ONTARIO COURT OF JUSTICE
CITATION: R. v. Jafour, 2019 ONCJ 175
DATE: 2019 03 28
COURT FILE No.: Brampton 19-591
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
— and —
MOHAMMED RAMI JAFOUR and NANOUR GARABET
Applicants
Before Justice M.M. Rahman
Section 11(b) application heard January 24, 2019
Reasons for Ruling released on March 28, 2019
Keeley Holmes.................................................... counsel for the Crown, respondent
Leo Salloum............................................................ counsel for the applicant, Jafour
Susan Pennypacker......................................... counsel for the applicant, Garabet
RAHMAN J.:
1. Overview
[1] How flexible should courts be in varying their trial-scheduling protocols to accommodate counsel’s schedules? When should a court find that the Crown is ready for trial? These are the two principal questions raised by this application for a stay of proceedings.
[2] The applicants are jointly charged with extortion. They have applied for a stay of proceedings because they say their right to be tried within a reasonable time guaranteed by s. 11(b) of the Charter has been violated. The applicants’ trial is scheduled to run between May 27 and June 11, 2019. The total delay from being charged to the anticipated end of trial is 20 months and 28 days for Mr. Jafour and 20 months and 6 days for Ms Garabet.
[3] This application turns in large part on whether there has been any defence delay. The applicants argue that the defence is not responsible for any delay in this case and that, because the delay in their case exceeds the presumptive ceiling, they are entitled to a stay. The applicants say that, although the court offered trial dates in January 2019, the Jordan[^1] clock should not stop then for two reasons. First, the court ought to have been flexible in its scheduling of their trial by offering a non-consecutive, final day to finish their trial. Second, the Crown cannot claim to have been ready to proceed in January, because it did not disclose essential evidence until January 2019. The applicants say that for either (or both) of these reasons, there is no defence delay, and the delay exceeds the presumptive ceiling.
[4] Alternatively, the applicants argue that if the remaining delay in their case is below the presumptive ceiling, they are still entitled to a stay because they took initiative to move their matters forward, and the case has taken markedly longer than is reasonable.
[5] The respondent argues that the delay in this case is below the presumptive ceiling, once defence delay is subtracted. The respondent argues that the Jordan clock stopped on January 31, 2019, because the applicants were offered a trial ending on that day. Any delay following January is defence delay and must be subtracted from the total delay in this case. The respondent says that the mere fact it did not finish making disclosure until January 2019 does not mean it would not have been ready for trial then. The respondent argues that, had the trial been in January, it would have timed its disclosure accordingly.
[6] The respondent also argued that the case has not taken markedly longer than it should have and that it was the respondent that took initiative in trying to set target dates to move the matter along.
[7] These reasons explain why I have found that the applicants’ rights under s. 11(b) have not been violated and am dismissing the stay application.
2. Procedural History
[8] What follows is a brief overview of the main events in the life of this case.
[9] Ms Garabet was arrested on September 6, 2017 and released on a promise to appear. She was formally charged almost a month later on October 5, 2018.
[10] Mr. Jafour was charged on September 14, 2017 while he was out of the country. Mr. Jafour retained Mr. Grill before he returned to Canada. Mr. Grill arranged for his client’s surrender in advance of his return to Canada. Mr. Jafour returned to Canada and was arrested on November 7, 2017. Like his spouse, Ms Garabet, Mr. Jafour was released on a promise to appear the day of his arrest.
[11] On December 5, 2017, the applicants received the first wave of disclosure. They adjourned the matter for two weeks to review the initial disclosure. Ms Pennypacker emailed assigned Crown counsel the same day alerting her to missing disclosure, and asking when Crown counsel would have a chance to discuss the case.
[12] The next appearance of significance was January 9, 2018, when counsel set a judicial pre-trial. That judicial pre-trial took place on January 24. At the court appearance after the judicial pre-trial, the applicants said that substantial disclosure was still outstanding. A further judicial pre-trial was scheduled for February 13 in anticipation of receiving further disclosure.
[13] On February 13, Ms Pennypacker appeared for the applicants. She explained that they were still awaiting further disclosure. Ms Pennypacker also explained that the Crown was making a mutual legal assistance request to the United States to get certain text messages. Ms Pennypacker said that, although she had received further disclosure, it was not the disclosure that the judicial pre-trial judge (Stribopoulos J.) had expected before the judicial pre-trial. The matter was adjourned again to March 7 and after that to April 5.
