WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2019-07-11

Court File No.: 17-A36149, Central East Region, Durham Region

Between:

Her Majesty the Queen

— AND —

Parwiz Abdullatif

Before: Justice Susan C. MacLean

Heard on: June 6 and 7, 2019

Parties Advised of Decision on: June 13, 2019

Reasons for s. 11(b) Charter Ruling Released on: July 11, 2019

Counsel:

David Slessor — Counsel for the Crown

Ramona Abraham — Counsel for the Accused, Parwiz Abdullatif

Decision

MacLean J.:

Overview

[1] Parwiz Abdullatif is charged that on July 8, 2017 he committed a sexual assault on Ms. P.A. The information was sworn on August 16, 2017. There was a mistrial declared at the first trial before my colleague Justice Felix. This took place on April 23, 2019 following the results of an audit of the translation by the fully accredited Dari interpreter for Mr. Abdullatif, which revealed that significant errors in translation had occurred. This was the third audit in the same trial, as issues had also been raised about two separate fully accredited Spanish interpreters who had been translating the evidence for the complainant (who is a resident of Mexico). She testified in part by video link/internet and I am informed did so again at the new trial which ended up taking place before Justice Michael Harpur, as a result of me becoming unavailable due to medical reasons. The results of those two separate Spanish language audits, which had to be done at two different points in the first trial, had revealed no significant errors in translation, and the trial had continued. Then a new language interpretation issue arose with one of the Dari interpreters during the cross-examination of Mr. Abdullatif. A third audit was ordered with the results leading to a mistrial.

[2] At the time I heard this s. 11(b) Charter Application, the second trial was scheduled to conclude in front of me on June 20, 2019 following three days of trial. The length of time from August 16, 2017, when the information was sworn, to June 20, 2019, when the new trial was anticipated to finish, is 22 months and 4 days (673 days). Mr. Abdullatif was seeking a Stay of Proceedings on the basis of an alleged infringement of his Charter s. 11(b) rights to a trial within a reasonable time. That Application was heard in front of me on June 6 and 7, 2019.

[3] Immediately following hearing this Application, on Sunday June 9, 2019 I suddenly developed critical and unexpected vision issues, including a torn retina and related problems. The following week I was placed on a 2-week medical leave by my physician, which prevented me from being available to do the trial on June 17, 19 and 20, 2019. My Regional Senior Justice, Justice Esther Rosenberg, immediately authorized per diem coverage for my absence. As a result, Justice Michael Harpur was assigned to hear this re-trial so that there would be no further delays. Fortunately, since I had worked on this Ruling all weekend before my urgent eye issue developed, I was in a position to notify the parties through the Trial Coordinator the week of June 10th that I was dismissing this Charter Application with Reasons to follow. The compromise to my vision, however, meant that I could not finalize my Reasons for this Ruling in writing until now. I directed that I was content that the plea be struck and re-entered before a new Judge so that the matter could proceed to trial without any delay. I am informed that the trial proceeded, and the evidence was completed as scheduled in front of Justice Harpur, but the matter has been put over to July 25, 2019 for Judgment. My decision for this Ruling was made at a time when the end date was June 20, 2019 so my Ruling did not take into account any additional delay with the new end date of July 25, 2019. I note, however, that with the total delay which I am deducting, the additional time to July 25th does not take it beyond the 18-month Jordan threshold.

[4] Since this matter if it ended on June 20, 2019 would have taken 4 months and 5 days longer than the maximum acceptable 18 months to be tried to its completion, the Supreme Court of Canada's timelines as set out in R. v. Jordan, 2016 SCC 27 and R. v. Cody, 2017 SCC 31 are clearly engaged.

[5] The Defence fairly conceded that if there are any periods of time deducted which bring the net delay to below 18 months, then there is no breach of s. 11(b) and the trial should proceed. The two focused issues in this Application are:

(1) Does any portion of the initial 5.5 months of delay to retain Counsel amount to Defence delay? This issue is engaged as a result of Mr. Abdullatif's decision to first apply to Legal Aid, then his attempt to retain Defence Counsel privately and then his return to Legal Aid to apply for and eventually obtain a Certificate. The Defence submits that since Mr. Abdullatif was taking reasonable steps to retain Counsel that none of this period of time should be considered defence delay. The Crown submits that all of the delay due to switching from Legal Aid to private retainer and back to Legal Aid is defence delay. For the Reasons below, I agree with the Crown's submissions that the portion of the 5.5 months after Mr. Abdullatif switched from Legal Aid to attempting to retain Counsel privately and then back to Legal Aid amounts to defence delay; and

(2) Are the three audits of the translations by the fully accredited Spanish and Dari interpreters discrete events which amount to exceptional circumstances or are they properly characterized as systemic delay since those interpreters are provided by the Ministry of the Attorney General? The Defence submits that all of this delay is systemic delay, while the Crown argues that all of these delays are discrete events. I have concluded that all of the delay due to the three audits amount to exceptional circumstances for the reasons articulated more fully below.

The Law with Respect to Exceptional Circumstances and Defence Delay

[6] In August of 2018, I had to consider similar issues regarding defence delay and exceptional discrete events in the case of R. v. Moniz, [2018] O.J. No. 4527. At that time I summarized some of the appellate law in this area as follows, and I apply it to the case of Mr. Abdullatif as well:

On July 18, 2018 the Ontario Court of Appeal in R. v. MacIsaac, 2018 ONCA 650, revisited s. 11(b) in the context of a re-trial on an Aggravated Assault charge arising out of a hockey game. In that case a stay was entered where a re-trial had previously been ordered by the Court of Appeal, and a 10-day re-trial was scheduled for one year later (and was not expedited). The Court emphasized the duty of the Crown to re-try cases as soon as possible (at paragraph 23). Without deciding the issue, the Court noted that re-trials in the Ontario Court of Justice should occur well before Jordan's 18-month presumptive ceiling (at paragraphs 27-28). It seems to me, by analogy, that where trials in the Ontario Court of Justice are not completed on the dates originally scheduled, that efforts must be made to expedite the continuing trial dates (as was in fact done in Mr. Moniz' case). The Court provides a helpful overview of the approach to be used in s. 11(b) cases at paragraph 22 and the issue of exceptional circumstances at paragraphs 42 to 44. I apply this legal analysis to Mr. Moniz' case.

Overview

[22] The Jordan methodology has been canvassed by this court in several cases. See e.g., R. v. Jurkus, 2018 ONCA 489; R. v Gopie, 2017 ONCA 728, 356 C.C.C. (3d) 36; R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433; and R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401. There is no need to rehearse it here. It suffices to say that, in the usual case, total delay is measured from the date the charge is laid to the end of the trial. Defence delay is then subtracted from this period to determine the net delay. If the net delay falls above the presumptive ceiling the delay is presumptively unreasonable, but the Crown may rebut this presumption by establishing that there are exceptional circumstances. Conversely, if the net delay falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. When charges pre-date Jordan, the framework must be applied flexibly and contextually, taking into account the parties' reliance on the previous state of the law.

[42] Jordan dictates that net delay above the presumptive ceiling is unreasonable unless the Crown can establish the presence of exceptional circumstances that rebut the presumption (para. 47). Exceptional circumstances are events that are either reasonably unforeseen or reasonably unavoidable, and cannot reasonably be remedied by the Crown once they arise: Jordan, at para. 69. As the Crown points out in this case, exceptional circumstances need not be rare: Jordan, at para. 69. Nor did Jordan establish an exhaustive list of circumstances that might qualify as exceptional; on the contrary, the court left the determination of exceptionality to the trial judge's good sense and experience: at para. 71.

[43] Exceptional circumstances generally fall into two categories: discrete events and particularly complex cases: Jordan, at para. 71. In addition, a transitional exceptional circumstance may arise if, as here, a case was already in the system when Jordan was decided: Jordan, at paras. 94-98.

[44] A discrete exceptional event must be either reasonably unforeseen or reasonably unavoidable, and something that cannot reasonably be remedied by the Crown once it arises: see Jordan, at para. 69. Discrete exceptional events may include, but are not limited to, medical or family emergencies, the recantation of a witness requiring the Crown to change its case, or the appointment of the accused's counsel to the bench: Jordan, at paras. 72-73; Cody, at para. 49. The delay caused by such events is deducted from the net delay to the extent it cannot be reasonably mitigated by the Crown and the justice system: Jordan, at paras. 73, 75; Cody, at para. 48.

