Court File and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20210401 DOCKET: C66305

Feldman, Gillese and Miller JJ.A.

BETWEEN

Her Majesty the Queen Appellant

and

Adeel Safdar, Shaheen Safdar and Aatif Safdar Respondents

Counsel: Tracy Kozlowski, for the appellant Nader Hasan and Caitlin Milne, for the respondent Shaheen Safdar No one appearing for the respondents Adeel Safdar and Aatif Safdar [1]

Heard: October 5, 2020 by video conference

On appeal from the order of Justice Andrew J. Goodman of the Superior Court of Justice, dated December 3, 2018, staying the charges against the respondents, with reasons reported at 2018 ONSC 7067.

Feldman J.A.:

[1] The respondents are two brothers and their mother who were tried for a number of serious offences involving the alleged abuse of the wife of one of the brothers. At the end of the evidence and argument on the merits of the allegations, the respondents brought an application under s. 11(b) of the Canadian Charter of Rights and Freedoms, for a stay based on unreasonable delay. While the trial judge was preparing his decision on the trial, he heard the s. 11(b) application, reserved his decision, then released that decision, granting the stay. In his reasons, he advised that he had also completed his reserved decision on the trial proper, which he did not release, but placed under seal pending the outcome of any appeal of the stay order.

[2] The Crown appeals from the stay order, arguing that following the release of the Supreme Court of Canada’s decision in R. v. K.G.K., 2020 SCC 7, the trial judge erred in including the period from the end of evidence and argument until the release of the stay decision in his calculation of the overall delay. The Crown also takes issue with the trial judge’s characterization of various periods of delay and submits that even if the net delay falls over the presumptive ceiling, the delay can be justified on the basis of complexity or the transitional exceptional circumstance established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

[3] The respondents accept that the trial judge erred to a limited extent as a result of K.G.K. but submit that the net delay still exceeds the ceiling. The respondents also take issue with the trial judge’s characterization of certain periods of delay and argue that even if the net delay falls below the presumptive ceiling, it is nevertheless unreasonable.

[4] For the following reasons, I would allow the Crown’s appeal of the stay order based on the K.G.K. error, set the stay order aside, and refer the matter back to the trial judge to release his decision on the trial.

A. Background

[5] The respondents were arrested and charged on April 16, 2015. The stay was issued on December 3, 2018, a total of 43.5 months later. I attach as Appendix A to these reasons, a detailed chronology of the interim events. I will highlight in the reasons the events on which any of the delay issues turn. Because the Jordan decision from the Supreme Court of Canada was delivered in July 2016, the parties agreed before the trial judge that the 30-month ceiling imposed by that case applied, and that this was not a transitional case.

B. Decision of the Trial Judge on the s. 11(b) Application

[6] The respondents argued the s. 11(b) application after the evidence and submissions on the trial were complete and the trial judge had taken the decision under reserve on August 7, 2018. The argument took place on October 9 and 25, 2018. On December 3, 2018, the trial judge allowed the application and stayed the proceedings, holding that the respondents’ right to be tried within a reasonable time had been infringed.

[7] The trial judge determined the total delay by looking at the period from April 16, 2015 (the date the charges were laid) to December 3, 2018 (the date after the trial was completed, on which he delivered his reasons on the s. 11(b) application and issued the stay of proceedings). The total delay in this period was 43.5 months.

[8] The trial judge then considered defence delay, holding that the following five and a half months should be deducted from the total delay as defence delay:

• 4.3 months, from May 8, 2017 (first trial dates offered) to September 18, 2017 (trial dates accepted). The defence was not available for the first trial dates, and conceded some defence delay as a result.
• 1.2 months, from August 31 to October 9, 2018. The s. 11(b) application was originally scheduled for August 31, 2018, but because the defence did not serve their materials in accordance with the rules, the application had to be adjourned.

[9] The trial judge did not find any other defence delay. He rejected the Crown’s arguments that various periods reflected defence-caused delay.

[10] First, the trial judge found that the period from April 16, 2015 to September 25, 2015, when two of the defendants were attempting to retain counsel, was not delay caused by the defence. The trial judge found that this was legitimate defence preparation time, and in any event, because important Crown disclosure was not provided until September 2015, a judicial pretrial could not have taken place until after September 25, 2015.