[14] On April 5, 2018, counsel conducted another judicial pre-trial. Mr. Silver appeared in court after the judicial pre-trial to speak to the matter for both applicants. Mr. Silver said that the defence was still waiting for “pivotal disclosure” and that Stribopoulos J. was not prepared to allow the parties to set dates because the defence was not yet able to make an election. Mr. Silver also made it clear that delay was in issue. The matter was adjourned to May 8 to continue the judicial pre-trial process.
[15] At the May 8 court appearance, Ms Pester, the articling student appearing on behalf of the applicants, explained that counsel had agreed at the judicial pre-trial to adjourn the matter for a further three weeks. Ms Pester made clear that they still did not have sufficient disclosure to make an election, or an accurate time estimate. Ms Pester again said that delay was a concern. The matter was adjourned for a further three weeks to have continuing judicial pre-trial discussions.
[16] On May 29, Ms Pester appeared again and explained that substantial disclosure remained outstanding and that the applicants were still not able to make an election. Ms Pester then listed a number of items of outstanding disclosure, including translations of significant phone conversations and informations to obtain warrants for phones. The matter was adjourned to June 8 to conduct a further judicial pre-trial.
[17] Hearing dates were finally set on June 8. Although the applicants still maintained they were not in a position to make an election, they agreed to set aside sufficient time to conduct a trial in this court, if that ended up being their election. The time estimate for trial was 12 days. The transcript of the appearance, as well as the trial verification form, both reflect that the first set of trial dates offered to the applicants were January 14-16, January 21-25, and January 28-31, 2019. Both applicants’ counsel were unavailable on the final day, January 31. The applicants were offered a second set of dates in April (April 2-5; 8-12; 15-17). Although Ms Garabet’s counsel was available for these dates, Mr. Jafour’s was not. Ultimately all parties were available for the third block of dates offered, ending on June 11. The matter was adjourned to January 8, 2019 to have the applicants elect their mode of trial.
[18] The applicants formally elected their mode of trial on January 8, 2019.
3. The Jordan Analysis
3.1. Total Delay
[19] The parties agree that the total delay in this case is 636 days for Mr. Jafour and 614 days for Ms Garabet.
3.2. Defence Delay
[20] Whether the defence is responsible for delay proved to be the most contentious part of this application. Defence delay must be subtracted from the total delay to determine the net delay. If the net delay exceeds the 18-month Jordan ceiling, the delay is presumptively unreasonable.
[21] In Jordan, the Supreme Court held that “the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not.”[^2] That means the Jordan clock stops with the first set of dates that the Crown and the court are available for trial.[^3]
[22] The applicants argue that they are not responsible for any defence delay. They acknowledge that they were offered 12 days for trial ending on January 31, 2019. However, as mentioned above, they say that these trial dates do not stop the clock for two reasons. First, the defence was available for all but the final day of the 12-day block that was offered. They argued that the court ought to have been flexible, in the spirit of Jordan, in scheduling the matter to accommodate this one-day discrepancy. Second, the applicants argue that, even if the court was ready in January 2019, the Crown was not. The applicants point to the fact that they only received the final translated version of the Arabic calls on January 14, 2019. Therefore, the trial could not have proceeded in January because the defence would have been entitled to an adjournment.
3.2.1. Should the court have offered a final, non-consecutive date?
[23] Before considering the applicants’ argument that the court should have accommodated counsel’s schedule and their unavailability on the last day offered in January, I will briefly explain how trial dates are set in this jurisdiction.
[24] The way the Ontario Court of Justice schedules trials varies by jurisdiction. In Brampton, trial dates are scheduled on consecutive days. Other court locations may do things differently. Courts develop their own scheduling protocols based on local practice, the number of judges, and the volume of cases. Although the Ontario Court is a “daily court,” it is the exception rather than the rule to schedule the evidentiary portion of a trial[^4] on a series of non-consecutive days in Brampton.[^5]
[25] The selection of trial dates in Brampton, like most other locations, does not take place in the courtroom. Parties go to the trial co-ordinator’s office to obtain available dates. The trial co-ordinator schedules the trial according to the local scheduling protocol. If the parties wish to depart from whatever scheduling protocol or rules the trial co-ordinator applies to selecting dates, it is open to them to seek intervention from a judge.
[26] The scheduling model used in Brampton is meant, in part, to ensure that trials finish within the allotted time and do not require continuation dates.[^6] That is not only because it is difficult for both the judge, and the parties, to continue a partially-completed trial weeks or months down the road. Continuations also have the potential to impact the hearing of other cases. Indeed, when a trial does not start on its first day, counsel are typically told to get a new set of dates rather than wait until the next day to begin in front of a judge a day late. The reason is that starting a trial in front of a judge binds the parties to that judge’s availability and usually results in a much later end of trial than selecting fresh dates. In short, with Brampton’s current scheduling model, continuing trials on non-consecutive days can affect the hearing of other cases.
