Court File and Parties

Court File No.: Ottawa 15-A10885 Date: July 5, 2017 Ontario Court of Justice

Between: Her Majesty the Queen — and — Waseem Shaheen

Before: Justice Robert Wadden

Heard on: May 18, 2017

Reasons released on: July 5, 2017

Counsel:

• Guiseppe Cipriano, counsel for the PPSC
• Diane Condo and Richard Bosada, counsel for the defendant

Ruling on s. 11(b) Charter Application

WADDEN J.:

[1] Waseem Shaheen is a pharmacist who owned three pharmacies in Ottawa. He is charged with four offences: Trafficking in Fentanyl, a Schedule I substance, contrary to s. 5(2) of the Controlled Drugs and Substances Act; Public Mischief, contrary to s. 140(2) of the Criminal Code; Fraud, contrary to s. 380(1) of the Code; and Conspiracy to Commit Robbery, contrary to s. 344 of the Code. It is alleged that during the period of October 2013 to October 2014 he used his position as a pharmacist to obtain and traffic in Fentanyl through fraudulent prescriptions. It is also alleged that in October 2014 he conspired with another person to stage a robbery at one of his pharmacies, and that as a result of the staged robbery Mr. Shaheen fraudulently received insurance proceeds.

[2] Mr. Shaheen was charged with these offences on June 9, 2015. He has elected trial in the Ontario Court of Justice and his trial is scheduled to proceed before me from September 11 to October 20, 2017. The total amount of time from the laying of the charge to end of trial will be 28 months, 11 days.

[3] Mr. Shaheen has brought an Application alleging a breach of his rights under s. 11(b) of the Charter of Rights and Freedoms and seeking an order staying proceedings against him for unreasonable delay.

[4] On June 15, 2017 I ruled that the delay was not unreasonable and the Charter application was dismissed, with reasons to follow. These are the reasons.

The Legal Principles

[5] The law governing this Application was established by the Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27. Numerous decisions from the Ontario Court of Appeal, including R. v. Coulter, 2016 ONCA 704, have provided guidance for the application of the Jordan principles. The Supreme Court recently released R. v. Cody, 2017 SCC 31, which affirmed and elaborated on the Jordan decision.

[6] R. v. Jordan established a presumptive ceiling of 18 months for cases going to trial in the Ontario Court of Justice. The Court in Jordan stated: "If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable." (Jordan, paras. 46 & 47). In calculating defence delay, the trial judge must assess whether specific periods of delay were either waived by the defence or resulted solely from the conduct of the defence (Jordan, paras. 61 & 63). If the remaining delay exceeds 18 months, the Crown must establish the presence of "exceptional circumstances", which may include the particular complexity of the case (Jordan, paras. 47 & 77). The Jordan analysis allows for some latitude for cases, such as this, in which the charges were laid before the release of that decision. In the case before me, all of the procedural steps up to the setting of the trial date were taken before the release of Jordan in July 2016. Therefore, this is a "transitional case" and the analysis must take into account that the parties were acting in accordance with the law as it previously existed (Jordan, para. 96).

Positions of the Parties

[7] Counsel for Mr. Shaheen takes the position that only a period of 1 month, 13 days may be attributed as defence delay, leaving a net delay of 27 months. The Crown claims that 10 months, 8 days should be attributed as defence delay, leaving a net delay of 18 months, 4 days. Although this is above the presumptive ceiling of 18 months, the Crown takes the position that the delay is reasonable because this is an exceptional case due to its complexity and due to the fact that it is a transitional case in which the parties were proceeding under the earlier legal framework.

Calculation of Defence Delay

[8] The Crown has identified four time periods of delay that it claims were caused by the defence: July 9 – September 9, 2015 (2 months); September 20 – November 25, 2015 (1 month, 27 days); January 20 – April 4, 2016 (2 months, 18 days) and June 26 – October 20, 2017 (3 months, 24 days).