[11] Second, the trial judge rejected the Crown’s argument that the period from June 20 to August 19, 2016, when additional dates were required for the preliminary inquiry, should count against the defence. The preliminary inquiry dates were set on November 25, 2015 for two weeks in June 2016, with the agreement that if more time was needed, it could be treated as a discovery without a judge. Committal was conceded at the end of the first day. Additional dates were set on June 24, 2016 for August 19, 22, 23, and 26, 2016, when the preliminary inquiry was completed, and the defendants were committed to stand trial. The trial judge found that when the dates were set in November 2015, the parties believed there was adequate time for the preliminary inquiry, and the additional dates were legitimately required by the defence to respond to the charges.

[12] Third, the trial judge rejected the Crown’s submission that the period from April 27 to August 31, 2018 (or alternatively, to October 9, 2018), required for the continuation of the trial, should be attributed to the defence because the defence was unavailable for continuation dates offered by the court in April 2018. The trial had been set for six weeks beginning September 18, 2017 but did not conclude as scheduled. Further dates were then set for January and March 2018. Due to the illness of Crown counsel in January, more dates had to be obtained. Defence counsel was not available for April dates that were offered by the court in February 2018. The dates accepted by all counsel were in June, July and August 2018 (although the Crown was unavailable for some of the June dates offered).

[13] The trial judge observed that the matter frequently required continuation dates, and that throughout the trial, “defence counsel had cleared their schedules for all of the new dates offered”, the “only exception” being the April dates, which were offered with little notice. One defence counsel declined these dates because of a previously scheduled matter involving serious charges in the Superior Court, while another had pre-arranged medical treatments. The trial judge found, relying on R. v. Godin, 2009 SCC 26, [2009] 1 S.C.R. 3, and the fact that the issue here involved continuation dates, that the defence had been sufficiently flexible and available and therefore this period was not defence delay.

[14] Finally, the trial judge declined to treat the entire period from the originally scheduled end of the trial in October 2017 to the day the s. 11(b) application commenced as defence delay. The Crown had argued that this period should be attributed to the defence because the defence had failed to meaningfully participate in establishing a trial time estimate, causing the trial to run longer than the Crown had anticipated. The trial judge held that the underestimate of the time required for trial was not defence delay, but rather an exceptional circumstance, and he went on to consider it as such.

[15] The trial judge attributed two periods of the delay to exceptional circumstances. The first exceptional circumstance he found arose from the underestimation of the time required for trial. The trial judge held that the burden of moving the trial along expeditiously had fallen mainly on the defence, noting that the Crown had called evidence that seemed unnecessary. However, he recognized that the Crown acted in good faith in estimating the time required for trial, and that the trial went longer than expected for many reasons. He attributed four months of the delay from October 31, 2017 to August 31, 2018 to this exceptional circumstance. Because some of the delay was attributable to a lack of institutional resources, he declined to deduct the whole period.

[16] The second exceptional circumstance arose from the illness of Crown counsel in January 2018. The trial judge attributed two months of delay to the Crown’s illness. This was intended to reflect a reasonable period of time between the unused trial dates in mid-January to the recommencement of the trial in March.

[17] To summarize, the trial judge found a total delay of 43.5 months. From this, he deducted 5.5 months of defence delay and 6 months of delay caused by exceptional circumstances, leaving a net delay of 32 months.

[18] As a result, the net delay – 32 months – was over the Jordan ceiling. The trial judge rejected the Crown’s argument that the delay was justified based on the complexity of the case. The trial judge held that a case had to be particularly complex to qualify, and that the exception was a narrow one. He compared this case to a number of other cases that had been found to be exceptionally complex, and determined that by comparison, this was only a moderately complex case. [2] He also held that the Crown’s plan to minimize delay arising from the complexity of the case was insufficient as the trial progressed. It was mainly due to the efforts of the defence that the complexity of the matter had been reduced.

