Court Information
Court File No.: 14-R2041 Date: April 11, 2017 Ontario Court of Justice
Between: Her Majesty the Queen — and — Hussein Mohammad
Before: Justice Julie Bourgeois
Heard on: January 27, 2017 and March 2, 2017
Ruling on s. 11(b) Application released on: April 11, 2017
Counsel
Mr. P. Napier — counsel for the Crown
Mr. R. Addelman — counsel for the accused Hussein Mohammad
BOURGEOIS J.:
INTRODUCTION
[1] Mr. Mohammad was arrested on July 23, 2014 following an investigation into a drive-by shooting on Bank Street in Ottawa. He was jointly charged with Mr. Fawaz Abdullah on a 32 count Information, related mainly to the possession and the use of handguns and ammunition. A trial was set to be heard from July 11 to 22, 2016. Mr. Abdullah brought an application pursuant to s. 11(b) of the Charter prior to trial, on January 15, 2016 and I dismissed it with reasons released on February 19, 2016. The Supreme Court of Canada decision R. v. Jordan, 2016 SCC 27 was released on Friday July 8, 2016. The trial started as scheduled on Monday July 11, 2016. Mr. Abdullah pled guilty to certain counts, before my brother Paciocco J. after the start of the trial. The trial for Mr. Mohammad continued as scheduled. I found Mr. Mohammad guilty of a number of charges. My reasons were released on September 27, 2016. The matter was adjourned at the request of Mr. Mohammad's counsel for the preparation of a pre-sentence report, returnable November 25, 2016, for sentencing. On that date, the matter was further adjourned to allow counsel to prepare and file a constitutional challenge to the mandatory minimum sentence attached to one of the counts Mr. Mohammad was found guilty, s. 244.2 of the Criminal Code. The matter was adjourned to March 2, 2017 for this purpose. However, when Crown counsel found out that an application pursuant to s. 11(b) of the Charter was also going to be argued, the Crown brought the matter forward to find earlier dates for these applications to be heard. Both applications were set to be heard on January 27, 2017, however, the date of March 2, 2017 was still required to complete counsel submissions on both applications. During submissions, counsel for Mr. Mohammad indicated he was not seeking to compute the time after November 25, 2016 in this application.
ANALYSIS
[2] This 11(b) Charter application is brought after conviction, pursuant to what is now referred to as the "Jordan analysis".
[3] The Supreme Court summarized the test applicable to determine the reasonableness of the delay to trial at para. 46 to 48 and again at para. 105:
The new framework for s. 11(b) can be summarized as follows:
There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.
Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case's complexity, the delay is reasonable.
Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.
For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties' reliance on the previous state of the law.
[4] All agree, the presumptive ceiling of 18 months is exceeded in this case: Mr. Mohammad was arrested on July 23, 2014; the trial started on July 11, 2016 and counsel completed their submissions on July 20, 2016; I released my reasons for decision on September 27, 2016; the matter was adjourned for the preparation of a pre-sentence report to November 25, 2016. The total delay is 28 months.
[5] There is no explicit waiver of delay by the accused and there is no specific delay caused by actions or conduct of the accused that would bring the delay below the 18 month ceiling. There is a period of time when counsel for Mr. Mohammad was not available for trial for the month of June 2016 (as reflected in the transcripts of December 4, 2015). As the Ontario Court of Appeal interpreted this delay was caused by the defence in R. v. Coulter, 2016 ONCA 704, para 73-77, this would bring the net delay down to 27 months, but still above the ceiling.
EXCEPTIONAL CIRCUMSTANCES
Discrete Event
[6] Konyer, J. was then counsel for the co-accused, Mr. Fawaz Abdullah, but was appointed to the Ontario Court of Justice in early November, 2014. As a result, three other counsel appeared for Mr. Abdullah and each conducted judicial pre-trials (JPT). In fact, a total of nine JPT's were conducted with the various defence counsel but with the same assigned Crown counsel, except for the 8th JPT that Crown counsel missed. This is not a situation where the Crown refused to participate in any of those pre-trial discussions but rather the assigned Crown missed or forgot the 8th JPT for reasons that were extensively explained and for which he apologized in a long email sent to the case management judge. This is in the context of a total of 9 JPT's with four different counsel acting for Mr. Abdullah as a result of the appointment to the bench of his first counsel.