[9] The defence disputes all of those periods and says that only part of the last one, specifically 1 month, 13 days from July 28 to September 11, 2017, may be attributable as defence delay, as defence counsel declined the first available trial date. Given the discrepancy in positions it is necessary to examine the entire timeline up to the setting of the trial date in detail.

[10] The first appearance was June 25, 2015. Counsel had not been retained and a request was made to adjourn for two weeks. The parties appeared in court on July 9, 2015 and initial disclosure was given to the defence, on the record. The matter was adjourned for three weeks at the suggestion of the Crown.

[11] On July 29, 2015 defence wrote to the Crown: "When might I expect to receive the initial disclosure for the above file?" This was apparently sent in spite of the fact that initial disclosure had been given to defence on July 9. On July 30, 2015, in remand court, defence referenced the above disclosure request and adjourned for two weeks. Defence was told, on the record, that the assigned federal Crown was Ms. Mohr. On the same day Ms. Mohr wrote to defence sending additional disclosure. On August 10, 2015 defence wrote directly to the assigned Crown, Ms. Mohr, asking "When might I expect to receive the initial disclosure for the above file?" This, again, was in spite of the fact that initial disclosure had been given to defence on July 9. On August 12, 2015, in remand court, defence referenced the disclosure request. Nothing was accomplished at that appearance and the matter was remanded to September 9, 2015.

[12] On September 9, 2015 the matter was adjourned to September 30, 2015 because defence had not yet read the disclosure. On September 29, 2015 Ms. Mohr wrote to defence, providing additional disclosure. This package was given to defence in court on September 30, 2015. At that appearance Ms. Grenier, for the defence, simply said "I was expecting to receive disclosure and the request is to put over three weeks." There was no more detail provided. The matter was adjourned to October 21. Meanwhile, on October 2, Ms. Mohr wrote to defence providing additional disclosure, specifically interviews of the accused. On October 14, 2015 Mr. Bosada, counsel for the Accused, wrote to Ms. Mohr requesting 52 items of additional disclosure.

[13] In assessing the time that passed up to October 21, 2015 it seems that by that appearance the parties were in the position that they should have been in by late July. On July 9 the matter had been adjourned to allow for review of disclosure. It is apparent that disclosure was not reviewed in a timely manner. Due to actions of the defence the process stalled. This period of 82 days is attributable to defence delay.

[14] On October 21, 2015 the agent for Mr. Bosada referenced the additional disclosure request and requested the matter be adjourned to November 18. The Crown requested a Judicial Pre-Trial ("JPT") be scheduled in the matter. The defence resisted this, saying "it doesn't make sense for us to proceed with a JPT when there's outstanding disclosure." The Crown acceded and the matter was adjourned to November 4.

[15] On October 30 Mr. Bosada wrote to Ms. Mohr asking for a response to his letter of October 14. On November 3, 2015 Ms. Mohr wrote to Mr. Bosada providing four items of additional disclosure but not making reference to his letter of October 14 or addressing any of the additional disclosure requests. On November 4, the agent for Mr. Bosada referred to the October 14 disclosure request, indicating that it had not been fully answered and requested a month adjournment. The Crown indicated the additional disclosure had been provided, referring to Ms. Mohr's November 3 letter. In the context of the defence request, this was incorrect, as the October 14 letter had not been replied to. The Crown requested a JPT be set. Defence resisted and requested an adjournment so Mr. Bosada could review Ms. Mohr's letter and additional disclosure. The matter was adjourned to November 25, 2015.

[16] On November 5, 2015 Ms. Mohr wrote to Mr. Bosada in response to his letter of October 14. Ms. Mohr itemized 48 requests made by Mr. Bosada. Definite answers were given on 15 items, either that they had been disclosed or would not be disclosed. The response to 11 of the items was that they could not be answered without more information from the defence. For 22 items, the Crown indicated that it was agreeable to providing them and requests had been made to obtain them. It is implicit that follow-up was required by the Crown on those items.