C. Issues on the Appeal

[19] While this is a Crown appeal from the stay order, both sides raise issues with respect to the correctness of the trial judge’s characterization of a number of the delay periods. As a result, there are five issues on the appeal:

1. In light of the Supreme Court of Canada decision in K.G.K., released after the stay decision of the trial judge, did the judge err in law by counting the time between the completion of the evidence and argument and the reservation of his decision on the trial, August 7, 2018, and the date the stay decision was delivered, December 3, 2018 as part of the 30-month Jordan ceiling?;
2. Did the trial judge err in law in his characterization of any of the periods of delay?;
3. Did the trial judge err by failing to find that any delay above the 30-month ceiling should be attributable to the complexity of the case?;
4. Alternatively, can any delay above the 30-month ceiling be justified on the basis that this case should have been treated as a transitional case?; and
5. If the total delay now falls below the presumptive Jordan ceiling, have the respondents met the onus of showing that the delay was nevertheless unreasonable?

D. Analysis

[20] As I will explain, I would allow the Crown’s appeal on the first ground, namely, that the trial judge erred in law by including in the 30-month ceiling part of the period from the end of evidence and argument on the trial and the decision on the stay application. In my view, the trial judge did not err in his characterization of the remaining periods of delay. The parties largely challenge the trial judge’s factual findings, which are entitled to considerable deference on appeal. After the delay calculation is corrected to reflect the trial judge’s error in light of K.G.K., the net delay falls below the 30-month ceiling. Accordingly, it is unnecessary to consider the Crown’s arguments in respect of complexity and the transitional exceptional circumstance. Finally, in my view, the respondents have not met their onus of showing that this is one of those clear cases in which a stay is required for delay falling below the ceiling.

(1) Did the trial judge err in law in light of the Supreme Court’s decision in K.G.K.?

[21] Following the trial judge’s release of the stay decision, in March 2020, the Supreme Court released its decision in K.G.K. That case addressed three issues: (1) does s. 11(b) apply to verdict deliberation time; (2) if so, is verdict deliberation time included within the Jordan presumptive ceilings; (3) if not, how should verdict deliberation time be assessed in the s. 11(b) context. Moldaver J., writing for the majority, held that while verdict deliberation time is subject to s. 11(b) scrutiny, the Jordan presumptive ceilings extend only to the end of evidence and argument and do not include verdict deliberation time. The accused’s right to be tried within a reasonable time will have been infringed by verdict deliberation delay where the accused proves that the verdict deliberation time was markedly longer than it reasonably should have been in all the circumstances: K.G.K., at para. 54.

[22] Because the trial judge did not have the benefit of the K.G.K. decision, he counted much of the time following the close of the evidence and the submissions of counsel on the merits of the charges, including the argument of the s. 11(b) application and the deliberation time for both the delivery of the decision on the application and the preparation of the reasons for decision on the trial proper, under the Jordan framework. Relying on R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 79, he stated that the relevant period runs to the actual or anticipated date of the verdict. That was an error in law.

[23] The parties do not agree, however, on the effect of the error on the trial judge’s calculation. In short, they disagree on when the Jordan clock should stop, pursuant to K.G.K. The Crown says that the Jordan clock stops on the final day of submissions on the trial, while the respondents argue that the clock stops on the final day of submissions on the s. 11(b) application.

[24] The affected time period is August 7, 2018 (the last day of argument on the merits of the charges) to December 3, 2018 (the date the charges were stayed). The trial judge already deducted the period from August 31, a date offered for argument of the s. 11(b) application, to October 9 (1.2 months) because this delay was waived by the defence. As a result, the Crown submits that, prima facie, the periods from August 7 to August 31, and from October 9 to December 3, totalling 11 weeks or 2.75 months, should also be deducted from the trial judge’s total of 32 months, reducing the total to 29.25 months and bringing it below the Jordan ceiling.

[25] The respondents’ position is that the time required for legitimate Charter applications such as s. 11(b) applications should count towards the Jordan presumptive ceiling. Accordingly, only the five weeks that constitute verdict deliberation time from October 25 (the last day of argument on the s. 11(b) application) to December 3 (the date of the decision) should be deducted. That would result in a total delay that is still over the Jordan ceiling, based on retaining the trial judge’s delay allocations of thirty months and three weeks.

[26] The respondents argue that Moldaver J. only intended to exclude from the Jordan presumptive ceilings post-trial motions brought following the verdict. They say that a legitimate s. 11(b) application that is brought before the verdict, whether before or after the evidence and closing arguments at trial, should count in the delay calculus.