[60] When delay falls below the presumptive ceiling, the onus is on the defence to establish that the delay is unreasonable despite not exceeding the ceiling: Jordan, at para. 82. The defence must establish (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.

[Emphasis added]

7 Since I conclude that an important aspect in disposing of Mr. Moniz' s.11(b) Application deals with "exceptional circumstances", it is important to review what the Supreme Court of Canada says in Jordan, about this issue in paragraphs 73 to 75:

[73] Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected -- even where the parties have made a good faith effort to establish realistic time estimates -- then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.

[74] Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.

[75] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e., it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).

[Emphasis added]

Chronology of Events

[7] Exhibit 1 on this Application is the Application Record which is a book of transcripts for every appearance in these proceedings up to and including March 8, 2019. The transcripts for the dates following March 8th could not be obtained in time for the Application due to the change in Defence Counsel and a delay in Legal Aid transferring the Certificate to Ms. Abraham. While the parties agreed to have the audio of the later appearances for March 29, April 23, May 2 and May 16, 2019 made Exhibits 9 and 10 on this application to make sure the record is complete, the Crown and Defence came to an Agreed set of Facts for the Record (discussed during submissions), making the playing of the audio unnecessary. Some of those facts are set out in the Defence Supplementary Submissions in Exhibit 7. Exhibit 2 is a copy of the Information. Exhibit 3 is a copy of all of the case management forms which contain the history of all dates offered by the Trial Coordinator throughout the proceedings and declined or accepted by Crown and Defence. Exhibits 6, 7 and 8 are the Application, Factum and Supplementary Materials filed by the Defence and the Crown Reply. Exhibits 4 and 5 are the emails exchanged between Counsel and the Court to ensure that everything was in place so that this Application could proceed on the dates as scheduled.

[8] Appendix A to these Reasons is a table summarizing all of the events in these proceedings described more fully in the Chronology of Events below:

Chronology of Events

August 15, 2017

The Information is sworn.

August 16, 2017

Parwiz Abdullatif is taken for his bail hearing and released on a Recognizance with one Surety. Matter adjourned to 108 First Appearance Court on August 29, 2017.

August 29, 2017

First Appearance Court before a Justice of the Peace. Mr. Abdullatif is assisted by a Farsi Interpreter. Mr. Abdullatif requests a 3 week adjournment so that he can "perhaps begin his Legal Aid application". The Justice of the Peace requests that he bring a letter from Legal Aid indicating the status on the next court date of September 19, 2017.

September 19, 2017

Mr. Abdullatif appears, assisted by a Farsi interpreter. Mr. Abdullatif has spoken to Duty Counsel. The Crown indicates to the Justice of the Peace that he has been informed that Mr. Abdullatif has applied for Legal Aid and provided all of the necessary documentation to them but needs a further two or three week adjournment to get a response from Legal Aid.

October 10, 2017

Mr. Abdullatif appears, assisted by Duty Counsel and a Farsi interpreter (he speaks in English for part of the proceedings, but later advises he cannot understand all words in English). The Crown provides some additional disclosure. Duty Counsel advises that Mr. Abdullatif attended at the Legal Aid office this date and was informed he is required to bring in some further documents before his application can be completed. Defence requests an adjournment to November 8, 2017 when the same interpreter is available. The Justice of the Peace informs Mr. Abdullatif that "it is expected you will have completed that application and that you will have retained counsel by your next appearance". The Crown concedes that there is no defence delay for the initial period of time during which Mr. Abdullatif was applying for Legal Aid up to November 8, 2017. This is consistent with the general approach in Durham Region that a trial is to be set within 90 days after which the matter must be case-managed.

November 8, 2017

Mr. Abdullatif appears, assisted by Ms. Yarrow who is a Legal Aid worker. Mr. Abdullatif agrees to proceed in English without an interpreter (who is tied up in a different courtroom), and later says he will not need an interpreter for the next court date, but may need one later on. Ms. Yarrow informs the court that there is a fax from Mr. Ari Goldkind indicating, "Client is in the process of retaining Counsel…and please adjourn three to four weeks for further retainer and a Crown pre-trial if retained". Mr. Goldkind also advises that he is in possession of full disclosure but if there is any additional disclosure to please provide it. Mr. Abdullatif says, "I just find a lawyer now. I need some more time to talk with my lawyer…" The Crown provides additional disclosure. Matter is adjourned for 3 weeks to review disclosure, retain counsel and have a Crown pre-trial conducted. This is the first appearance where Mr. Abdullatif appears to have changed his approach to obtaining a lawyer by retaining a lawyer privately.

November 28, 2017

Mr. Abdullatif appears, assisted by Ms. Yarrow, a Legal Aid worker. Ms. Yarrow informs the Justice of the Peace that they have a message from Counsel, Mr. Goldkind which indicates, "Still in process of being retained. Please adjourn to the end of the month for retainer to be completed." The Crown advises that there has been no Crown pre-trial conducted or any communication by Mr. Goldkind. Mr. Abdullatif advises the Court that he has spoken to Counsel, "but he didn't answer me and last week I'm still trying to get him but he's not answering". Ms. Yarrow speaks with Mr. Abdullatif privately and then advises that there may be a partial retainer but he is "in the process of trying to retain his lawyer". Justice of the Peace DeGannes declines to adjourn the matter for one month and asks Mr. Abdullatif when he expects to fully retain Mr. Goldkind. Mr. Abdullatif indicates that he has given his lawyer a $1000 deposit. He also says, "…I just talked with him I think last month…we are talking still about money". He further advises that Mr. Goldkind has not been returning his phone calls so Her Worship asks Duty Counsel to send a message to Counsel to let him know that his client is trying to reach him and to answer his phone. Matter adjourned one week for retainer of Counsel. This is the second appearance where Mr. Abdullatif is attempting to retain Counsel privately.

December 5, 2017

Mr. Abdullatif appears, assisted by Ms. Yarrow, Legal Aid Worker. Ms. Yarrow requests another adjournment to December 19, 2017 to allow Mr. Abdullatif to complete the private retainer of Counsel, Ari Goldkind. Ms. Yarrow has no message from Mr. Goldkind. Mr. Abdullatif advises that he had spoken to Counsel the week prior to this date and that, "we are talking still" and "I'm waiting for the answer". Ms. Crawford, appearing for the Crown advises the Justice of the Peace that this case is now "past the 90-day guideline", that there have been 6 appearances, and adds, "if it doesn't move forward in a timely fashion, I'm going to be requesting it be case managed". [In Durham Region this means being moved from the 108 remand court with a Justice of the Peace into the 107 Plea Court where a Judge is sitting]. The Justice of the Peace agrees with this request and asks Ms. Yarrow to let Counsel know that if by December 19, 2017 the matter is not moving forward, it will no longer be in the 108 remand court.

This is the third appearance where Mr. Abdullatif is attempting to retain Counsel privately.

December 19, 2017

Mr. Abdullatif appears, assisted by Duty Counsel, Ms. Scarlett. Ms. Scarlett seeks an adjournment to January 2, 2018 "for the client to follow up with Legal Aid". She adds, "I understand he has made an application but there is something further required before a decision can be made". The Record is silent as to whether Mr. Abdullatif has had to start his application from the beginning or whether it is a continuation of the earlier Legal Aid application. There is no mention whatsoever of what happened with the private retainer of Mr. Goldkind. There is no discussion at all about the matter being case-managed by a Judge in light of being past the 90-day guideline. Matter adjourned to January 2, 2018 for the Legal Aid application to be completed.

This is the first appearance since October 10, 2017 where Mr. Abdullatif advises the Court that he is now (again) seeking to obtain a Legal Aid certificate instead of retaining Counsel privately.

January 2, 2018

Mr. Abdullatif appears, assisted by Ms. Yarrow, Legal Aid worker who requests a further two week adjournment. She informs the Court that, "The reason for the adjournment request is he has provided information for the purpose of his Legal Aid application and requires some time for a decision". When asked by the Justice of the Peace whether all of the information required by Legal Aid has been provided by Mr. Abdullatif, he responds, "I just applied for Legal Aid. I'm waiting for the answer." Ms. Yarrow confirms that bank information has been received from Mr. Abdullatif on this date and that the application needs 10 business days for review and decision. When asked if he requires an interpreter on the next date, Mr. Abdullatif advises, "I'm trying to find a lawyer who speak the same language, Persian or Farsi, any lawyer that speak my language". Duty Counsel advises that he has been provided with a list of lawyers who speak those languages to assist him in retaining one in the interim. An interpreter is ordered for the next appearance. There is no discussion at all about the matter being case-managed by a Judge in light of being past the 90-day guideline.