[27] The foregoing explanation provides the necessary background for considering the applicants’ submission that the court should have found a way to allow the trial to finish with a final day at some later point after the January block of dates. I cannot accept their argument for the following reasons.
[28] First, because the defence was not available for the entire block of days offered in January, I consider that the trial could not be set in January because of defence unavailability. As explained above, this court sets multi-day trials on consecutive days. Because the defence was not available for all of the days offered, the court’s scheduling protocol meant that the trial could not be set in January. I cannot agree with the applicants’ submission that the court was required to alter its scheduling protocol to accommodate the final day. I am aware that the Supreme Court has said that all participants in the justice system, including the courts, must work to ensure trials proceed on time. However, as I have explained above, this court’s scheduling protocol exists for good reasons. Also, because of the way scheduling works here, flexibility in one case can affect other cases.
[29] Second, if the defence wanted these dates and wanted the court to vary its scheduling protocol, it could have sought the intervention of a judge to set those dates. While the applicants did tell the presiding judge who set the date that the defence was only unavailable for the 12th day, they did not ask for judicial intervention then, or later. Simply putting the matter on the record, without doing more, was not enough to obtain a judge’s permission to go outside of the normal scheduling protocol. In saying this, I recognize it is the Crown’s responsibility to bring a matter to trial. However, where the defence wants to rely on s. 11(b) to end a prosecution because the delay is intolerable, it does not seem unreasonable to require some defence action to ameliorate the delay.
[30] Finally, there is no evidence when a non-consecutive, 12th day would have been available. It is possible that, had the court offered a non-consecutive day, one of the parties may have been unavailable. Had the defence not been available, the clock would have stopped. There is nothing on this record that suggests the defence delay would have been less had the court selected a non-consecutive final day, when the seized trial judge would be available.
3.2.2. Was the Crown ready for trial in January?
[31] The applicants argue that the Crown cannot claim to have been ready for trial in January 2019 because it did not disclose some essential disclosure until January 14, 2019. Coincidentally, that would have been the first day of trial, had the trial been set for January. The applicants rely on this subsequent event to say that the trial could not have started and finished in January because they would have been entitled to adjourn the trial to digest the new disclosure. That new disclosure comprises the English translations of the recorded conversations that are essential to the Crown’s case and are the main evidence of the offence.
[32] The respondent argues that it did not disclose this material until January because the trial is not scheduled to begin until May. Had the trial been scheduled in January, the respondent argues that the material would have been disclosed earlier. Crown counsel, Ms Holmes, candidly acknowledged that the disclosure would have entitled the applicants to an adjournment – had they received it on the first day of trial – although she said it may not have required an adjournment of the entire block of time in January. Ms Holmes observed that the applicants already had English summaries of the recorded Arabic conversations and the recordings themselves.
[33] I cannot accept the applicants’ submission that, for the purposes of Jordan, the Crown cannot be said to have been ready in January. The applicants’ argument has some superficial attraction. After all, if the Crown did not provide key disclosure until the first day of the trial dates made available in January, how can it be said that the Crown was ready for trial in January? Stepping back, though, this submission is based on speculation. I accept the common sense proposition advanced by the respondent that the timing of the disclosure was simply based on the actual date of trial. Crown counsel’s argument that the disclosure timeline changed once the May dates were set makes sense.
[34] More importantly, this type of after-the fact examination is contrary to the spirit of the simpler approach to calculating delay.
[35] As my colleague Band J. recently observed in R. v. Cote,[^7] engaging in these types of after-the fact inquiries is both impractical and inefficient. Although Band J. was speaking about the effect of discrete events, his comments apply with equal force to the type of analysis that the applicants are urging in this case.
[38] Third, such an inquiry is impractical and inefficient in the extreme. If allowed, it would incentivize the parties (and the system) to consume significant resources in myriad attempts to discover past intervening events. If a witness, defence counsel, the assigned Crown Attorney or trial judge is unexpectedly side-lined for a limited time within a defence-caused delay, does that period suddenly become constitutionally relevant? Must it be accounted for? How? Does the sudden, unforeseen availability of the Defence that arises during a period of erstwhile defence delay convert a portion of that delay into something else? If so, what kind of evidence is required? Does the first day of trial become a post hoc inquiry into everyone’s past (un)availability? Investigations like these must be avoided if the Jordan framework is to maintain any integrity.[^8]
[36] While I do not want to be seen as encouraging the Crown to make such late disclosure, to accept the applicant’s argument would effectively be deciding this application on a speculative and uncertain basis. I am being asked to impose the most drastic remedy available based on what may have been an unwise, but not otherwise improper, decision by the Crown. In other words, the prosecution would end based on the possibility that the Crown would not have been ready.