[27] I would reject this argument and interpretation of K.G.K. In my view, Moldaver J.’s reasons clearly indicate that he intended to draw a hard line at the end of the evidence and argument on the trial for the purpose of the Jordan ceiling calculus, and that anything that followed is not to be included.

[28] Moldaver J. explained that while s. 11(b) applies to the entire time that an accused person is subject to the charge, including sentencing, the Jordan ceiling was established to address the “culture of complacency” that had come to pervade all actors in the criminal justice system in bringing an accused to trial. Hence the focus on the time period up to the end of trial.

[29] Thus, in para. 31, he stated:

Properly construed, the Jordan ceilings apply from the date of the charge until the actual or anticipated end of the evidence and argument. That is when the parties’ involvement in the merits of the trial is complete, and the case is turned over to the trier of fact. As I will explain, this date permits the straightforward application of the Jordan framework in a manner consistent with its design and goals.

[30] And in para. 33, he explained what the phrase “end of trial” was intended to mean in Jordan:

While Jordan states that the presumptive ceilings apply “from the charge to the actual or anticipated end of trial”, the Court did not explicitly define the phrase “end of trial”. It has been suggested that this phrase permits of four possible interpretations: (1) the end of the evidence and argument; (2) the date the verdict is delivered, excluding post-trial motions; (3) the conclusion of post-trial motions; or (4) the date of sentencing (see A.F., at para. 131). On close analysis, it is the first interpretation that accurately reflects the reasoning underlying Jordan and the mischief it sought to address. To be precise, the Jordan ceilings apply from the charge to the end of the evidence and argument, and no further.

[31] The respondents submit that the references to post-trial motions in interpretations two and three are to post-verdict motions. Therefore, motions brought after the evidence and argument are complete but before the verdict were intended to be included in the first interpretation. I do not agree.

[32] The simple fact is that any motion or application that is brought and heard following the close of evidence and argument is within the time period of verdict deliberation. Exactly as occurred in this case, once the evidence and argument are complete, the trial judge reserves the decision and the period of verdict deliberation time begins. Here, the trial judge completed his reasons for decision over the same period that he heard and decided the s. 11(b) application.

[33] I do not see any anomaly, as suggested by the respondents, in counting the time for a s. 11(b) application within the ceiling if the application is brought before the end of argument, but not within it if the application is brought after the end of argument. To the contrary, the respondents’ position, if accepted, would encourage defendants to delay s. 11(b) applications until after the trial is complete, as a way of extending the time to completion – the opposite of the purpose of the Jordan decision. Instead, it is incumbent on the Crown and defence to schedule sufficient trial time, including for all motions and applications that are not explicitly intended to be heard only post-verdict.

[34] This conclusion is supported by Moldaver J.’s reason for selecting the “anticipated last day of evidence and argument”, discussed at para. 45 of K.G.K., where he stated that the goal was to provide “a workable and predictable date to use in calculating delay on pre-trial applications”. He anticipated that extending the Jordan ceiling beyond the date on which evidence and argument conclude would “lead to practical issues for post-trial s. 11(b) applications”, writing that these “applications would be particularly problematic for the Crown in cases where the ceiling was breached after evidence and argument concluded and the judge had taken the case under reserve”: K.G.K., at para. 46. It follows from his concern about post-trial s. 11(b) applications that the last day of evidence and argument means the last day of evidence and argument on the merits of the charges, and not the last day of argument on the s. 11(b) application.

[35] I therefore conclude, using the trial judge’s delay calculations corrected to reflect the K.G.K. decision, that the total delay is 29.25 months, which is within the Jordan presumptive ceiling for reasonable delay.

(2) Did the trial judge err in law in his characterization of any of the periods delay?

[36] The Crown also asks the court to revisit some of the delay periods and to reallocate the amount of time attributed by the trial judge to each period. The respondents reject each of the Crown’s submissions but assert that in respect of three of the periods, all of the 4.3 months for rejecting the first offered trial dates, the four months deducted for the delay from the end of the six weeks scheduled for the trial in the fall of 2017 and the end of the trial in August 2018, and the two months deducted for Crown counsel’s illness in January 2018, the amounts deducted should be reduced.