This is the 2nd appearance where Mr. Abdullatif is renewing his Legal Aid application and awaiting a response.

January 16, 2018

Mr. Abdullatif appears, assisted by Ms. Yarrow, Legal Aid worker and a Persian and Dari speaking interpreter. Ms. Yarrow has instructions from Duty Counsel to seek a 2 week adjournment to allow Mr. Abdullatif meet with Counsel, whom he has contacted. It is confirmed that he now has a Legal Aid Certificate. The Crown, Mr. Flagg, does not agree with the adjournment saying, "I'm not going to agree, Your Worship, although there is nothing I can do about it. We're at five months in this matter…I don't want to belabour the point. We're at five months…We need to move it along. This gentleman has rights to have his trial in a reasonable time and we have to have it" and later adds that he "can't agree to adjourn this anymore" and suggests that a Judicial Pre-Trial with a Self-Represented person be scheduled.

At one point the Justice of the Peace asks what the problem is and adds, "On October 10th, okay, you were granted Legal Aid. Am I correct on that?" to which Mr. Abdullatif responds, "Yes." Ms. Yarrow then adds, "I understand there may have been delay. I am unable to confirm that a Legal Aid certificate was issued January the 2nd. However, the process started some time ago, August 29th, it appears, of 2017." The Justice of the Peace asks if Mr. Abdullatif had a decision from Legal Aid and then lost it and he reapplied to which she responds he has a Certificate as of January 2, 2018. Ms. Yarrow does not answer the other questions raised by the Justice of the Peace.

At one point the Crown asks for the lawyer's name and Mr. Abdullatif advises, "Roza Rokni", but Ms. Yarrow advises that there is no message from Counsel and Mr. Abdullatif has a meeting pending with Counsel. He says he had spoken to her the week prior to January 16th, but she didn't show up for a meeting he had scheduled. Mr. Abdullatif tells the Justice of the Peace that he had been speaking with Mr. Goldkind in the past, "so I cancelled that now".

A 2-week adjournment is granted to allow Mr. Abdullatif to meet with the new lawyer. The Justice of the Peace tells Mr. Abdullatif that "The matter is getting very long, sir, so it's time to get the matter moving. Okay, so Counsel has a week to review disclosure and come back here and set a date or have a Crown pre-trial. Sir, at the end of the day, I think you're the problem. The matter is going to start moving forward now". In response, Mr. Abdullatif replies, "I think I don't have a problem, just waiting for – first I hire Mr. Goldkind and then he wants more money and I don't have that much money, so we cancelled that and then I apply for Legal Aid. That's why it takes a long time. I'm ready for any day, any time that you just come."

When the matter is adjourned to January 23, 2018, the Justice of the Peace indicates that it is being marked to set a date and that "in the interim, Counsel should have a Crown pre-trial". The Dari interpreter is confirmed for the next date.

This is the 1st appearance where it is clearly stated that Mr. Abdullatif has obtained a Legal Aid Certificate and the 3rd appearance since advising the Court since he indicated he was renewing his Legal Aid application. There is still no lawyer in place. Based on what Mr. Abdullatif tells the Justice of the Peace it appears that it was only after he cancelled his arrangement to retain Mr. Goldkind privately that he went back and applied for Legal Aid.

January 23, 2018

Mr. Abdullatif appears, assisted by a Farsi interpreter. He is appearing for the first time in 107 before a Judge, Justice Olver, for the matter to be case-managed. It had been traversed the same day by the Justice of the Peace from the 108 remand court. This was after Mr. Abdullatif informed the Court that "his Counsel was supposed to be here and she informed him that she is not able to make it today". Mr. Abdullatif informs Justice Olver that he had met with his lawyer, Roza Rokni, the previous Friday and she told him she does not accept Legal Aid in Oshawa but could find someone for him. He informs Justice Olver that he had retained Ari Goldkind and paid him some money, "but he didn't do me the service I needed so I changed the lawyer, and he asked me for more money and I couldn't afford it, so I applied for Legal Aid". He then says that after meeting with Roza Rokni for one hour she told him she could not come to Oshawa for his matter but would find another counsel for him. Mr. Abdullatif says he has been calling Ms. Rokni but is still waiting to hear from her. He further indicates that the case has taken 5 months and it is affecting his job and his business. He adds, "I would like this to come to a closure through a lawyer." Justice Olver instructs Mr. Abdullatif that he needs to take steps to get a lawyer in place who will appear for him and that it has to happen right away. Mr. Abdullatif agrees he will retain another lawyer. He advises that both Ms. Rokni and Mr. Goldkind have some of his disclosure and that he keeps calling Mr. Goldkind who says, "Don't call me." Justice Olver takes carriage of the matter and remands the matter to February 5, 2018 back in front of him, instructing Mr. Abdullatif to find a new lawyer who will accept his Legal Aid certificate, go on the record and who will assist him including getting the disclosure. The next date is scheduled to either set a date for a Judicial Pre-Trial with Counsel or a Self-Represented Judicial Pre-Trial. Justice Olver reminds Mr. Abdullatif that "this matter must move forward."

This is another adjournment to get a lawyer in place with a Legal Aid Certificate.

February 5, 2018

Appearance before Justice Olver to be case-managed. Ms. Sara Samet has now been retained by the Legal Aid Certificate and appears on Mr. Abdullatif's behalf pursuant to a Designation which is filed. Ms. Samet advises that she has to review 500 pages of disclosure and order and review video disclosure as well as request some additional disclosure. Ms. Samet agrees to set a Judicial Pre-Trial and is offered dates of March 1st and 29th for which she is unavailable but agrees to the next date offered of April 5, 2018. An interpreter is ordered for that date in case elections need to be made by Mr. Abdullatif.

April 5, 2018

A Judicial Pre-Trial is conducted with Justice Burstein. Ms. Samet uses the services of the Interpreter to discuss concessions and elections with Mr. Abdullatif. She then requests a very brief adjournment to April 11, 2018 before setting trial dates.

April 11, 2018

The matter appears before Justice Richards in the 107 Plea/Case Management Court. Mr. Abdullatif is assisted by the interpreter and elects to proceed to trial in the Ontario Court of Justice (the Crown has previously elected to proceed by indictment). Trial dates of June 5, 6 and 7, 2018 are offered by the Trial Coordinator but can't be accepted due to outstanding disclosure regarding text messages and because arrangements need to be made to bring the complainant from Mexico. Exhibit 3 shows that dates of January 21, 22 and 23, 2019 are scheduled, but when it is realized that this is close to the 18 month Jordan limit, new dates of September 24, 25 and 26, 2018 are offered by the Trial Coordinator and accepted. An interpreter who speaks both Dari and Farsi is ordered for Mr. Abdullatif and a Spanish interpreter is ordered for the complainant. A confirmation hearing is set for July 19, 2018.

July 19, 2018

Confirmation Hearing for the trial. The matter appears before Justice Burstein, who had conducted the Judicial Pre-Trial. An agent appears for Ms. Samet. The Crown confirms that subpoenas have been issued. Discussion takes place about having a Dari interpreter from Afghanistan whom Mr. Abdullatif can communicate with since he had difficulty understanding one of the previous Dari interpreters. The confirmation hearing is adjourned to August 2, 2018 to sort out the interpreter issues.

August 2, 2018

Status Hearing. Ms. Samet appears on behalf of Mr. Abdullatif by way of Designation. It is confirmed that a Dari/Farsi Interpreter from Afghanistan has been ordered for trial. A discussion takes place about whether Dari and Farsi are the same language, since Mr. Abdullatif has requested a Farsi/(Herati Region) interpreter from Afghanistan. The Crown advises that Dari is spoken in Afghanistan, Farsi is spoken in Iran and they are related languages. The Interpreter booked for trial is Mr. Mirwais Wahidi, a fully accredited and experienced Dari/Farsi Interpreter from Afghanistan. [It should be noted that on May 30, 2019 a lengthy Voir Dire was conducted by me with respect to Mr. Wahidi's qualifications and his qualifications were accepted by all parties, including Mr. Abdullatif, for the purposes of the upcoming second trial set to commence on June 17, 2019.] It is confirmed that a Spanish interpreter will also be required for the first 2 days of trial. The September trial dates are confirmed.