[37] Before leaving the issue of defence delay, I will deal with the respondent’s argument that the defence is responsible for delay in setting the trial dates.
3.3. Is the defence responsible for delay in refusing to set target dates?
[38] The respondent argues that the applicants are responsible for a further two months of delay because they did not agree to set target trial or preliminary hearing dates on April 5, 2018. Rather, the applicants did not agree to set target dates until June 8, 2018.
[39] I cannot accept the respondent’s argument that these two months constitute defence delay. The transcript of the April 5, 2018 court appearance undermines the respondent’s submission that target dates could be set. At that appearance, Mr. Silver (speaking on behalf of both applicants) not only said that they were awaiting the receipt of pivotal disclosure, but also that the judicial pre-trial judge would not allow dates to be set because it was unclear how much time would be required and whether the matter would be proceeding as a trial or preliminary hearing. A month later, at the May 8 court appearance, the applicants again made it clear that they were awaiting disclosure and required a further adjournment to conduct another judicial pre-trial. At the next appearance, the applicants again expressed concern about delay and about having insufficient disclosure to be able to make an informed election.
[40] The Crown did not press for target dates to be set at these appearances. Nor is there any indication that the judicial pre-trial judge had approved setting dates. While the defence is not entitled to wait for every last piece of disclosure before setting a trial or preliminary hearing date,[^9] this was a case involving more than just a little bit of outstanding disclosure. Indeed, even when the applicants finally agreed to set target dates, they still did not have sufficient disclosure to make an informed election.
[41] It is understandable why the Crown will want to set target dates early on, especially where it is having problems making disclosure. But it is equally understandable why the defence will want to have enough disclosure to make an informed election as well as to decide whether to bring pre-trial applications, and to make other decisions that impact on the length and shape of the trial.
[42] The court also has an interest in not simply reserving a surfeit of trial time far in advance and then “giving back” several of those days. As mentioned in the earlier discussion about scheduling, no case is an island. Setting too much (or too little) time will impact other cases. It is in nobody’s interest to make potentially inaccurate time estimates simply to stop the Jordan clock from tolling or to set an artificial deadline for disclosure. The Crown, not the defence, is responsible for moving a case through the system. That includes getting the case to a point where dates can be set. The practice of trying to make trial time estimates when substantial disclosure is still outstanding should be discouraged. Where a pre-trial judge does not allow the parties to set a date because of substantial outstanding disclosure, the defence cannot be faulted for not agreeing to set dates.
3.4. Conclusion on Defence Delay
[43] Because Mr. Jafour was not available for the first two sets of dates offered, he is responsible for 131 days of defence delay (January 31 to June 11, 2019). Because Ms Garabet was not available in January, but was available in April, she is responsible for 76 days of defence delay (January 31 to April 17, 2019).
3.5. Net Delay
[44] The net delay for the applicant Jafour is 505 days or 16 months and 17 days. The net delay for Garabet is 537 days or 18 months and 12 days.
[45] Because Ms Garabet’s delay is over 18 months, it is presumptively unreasonable. However, because she is being tried jointly with Mr. Jafour, I must consider whether to subtract time from her net delay.
3.6. Exceptional Circumstances
[46] The only exceptional circumstance cited by the Crown relates to the fact that this was a joint trial. This factor only arises because Ms Garabet was available for the trial in April 2019, while Mr. Jafour was not. The Jordan analysis requires a court to consider delay individually, and deal with delay occasioned by a co-accused under the heading of exceptional circumstances. I did not understand the applicants to contest the Crown’s decision to try them together. Ms Garabet did not suggest that the Crown should have proceeded against her separately in April.
[47] The result is that the Crown can subtract a further 55 days (1 month and 25 days) from Ms Garabet’s total.
3.7. Net and Remaining Delay
[48] The net delay for Mr. Jafour is 16 months and 17 days. The remaining delay for Ms Garabet, after subtracting the exceptional circumstance of the joint trial, is 15 months and 16 days.
3.8. Have the applicants demonstrated that the case should be stayed?
[49] Where the remaining delay is below the presumptive ceiling, the defence can succeed in showing unreasonable delay if it can establish both of the following two conditions:
(1) The defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings (defence initiative).
(2) The case markedly exceeded its reasonable time requirements.