[37] I intend to deal with each of these arguments relatively briefly. The standard of review on appeals from s. 11(b) applications is well established and was recently restated by this court in R. v. Pauls, 2020 ONCA 220, 454 C.R.R. (2d) 138, at para. 40, aff’d 2021 SCC 2:

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, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325; R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. 190, at para. 27; R. v. Bulhosen, 2019 ONCA 600; 377 C.C.C. (3d) 309, at para. 73.

[38] In this case, unlike many, the late timing of the application, after the end of the trial and before the verdict, meant that the trial judge heard the entire trial evidence and observed the tactics and procedures employed by all counsel. He was not just working from a record of transcripts of hearing dates. He was uniquely positioned to assess what evidence was necessary, and what was redundant, and how much time should have been taken for various steps in the proceeding. Further, because there are no reasons for decision available to this court, we are not in a position to evaluate those assessments. All to say that in the unique circumstances of this case, particular deference is owed to the findings of the trial judge based on his observations of the conduct of the trial.

(a) July 24, 2015 to September 25, 2015 – Crown objection: defence delay in retaining counsel

[39] The Crown argues that the trial judge should have designated this period as defence delay instead of finding that the parties could not have had a meaningful pre-trial in this period because key disclosure was not provided until September 2015. The Crown says that this period of delay was caused by the respondents as some of them had not yet retained counsel.

[40] I would reject this submission. The trial judge considered the Crown’s argument about delay in retaining counsel and made a factual finding that even if all the defendants had retained counsel, they could not have held a meaningful pre-trial in any event because of important outstanding disclosure. The outstanding disclosure included the respondents’ statements to police and will-says from Crown witnesses who later testified at trial. There was no palpable and overriding error in this finding.

(b) June 20, 2016 to August 27, 2016 – Crown objection: preliminary hearing delay

[41] The Crown submits that the trial judge erred by not attributing the two months of delay caused by the need for further preliminary hearing time to the defence or to treat it as an exceptional circumstance.

[42] The trial judge made no error in his factual findings. The parties agreed to the procedure of setting a two-week initial hearing with the understanding that if more time became necessary, they would treat it like a discovery because committal was not going to be in issue. They also agreed to set dates for discovery, if necessary, towards the end of the preliminary hearing, because the need for further dates would depend on, among other things, how the complainant’s evidence emerged.

[43] The trial judge made no factual or legal error by finding that this period was not defence delay. Further, because the possible need for extra preliminary hearing time was contemplated at the outset, it was not reasonably unavoidable or unforeseen on the part of the Crown, and therefore could not qualify as an exceptional circumstance: Jordan, at para. 69.

(c) May 8 to September 18, 2017 – Respondents objection: too much time attributed to defence waiver for rejection of first trial dates

[44] The respondents submit that the trial judge erred by attributing 4.3 months to defence waiver for this period. The defence rejected the May 2017 trial dates offered in favour of September 18, 2017 trial dates. The respondents argue that only two months should have been attributed to defence waiver, because the court did not offer trial dates any earlier than September.

[45] I would reject this submission. I see no error in the trial judge’s factual finding that the defence was unavailable to proceed in May 2017, while the Crown and the court were available. It was open to the trial judge to conclude that this delay had been waived by the defence, or alternatively, was caused by the defence.

(d) October 31, 2017 to August 7, 2018 – Crown objection: defence underestimation of trial time and unavailability for continuation dates

[46] The Crown submits that following the six weeks set for the trial that ended on October 31, 2017, the entire nine months further time taken to complete the trial was caused by underestimation by the defence of the time needed for trial, or was a discrete exceptional circumstance that should have been deducted. The trial judge deducted six months for delay during this period, two months to account for the trial Crown’s illness in January 2018, and four months as a discrete exceptional circumstance, in addition to four months of systemic delay.

[47] The Crown argues first, that it was because the defence failed to meaningfully participate in estimating the trial time that further agreeable and available dates to continue the trial had to be found; and second, that defence counsel should be responsible for the delay caused by not accepting April 2018 dates that were offered to continue the trial, even though one counsel was booked for another serious matter, while another was scheduled to attend pre-arranged medical treatment.

[48] The first argument is another challenge to a factual finding by the trial judge, that the defence did meaningfully participate in estimating the needed trial time. This submission must be rejected – there was no palpable and overriding error.