September 21, 2018

Brief appearance before Justice Felix to confirm that Defence has received a fully transcribed and translated statement from the complainant. Ms. Samet confirms she has received this. She also alerts Justice Felix to a potential s. 276 Application to be discussed on the first day of trial.

September 24, 2018

First day of Trial. Complainant P.A. testifies with the assistance of a Spanish interpreter. The examination-in-chief is completed and part of cross-examination is completed. Issue is raised by a different interpreter (from Victim Witness Assistance) about the accuracy of the Spanish translation being done by the accredited Spanish interpreter for the witness, but it appears that Justice Felix is informed for the first time on September 25th. Matter adjourned to September 25, 2018.

September 25, 2018

Justice Felix is informed that an issue has arisen with respect to the Spanish language interpretation concerning three different responses given by the complainant. Matter is adjourned one day to allow the parties to consider their positions about what remedy is being sought.

September 26, 2018

After hearing submissions from Counsel, Justice Felix orders that an audit take place of the Spanish interpreter's translation of the complainant's evidence. First date available for potential mistrial application is November 29, 2018 which is agreed to. Justice Felix is previously scheduled to hear many lengthy continuing matters in the interim. Counsel advises that the first available dates being offered to continue the trial are March 1 and April 15, 2019. Justice Felix offers to give up a Non-Preside day on January 17, 2019 but Defence Counsel is not available that day. After some discussion about possible dates. The matter is held down to try and obtain earlier continuing trial dates. Following this, the continuing trial dates added are January 21 and 25, 2019. Justice Felix has given up a Non-Preside day on January 25th to allow this date to be available. Ms. Samet is not available those days but agrees to try and re-arrange her schedule to make herself available, and the date of December 7, 2018 is added to confirm her availability. A hold is placed on March 1, 2019 by the Trial Coordinator in the event that the trial does not finish in the 2 days contemplated by Counsel. The Crown agrees to all dates scheduled. Justice Felix orders that the Spanish interpreters for the continuing trial dates be proficient in Spanish as spoken in the Americas (as opposed to the Spanish spoken in Spain).

October 12 and 17, 2018

First audit is provided to the Judicial Secretary for Justice Felix on October 12, 2018. The audit is provided to both Counsel on October 17, 2018. This audit reveals no significant errors in the translation of the Spanish interpreter.

November 29, 2018

In light of results of first audit of the translation by the Spanish interpreter, the Defence abandons their Mistrial Application. Matter adjourned to continue trial on January 21, 2019.

January 21, 2019

The trial cannot continue because Mr. Abdullatif is in London, Ontario where he had gone to visit his children. Due to a snow storm, his is unable to return until late in the day. No evidence heard. Matter adjourned to continue the trial on January 25, 2019. This event would have been considered Defence Delay in the s. 11(b) analysis, but for the snow storm. So during the s. 11(b) Application the parties agreed that this 4 day delay can be treated as a discrete event amounting to exceptional circumstances.

January 25, 2019

The trial continues with the complainant's evidence in cross-examination. Part way through her evidence, while she is being assisted by a fully accredited Spanish interpreter, the second fully accredited Spanish interpreter interrupts the proceedings to point out that she believes the first interpreter has made an error in translating the Spanish language. This is a different interpreter than the one who was the subject of the first audit. After lengthy submissions, Justice Felix orders a second audit of the interpretation of the Spanish language. No further evidence is heard this date.

February 1, 8, 12 and 14, 2019

All of these appearances are to monitor the progress of the second audit of the Spanish interpretation for the complainant's evidence. On February 14, 2019 Justice Felix advises that the evaluation of the Spanish interpretation, the second audit, is to take place on February 19, 2019. The matter is adjourned directly to the continuing trial date of March 1, 2019.

March 1, 2019

Defence Counsel advises that in light of the second audit of the Spanish interpretation revealing no significant errors, that she is not bringing any Application. The trial continues with the complainant testifying from Mexico by video/internet link. Her evidence is completed. One further witness is completed and exhibits filed. Matter adjourned to March 6, 2019 to complete trial.

March 6, 2019

The trial continues. Mr. Abdullatif testifies with the assistance of a Dari/Farsi interpreter. Part-way through his cross-examination, Mr. Abdullatif (who speaks some English) raises an issue about the adequacy of the translation being done. Matter adjourned for third audit to be conducted, this time into the translation being done by the Dari/Farsi interpreter. Court orders that transcripts be expedited so that the audit can take place as soon as possible.

March 8, 2019

Brief appearance before Justice Felix to monitor when transcripts will be available for the 3rd audit and to find out when the audit will be conducted. Matter adjourned to March 29, 2019.

March 29, 2019

Date to confirm whether the third audit has been completed. It has not been done yet.

April 23, 2019

Date originally scheduled for a section 11(b) Application. In light of significant errors revealed by the audit of the Dari/Farsi interpretation, Justice Felix declares a mistrial of the case.

The matter is adjourned to allow the Crown to speak with the complainant to see if she wishes to proceed to trial again. Matter also adjourned to allow Ms. Samet to transfer the case to a new lawyer (she is pregnant and due in July 2019 and wants to ensure that this does not delay the case).

May 2, 2019

Ms. Ramona Abraham agrees to take over Defence from Ms. Samet. Legal Aid has not transferred the Certificate to Ms. Abraham yet, but new trial dates are scheduled with Ms. Abraham's availability in mind. Earliest dates offered are accepted by all parties. June 6, 2019 set for a section 11(b) Application. June 17, 19 and 20, 2019 are set for the new trial.

May 16, 2019

Ms. Samet is granted her Motion to be removed as Counsel of record. Ms. Abraham appears to confirm her intention to represent Mr. Abdullatif. Legal Aid has still not transferred the Certificate to Ms. Abraham. Matter adjourned to May 30, 2019 to confirm that Ms. Abraham has been retained.

Late May

In late May, the Trial Coordinator requests that Justice MacLean give up a Non-Preside day on June 17, 2019 so that the trial can be assigned to her instead of a per diem judge. This is done to avoid any potential delay issues. Justice MacLean agrees to give up that day.

May 30, 2019

Matter is moved to Justice MacLean's court to conduct a thorough Voir Dire into the qualifications of the two Dari/Farsi speaking interpreters who will be assisting Mr. Abdullatif at trial. All parties, including Mr. Abdullatif, are satisfied with the two interpreters being provided. Ms. Abraham appears and assists Mr. Abdullatif, however, the Legal Aid Certificate has still not been transferred to her and Ms. Samet's office is advised later this date that her Certificate has been cancelled. Justice MacLean urges Ms. Abraham to advise Legal Aid about the urgency of getting the transfer of the Certificate to her completed. For the first time on this date Justice MacLean discovers that the section 11(b) Application has been set for June 6, 2019. She is scheduled for a Non-Preside day that day but agrees to give it up to avoid any further delays in this matter.

June 6, 2019

Section 11(b) Application commences in front of Justice MacLean. Mr. Abdullatif testifies. Exhibits are filed. Matter cannot continue into the afternoon because the Dari/Farsi interpreter had a previous commitment to interpret in another jurisdiction. Ms. Abraham appears to represent Mr. Abdullatif even though the Legal Aid Certificate has still not been transferred.

June 7, 2019

Section 11(b) Application continues in front of Justice MacLean in the afternoon. All submissions are completed by end of day. Justice MacLean advises that the Decision and Reasons for this Application will be provided to Counsel prior to June 17, 2019. Ms. Abraham appears to represent Mr. Abdullatif even though the Legal Aid Certificate has still not been transferred.

June 9, 2019 to June 17, 2019

Justice MacLean experiences critical and urgent health issues related to vision that result in her being placed on medical leave for two weeks. The parties are advised through the Trial Coordinator on June 13, 2019 that the s. 11(b) Application is dismissed with Reasons to follow and Justice MacLean directs that the plea be struck and re-entered to allow another Judge to hear the trial. The Regional Senior Justice authorizes per diem coverage to ensure that there is no additional delay. Justice Michael Harpur is assigned to do the new trial. Ms. Abraham confirms by e-mail that the Legal Aid Certificate is in place and she is now retained.

June 17, 19 and 20, 2019

The new trial proceeds in front of Justice Harpur. The evidence and submissions are completed as scheduled.

July 25, 2019

The date that the trial Judgment is scheduled to be delivered by Justice Harpur.