[7] As indicated in the language of para. 70 of Jordan, idem, this seems to be an illustration of the "case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means." I do not have the details of what was discussed during those JPT's, but I have to trust that experienced counsel, over the course of a total of 9 JPT's, must have discussed issues relevant to their respective positions, even as the situation of counsel of record evolved and also as the time to set a date, either for trial or preliminary inquiry, passed.
[8] The initial counsel for Mr. Abdullah was in fact ready to set a trial or preliminary hearing date following their 3rd JPT set to be held on November 19, 2014, with Mr. Mohammad's counsel's availability (transcripts of October 24, 28 and November 14, 2014). Most of the outstanding disclosure was provided on the 2nd JPT held on October 21, 2014 and it was passed down the line of defence counsel after the appointment of Konyer, J. This process indeed spanned from November 21, 2014 to August 28, 2015, when the trial date was set. This is an additional nine months of delay as a result of the appointment of counsel to the bench and following three new counsel on record for Mr. Abdullah. One counsel took the position that he required the Information to Obtain a Search Warrant before electing mode of trial. Ultimately, I have already determined that this particular set of circumstances caused a delay of approximately four months. This delay is to be considered within this nine month delay and not in addition to it. However I have already attributed approximately one month delay to the Crown in relation to this tardiness in disclosing the ITO. (See my Reasons for Ruling released on February 19, 2016 for more details.).
[9] After the trial date was set, the Crown attempted to move the trial forward by assigning another Crown counsel to this matter, one which was available earlier than the July dates the trial was set for. This exercise proved unsuccessful but as indicated by the Supreme Court at para. 70 in Jordan, idem, the Crown "is not required to show that the steps it took were ultimately successful – rather, just that it took reasonable steps in an attempt to avoid the delay."
[10] As a result of this discrete event, the appointment of counsel to the bench and the resulting unfolding of events, the computed net delay of 27 months is now 19 months (nine months less one month attributed to the Crown, reducing the net delay of 27 months by eight months, leaving a remaining delay of 19 months), still above the presumptive ceiling by one month. I will therefore continue the analysis.
Complex Case
[11] This matter involves a 32 count Information, for two co-accused when the trial started, in relation to a drive-by shooting on Bank Street in the City of Ottawa. The evidence was presented over a period of approximately seven days, comprising of 19 witnesses in relation to forensic evidence, surveillance and one of the two victims inside the targeted car, requiring a material witness warrant to get him to attend court and an application by the Crown pursuant to s. 9(2) of the Canada Evidence Act to get his evidence to be heard fully. The issues to be determined were in relation to possession, knowledge and party to the offences.
[12] The Supreme Court of Canada in Jordan, idem, at para. 77, enumerate the nature of the evidence or of the issues, large amount of disclosure, charges and witnesses and expert evidence, amongst some of the items to consider at this stage.
[13] In R. v. Hackett, 2017 ONSC 300, Hackland, J. considered a single count of second degree murder to be a case of medium complexity and in R. v. Gendron, 2017 ONSC 1436, James, J. considered that case complex "with numerous underage complainants, some of whom lived out of Ontario, and a lengthy indictment."
[14] I see no reason not to conclude that this case qualifies as a complex case. Indeed, I felt this case deserved the full attention of this court following the submissions of counsel through the preparation of written reasons and it yielded a 17 page, 75 paragraph judgment, released approximately two months and one week after submissions of counsel.
[15] I am prepared to conclude at this stage, quoting from para. 52 in R. v. Coulter, supra, "that the time the case has taken is justified and the delay is reasonable and no stay will issue. No further analysis is required. (Jordan, para. 80)". But I will address the last component of the framework in this case.