[49] The second argument is based on the Crown’s submission that the passage in Godin, at para. 23, which states that for s. 11(b) purposes, defence counsel is not required “to hold themselves in a state of perpetual availability” does not apply under Jordan. The Crown’s position is that where a date is available for the Crown and the court but not the defence, that amounts to defence delay, citing Jordan, at para. 64, which states:

As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).

[50] In my view, based on the trial judge’s factual findings, he was entitled to conclude that this period of delay was not solely or directly caused by the defence. First, and importantly, the April dates were offered as continuation dates in the midst of the ongoing trial. The inadequacy of the trial estimate was therefore part of the cause of the delay. Second, these dates were offered on relatively short notice. Third, as the trial judge found, defence counsel had agreed to all other dates that were offered, including other dates offered with little notice. The April dates were the only exception. Finally, defence counsel had legitimate reason to decline these continuation dates. One counsel was booked on a serious Superior Court matter for a client who was in custody, while another was scheduled for medical treatment. The trial judge appropriately recognized that counsel could not, in good faith, “compromise one client’s interests for another”.

[51] The trial judge made no error by not treating defence counsel’s legitimate unavailability on the April dates as defence delay in all the circumstances.

(e) October 31, 2017 to August 7, 2018: Respondents objection – attributing too much time for Crown illness and failure to acknowledge Crown delay

[52] The respondents also take issue with the trial judge’s treatment of the same nine-month period. First, the respondents submit that the trial judge erred by deducting two months as another discrete exceptional circumstance for Crown counsel’s illness, rather than the one week of the actual illness. Second, they say he erred by deducting four months as a discrete exceptional circumstance for the inaccurate estimate of trial time, and in the alternative, if any amount was warranted, it should have been three weeks, the actual amount of extra trial time that was required beyond the initial six weeks scheduled.

[53] I reiterate here that this period was during the trial, when the trial judge was directly involved in all the scheduling decisions and the positions taken by counsel at every step. I also note that in addressing each period of delay, the trial judge gave detailed consideration to each of the points now raised again on appeal by both sides and considered the applicable law.

[54] I see no error in his factual findings or application of the law. On the issue of the need to find new trial dates because of Crown counsel’s illness, the trial judge rejected the submission that only the actual dates lost in January should be deducted. He stated, and I agree, that “the additional delay that was caused by that illness is a discrete event that includes institutional delay.” The next available time for the court to recommence was the already scheduled date of March 26, 2018. The trial judge made no error in attributing the two months lost due to the unforeseen illness as a reasonable period to attribute to that discrete event.

[55] Dealing with the inadequate trial estimate, both sides blamed the other for why the trial exceeded the estimates. The trial judge, intimately familiar with the evidence that he had heard, was able to respond to all the arguments about, for example, the timing of the disclosure of documents like hospital records, or the requirement and timing of calling certain medical witnesses, and what that showed about the attitudes of the Crown and defence to moving the case forward.

[56] He concluded that the defence was more effective at moving the trial along, but that the Crown had acted in good faith to estimate the trial time, and that there were many reasons why it went longer. As a result, after recognizing that part of the delay, especially after March 2018, was as a result of systemic limitations, he attributed four months of delay to exceptional circumstances “due to the unavoidable delay, despite the good faith efforts to estimate reasonable trial time or legitimate conduct to minimize delay.”

[57] The respondents dispute the trial judge’s factual findings regarding the roles of each side in prolonging or streamlining the trial, and submit that all the time beyond the three weeks of actual additional trial time should have been included in the trial judge’s calculation of net delay. I would not give effect to either of these submissions. The trial judge’s factual findings are to be accorded deference, and disclose no error. His allocation of only four months as an exceptional circumstance, recognizing that the remaining delay was caused by institutional limitations, given each side’s role in moving the matter forward, is a reasonable and fair allocation.

(3) Did the trial judge err in concluding that this was not a particularly complex case?

[58] Having found that the net delay exceeded the Jordan presumptive ceiling by two months, the trial judge went on to consider whether the particular complexity of the case was an exceptional circumstance that justified the delay. He concluded that the case did not meet the test for particular complexity.