The Evidence of Mr. Abdullatif and other Evidence on the Section 11(b) Application

[9] In addition to the evidence and exhibits described in paragraph 7 above, the parties placed some admitted facts on the record including those in paragraph 23 below regarding the Dari interpreter's serious health issues. Parwiz Abdullatif also testified on this Application on June 6, 2019, however, only with respect to the earlier part of the proceedings when he was trying to obtain counsel. He agreed that the transcripts accurately reflected what had taken place. Given the passage of time he was fair in conceding that, "I don't remember it well", with respect to some of his dealings with Legal Aid or when things happened.

[10] The parties agreed to the facts as set out in the Chronology above, that the Trial Coordinator took steps to ensure that the second trial would proceed in a timely way as scheduled, and Justice MacLean gave up 2 non-preside days on June 6 and 17, 2019 to make sure that everything stayed on track, including this Application. It was also agreed that after the mistrial was granted on April 23, 2019 that the matter was adjourned for a short time to May 2, 2019 so that inquiries could be made of the complainant (who lives in Mexico and had to be spoken to with the assistance of a Spanish interpreter) to determine whether she wanted to testify again. Otherwise a new trial date could have been set on April 23, 2019. It was agreed that there was no waiver or defence delay following the mistrial.

[11] Mr. Abdullatif testified about how he ended up retaining counsel. He said that he received disclosure from the Crown on August 29, 2017 (his first appearance) and he thinks he made his application to Legal Aid at that time but couldn't recall exactly which date he applied. After that Legal Aid was asking for different documents which he said he provided to them and was attending court when required. He agreed in cross-examination that Legal Aid was still looking for more documents on October 10, 2017.

[12] On November 8, 2017 the transcript reflects that Mr. Abdullatif had decided to retain Mr. Ari Goldkind privately. He said he didn't have an answer from Legal Aid yet and decided to try and hire a lawyer privately because he wanted to "get someone as soon as possible". Mr. Abdullatif testified that he had met someone in the hallway of the courthouse who gave him a business card for Mr. Goldkind and told him he was a good lawyer and "you can talk to him". Mr. Abdullatif could not remember if he had received a Legal Aid Certificate at that point. He said he thought he would retain Mr. Goldkind, "because I wanted to get the matter over as soon as possible… but it was not possible because he was asking for a lot of money." Mr. Abdullatif had decided to retain Mr. Goldkind by paying him money and not through a Legal Aid Certificate. He changed from the Legal Aid process to hiring a lawyer privately because the person in the hallway had told him "if you hire someone privately that is better, and you can deal with your matter faster". Mr. Abdullatif paid Mr. Goldkind $1000 believing it would cost $2000 to $3000 in total. He testified, "then later it looked like he wanted a lot of money". In cross-examination Mr. Abdullatif was asked if the transcripts of November 8, 28 and December 5, 2017 all accurately reflect that he was trying to retain Mr. Goldkind privately during this time. While he could not remember the dates, he agreed that the process of trying to retain Mr. Goldkind took about one month. He agreed that whatever was said on the transcripts for those dates was accurate.

[13] The transcript reflects that on December 19, 2017, Mr. Abdullatif had renewed his application for Legal Aid. He testified that he could not remember what date he did it, but thinks that was the date. By this date Mr. Goldkind was no longer his lawyer. He testified that after Mr. Goldkind asked for the money he told him, "I can't afford that" and said he would find a lawyer with Legal Aid. He asked if Mr. Goldkind would take Legal Aid (Mr. Abdullatif did not testify as to what the answer was). Mr. Abdullatif could not remember if he had to start his Legal Aid application process over again or if he continued his original application. He had not cancelled his application process but does not know what the Legal Aid office would have done once he decided to retain a lawyer privately. He could not remember if he contacted Legal Aid once he was in the process of retaining Mr. Goldkind. He thinks they might have been both going forward parallel to one another but can't really remember. He doesn't remember but doesn't think that Legal Aid advised him that the original application process was stopped or cancelled. He could not remember whether he had to start the process all over again with providing banking and other documents to Legal Aid, once his attempts to retain Mr. Goldkind fell apart.

[14] It is an admitted fact as set out in paragraph 23 below, that the Dari interpreter whose interpretation was deficient, is battling cancer.

The Law with Respect to Delay Due to Interpreter Issues

[15] The Parties were unable to find any caselaw dealing with the issue of delay caused by audits ordered by the Court where an accredited interpreter's translation is called into issue. In my experience it is rare that an audit is ordered, let alone three audits in one trial. The only cases which were available regarding delay due to interpreter issues were more focused on delay caused when accredited interpreters were unavailable and not provided by the government.

[16] In R. v. Nguyen, 2016 ONCJ 712, a section 11(b) Application was granted and a stay was entered. Justice Campbell did not accept the Crown's argument that it was a discrete event where a Vietnamese interpreter was unavailable for part of the first trial scheduled and then for another trial date become unavailable because they were unwell. The only other Ministry of the Attorney General accredited Vietnamese interpreter was out of the country. A conditionally accredited interpreter was in another court in the morning so the matter could not proceed until later in the day and would require a voir dire into qualifications. The parties agreed to an adjournment to another day when a fully accredited interpreter could be available. There were only two fully accredited Vietnamese interpreters for the Province through the Ministry of the Attorney General at that time. In granting the Application, Justice Campbell decided that the interpreter problems were foreseeable.

[17] Justice Laliberte was dismissive of the argument that the failure of an interpreter to attend is a discrete event in the case of R. v. Paauw, 2016 ONSC 7394 at paragraphs 46 to 52. The Court found that there was no explanation for the unavailability of a French/English interpreter, and that the "need for such an interpreter cannot be said to be reasonably unforeseen or unavoidable" (at paragraph 51) and was therefore not an exceptional circumstance. A stay was granted.

[18] In R. v. Sintra, 2016 ONCJ 101, Justice Bourque was also dealing with the lack of availability of an interpreter. In that case the interpreter had not been ordered because of miscommunication that one was required. In the course of dismissing the s. 11(b) Application on other grounds, Justice Bourque said at page 9:

There is no doubt in my mind that if the request for the interpreter was made on the record and the system failed to provide one, then that would fall upon the shoulders of the system, and the following delay would be on the system and count toward the delay for 11(b) purposes.

[19] I have also considered some pre-Jordan interpreter cases as discussed in R. v. Bhullar, 2015 ONSC 3299 at paragraphs 13 to 26 in the context of a s. 11(b) Application:

The Absence of an Interpreter and s. 11(b) Charter

13 This is the more important issue on this appeal given that the determination of the other issues is more factually driven.

14 Counsel have placed four cases before me on the effect of the absence of an interpreter on the s. 11(b) issue of the right to trial within a reasonable time: R. v. Liang, 2011 ONCJ 458; R. v. Sran, 2012 ONCJ 19; R. v. Lai, 2011 CarswellOnt 15611; R. v. Martinez, 2012 ABQB 317.

15 I understand the court in Lai to have concluded that depending on the cause of the interpreter's absence, the delay can be attributed as either an institutional or a neutral delay (at paras. 47 and 48).

16 In Martinez the court came to a similar conclusion. It said in dealing with an appeal from conviction, that where the interpreter was absent due to an unexpected illness, this part of the delay was "inherent to the operation of our court system and ought to be considered neutral". The court also found that for another period of delay, the "lack of an interpreter due to an apparent error, and lack of a backup, [was] a resource issue resulting in institutional delay. The ensuing delay was properly attributed to the Crown. There was no reason given to explain the absence." (at paras. 30 and 32)

17 In Liang the court focused on the constitutional nature of interpreter assistance under s. 14 of the Charter for an accused or any witness needing that assistance. Flowing from that constitutional right, the trial judge stated that it was "the responsibility of the Ministry of the Attorney General to provide a competent interpreter" and that "the lack of an interpreter for Mr. Liang amount to....institutional delay" (Sran at para. 113, quoting from Liang).

18 In Sran the court followed Liang and stated that the "inability of the prosecution to meet its obligation in respect to the provision of an interpreter...through an apparent scheduling error", caused the delay (at para. 117).

19 With all due respect to the courts in Liang and Sran, I am not of the view that the absence of an interpreter always amounts to institutional delay flowing from the state obligation in s. 14 of the Charter. While s. 14 guarantees a party or a witness in any proceeding the right to the assistance of an interpreter when needed and it is, therefore, the obligation of the state to provide that assistance, when the interpreter is absent, the explanations for that absence have to be considered before the ensuing delay can be properly attributed. This is simply in accordance with principles enunciated in R. v. Morin, [1992] S.C.J. No. 25 (S.C.C.) by Sopinka J. and particularly at paras. 40, 47, 59.