[17] On this Application the Crown takes the position that the period from September 30 to November 25 is defence delay due to the fact that as of September 30 the Crown was seeking to set a JPT and the defence was refusing to do so for disclosure reasons. The Crown notes that it is not necessary that defence have all disclosure in hand before setting a JPT, or a trial date. Ongoing disclosure is a Crown obligation and is expected as part of the trial process. One of the goals of a JPT may be to resolve disclosure issues. However, it is noteworthy that the Crown did not respond to the October 14 letter until November 5. Had the Crown responded in a timely manner, before the October 21 appearance, that appearance could have likely been more meaningful. Secondly, the defence requests were not frivolous, or at least not all of them were. In her response, the Crown agreed to request 22 items, which created an obligation on the Crown to follow-up on those disclosure items. Thirdly, as subsequent events demonstrated, when the Crown did provide a large amount of additional disclosure Ms. Mohr acknowledged that the volume provided justified adjournment of the JPT.

[18] On November 25, 2015 the parties appeared in Court to set a JPT. Dates beginning on November 30 were offered but declined by defence. A JPT was set for December 21, 2015 to accommodate Mr. Bosada's schedule, with a return in court on December 23. On November 27, Ms. Mohr wrote to Mr. Bosada, providing additional disclosure, specifically the "Report from the Ontario College of Pharmacists." On November 30 defence wrote to Ms. Mohr in response to her November 5 letter, giving more information on certain items and stating that if the requested disclosure items were not forthcoming the JPT might have to be adjourned. On December 1, 2015 Ms. Mohr wrote to Mr. Bosada in response to the November 30 letter, referring to 19 disclosure requests. Of those, nine were answered definitively, four requested further information from the defence and six were items that the Crown agreed to request, and implicitly to disclose when available. On December 2, Ms. Mohr wrote to Mr. Bosada, enclosing ten items of additional disclosure comprising approximately 1000 pages. Ms. Mohr stated in the letter as follows: "I am agreeable to the adjournment of the upcoming judicial pre-trial in order to allow you to review the attached disclosure. If you advise what date you would like this brought forward to, we can then adjourn the pre-trial to another date, post-Christmas." The JPT which had been scheduled for December 21 was cancelled by way of a letter to the Court, dated December 9, 2015.

[19] The conclusion that flows from Ms. Mohr's statement in the December 2 letter is that the previous defence refusal to set a JPT while awaiting further disclosure was not unreasonable. In the December 2 letter Ms. Mohr implicitly acknowledged that the volume of additional disclosure was such that a JPT on December 21, could not proceed. The period from October 21 to November 25 cannot be attributed to defence delay. The Crown concedes that the period from November 25 to January 20 should not be counted as defence delay.

[20] On December 11, 2015 Mr. Bosada wrote to Ms. Mohr requesting 22 items of additional disclosure. In a response dated December 22, 2015 the Crown gave definitive answers on seven items which had either been provided or would not be. The remaining 15 items required follow-up by the Crown. For many of the items, the response was that the "request is under review of the Crown." For numerous other items the Crown indicated that it had not yet received the requested items (presumably from the police).

[21] On December 23 the parties appeared in remand Court and the defence requested an adjournment to January 20, 2016. The Crown requested a JPT be set in February. Defence was not in a position to set a JPT because Mr. Bosada's agent did not have his dates. This is surprising given the amount of discussion that had taken place, through correspondence, about the need to set another JPT. However, as the Crown was not ready to set a JPT until February the period up to January 20 is agreed to not count as defence delay.

[22] On January 20, 2016 the defence was represented by duty counsel, Ms. Stewart. Ms. Stewart stated that Mr. Bosada was "awaiting some disclosure and asking for February the 3rd, back in this court." Ms. Stewart could not provide any further details. The Crown requested a JPT be set but this could not be done due to Ms. Stewart's lack of instructions. The matter was adjourned to the remand court of February 3, 2016.