3.8.1. Defence Initiative
[50] To show defence initiative, the defence must show that it took meaningful and sustained steps to be tried quickly. The defence must show that it attempted to set the earliest possible hearing dates and that it was “cooperative with and responsive to the Crown and the court.”[^10] The defence must also have “put the Crown on timely notice when delay was becoming a problem.”[^11]
[51] I find that the applicants in this case have demonstrated that they took meaningful and sustained steps to be tried quickly. The steps that the applicants took must be considered against the backdrop of the piecemeal, and tardy manner in which they were receiving disclosure.
[52] The record reveals the defence diligently pursued disclosure and attempted to engage in meaningful judicial pre-trials. The applicants’ correspondence with Crown counsel shows that they were fully engaged with the issues and reviewed disclosure for deficiencies as soon as they received it. Most importantly they set target dates even before they were prepared to elect their mode of trial. I have addressed above why they were not required to set dates earlier than they did. They cannot be faulted for not having set dates until June 8, 2018.
[53] The record also clearly reveals that the applicants put the Crown on notice, repeatedly, that delay was an issue. Despite these repeated comments, disclosure seems to have proceeded at a snail’s pace and the applicants were deprived of the ability to make an early and informed election.
3.8.2. Markedly Longer
[54] The second pre-condition for obtaining a stay of proceedings under the 18-month ceiling requires the defence to show that the case has markedly exceeded the reasonable time requirements of the case.
[55] In deciding whether a case has markedly exceeded its reasonable time requirements, a court is to consider a variety of factors including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings. The Supreme Court instructs judges to “step back from the minutiae and adopt a bird’s eye view of the case.” Determining whether a case has taken markedly longer is not a matter of precise calculation.
[56] Although the Jordan framework has replaced the old Morin analysis, the tolerance for institutional delay under Morin is still a helpful guideline. Morin established a guideline of 8-10 months of institutional delay in the Ontario Court of Justice. Institutional delay, of course, was not total delay. It was the delay calculated after a reasonable intake period (after which the parties are ready for trial) to the trial date.
[57] This is a close case. But taking the bird’s eye view that Jordan requires, I cannot find that it has markedly exceeded its reasonable time requirements. Although it is tempting to hold the Crown to account for the delay that occurred because of its tardiness in making disclosure, in the end I cannot say that this case has taken markedly longer than is reasonable. A 12-day trial is a long trial in the Ontario Court. Securing that many days could reasonably take between 10 and 12 months. Had the Crown not been as slow in fulfilling its disclosure obligation, it likely would still have taken more than a year to complete this trial. Looking at a case like this from the outset, one would expect that it might reasonably take 14 months to get through the system. Therefore, even if disclosure had been made earlier, I am not satisfied that the trial would have been completed that much sooner than it is currently set to finish. The court’s ability to offer dates (in January 2019) within about seven months (from June 2018), made up for the Crown’s disclosure delays. In all the circumstances, I cannot say that the applicants have met their onus on this second pre-condition.
[58] The applicants have failed to demonstrate that the delay in this case is unreasonable.
4. Conclusion
[59] This case is hardly a model of efficiency. Nothing I have said should be taken as condoning the Crown’s delay in fulfilling its disclosure obligations. However, s. 11(b) is not meant to punish the Crown for every transgression. It is meant to end a prosecution only where the delay in a case becomes constitutionally intolerable. This is not such a case.
[60] The application to stay proceedings is dismissed.
Released: March 28, 2019
Justice M.M. Rahman
[^1]: R. v. Jordan, 2016 SCC 27. [^2]: Jordan, supra, at para. 64. [^3]: R. v. Mallozzi, 2018 ONCA 312 at paras. 5-6. [^4]: When a motion must be heard and decided in advance of trial, the time required to hear the motion will be set in advance of the evidentiary portion of the trial, where it is appropriate. [^5]: I realize that, strictly speaking, all the days offered in January were not consecutive, since January 17 & 18 were not part of the block of dates offered. However, that is likely because the judge to whom the case was to be assigned was unavailable during those two days. Other than those two days, the trial was still scheduled within a consecutive time period. [^6]: Another reason for the scheduling model (which typically has judges scheduled to trial courts on a weekly basis) is to ensure an efficient use of court time, and to ensure that other judges can easily assist in taking over-booked trial matters from their colleagues. [^7]: R. v. Cote, 2019 ONCJ 87. [^8]: Cote, supra, at para. 38. [^9]: R. v. Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 73 OR (3d) 161 at para. 47. [^10]: Jordan, supra, at para. 85. [^11]: Ibid.