Court File and Parties

Court File No.: 12/2380 Dated: May 22, 2014 Ontario Court of Justice

Between: Her Majesty the Queen — and — Zainab Shakeer

Before: Justice Sharman Bondy

Delivered Orally: April 24, 2014

Counsel:

• Roger Dietrich, for the Crown
• Suneal Khemraj, Community Legal Aid, for the Accused

Bondy J.

RULING ON APPLICATION

1: THE PROCEEDING

[1] This is an application by the accused, Zainab Shakeer, seeking a stay of proceedings due to an allegation of unreasonable delay in reaching a trial, pursuant to the protection afforded to her under s. 11(b) of the Canadian Charter of Rights and Freedoms.

[2] The Crown takes no issue with the defendant's statement of the case and their summary of facts.

[3] As for the initial complaint by the Crown that the defence filed an incomplete record in this application, let it be noted that these issues have been resolved by the defence with the filing of required transcripts, further certificates confirming date setting and the recent affidavit evidence of the defendant sworn April 8, 2014 relating to the issue of her claim of individual prejudice. This affidavit was filed with the consent of the Crown without further cross-examination by the Crown.

2: THE FACTS

[4] Briefly, the defendant stands charged with the offence of assault against two children. The allegation arises out of an incident that occurred November 21, 2012. There have been four trial dates set in this matter, namely, July 15, 2013, September 5, 2013, October 22, 2013 and the last one being March 14, 2014. On March 5, 2014, this application was commenced by the defence. On March 20, 2014, a fifth trial date was set for October 17, 2014. That trial date has since been tentatively moved to sometime in May of 2014, pending the ruling on this application. Just as an aside, I am not sure if the Information reflects this, but I am aware that those steps were taken by myself at the outset of the application if they became necessary.

[5] For the period March 5, 2014 until April 15, 2014, both Crown and defence perfected their applications, prepared and exchanged factums, filed further documentation on the application and completed final argument and submissions on April 15, 2014.

[6] For the sake of the argument related to this application, the time of delay is from the commencement of proceedings and the calculation of time until March 14, 2014 because that is the day, subject to the application related to delay, that the trial could have commenced.

[7] In assessing the various relevant factors in determining whether or not there has been a violation of an accused person's s. 11(b) rights, it is well recognized law that the following factors must be taken into consideration:

1. The length of the delay;
2. Any waiver of the time period by the accused;
3. The reasons for the delay, which is comprised of a number of factors, including:
   • (a) the inherent time requirements of the case;
   • (b) the actions of the accused;
   • (c) the actions of the Crown;
   • (d) limits on the institutional resources; and
   • (e) any other reasons for delay.
4. Lastly, a consideration of any prejudice to the accused.

[8] It is conceded by both parties that if the fourth trial date had proceeded as scheduled on March 14, 2014, a period of 15 months and 21 days or a total of 479 days, nearly 16 months would have elapsed in reaching a trial date in this matter.

[9] The Crown concedes that this prima facie length of delay presumptively triggers a s. 11(b) argument and merits scrutiny.

[10] The Crown also agreed at the time of submissions before me that at no time was there express or implied waiver by the defendant relating to the various trial dates set. The record reveals the defendant, through her agent Community Legal Aid, consented to the first date offered for the original trial date and consented to the first date offered on each and every trial date set thereafter, and I will elaborate.

[11] The first trial date of July 15, 2013 was set on April 18, 2013. The record of court dates offered, which I should indicate was filed as an exhibit on the application, shows July 15 as the first trial date offered and accepted by the Crown and defence.

[12] The July 15, 2013 trial date was adjourned at the request of the Crown as an essential Crown witness was not available. The Crown moved for this adjournment less than one month prior to the scheduled trial date. The transcript reveals the defendant consented to the adjournment. The transcript reveals that there was no discussion or talk of waiver. A new date of September 5, 2013 was set on June 20, 2013.

[13] On September 5, 2013, one of the child witnesses was ill and could not attend. The record reveals the defence was ready to proceed and did not consent to the adjournment and raised issues of prejudice to the defendant at that time. An expedited trial date of October 22, 2013 was set that day by the court, witnesses were bound over and the adjournment was accordingly granted.

[14] On the third trial date of October 22, 2013, the matter was not reached for trial. A review of the transcript of proceedings that day indicates the Crown and the court were live to the issue of delay but for some reason unknown to this court this matter was not the first trial matter commenced. I refer to the following exchange between the Crown and the court on that date:

Crown: ...I'm going to suggest the matter go to number six to set a priority new trial date, sir.