[23] Mr. Bosada had not made any further disclosure requests between December 21 and January 20. The January 20 appearance was meaningless due to the lack of instructions by the defence. It was, to use the language of R. v. Jordan, a "frivolous" appearance by the defence. The period from January 20 to February 3 is clearly defence delay.

[24] On February 3, 2016 Ms. Donato appeared for Mr. Bosada. She stated that Mr. Bosada was "still waiting on further disclosure and he'd like the matter to be adjourned for three weeks." It is notable that there had been no further correspondence from Mr. Bosada since the Crown's letter of December 22. At the February 3 appearance Ms. Donato was pressed for details. At first, she could not tell the Court what was missing. When pressed to set a JPT she indicated she did not have Mr. Bosada's dates. Ms. Donato was then told to contact Mr. Bosada. When she returned she said that Mr. Bosada was not willing to set a JPT and cited 14 items of outstanding disclosure. The matter was then adjourned out of the remand court for a next appearance on February 12, 2016 before the Local Administrative Judge, because it had been in the remand stream too long.

[25] I find that the February 3 appearance was also a meaningless appearance by the defence. Counsel made vague comments about awaiting disclosure, in spite of the fact that no further correspondence had passed since the last appearance, where the identical issue had been raised. Counsel showed up without details of the outstanding issue and without Mr. Bosada's dates. When pressed, defence refused to set a JPT. A JPT would have been an ideal forum to discuss problems with outstanding disclosure. I find there is no legitimate excuse for the defence conduct at the February 3 appearance. The time between February 3 and February 12 is defence delay.

[26] Ms. Mohr had written to defence on January 6 and February 1 providing three items of additional disclosure. On February 5 Mr. Bosada wrote to Ms. Mohr requesting the outstanding disclosure items and indicating his reluctance to set a JPT "without full disclosure". On February 12 the matter appeared before Local Administrative Judge Perkins-McVey. The Crown and Her Honour pressed to have a JPT set, in spite of defence reluctance due to the outstanding disclosure issue. Ms. Grenier, appearing for the defence, could not set a JPT date because she did not have Mr. Bosada's availability. The matter was adjourned to February 19.

[27] By February 12, the issues of outstanding disclosure and the setting of a JPT were the subject of active discussion between counsel. The matter had been set before Her Honour because it had been in the remand system for too long without progress. To have counsel appear in court and refuse or be unable to set a JPT because she did not have Mr. Bosada's diary is, in these circumstances, inexplicable. The defence actions on this appearance rendered the appearance meaningless. As stated in R. v. Cody, at para. 32, "… a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference towards delay." In this case, the resulting delay, and the effect in delaying the setting of the JPT, is defence delay.

[28] When the matter next appeared in court on February 19, before Dorval J., counsel for the defence indicated that Mr. Bosada was willing to set a JPT but that he was not available until April. He had also indicated this in a letter to the Crown dated February 18, 2016. A JPT was set for April 4 with a return to court of April 8, 2016.

[29] The record of February 19 is unclear as to when the Court and Crown would have been available for a JPT, perhaps due to the fact that Mr. Bosada had so adamantly stated his unavailability until April. On the Application before me, defence points out that in a fax dated December 9 the Crown said she was occupied in January and March so that, by this time, it is likely a JPT could only have been held in April. I do not accept this. Had defence not made meaningless appearances in January and February it is likely that a JPT could have been set in February. The delay going forward was amplified. This is a case that could have had a JPT and been back for a remand by early February, not early April. The resultant delay of two months is defence delay.

[30] At the appearance of April 8, 2016 it was agreed that another JPT was necessary. The Crown indicated disclosure was complete. On this Application the Crown takes the position that this is a neutral period, not defence delay, to accommodate a second JPT on a complicated case. The Court and the Crown indicated availability for a JPT the following week but defence indicated Mr. Bosada was not available until June. A JPT was set for May 30 with a return to court on June 3.

