Court File and Parties

Ontario Court of Justice

Date: February 20, 2018

Court File No.: Ottawa 16-R2087

Between:

Her Majesty the Queen

— and —

Ali Albadry, Meshari Albadry, and Fahad Alzuwaid

Reasons for Judgment on s. 11(b) Application

Before: Justice P.K. Doody

Heard: In writing and on February 16, 2018

Reasons for Judgment released: February 20, 2018

Counsel:

• Hart Shouldice — counsel for the Crown
• Biagio Del Greco — counsel for the defendant Ali Albadry
• Samir Adam and Sarah Ahsan — counsel for the defendant Meshari Albadry
• Lorne Goldstein — counsel for the defendant Fahad Alzuwaid

DOODY J.:

Part 1: Overview

[1] The defendants were arrested for or charged with various offences on May 22 or 23, 2016. Their trial is set to conclude March 1, 2018. That date is 21 months and 6 days after the proceedings commenced. The defendants have applied under s. 24(1) of the Charter of Rights and Freedoms for an order staying the proceedings on the basis that their rights under s. 11(b) of the Charter to be tried within a reasonable time have been breached.

[2] I agree. I order that the proceedings be stayed. These reasons explain why.

[3] The defendants bringing this application ("these three defendants") were each charged individually with offences alleged to have been committed on May 22, 2016.

[4] On September 23, 2016, new informations were sworn charging these three defendants and three other defendants jointly with offences alleged to have been committed by these three defendants on May 22, 2016 and the three other defendants two days earlier, on May 20, 2016. One of the alleged victims of the May 22 offences was the same as the alleged victim of the May 20 offences. The offences charged against these three defendants were the same as had been charged in the earlier informations.

[5] On December 2, 2016, a new joint information was sworn against these three defendants charging them with the same offences, but without the charges against the three other defendants. On December 12, 2016 the trial was set to commence on February 20, 2018 and conclude on March 1, 2018.

Part 2: The Chronology

[6] The following table sets out the relevant events between the commencement of the proceedings and the setting of the trial dates.

May 23, 2016

Information 16-A10899 sworn against Ali Albadry in respect of events alleged to have occurred on May 22, 2016. It charged him with:

• Uttering a death threat to Ahmad Hamzeh
• Uttering a death threat to Ali Hamzeh
• Assaulting Ahmed Hamzeh with a weapon (a baseball bat)
• Assaulting Ali Hamzeh with a weapon (a motor vehicle)
• Willful damage to the window of Mohamed Hamzeh's motor vehicle
• Possession of a weapon (a baseball bat) for a purpose dangerous to the public peace

Information 16-A10900 sworn against Meshari Albadry in respect of events alleged to have occurred on May 22, 2016. It charged him with:

• Dangerous driving
• Assaulting Ali Hamzeh with a weapon (a brick)
• Assaulting Ali Hamzeh with a weapon (a motor vehicle)
• Possession of a weapon (a brick) for a purpose dangerous to the public peace

Fahad Alzuwaid arrested and released on a Promise to Appear on June 20, 2016 on allegations of dangerous driving and assault with a weapon.

June 6, 2016

Bench warrant issued against Ali Albadry; Meshari Albadry appeared with Mr. Simard for Mr. May and adjourned to June 27, 2016.

June 9, 2016

Bench warrant against Ali Albadry rescinded, appeared with Mr. Adam not on record adjourned to June 20, 2016 court 5.

June 14, 2016

Information 16-A11222 sworn against Fahad Alzuwaid in respect of events alleged to have occurred on May 22, 2016. It charged him with:

• Dangerous driving
• Assaulting Ali Hamzeh with a weapon (a motor vehicle)

June 20, 2016

Ali Albadry appeared with Mr. Adam and obtained adjournment to July 18, 2016 for purpose of retaining counsel. Fahad Alzuwaid appeared with Mr. Addelman who advised he was not yet retained; Mr. Addelman obtained adjournment to July 4 for purpose of retaining counsel.

June 27, 2016

Ms. Drnda appeared as agent for Meshari Albadry (for Mr. May) and obtained adjournment to July 11, 2016.

July 4, 2016

• Crown provides Charge Screening Form, required for Legal Aid application.
• Mr. Goldstein appeared for Mr. Alzuwaid; advised he has no disclosure and obtained Charge Screening Form; matter adjourned to July 18 to retain counsel.

July 8, 2016

R. v. Jordan released.

July 11, 2016

Meshari Albadry appeared with Mr. Simard (for Mr. May) on 16-A10900 and obtained adjournment to August 8, 2016.

July 18, 2016

Ali Albadry appeared with Mr. Simard and obtained adjournment to August 8, 2016 court 5; Mr. Simard advised court "I believe the co-accused went to August 8th" and "Mr. Albadry is just completing the Legal Aid application. … He needs to complete … documentation he needs to provide Legal Aid and today it's closed, so hopefully he can come back tomorrow and try to get that done." Mr. Goldstein appeared for Mr. Alzuwaid and advised he had just been retained; matter adjourned to August 8 #5 court and Mr. Goldstein advised he hoped to conduct a counsel pre-trial in interim.