Court: Is this the second time up?

Crown: Well, it's got three prior, excuse me, third, this is the third. It appears that the first time was a Crown adjournment for an unavailable witness, the second there was a Crown witness who was ill and that brings us to today, unfortunately.

Court: Yes, so today would be the third, oh boy. [My emphasis]

[15] The record reveals that the Court was advised the two previous adjournments did not involve the bringing of witnesses before the court. Now I am confident the Crown at that point did not have the benefit of the transcripts I have before me. And that record now reveals that that was not an accurate statement. The record of September 5, 2013 reveals that the defendant was available and at least one witness was present to give evidence on that date. What happened on October 23, 2013 is there was no other judge available to hear the trial. The Crown took the step of trying to resolve the case with a short adjournment, but when all was said and done, it was adjourned to the 6T or trial scheduling court for a new date.

[16] On the date setting court of October 24, 2013 the transcript reveals that no special arrangements were made for an expedited date. A new trial date of March 14, 2014, in courtroom number 11 at 10:00 a.m. (at that point nearly six months off) was set and arrangements were made for an Arabic interpreter. The new trial date appears in the Record of Court Dates Offered as the first date offered and accepted. No earlier date was proposed from the record filed. There is no discussion whatsoever about delay or expediting dates.

[17] On all of this then I find there was no express or implied waiver by the defendant or her agent in respect of any of these trial adjournment dates.

[18] On the question of delay, the record and documents examined reveal that the trial adjournments were as a result of Crown requests and one instance of court delay when the case was not reached for trial on October 22, 2013.

[19] On the question of this case's inherent time requirement, the Crown's factum revealed that there were five appearances after the first appearance date of December 13, 2012 when the defendant, through Community Legal Aid, obtained disclosure, a pre-trial date was set and the first trial date was set for April 18, 2013. The inherent time requirements for this case appear to be about four months after the first appearance of December 12, 2012. One of the issues before me, calculating the actual institutional delay, was whether it was appropriate to subtract the intake time of some four months from the global question of delay. My answer to that would be, I would subtract the four months from the 16 month delay due to inherent time requirements which the Crown has asked me to do, as I believe this was a reasonable intake time on the facts of this case. Essentially what happened, there was a short delay to accommodate a pre-trial. This was an assault allegation involving two girls, aged 12 and 14 years respectively. Given the time estimate provided of four hours, which is essentially nearly an entire day's time, the necessity for an interpreter, the calling of minor witnesses and the use of the child friendly courtroom, I do no find the timing or conduct of the pre-trial as excessive or unnecessary. I agree with the Crown that the intake time of four months should be taken into account when assessing delay.

[20] The Crown concedes that the accused did not create any delay in terms of pre-trial procedures for all of the reasons indicated above.

[21] That leaves me then with a period of 12 months rounding it off by I suppose a day or two attributed to institutional delay.

3: THE ISSUES

[22] The issue before me then is whether or not the period of 12 months in these circumstances is unreasonable delay justifying a stay of proceedings.

[23] To answer that question I have been asked to consider two opposing positions. The Crown asserts that this is a case, as Mr. Dietrich put it, "close to the line." As the period of permissible institutional delay in the Ontario Court of Justice is eight to ten months, Mr. Dietrich asserts this is merely a "guideline" and not a limitation period and that it is a single factor that should yield to other pertinent considerations.

[24] The Crown asserts here that the delay is minimal, it does not unduly exceed and/or barely exceeds the suggested guideline and actual and inferred prejudice to Mrs. Shakeer was minimal, if at all.

[25] The Crown also asserts that the Charter's secondary interest in protecting the interests of society in having cases tried on their merits is persuasive and more so given that the allegations herein are ones of assault and cases involving violence against children. There is, according to the Crown, an important and significant interest in prosecuting criminal activity aimed at children.

[26] The defendant asserts that this case being "close to the line," insofar as the question of prejudice to the defendant is really what tips the balance. The defense asserts that Mrs. Shakeer's prejudice is real and actual – not merely to be inferred.