[31] At the appearance on June 3, 2016, it was agreed that 25 days would be set for trial, with three days for pre-trial motions. The first dates that were offered were June 26, 2017 onward, which were available to the Crown but not the defence. After some discussion, the trial was scheduled to start on September 11, 2017 for five weeks. In applying the R. v. Jordan principles to the period from June 26 to September 11, the 77 days occasioned by the unavailability of defence counsel will count as defence delay.

Calculation of Net Delay

[32] Based on all of the above, the total delay from the laying of the charge to the expected end of the trial is 28 months, 11 days. The calculation of defence delay is 163 days, or approximately 5 ½ months. The Net Delay in this case is approximately 23 months.

[33] As this exceeds the Jordan ceiling of 18 months, the onus is on the Crown to justify the delay. The Crown seeks to do so in this case by relying on the complexity of the case and the transitional case exception for cases in the system prior to the release of Jordan.

Is this a "Particularly Complex" Case?

[34] The Court in R. v. Jordan recognized that excessive delay may be justified by the presence of exceptional circumstances, including the fact that a case is "particularly complex". The Court defined this, at para. 77 of R. v. Jordan, as follows: "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."

[35] The evidence before me about the complexity of this case is scant. The Crown did not tender any evidence, by affidavit or otherwise, on this application. In assessing the complexity of the case I am left with the record as set out in the court documents, transcripts of appearances, correspondence between the parties and assertions made by the Crown in its factum. I have no evidence as to the number of witnesses to be called in this case, or the number who were interviewed as part of the investigation. There has been no witness list shown to me, or any estimate of how long each witness will take or what their anticipated evidence will be. The amount of disclosure is approximately 2000 pages. Although lengthy, this pales in comparison to the volume in cases such as R. v. Picard, 2016 ONSC 7061 (30,000 pages) and R. v. Cody (20,000 pages). There is not a large number of charges in this case, nor complex pre-trial applications or motions. This case has its challenges, the allegations cover a lengthy period of time and the trial will take a long time, but this is not a particularly complex case as defined in R. v. Jordan.

Transitional Case Considerations

[36] Jordan recognizes an exception for cases that were in the system before the release of that decision – transitional cases, where the parties relied in good faith on the law as it existed prior to release of Jordan. In R. v. Cody the Court made it clear that consideration of this issue is the final step in the analysis, to be taken where the delay remains above the presumptive ceiling and the excess cannot be justified based on case complexity (Cody, para. 67).

[37] The rationale is stated at paras. 96-97 of R. v. Jordan:

96 […] the parties' behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties' reliance on the previous state of the law was reasonable. […]

97 Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel's behaviour is constrained by systemic delay issues. […]

[38] As noted in R. v. Cody, in assessing issues under this heading the judge "should be mindful of what portion of the proceedings took place before or after Jordan was released." (para 71). In this case, the entire proceedings up to the setting of the trial date preceded the release of the Jordan decision. Any contact between the parties or steps taken since that date have not affected the time to bring the case to trial.

[39] The previous framework was governed by R. v. Morin, [1992] 1 S.C.R. 771, which outlined four factors to be considered in assessing the reasons for the delay: inherent time requirements, actions of the accused, actions of the Crown and limits on institutional resources.

[40] In this case, the overall length of the delay is 28 months, 11 days. There were no explicit waivers of 11(b) by the defence. The inherent time requirements are lengthy. The parties have set five weeks for trial. The Crown is being put to the strict proof of the case – there are few admissions made. The Crown asserts that disclosure took a lengthy period of time in part because of the late receipt of a report prepared by an outside agency, the Ontario College of Pharmacists.

[41] There is significant institutional delay in this case. When the parties were ready to set a date, the first date offered for a five-week trial was in 12 months, three weeks. This lengthy period must be considered in light of the circumstances in place in this jurisdiction at that time. As stated in R. v. Tsega, 2017 ONSC 3090, at para. 93, "The East Region, and particularly Ottawa, has been 'plagued by lengthy, persistent, and notorious institutional delays', occasioned, in part, by Ottawa's expanding population and by vacancies in its complement of judges not being filled in a timely fashion."