Transitional Case
[16] Lastly, the Supreme Court in Jordan, supra, tells us that "the framework must be applied flexibly and contextually, with due sensitivity to the parties' reliance on the previous state of the law." (para. 105).
[17] I had the benefit of assessing the delay in this case under the "Morin regime" as a result of the application brought by the co-accused, Mr. Abdullah, and determined that the delay was not unreasonable. Indeed under those circumstances, as described in my reasons for Ruling released on February 19, 2016, the time computed was from the arrest on July 23, 2014 to the expected end of trial, at that time we were considering the last scheduled trial date of July 22, 2016: a total delay of approximately 23.5 months.
[18] The expected end of trial included the sentencing process in computing the delay pursuant to s. 11(b). My brother Paciocco, J. in Her Majesty the Queen v. J.M., released on January 10, 2017, at para. 29 stated:
Section 11(b) delay includes the period between conviction and sentence. That much is clear. In R. v. Jordan, supra, at footnote 2, the majority affirmed R. v. MacDougall, [1998] 3 S.C.R. 45 which applied section 11(b) to sentencing delay. While the Jordan majority cautioned that it had not yet decided how the "Jordan framework" would work in sentencing delay cases, the application of section 11(b) to sentencing delay cannot be questioned.
[19] In that footnote 2, the Supreme Court specifically states: "the issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases." This case does not deal with delays seen in Dangerous Offender applications or when expert reports are required but it comes before the court after conviction, and includes the period of time up until the expected sentencing date of November 25, 2016.
[20] After the release of the judgment on September 27, 2016, Mr. Mohammad's bail was revoked upon conviction and he was incarcerated on that day. Counsel for Mr. Mohammad sought an adjournment of the sentencing hearing for the preparation of a pre-sentence report. My brother Paciocco, J., discusses this element at para. 39 in M.J., idem. Even though these requests are not automatic or the pre-sentence reports not always necessary to be able to proceed to sentencing, there is nothing rare, odd or inappropriate with this request. In addition, it is not a period of time the accused has control over once the preparation of the report is ordered. The preparation of the report is court-ordered and of course only after a conviction is registered. It is accepted that the preparation of such reports in this jurisdiction is approximately two to three months. In this case, one of the counts Mr. Mohammad was convicted on, included a mandatory minimum sentence of five years, pursuant to s. 244.2 of the Criminal Code. At the time of the adjournment of the preparation of the pre-sentence report his application to challenge the constitutionality of this section had not yet been filed. It is in this context that I point out para. 30 and footnote 2 in M.J., idem by Paciocco J.:
Where a case has proceeded to sentencing, the section 11(b) analysis must therefore include any sentencing delay, as it did in the Ontario Court of Appeal decisions in R. v. Kidd, 2016 ONCA 757 and R. v. Coulter, 2016 ONCA 704.
But see R. v. Cabrera, 2016 ABQB 707, [2016] A.J. No. 1311 (Alta. Q.B.), and R. v. Rhode, 2016 SKQB 330, which hold that where an 11(b) application is brought after verdict, the Jordan clock ends with the verdict.
[21] I did not make a determination on this specific issue when assessing defence delay at the start of this analysis. I am of the view however that in this case, given the specific circumstances of the after conviction 11(b) application, the period of time from the conviction date to the sentencing date ought to have been computed as defence delay. The adjournment sought by the defence would have brought the total delay of 28 months, less the one month of unavailability for a trial date in June 2016 and the two months adjournment requested for the preparation of the pre-sentence report to a net delay of 25 months. From this net delay, the computed delay of eight months caused by the discrete event and its ripple effects, as described under that section above, would have brought this case to 17 months, below the presumptive ceiling of 18 months and therefore shifting the onus onto the accused to demonstrate the unreasonableness of such delay.