20 An additional consideration is that different court practices are involved in requesting an interpreter. In this Court the request and the arrangements are to be made by the party requiring interpretation. In other courts I understand it is the court clerk who forwards the request for interpretation assistance to the interpreters' office after notification of the need has been made on the record. This means different persons can be involved in the request and allows for different causes to have contributed to an absence of an interpreter and the resultant delay.

21 In Liang, I am not aware whose scheduling error, as the court stated had occurred, caused the delay.

22 In Sran, it seems it was the prosecution or the interpreters' office that caused the "apparent scheduling error" leading to the delay being attributed to the Crown.

23 In Lai, I agree it is reasonable that an unexpected illness or emergency causing the absence of the interpreter be characterized as part of the human condition and considered as inherent or neutral in its effect on s. 11(b). I also agree, although a resource issue has to be grounded in evidence placed before the court, that where there is a resource issue involving systemic problems in having sufficient accredited interpreters available, this may be found to be a contributing cause to the absence of the interpreter so that some of the delay might be properly characterized as institutionally caused. In Morin at paras. 47 and 48, Justice Sopinka discussed this difficult issue of limits on institutional resources.

24 In Martinez, the court succinctly attributed the delays stemming from the interpreter's absence as being neutral in respect of an unexpected illness and a Crown delay due to an apparent error, lack of backup and a resource issue.

25 In summary, I recognize that the provision of the assistance of an interpreter where necessary is constitutionally guaranteed and a state responsibility. Where there is an absence of an interpreter, its cause is to be considered. Where an explanation of its cause is not before the court as in the present case, it is fair, as the trial judge concluded, to characterize the resulting delay as neutral.

26 I find, therefore, that the trial judge made no error in this regard and that the delay due to the absence of the interpreter was properly counted as a neutral delay. The amount of that delay is the 63 days from the first set of trial dates to the second set of trial dates, as counsel were still resting on their two days estimate and expected at that time to be able to finish the trial in the two days scheduled for the second set.

[20] In all of these cases decided both before and after Jordan, the issue was that delay was caused by an accredited interpreter not being available. It is my view that all of them can be distinguished on the basis that they were dealing with a situation where the system failed to provide an interpreter rather than, as we have here, the quality of the translation by a fully accredited interpreter was called into issue.

[21] The Defence argues in this case that the audits should not be considered exceptional circumstances, particularly with respect to the Dari audit which demonstrated that the translation was inadequate. It was submitted that the failure of the Ministry of the Attorney General to provide an interpreter who did his job properly should result in it being considered systemic delay.

[22] The criteria for the standard expected for court interpreters is set out in R v Tran. In paragraph 55 the Court stated, "While the standard of interpretation…will be high, it should not be one of perfection". It is expected that the interpretation should be continuous, precise, impartial, competent and contemporaneous. These criteria were explained in greater detail in paragraphs 54 to 65 and can be summarized as follows:

• continuity (ensuring that where needed, the interpretation is continuous, without breaks or mere summaries of evidence or other aspects of the proceedings);
• precision (not perfection -- the standard is lower than for translation);
• impartiality (objective and unbiased);
• competence (of sufficiently high quality to ensure that justice is and appears to be done); and
• contemporaneity (consecutive interpretation being preferable to simultaneous)

R v Tran, supra; R v Rybak, 2008 ONCA 354

Analysis of the Delay in this Case

[23] It was an admitted fact on this Application that the Dari interpreter has been a fully accredited interpreter for many years. It was also admitted that, unfortunately, he is battling cancer and in fact performed his duties at the first trial while holding a medical cylinder of some type to assist him. There was no evidence placed before me, however, as to whether or not his illness contributed in any way to, or explains why his translation was inadequate, and I am not permitted to speculate that this is the reason for it. There was also no evidence placed before me that the Ministry of the Attorney General (M.A.G.) knew of his illness or had any reason to expect that he would not be able to perform his duties as a fully accredited Dari interpreter. I observe, however, that If the Ministry knew in advance that he was unable to perform his duties properly, that could be considered systemic delay, but I have no evidence to suggest that this was the case. I find as a fact that all parties anticipated that the fully accredited Dari interpreter would perform his duties meeting all of the criteria in Tran.

[24] The accreditation process with M.A.G. is designed to ensure that all of the criteria set out in Tran are met by the interpreters whom they provide to the courts. When a fully accredited interpreter is provided, all parties to the proceedings are entitled to expect that these criteria will be met. In this case, the audits revealed that both Spanish interpreters met these criteria, while the Dari interpreter failed to do so. The Defence argues that the delay for all of the audits, but in particular for the Dari audit, should be treated as systemic delay because it is the government's obligation to provide properly trained interpreters who do their job in accordance with the Tran guidelines.

[25] As set out above, the Supreme Court of Canada in Jordan stated at paragraph 69, that exceptional circumstances are events that are either reasonably unforeseen or reasonably unavoidable, and cannot reasonably be remedied by the Crown once they arise. Exceptional circumstances need not be rare. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. The delay caused by such events is deducted from the net delay to the extent it cannot be reasonably mitigated by the Crown and the justice system. Unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances: Jordan, at paras. 73 to 75; Cody, at para. 48.

[26] I find that this case is distinguishable from the caselaw reviewed above where the government failed to provide a properly qualified interpreter at all. In this case, fully accredited interpreters were provided on all dates, with all parties relying on the accreditation process with a reasonable expectation that those interpreters would perform their duties to the expected standards. With respect to the two Spanish interpreters whose translations were audited, other qualified interpreters, in good faith, drew to the attention of the lawyers and the Court that they were concerned about the adequacy of the translations performed by those other interpreters. All parties in good faith then requested that audits be conducted, which ultimately revealed that no significant errors had been made, and the trial continued. The fact that the translations of two different fully accredited interpreters would be called into question was completely unforeseen, and the delay could not be remedied by the Crown once the issues arose, since all parties agreed that audits needed to be conducted. I conclude, therefore, that the delays caused by those audits could not be reasonably mitigated by the Crown or justice system and these delays are therefore discrete events based on exceptional circumstances.

[27] I come to the same conclusion with respect to the Dari interpreter whose translations were inadequate. Mr. Abdullatif in good faith, during his cross-examination, brought to the Court's attention that he believed the interpreter was not translating his evidence correctly. The audit, which all parties agreed needed to be ordered, revealed that Mr. Abdullatif was correct, and a mistrial was granted. The fact that the audit revealed that the interpreter did not perform his duties as required, does not change the fact that none of the parties could have anticipated that the interpreter was unable to perform his duties. This was completely unforeseen, and the delay could not be remedied or reasonably mitigated by the Crown or justice system once it was recognized that the third audit in this trial was required. No one could ever have anticipated that within one trial, three audits of three different fully accredited interpreters would have to be conducted.

[28] I find that at all stages during this trial when the audits arose, Justice Felix, the Crown, Defence Counsel and the Trial Coordinator were very alive to Mr. Abdullatif's s. 11(b) rights and actively and continuously took steps to obtain the next earliest dates possible at every stage as the unexpected issues developed with respect to the Spanish and Dari interpreters. Using the language from paragraph 75 of Jordan, I find that in this case the Crown and justice system (through the assistance of the Trial Coordinator and the efforts of Justice Felix) were always prepared to mitigate the delay resulting from the discrete exceptional circumstances that arose in this case. The Crown and the justice system prioritized this case which faltered due to unforeseen events. There is absolutely no evidence of complacency at any stage once the trial commenced including the period of time following the mistrial. But for the audits, this trial would have completed as originally scheduled in front of Justice Felix (well within the Jordan requirements). I have deducted limited periods of time for the audit processes as detailed below and in Appendix A (consistent with the Crown's submissions as to how much delay should be deducted), however, the deducted delay might be even greater if all of the period of time related to the audits until the next trial dates were to be taken into account.

