge went on to find that such intervention did not "detract from the joint efforts of the three [respondents] in the assault on Mr. Dawood, which continued for a considerable period of time, with each of the [respondents] participating at various times". The trial judge also found Dawood's injury suffered outside the restaurant was "exacerbated by the assaults he endured inside the restaurant".
[101] In Ontario, the intent required for assault causing bodily harm is the intent to commit a simple assault where it is objectively foreseeable that the assault would subject the victim to the risk of bodily harm: R. v. Palombi, 2007 ONCA 486, at paras. 38-39; R. v. Nurse, 1993 ONCA 14691. Liability as an aider or abettor arises where an act or omission assists in the commission of an offence and the act or omission was committed for the purpose of assisting the perpetrator in the commission of the offence: R. v. Vu, 2012 SCC 40, at para. 58. Concerning the included offence of assault causing bodily harm, the trial judge accepted a submission that a finding of unlawful confinement would lead to party liability. He also concluded that the respondents were each "parties and acted with each other and actually committed offences against Mr. Dawood".
[102] On the trial judge's findings, all of the respondents assisted each other in committing the offence of assault causing bodily harm. Each persisted, in the presence of each other, in assaulting the already injured Dawood, including by administering punches and kicks, over a significant period of time. Bodily harm ensued. The trial judge found that the Yusuf respondents were also guilty of unlawful confinement in that they intentionally prevented Dawood from leaving. Further, he found the respondents "acted with each other". Although his reasons might have been clearer, nothing more was required.
(5) Failure to apply the second and third prongs of W. (D.)
[103] Although the trial judge referred to W. (D.) twice in his reasons, he did not recite it. The Yusuf respondents point to this omission and the trial judge's conclusion, at para. 101 of his reasons, that, in the face of the conflicting evidence from Dawood and Jamal Yusuf, "It would be dangerous . . . to find with any certainty that [threats] were uttered by Mr. Dawood, even though a probability exists", to argue that the trial judge erred by failing to apply the second prong of W. (D.). They rely as well on the trial judge's observation that Jamal Yusuf "had a self-interest in testifying" that Dawood made threats and the failure of the trial judge to refer to reasonable doubt when he rejected, at para. 117 of his reasons, Jamal Yusuf's explanation for slapping Dawood to support this argument. They also say that nowhere in his reasons did the trial judge apply the third prong of W. (D.).
[104] I would not accept these submissions. As I have said, the trial judge referred to W. (D.) twice in his reasons. He is presumed to know the law; he was not required to recite it. Moreover, near the conclusion of his reasons, the trial judge quoted Cory J.'s explanation of reasonable doubt in R. v. Lifchus, 1997 SCC 319. I have no doubt that the trial judge was mindful of the principles he recited.
[105] Further, I reject the suggestion that the trial judge failed to apply W. (D.). Based largely on the video, the trial judge accepted Dawood's evidence that he was "intoxicated to a significant degree" during the events. The trial judge did not reject the respondents' position that Dawood threatened, insulted, gestured at, and even moved towards the respondents. However, even proceeding on the assumption that Dawood did those things, given Dawood's condition, he was satisfied that Dawood "posed no threat to the safety or well-being" of any of the respondents. He rejected much of the defence and the Yusuf respondents' overall position for that reason. Although he rejected some of both Mr. Sliwa's and Dawood's evidence and expressed concerns over Dawood's reliability, with the benefit of the video, he was satisfied of the respondents' guilt beyond a reasonable doubt. I see no W. (D.) error having regard to the totality of the reasons.
(6) Self-defence, consent and unreasonable verdict
[106] As noted by the Crown, the Yusuf respondents challenge every aspect of the trial judge's self-defence analysis. They also contend that Dawood was a willing participant in the events that unfolded in the restaurant and that the guilty verdicts were unreasonable. I would not accept these submissions.
[107] I acknowledge that, at one point in his reasons, the trial judge misstated the burden of proof in relation to self-defence. Nonetheless, reading his reasons as a whole, I am satisfied he found no air of reality to the claim of self-defence. The trial judge rejected the Yusuf respondents' position that their actions were aimed at protecting Dawood from Pauls and instead concluded that the three respondents acted together in a prolonged assault on Dawood. He also found untenable the respondents' claim that Dawood, in his condition as depicted on the video, posed any realistic threat to any of the respondents. As such the trial judge was satisfied self-defence had no air of reality. I see no error in this conclusion.
[108] Further, in the face of Dawood's condition as found by the trial judge and the repeated and prolonged assaults against him as found by the trial judge, together with his findings concerning Dawood's injuries, there was no basis for a defence of consent, nor can the guilty verdicts be found unreasonable.
G. Disposition
[109] Based on the foregoing reasons, I would allow the Crown's appeal, set aside the stay imposed by the trial judge for all respondents and remit the matter to the Ontario Court of Justice for sentencing.
Appeal allowed.
Notes
1 The Crown withdrew the unlawful confinement charge against Pauls.
4 The chronology was prepared using the trial judge's reasons on the s. 11(b) application and attached appendices (Crown and defence chronology charts), the transcripts of various appearances, certain trial coordinator sheets filed at the s. 11(b) hearing as contained in the Yusuf respondents' appeal book and the copies of the informations in the appeal record. Inexplicably, neither the original appeal record nor the Yusuf respondents' appeal book contained the s. 11(b) application record or all other documents placed before the trial judge during the application hearing. Following the appeal hearing, we directed the Crown to file the application record and the additional documents filed.
5 No such letter has been filed with this court. However, it is referred to in the trial judge's reasons on the s. 11(b) application. In addition, Jamal Yusuf's counsel referred to the Crown's letter saying the video was not recoverable in her submissions on August 5, 2015. However, it does not appear from the transcript that she had a copy of the letter in hand when she made that submission.
6 Very few times are noted on the transcript from September 8, 2016. However, the length of the transcript compared to other transcripts supports the conclusion that less than a full day of evidence was heard.
7 No times are indicated on the transcript, but cross-examination consumed about one page of transcript and re-examination about six pages.
8 It is not clear from the record what trial date(s) may have been offered and rejected by Pauls' counsel. However, Pauls does not dispute the three-month deduction from his overall delay as a result of the unavailability of his counsel during the adjournment from September 9, 2016 to February 21, 2017.
9 It is not clear from the record what if any dates were offered and rejected by Pauls' counsel. Pauls disputes this one-month deduction from his overall delay.
10 The Crown also maintained the position it took on the s. 11(b) application that the first continuation dates offered were August 17, 18 and 19, 2015 and that the trial could have continued on those dates but for Pauls' counsel's unavailability. The respondents assert that August 17, 2015 was the only date offered and, in any event, rely on the trial judge's finding that counsel are not expected to be in a continuous state of availability for the purpose of s. 11(b) calculations. I consider it unnecessary to resolve the dispute over what dates were offered for the purposes of disposing of the appeal. As I will also explain below, in relation to this argument, the Crown conceded it was responsible for the delay from August 6, 2015 to August 17, 18 and 19, 2015.
11 Filing the joint information and rearraigning the respondents was the first order of business on August 6, 2015, the second day of trial. However, it was apparent to all before the day started that the matter would be adjourned and counsel had already attended the trial coordinator's office to obtain the January 2016 adjournment dates.