August 8, 2016

Mr. Adam appeared for Ali Albadry and for Meshari Albadry; requested and obtained adjournment to August 29, 2016 for counsel pre-trial. Ms. Putska appeared for Mr. Goldstein on behalf of Mr. Alzuwaid and matter adjourned to August 29, 2016 with counsel pre-trial to be conducted in the interim.

August 22, 2016

Mr. Goldstein appeared on behalf of Mr. Alzuwaid and advised court that although he had been retained for the purpose of the remand appearance, he had not been retained for the purpose of setting a trial date; court granted his request to have matter adjourned to September 12 and he agreed to have counsel pre-trial in interim.

August 29, 2016

Ms. Drnda appeared as agent for both Ali Albadry and Meshari Albadry; advised court that one of them was being referred to Mr. Del Greco; sought and obtained adjournment to Sept. 19, 2016 to set joint judicial pre-trial although Mr. Del Greco would be unavailable on Sept. 19, 2016.

September 12, 2016

Mr. Spratt appeared for Mr. Goldstein on behalf of Mr. Alzuwaid; he advised Court that counsel pre-trial set for Sept. 15 and matter adjourned to Sept. 26 at his request, with counsel pre-trial to take place in interim.

September 19, 2016

Mr. Simard appeared (for Mr. Adam) for both Ali Albadry on 16-A10899 and Meshari Albadry on 16-A10900 and set judicial pre-trial for both on Sept. 21, 2016; both informations adjourned to Oct. 3.

September 21, 2016

Judicial pre-trials held for Ali Albadry and Meshari Albadry.

September 23, 2016

Information 16-R2033 sworn against 6 defendants with 18 counts. It charged:

• Fesal Albadry, Mohamed Al-Zafiri, and Saif Albadry jointly with assault causing bodily harm on Ahmad Hamzeh on May 20, 2016
• Mohamed Al-Zafiri with assaulting Ahmad Hamzeh with a weapon (a handgun) on May 20, 2016
• Saif Albadry with assaulting Ahmad Hamzeh with a weapon (a screwdriver) on May 20, 2016
• Fasal Albadry with assaulting Ahmad Hamzeh with a weapon (a crowbar) on May 20, 2016
• Mohamed Al-Zafiri with possession of a weapon (a handgun) for a purpose dangerous to the public peace on May 20, 2016
• Saif Albadry with possession of a weapon (a screwdriver) for a purpose dangerous to the public peace on May 20, 2016
• Fesal Albadry with possession of a weapon (a crowbar) for a purpose dangerous to the public peace on May 20, 2016
• Ali Albadry with assaulting Ahmad Hamzeh with a weapon (a baseball bat) on May 22, 2016
• Meshari Albadry and Fahad Alzuwaid, jointly, with assaulting Ali Hamzeh with a weapon (a motor vehicle) on May 22, 2016
• Meshari Albadry with assaulting Ali Hamzeh with a weapon (a brick) on May 22, 2016
• Ali Albadry with assaulting Ali Hamzeh with a weapon (a baseball bat) on May 22, 2016
• Meshari Albadry with dangerous driving on May 22, 2016
• Fahad Alzuwaid with dangerous driving on May 22, 2016
• Ali Albadry with possession of a weapon (a baseball bat) for a purpose dangerous to the public peace on May 22, 2016
• Meshari Albadry with possession of a weapon (a brick) for a purpose dangerous to the public peace on May 22, 2016
• Ali Albadry with uttering a death threat to Ahmad Hamzeh on May 22, 2016
• Ali Albadry with uttering a death threat to Ali Hamzeh on May 22, 2016
• Ali Albadry with wilful damage to the window of Mohamed Hamzeh's motor vehicle

The charges against Ali Albadry, Meshari Albadry and Fahad Alzuwaid were the same as had originally been laid against each of them individually except that the charge against Ali Albadry of assaulting Ali Hamzeh with a weapon had been particularized as a baseball bat rather than a motor vehicle.

September 26, 2016

Information 16-R2033 spoken to:

• Mr. Murray appeared for Fesal Albadry
• Ms. Condo appeared for Mohamed Al-Zafiri
• Mr. Spratt appeared on behalf of Mr. Goldstein for Mr. Alzuwaid and for Saif Albadry

Crown counsel advised court "I believe this was a matter where they might be individually charged now, we're looking at joining them up or other related accused. If we could find it. Yeah, this is the one where it's a little complicated. We've got – although Mr. Alzuwaid is currently separately charged there are two other individuals for the same set of circumstances that day. … It gets really complicated because there's events on May 20th and events on May 22d and they're all sort of interrelated and the Crown's going to look to join everything together." Later, he advised court that the new joint information was before the court, that a judicial pre-trial had been held the week before with respect to one or two accuseds, and that "we're going to need one giant judicial pre-trial with everyone involved sort of all on the same page." He also told court that Mr. Adam was, until that point, representing both Ali Albadry and Meshari Albadry, he would not be able to do so on the new joint information and Mr. Del Greco would henceforth appear for one of them.

Because 2 of the 6 co-accuseds on the joint information were not scheduled to be back in court until Oct. 3, 2016, matters adjourned to that date at the request of the Crown to set a date for a joint judicial pre-trial.

October 3, 2016

• Crown counsel advises court: "this is a matter … where there were initially two files. On one of them, everyone was charged separately. We bind everything together, so there are now six accused on the one file. We've