[27] In these circumstances I have had had the benefit of reviewing the transcripts filed, Mrs. Shakeer's April 8, 2014 affidavit, and the totality of the application evidence before me. I would note the following:

1. These proceedings commenced in November 2012 and the March 14, 2014 trial date was the fourth trial date in this matter;

2. Mrs. Shakeer was ready to commence the trial any time after March 28, 2013. On the date of September 5, 2013 and October 22, 2013 she was actually present at court. As I said earlier, she was present on those dates and she has been present for each and every appearance related to this application;

3. On the September 5, 2013 trial date, Mr. Khemraj for Community Legal Aid indicated to the court that Mrs. Shakeer was learning English at the Multi-Cultural Council and that another adjournment for the trial would interfere with that schooling;

4. According to Mrs. Shakeer's affidavit, she has had to repeatedly relive the allegations of assault in the course of her day to day life after November 21, 2012. Preparing for four trial dates, she says, means she constantly thinks about the charges against her; has frequent headaches and insomnia; she is diagnosed with diabetes and this condition has been exacerbated by the number of appearances for trial. She asserts she is depressed and her depression has worsened with delay;

5. Doctor Shasha, Mrs. Shakeer's physician, opines that she is lately having what he describes as full blown symptoms of depression arising from the November 21, 2012 incident. He also confirms her multiple medical problems and significant feelings of depression;

6. Mrs. Shakeer also deposes that she is widowed and the sole provider of two young children. She is a 2010 immigrant to Canada from Syria. She asserts the delay in reaching this matter for trial has resulted in a delay in applying for her Canadian citizenship;

7. It should be noted that these proceedings have likely heightened the stress for Mrs. Shakeer. Her first language is not English. She has been accompanied by a court arranged interpreter on the dates assigned.

4: THE LAW

[28] I have been referred to the decisions of R. v. Jaramillo, [2002] O.J. 4435, R. v. Papandrea, 2012 ONCJ 651, R. v. Lee, [2010] O.J. No. 1831 a decision of Justice Zisman of this court. In R. v. Jaramillo, supra, an 11 month delay in reaching trial and the prejudice of waiting for two trial dates was deemed by the court to be greater than the prejudice simply waiting for one. The court found that this date setting, adjournment and re-date setting contribute to inevitable anxiety and increased stress and granted an application for a stay of charges for impaired driving and over 80. In R. v. Papandrea, supra, institutional delay of 12 months and three days and three trial dates resulted in actual prejudice both financial and emotional as well as inferred prejudice and supported a stay of proceedings. In R. v. Lee, supra, Justice Zisman of the Ontario Court of Justice found that the unexpected delay of not having a trial on the date set for trial reached a particular significance in her analysis. She found when assessing the argument, "The stress and anxiety of coming to court for a trial and then being told the trial could not proceed and that a new trial date would have to be set...," had the effect of shortening the constitutionally acceptable time to trial.

[29] Prejudice to the accused is examined in the context of three interests in the s. 11(b) analysis. First is the issue of liberty. Next, security of the person. And lastly, the impact on the right to make full answer and defence.

[30] In this case, Mrs. Shakeer's liberty interests have been minimally affected. She was released on a promise to appear and was never incarcerated on a pre-trial basis. I have no doubt however, that her security interests such as being free of stress and the cloud of suspicion that accompanies a criminal charge have likely exposed her to, as Mr. Justice Lamer said in R. v. Mills, "overlong subjection to the vexations and vicissitudes of a pending criminal accusation." See: R. v. Mills, [1986] 1 SCR 863, p. 919.

5: CONCLUSION

[31] In real terms, this case is now over 16 months outstanding. Although this issue was not raised in actual formal argument, it seems to be a very real additional concern for me to consider that the evidence of child witnesses now some one and a half years later, and growing later every day, may present a very real prejudice to Mrs. Shakeer in making full answer and defence when one considers the frailties and foibles of age, memory, time, language, physical health and emotional stress upon the defendant and any potential witnesses to be examined and/or in raising a defence to these allegations.

[32] In the entirety of these circumstances, whether it can be said that the prejudice to Mrs. Shakeer is conclusively presumed or to be inferred, I am more than satisfied that the defence has satisfied this requirement in connection with this factor. It seems to me that an unacceptable chain of events was facilitated, on the first and second trial dates set, when this case was first adjourned for witness unavailability and followed by illness of a Crown witness. The final death knell for me is when on October 22, 2013 this case could not be reached for trial – followed by an unacceptable further delay of another six months with a final and fourth trial date proposed for March 14, 2014.

[33] In these circumstances, Mrs. Shakeer's prejudice, which I find to be real, actual and inferred, exceeds any secondary societal interest in a prosecution of this matter. Surely violence against children is an important societal consideration but in these circumstances it must be secondary to the real prejudice demonstrated by this defendant.

[34] For these reasons a stay shall be granted.

Released with editing revisions: May 22, 2014

"signed and released"

Sharman S. Bondy Justice