[59] In Jordan, the majority defined “particularly complex cases” as follows, at para. 77:

Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

[60] And at para. 80, the majority explained the effect of a finding of complexity: “Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable and no stay will issue. No further analysis is required.”

[61] The Crown’s position on this appeal is that if this court finds errors by the trial judge in the delay attributions, but the net delay still exceeds the presumptive ceiling, then this court should reconsider the complexity assessment in light of the new findings. In that context, the Crown submits that the trial judge erred in law in his approach to the complexity analysis.

[62] As I have concluded that the only error by the trial judge was in finding that the end of the trial included the period following the end of the evidence and argument while the s. 11(b) application was heard and the verdict delivered, and that error caused the total delay to fall below the Jordan presumptive ceiling, there is no need to address this ground of appeal.

(4) Can delay in excess of the 30-month ceiling be justified on the basis that this was a transitional case?

[63] On appeal, the Crown argues that the trial Crown wrongly conceded that the transitional exceptional circumstance set out in Jordan does not apply to this case. The Crown submits that this court is not bound by that concession. I would decline to consider this issue because, for the same reasons as the complexity issue, it is unnecessary to do so.

(5) Although the delay falls below the presumptive ceiling, is it nevertheless unreasonable?

[64] When the delay falls below the Jordan presumptive ceiling, the onus is on the defence to establish that the delay is unreasonable because the case took markedly longer than it reasonably should have, and the defence took meaningful steps that demonstrated a sustained effort to expedite the proceedings: Jordan, at para. 82. The majority in Jordan stated, at para. 83, that: “We expect stays beneath the ceiling to be granted only in clear cases.”

[65] The respondents submit that this is one of those cases. As the trial judge did not address this issue in light of his conclusion that the net delay exceeded the presumptive ceiling, it falls to this court to do so.

[66] When considering the roles of the defence and the Crown in the context of examining the reasons for the inaccurate estimation of trial time and the steps taken afterward to address the situation, the trial judge found that the defence had taken more steps than the Crown to expedite matters. In Jordan, the majority described the obligation on the defence as follows, at para. 85:

… it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously.

[67] The trial judge was clearly in the best position to determine whether the level of cooperation by the defence met this high threshold. The defence certainly acted in the spirit of co-operation.

[68] In my view, however, this submission that the delay below the Jordan ceiling was nevertheless unreasonable, fails on the first requirement: that the trial took markedly longer than it reasonably should have. This was a difficult case of alleged very serious domestic abuse involving three defendants and a significant medical dispute that required “voluminous disclosure” of medical records. It was supposed to take six weeks to try, but took another three weeks in circumstances where the initial number of witnesses was significantly reduced. This cannot be considered a clear case of unreasonable delay.

E. Conclusion

[69] As the delay of 29.25 months falls below the presumptive ceiling of 30 months, and having concluded that the delay was not unreasonable, I would allow the appeal and set aside the stay.

[70] The respondents submit that this court should not return the matter to the Superior Court for the verdict, but rather, unseal the reasons of the trial judge, and retain the matter at this level to await the decisions of the parties respecting an appeal, depending on the outcome.

[71] I would not give effect to this submission. I would return the matter to the Superior Court for the verdict. The parties can then proceed with appeal decisions in the ordinary course.

Released: April 1, 2021 “K.F.” “K. Feldman J.A.” “I agree. E.E. Gillese J.A.” “I agree. B.W. Miller J.A.”