[29] With respect to the delays based on Mr. Abdullatif's attempts to retain Counsel, I agree with the Crown's submission that all of the delay up to November 8, 2017 is reasonably considered as part of the usual intake process and is not to be treated as Defence delay. Ms. Abraham submitted that all of the delay up until Ms. Samet was retained by February 5, 2018 is part of the usual intake process because Mr. Abdullatif was reasonably trying to obtain Legal Aid, then privately retaining Counsel and then going back to Legal Aid and that he was not trying to delay matters. The caselaw is clear that determining what amounts to defence delay is not about blaming anyone. I accept that Mr. Abdullatif was trying to get a lawyer in place. It is clear, however, that the Crown and justice system were in a position to set trial dates for Mr. Abdullatif long before he had sorted out retaining Ms. Samet who was in place by February 5, 2018. The Chronology of Events and Appendix A detail the numerous times that the Crown or Court raised issues about their concerns that the matter was being delayed. A person who is charged is entitled to take a reasonable period of time to retain a lawyer either privately or through Legal Aid, and this period of time is usually within 90 days. In this case it took 5.5 months instead, because Mr. Abdullatif changed his mind about how he wished to retain a lawyer and went back and forth between the two approaches. Mr. Abdullatif, as the Applicant, has not presented clear evidence about the status of his Legal Aid application by November 8, 2017, or whether he was required to start the process all over again on December 19, 2017. He cannot remember due to the passage of time and no evidence was presented from Legal Aid to clarify this. Apart from what Mr. Abdullatif can remember, the transcripts are the only evidence presented on this point. I conclude that the delay from November 8, 2017 to February 5, 2018, is Defence delay, because the Crown and justice system were both in a position to set trial dates as of November 8, 2017, but for Mr. Abdullatif's changing approaches as to how he was going to retain Counsel. This Defence delay of 89 days is deducted from the total delay.

Result

[30] For the Reasons set out, I am not satisfied that Mr. Abdullatif has demonstrated on a balance of probabilities that there was a breach of his section 11(b) Charter rights in this case. Of the total delay of 22 months and 4 days (673 days) from August 16, 2017 when the information was sworn until June 20, 2019 when the trial was to conclude, I have deducted 188 days (6 months and 8 days). The 188 days deducted is as follows: 89 days of defence delay regarding retaining counsel, 22 days discrete event for the first Spanish audit, 4 days discrete event for the bad weather delay, 25 days discrete event for the 2nd Spanish audit and 48 days discrete event for the Dari audit. If one were to add in additional time from the date each audit was ordered until the next date the trial could proceed the delay deducted would be even greater (118 days total for the 1st Spanish audit, and 35 days total for the 2nd Spanish audit). On either calculation this brings the total remaining delay to below 18 months, which the Defence fairly concedes would not be a breach of section 11(b).

[31] The Application is dismissed. As a result, on June 13, 2019, I ordered that the trial proceed on June 17, 19 and 20, 2019 in front of another Judge.