[22] In any event, even when proceeding under the assumption of a Crown onus, that is with a delay above the 18 month presumptive ceiling, I am satisfied that the transitional factor of this analysis justifies the reasonableness of the delay. My prior ruling dismissing the application brought by the co-accused certainly serves as an indication of such conclusion. Even though Mr. Mohammad retained the same counsel throughout the proceedings, he was operating at the pace set at that time in this matter and seemed satisfied of such pace.
[23] Mr. Mohammad was out of custody throughout that period of time while Mr. Abdullah, his co-accused, was in custody the entire time. Mr. Mohammad specifically did not participate in the 11(b) applications brought by Mr. Abdullah, at least partly because of his assessment of success given this distinction between his situation of prejudice and Mr. Abdullah's. As indicated to this court by his counsel, they were awaiting the result of Mr. Abdullah's application to consider their participation in such application under the "Morin regime". The importance of this element is simply to indicate that he was operating or making decisions as to the conduct of his matter pursuant to the state of the law, as it then was. It certainly made sense for him to wait for that ruling as Mr. Abdullah seemed to have the stronger argument given his in custody status.
[24] Another indication of the parties' reasonable reliance on the law as it existed at that time is indeed the absence of complaint or action from Mr. Mohammad in relation to either the delay caused by the changing of counsel for Mr. Abdullah or the insistence of counsel in obtaining the ITO prior to electing mode of trial. This delay computed at approximately eight months is not directly caused by him or his counsel but rather by his co-accused. It is therefore not "solely" his delay. However, Lemay, J., in R. v. Isaacs and Hussain, 2016 ONSC 6214 at para. 101 and 102 discusses a similar situation where one co-accused is not the "sole" cause of the delay and rejects the argument. I am prepared to come to the same conclusion in this case. There is no evidence that Mr. Mohammad was ready to set a date earlier than August 28, 2015 either or that he disagreed with his co-accused approach or that he was dissatisfied or concerned with the pace the matter was taking.
[25] Indeed a severance application was only discussed merely weeks or days prior to the start of the trial (therefore months after the release of the ruling on the 11(b) application of the co-accused). It was abandoned but the point is that it was only late in the proceedings that this option was brought forward by Mr. Mohammad. This point is only raised as an indication that Mr. Mohammad was not only satisfied with the pace but operating under the "Morin regime" then.
[26] In the end, following the exceptional circumstance of the appointment of counsel for the co-accused to the bench, the nine JPT's, including the insistence of obtaining the disclosure of the vetted ITO prior to electing mode of trial for the co-accused, Mr. Mohammad did not express a desire, readiness or willingness to set a trial or preliminary inquiry date. Indeed, the state of the record indicates that not only were all the parties satisfied with the pace but certainly, all parties were relying on the state of the law as it then existed, under the "Morin regime".
[27] As concluded in Hackett, supra, by Hackland, J. at para. 27, given that at no time prior to this application, in January 2017, (after the release of the decision of the Supreme Court of Canada in Jordan, after conviction, after the expected sentencing date), Mr. Mohammad raised concern about the constitutional delay in this case. "There is an inference to be drawn that reasonable reliance was being placed on the Morin guidelines (…)."
[28] As stated at para. 102 and 103 of Jordan:
Ultimately, for most cases that are already in the system, the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one. (…)
(…) For cases already in the system, the presumptive ceiling still applies; however, "the behaviour of the accused and the authorities" – which is an important consideration in the new framework – "must be evaluated in its proper context" (Mills, at p. 948). The reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances. Reliance on the law as it then stood is one such circumstance.
[29] It is certainly in this context that this case takes it colour as well. It is obvious from the record that the parties were relying on the law as it then stood. Having already determined that the delay to prosecute this matter was not unreasonable under the Morin guidelines, I come to the same conclusion under the Jordan guidelines, after trial, after conviction and upon sentencing date.
CONCLUSION
[30] After considering the parties' submissions and their materials, including the case law they provided, I dismiss the 11(b) application.
Released: April 11, 2017
Signed: Justice Julie I. Bourgeois