Appendix A: Chronology of Proceedings

DATE	EVENT
April 16, 2015	Respondents were arrested and charged.
May 8, 2015	First appearance in the Ontario Court of Justice. Initial disclosure was provided to defence counsel appearing for all three accused.
June 5, 2015	Counsel on behalf of all accused asked for an adjournment to review disclosure.
July 3, 2015	Counsel advised that he was prepared to set a judicial pre-trial (“JPT”) for his client Adeel Safdar, but an adjournment was required to find counsel for the other two co-accused. Owing to a potential conflict, he could not act for all three.
July 24, 2015	An adjournment was granted to allow Shaheen Safdar to retain counsel. Aatif Safdar intended to represent himself.
August 7, 2015	An adjournment was granted, again to allow Shaheen Safdar to retain counsel.
September 4, 2015	An adjournment was granted to allow both Shaheen and Aatif Safdar to retain counsel.
September 25, 2015	Counsel got on the record for Shaheen Safdar. Significant additional disclosure was provided. The parties agreed to schedule a date for an in-court JPT.
November 25, 2015	JPT held. Respondents all elected to be tried by judge and jury with a preliminary hearing. Parties agreed to set a two-week preliminary inquiry, and if more time was required for defence witnesses, those witnesses could be dealt with by way of discovery. Defence advised that any discovery dates could be set later, in June, when the preliminary inquiry took place.
May 17, 2016	Crown provided defence with further disclosure and a list of Crown witnesses for the preliminary hearing.
May 20, 2016	Defence provided Crown with Statement of Issues indicating committal was in issue (unless the complainant testified in accordance with her police statement) and list of 37 witnesses to be called at the preliminary inquiry. Crown expressed concern that scheduled dates would be inadequate.
June 6, 2016	Preliminary inquiry began with complainant’s evidence; committal conceded at the end of the day. Respondents re-elected to be tried in the Superior Court by judge alone.
June 14, 2016	Cross-examination of complainant. Assigned Crown’s father died. Replacement Crown requested an adjournment, which was opposed by defence counsel. Adjournment refused.
June 20, 2016	Cross-examination of complainant completed on the last date scheduled for the preliminary inquiry. Counsel put on the record they were concerned about delay.
June 24, 2016	Dates set for continuing preliminary hearing as a discovery without a judge.
August 19, 22, 23, 26, 2016	Defence examination of witnesses by way of discovery, without a judge. Accused committed to stand trial on August 26, 2016.
September 19, 2016	Indictment filed, including four new charges against Aatif Safdar.
September 23, 2016	First appearance in SCJ. Parties scheduled a JPT. Aatif requested a later date for the JPT to allow him time to obtain counsel.
November 15, 2016	JPT. The Crown provided a trial estimate of 4-6 weeks for trial, and 6-8.5 days for voir dires. Defence did not provide a trial estimate in advance of the JPT, but at the JPT estimated 4 weeks. Parties were offered three potential options for trial: May, September 5, or September 18, 2017. Defence counsel were not available for the first two options, so trial was scheduled to begin September 18, 2017.
November 28, 2016	Crown contacted trial coordinator seeking earlier trial dates.
April 21, May 2, May 10, and May 16, 2017	Hearing of applications to appoint counsel to cross-examine complainant on behalf of self-represented accused and to appoint amicus. Interpreter now required because Shaheen Safdar was self-represented.
September 18, 2017	Trial commenced. A handful of days were lost in the beginning of the trial because of the unavailability of various participants (September 21 and 22 – Crown) (October 20 and 27 – defence) (September 29 – court).
October 25, 2017	Crown closed its case. Trial continuation dates for January 2018 obtained.
January 8-9, 2018	Trial resumed for half days, owing to the illness of Crown counsel.
January 10, 2018	Trial continued.
January 11, 2018	Trial adjourned because of illness of the daughter of Adeel Safdar (who was under cross-examination).
January 15, 2018	Trial did not continue owing to illness of Crown counsel. Additional dates in March, June, July, and August were secured. Defence noted concern about delay.
February 2018	The trial coordinator advised that the week of April 3, 2018 was available. Counsel for Shaheen Safdar was not available. Shortly after offering this week, the trial coordinator confirmed that it was not available.
March 5, 2018	The trial coordinator offered the weeks of April 16 and 23, 2018. The Crown was available but the defence was not. The week of June 11 was also offered, but the Crown was not available.
March 26, 2018	Trial resumed.
June 28, 2018	Defence concluded its case. Crown brought a successful Browne v. Dunn application. Although the trial judge held the Crown was entitled to re-call the complainant, the Crown declined to call her.
August 7, 2018	End of closing submissions on the trial.
October 9 and 25, 2018	Argument on s. 11(b) application.
December 3, 2018	Decision on s. 11(b) application staying the charges.

[1] Counsel for the respondent Shaheen Safdar advised the court during oral argument that the other respondents wished to adopt the submissions made on behalf of Shaheen Safdar.

[2] The court made this finding despite the fact that he advised counsel that the reasons for judgment that he had prepared and placed under seal are over 150 pages long.