Released: July 11, 2019

Signed: Justice S. C. MacLean

Appendix A: Table Summarizing Chronology and Reasons for Delay

Date	Event and Reason for Delay	Reason Delay Deducted
August 16, 2017	Information Sworn
August 16, 2017	Bail Hearing Conducted. Parwiz Abdullatif is released on and adjourned to next date for his First Appearance and to obtain disclosure.
August 29, 2017	First Appearance. Request by Mr. Abdullatif for 3 week adjournment to apply for Legal Aid.
September 19, 2017	Mr. Abdullatif has applied for Legal Aid and provided them with all documentation but needs a further 2 (or 3?) weeks to receive a response from them. He asks for 3 weeks. Adjourned to get an answer from Legal Aid.
October 10, 2017	Mr. Abdullatif is provided with additional disclosure by the Crown. Legal Aid requires further documentation to complete application. Defence request to adjourn to November 8th when same Farsi interpreter is available. Justice of the Peace informs Mr. Abdullatif that he is to complete his application and have counsel retained by next court date.
November 8, 2017	Mr. Abdullatif appears assisted by a Legal Aid worker who advises that they have a fax from Ari Goldkind who is in the process of being retained (privately). New disclosure provided. Matter adjourned 3 weeks to allow for review of disclosure, to retain Counsel and to allow Defence to conduct a Crown pre-trial if retained. 1st time that record reflects Mr. Abdullatif is retaining Counsel privately.	DEFENCE DELAY
November 28, 2017	Mr. Abdullatif appears assisted by Legal Aid worker who has message from Mr. Goldkind that he is in the process of being retained and is seeking a one month adjournment for completion of retainer. Mr. Abdullatif informs court that he has paid a deposit on the retainer, that they are "still talking about money" and that Mr. Goldkind has not been returning his calls. Justice of the Peace asks Duty Counsel to inform counsel of issue re failure to return calls. Adjourned 1 week to retain Counsel privately. 2nd time that record reflects Mr. Abdullatif is retaining Counsel privately.	DEFENCE DELAY
December 5, 2017	Mr. Abdullatif appears assisted by Legal Aid worker who seeks adjournment to December 19, 2017 so that Mr. Abdullatif can complete his private retainer of Counsel. Crown informs court that matter is now past the 90-day guideline and requests that matter be case managed [by a Judge] if the matter does not move forward by next date. Adjourned again to retain Counsel privately. Justice of the Peace agrees it will be case managed after next appearance. 3rd time that record reflects Mr. Abdullatif is retaining Counsel privately.	DEFENCE DELAY
December 19, 2017	Mr. Abdullatif appears assisted by Duty Counsel who request adjournment for Mr. Abdullatif to obtain Legal Aid. He has made an application but "something further is required before a decision can be made". Record is silent regarding the private retainer of Counsel or case management by a Judge since the 90-day guideline has been passed. Adjourned to obtain a Legal Aid Certificate First time that Mr. Abdullatif advises that he is no longer retaining Counsel privately and wishes to go back to applying for Legal Aid.	DEFENCE DELAY
January 2, 2018	Mr. Abdullatif appears and the Legal Aid worker advises that Mr. Abdullatif has provided bank information on this date. A 10 day period is required to process the application. Court advised he is trying to obtain the services of a lawyer who speaks his language. No discussion of 90-day guideline. Adjourned awaiting Legal Aid Certificate 2nd date that Mr. Abdullatif is advising he is again seeking Legal Aid.	DEFENCE DELAY
January 16, 2018	Mr. Abdullatif appears and advises he has spoken with a lawyer, Roza Rokni, but he has not met with her yet and has a pending appointment. Crown opposes any further adjournment, informs court the matter is at 5 months and seeks that a Self-Represented JPT be set Accused now has Legal Aid and has a pending appointment with Defence Counsel. Court directs that Crown pre-trial take place in interim. 1st time that Mr. Abdullatif advises he has a Legal Aid Certificate in place	DEFENCE DELAY
January 23, 2018	The matter is moved from the 108 remand court to the 107 Court before a judge, Justice Olver, to be case-managed, because Mr. Abdullatif advised that his lawyer will not be attending. He informs Justice Olver that Roza Rokni will not accept a Legal Aid Certificate for Oshawa but will help him find a lawyer. Justice Olver directs Mr. Abdullatif to have a lawyer in place by the next date to assist in getting his disclosure back from former counsel or applying for a replacement from the Crown. Adjourned to find a Defence Counsel who would accept a Legal Aid Certificate. Next date scheduled to set a JPT with Counsel, if retained, or a Self-Represented JPT if none retained.	DEFENCE DELAY Total Defence Delay from November 8, 2017 up to February 5, 2018 is 89 days.
February 5, 2018	Next Appearance before Justice Olver for case management. Defence Counsel, Ms. Sara Samet, goes on record and sets a Judicial Pre-Trial. She appears for Mr. Abdullatif pursuant to a Designation filed this date. He had a meeting with her the previous Thursday. Counsel must review the 50 pages of disclosure, order and review video disclosure and is requesting some additional disclosure Interpreter ordered for next date to assist with elections. Earlier dates of March 1 and 29 are offered for JPT but Counsel is unavailable until April 5, 2018.
April 5, 2018	Judicial Pre-Trail Conducted before Justice Burstein. With assistance of interpreter Ms. Samet has discussed concessions and elections with Mr. Abdullatif. Matter adjourned for a few days before setting trial dates.
April 11, 2018	Trial dates set for September 24, 25 and 26, 2019. Exhibit 3 - Dates of June 5, 6 and 7, 2018 are offered (but can't be accepted due to awaiting text message disclosure and because arrangements need to be made to bring the complainant from Mexico) and then dates of January 21, 22 and 23rd are scheduled, but when it is realized that those dates are close to the 18 month Jordan limit, new dates of September 24, 25 and 26, 2018 are offered and accepted.
July 19, 2018	Confirmation Hearing. Agent appears for Ms. Samet Crown confirms that witness subpoenas have been issued. Matter adjourned to ensure that a Dari Interpreter from Afghanistan is available to assist Mr. Abdullatif at trial.
August 2, 2018	Status Hearing during which the September trial dates are confirmed. Discussion about the interpreters booked for both Mr. Abdullatif and the complainant and confirmed they are ordered.
September 21, 2018	Matter had been placed before Justice Felix to confirm that statement of complainant had been fully transcribed and translated. A potential s. 276 application is forecast. Adjourned to 1st day of trial.
September 24, 2018	1st day of Trial in front of Justice Felix. Complainant completes her evidence in examination-in-chief and part of cross-examination. Spanish interpreter translates. Part way through evidence of complainant issue arises with respect to accuracy of translation by Spanish Interpreter, however Justice Felix is not informed. Adjourned 1 day to next trial date to continue trial.
September 25, 2018	2nd day of Trial. Issue of misinterpretation of the Spanish interpreter is raised with the Court for the first time. Parties ask to consider their positions. No evidence is heard. Matter adjourned to the next trial date.	EXCEPTIONAL CIRCUMSTANCES DISCRETE EVENT Due to issues raised re Spanish Interpreter
September 26, 2018	3rd day of Trial. No evidence heard. 1st audit of Spanish interpretation ordered. After much discussion, continuing trial dates are set for January 21, 25 and a hold placed on March 1, 2019. Mistrial Application date also set for November 29. 2019 (earliest date offered for ½ day) as parties await the first audit of the Spanish Interpretation.	EXCEPTIONAL CIRCUMSTANCES DISCRETE EVENT Due to audit of 1st Spanish Interpreter
October 12 and 17, 2018	Results of 1st audit of Spanish Interpreter sent to Judicial Secretary on October 12, 2018 and to Counsel on October 17, 2018. No court appearance these dates.
November 29, 2018	Mistrial Application abandoned, since 1st audit of Spanish language shows no significant errors. No additional delay caused by this date as it was an interim date prior to earliest continuing trial dates set on September 26, 2018.	Total delay from September 25, 2018 to next trial date of January 21, 2019 for 1st Spanish audit is 118 days (22 days if only up to date audit released to counsel on October 17, 2018)
January 21, 2019	4th day of Trial. The trial is not able to be continue because of the accused's non-attendance. Mr. Abdullatif is unable to come to court because he is in London, Ontario where his children live and cannot return due to a snowstorm. Would be Defence Delay but for weather. (4 days delay)	EXCEPTIONAL CIRCUMSTANCES DISCRETE EVENT Due to weather conditions 4 days delay
January 25, 2019	5th day of Trial. Complainant's evidence in cross-examination continues. The Trial was not able to be completed because the quality of the interpretation (by a different accredited Spanish interpreter than the 1st audit) is called into question by another accredited Spanish interpreter. After lengthy submissions 2nd audit ordered of the Spanish interpretation. Matter adjourned to the continuing Trial date of March 1, 2019. Parties agreeing to do so by video link with complainant testifying from Mexico. April 23, 2019 also scheduled on this date for a potential s. 11(b) Application (pending audit of Spanish Interpreter)	EXCEPTIONAL CIRCUMSTANCES DISCRETE EVENT Due to audit of 2nd Spanish interpreter's translation
February 1, 2019	Status Hearing for the audit of the 2nd Spanish interpreter whose translation is in issue.
February 8, 2019	Awaiting Status of Audit of 2nd Spanish interpreter
February 12, 2019	Awaiting Status of Audit of 2nd Spanish interpreter
February 14, 2019	Awaiting Status of Audit of 2nd Spanish interpreter which is expected to be evaluated on February 19, 2019. Matter adjourned to next continuing trial date of March 1, 2019. Once completed following February 19, 2019 the 2nd audit of the Spanish interpretation reveals no significant errors.	Total delay from January 25 to next trial date of March 1, 2019 for 2nd Spanish audit is 35 days (25 days if only up to date 2nd audit released to counsel on February 19, 2019)
March 1, 2019	6th day of Trial. Defence Counsel advises that she is not bringing any Application based on the results of the 2nd Spanish audit. Trial proceeds with complainant testifying by video/internet link from Mexico. Her evidence is completed. Matter adjourned to March 6, 2019 for completion of trial.
March 6, 2019	7th day of Trial. Trial not completed because issue arises about the quality of the interpretation of the Dari Interpreter for the accused, Mr. Abdullatif during his cross-examination. 3rd audit ordered, this time for the Dari language. Justice Felix orders expedited transcripts.	EXCEPTIONAL CIRCUMSTANCES DISCRETE EVENT Due to audit of Dari Interpreter
March 29, 2019	Awaiting Status of Audit of Dari interpreter.	EXCEPTIONAL CIRCUMSTANCES DISCRETE EVENT Due to audit of Dari Interpreter Delay from March 6 to April 23, 2019 for Dari audit is 48 days.
April 23, 2019	8th day of Trial. First date originally scheduled for s. 11(b) Application. Mistrial Application proceeds instead. Mistrial granted by Justice Felix on basis of the audit of the Dari interpreter revealing numerous and significant errors in translation. Matter adjourned to allow Crown to speak with complainant about testifying again.
May 2, 2019	Ms. Abraham takes over as new Defence Counsel. Awaiting transfer of Legal Aid Certificate. New Trial Dates set with Ms. Abraham's availability considered. Dates set for June 6, 2019 for s. 11(b) Application and June 17, 19 and 20, 2019 for Trial. In late May Trial Coordinator asks Justice MacLean to assume carriage of new Trial and requests that 2 Non-Preside/Chambers days (June 6 and 17) be given up (which is agreed to in order to save new Trial dates in place)
May 16, 2019	Ms. Samet is granted her Motion to be removed as Counsel of record. Legal Aid certificate has still not transferred to Ms. Abraham. Matter adjourned to May 30, 2019 to address retainer of Ms. Abraham.
May 30, 2019	Matter moved to Justice MacLean's court to conduct Voir Dire into qualifications of the Dari/Farsi interpreters. Qualifications accepted. Legal Aid has still not transferred the Certificate to Ms. Abraham. Ms. Abraham assists in spite of this. Justice MacLean gives up two Non-Preside days to be available on the previously scheduled dates of June 6 and 17, 2019.
June 6, 2019	First day of s. 11(b) Application. Mr. Abdullatif testifies and Exhibits are filed. Matter cannot continue in the afternoon because the Dari/Farsi interpreter has a previous commitment in another jurisdiction. Legal Aid has still not transferred the Certificate to Ms. Abraham. Ms. Abraham assists in spite of this.
June 7, 2019	Second day of s. 11(b) Application. All Submissions completed. Decision and Reasons to be provided prior to June 17, 2019 Legal Aid has still not transferred the Certificate to Ms. Abraham. Ms. Abraham assists in spite of this.
June 17, 19 and 20, 2019	Dates scheduled for the new trial.
May 30, 2019	First appearance before new trial Judge, Justice MacLean. Legal Aid has still not transferred Certificate to Ms. Abraham. Ms. Abraham agrees to assist in spite of this. Justice MacLean conducts lengthy Voir Dire into qualifications of the 2 Dari/Farsi speaking Interpreters scheduled to assist Mr. Abdullatif for the Trial. Parties are not raising issues about the Spanish interpreters for the complainant.
June 6, 2019	Application date for s.11 (b) issues. Legal Aid has still not transferred Certificate to Ms. Abraham. Ms. Abraham continues to assist in spite of this. Matter cannot be completed because Dari/Farsi Interpreter has been previously booked in another jurisdiction in the afternoon. This date was a Non-Preside Day given up by Justice MacLean to allow the Trial to proceed as previously scheduled.
June 7, 2019	Section 11(b) Application continues and is completed. Ruling and Reasons pending, to be delivered prior to June 17, 2019. Legal Aid has still not transferred Certificate to Ms. Abraham. Ms. Abraham continues to assist in spite of this.
June 13, 2019	The Parties are that the s. 11(b) Application is dismissed with Reasons to follow and that the plea could be struck and re-entered before the new trial Judge due to Justice MacLean's unexpected health issues.
June 17, 2019	1st day scheduled for 2nd Trial. Ms. Abraham is now retained. This date was a Non-Preside Day given up by Justice MacLean to allow the Trial to proceed as previously scheduled. Due to Justice MacLean's unexpected health issues, the Regional Senior Justice has authorized per diem coverage and Justice Michael Harpur takes over the case and becomes the trial Judge.
June 19, 2019	2nd day scheduled for 2nd Trial.
June 20, 2019	3rd day scheduled for 2nd Trial.
July 25, 2019	Date scheduled for Judgment by Justice Harpur