[42] In Tsega, Aitken J. noted that the parties in that case worked together to ensure that trial dates were set in a timely manner. I cannot make the same finding in this case. There was no indication that the defence was taking steps to proceed expeditiously in this case. The position of the defence is that meaningful steps to move the case forward could not be taken due to incomplete disclosure. But a review of the record shows that although the defence had complaints of disclosure nothing was done to use available case management steps to address the issue. Bringing a case before a JPT judge, or practice court judge, are processes in which a judge can deal with inadequate or delayed disclosure. None of these options were pursued by the defence, and it was the Crown that forced the matter forward – setting the case in the practice court and setting JPTs, all in the face of actions taken by defence that, intentionally or not, slowed the progress of the case.

[43] For example, from July 29 to September 30 there seemed to be a lack of awareness that disclosure had been provided, and then delay in reviewing it. The first meaningful action of the defence in moving the case forward occurred with the letter of October 14. The defence was responsible for a large part of the delay in the period from January 20 to the setting of the trial date. Although there was some institutional delay in that period, the actions of the defence showed a lack of willingness to move the case expeditiously. By refusing to set a JPT and sending agents to court without instructions, the defence showed a lack of effort in trying to advance the case.

[44] The actions of the Crown in making slow responses to disclosure requests contributed to some of the delay. The delay in responding to the October 14 letter was three weeks, and a period was lost from December 8 to January 20 due to disclosure of the College of Pharmacists' report. This is approximately 2 months of delay that should be attributed to the Crown.

[45] In examining institutional delay, aside from the fact that the first trial date was over 12 months from the set date, other dates appear to have been available quickly. JPT's and practice court dates were set promptly from the time they were requested. The bulk of the time taken – retention of counsel, correspondence between the parties, time taken to provide and review disclosure and schedule and attend pre-trials - would be classified as part of the inherent time requirements of the case, and regarded as neutral under the Morin framework.

[46] The analysis under R. v. Morin includes an assessment of prejudice to the Accused and the seriousness of the offences. In this case, the Accused has tendered evidence of prejudice. After arrest, he was released on a recognizance that prevented him from practicing as a pharmacist. He testified that as a result of his conditions he lost his livelihood and his businesses, due to his inability to practice as a licenced pharmacist. His health has been affected and he and his family are in financial straits. He acknowledged, however, that in addition to the criminal charges, there was a concurrent investigation by the Ontario College of Pharmacists, and it was taking action against him. The billing privileges of one of his pharmacies had been revoked prior to the laying of the criminal charges. There is no indication he applied for a bail variation, or if he would have been able to practice if the conditions were lifted. It is unclear how much of the Accused's financial hardship is attributable solely to the criminal charges.

[47] The offences are serious. The Accused is charged with trafficking in Fentanyl, a deadly narcotic, which he had access to as a pharmacist. The charge of Public Mischief is a serious offence against the administration of justice.

[48] Cody makes it clear that a transitional case requires a nuanced balancing of factors, that prejudice and seriousness of the case may be decisive, and some leeway may be given for a jurisdiction that had been suffering from significant and notorious institutional delays. In this case, the accused has been at liberty, on his own recognizance, while awaiting trial. The charges are serious. There is a strong community interest in having allegations of trafficking in Fentanyl heard on the merits. The delay in this case is lengthy but the parties were at the mercy of a jurisdiction suffering from significant institutional delay. Finally, there was a marked indifference on the part of the defence in moving the case forward, which significantly contributed to the length of time. As stated in Cody, at para. 70, "the parties' general level of diligence may also be an important transitional consideration."

[49] In balancing all the factors, my finding is that the delay in this case is not unreasonable. The Charter application is dismissed. The case will proceed to trial, as scheduled, commencing September 11, 2017.

Released: July 5, 2017

Justice Robert Wadden