Court File and Parties

Ontario Court of Justice

Date: September 20, 2019

Court File No.: Brampton 17-11664

Between:

Her Majesty the Queen

— and —

Rashad Ali

Before: Justice S. Caponecchia

Heard on: August 9 and 29, 2019

Ruling: Section 11(b) Application

Released on: September 20, 2019

Counsel

Paul Renwick — counsel for the Crown

Mitch Worsoff — counsel for the accused Ali

Decision

CAPONECCHIA J.:

Factual Background

[1] Mr. Ali is one of eight individuals who were charged on Information 17-11664. He was arrested on August 24, 2017. The information was sworn on September 27, 2017. His first court appearance to set a date for trial was September 29, 2017.

[2] The case was adjourned four times for disclosure to be provided and in order for the defendants to retain counsel. On January 12, 2018 a judicial pre-trial was set for February 27, 2018.

[3] On February 27, 2018 two things occurred. First, the Crown withdrew charges against five of the defendants. Second, following a judicial pre-trial conducted by three experienced defence counsel, Justice Stribopoulos arrived at a 10-day trial estimate for the remaining defendants, including Mr. Ali. According to the trial estimate form signed by Justice Stribopoulos, the Crown intended to call one police officer and six civilian witnesses. Four of the civilians were identified as requiring the assistance of an interpreter, as did two of the defendants. Blended voir-dires for the accused's statements were also accounted for in the time estimate, as were section 10(b) applications.[1]

[4] Following the pre-trial, Justice Stribopoulos noted on the record that there was significant disclosure outstanding and all three accused needed more time to retain their respective counsel for a 10-day trial.

[5] The matter was adjourned again on March 14, 2018 and April 6, 2018. On April 6, 2018 counsel for a co-accused, Mr. McKay, told the court they had yet to receive the DVD recordings of all witness statements. Mr. McKay indicated that "all we have so far is synopses of dozens of statements." The Crown indicated the missing disclosure had been received, but needed to be prepared for disclosure.[2]

[6] On April 27, 2018 counsel for Mr. Ali stated the DVDs were still outstanding.

[7] On May 18, 2018 counsel for Mr. Ali did not attend court. Counsel for one of Mr. Ali's co-accused indicated that they had received the DVD disclosure. Mr. McKay appeared as agent for Mr. Ali's counsel and set a second judicial pre-trial.

[8] On June 21, 2018 a second judicial pre-trial took place. All counsel agreed to waive their section 11(b) rights if the Crown was prepared to meet with the complainant to discuss a proposed resolution.

[9] On July 19, 2018 counsel for Mr. Ali did not attend court. Counsel for both of his two co-accused were present and were informed that the Crown had met with the complainant. The matter was adjourned at the request of one defence counsel while the second counsel went to speak to the assigned Crown outside of court.

[10] On August 9, 2018 Mr. Ali discharged his counsel, Mr. Patel. Mr. Ali indicated his intention to retain the services of Mr. Worsoff for trial.

[11] On September 6, 2018 Mr. Worsoff's agent attended court for the first time. A designation was filed for Mr. Ali. The trial date was set. Mr. Ali's two co-defendants had yet to retain lawyers for trial and their trial dates were set on a with or without counsel basis. The first dates offered by the court for trial were accepted by all three defendants and the Crown: September 3-6, 9-13, 16, 2019. Section 11(b) issues were raised by the defence.

[12] The second stage judicial pre-trial on July 9, 2019 was adjourned to July 22, 2019.

[13] On July 15, 2019 Mr. Worsoff filed a section 11(b) application. When he did so, only one of the three defendants had entered their election to have a trial in the Ontario Court of Justice. The section 11(b) application was made returnable on the date set for the continuing second stage judicial pre-trial, July 22, 2019 and not before the assigned trial judge.

[14] At the continuing second stage judicial pre-trial on July 22, 2019 Justice K. McLeod's directed both the Crown and defence to confine their section 11(b) submissions in writing due to the late service of the application.

[15] On August 9, 2019 the matter was spoken to before myself, the trial judge. The Crown filed their written submissions. Mr. Worsoff asked this court to schedule time for half hour of oral submissions. This Court called upon Mr. Worsoff to explain why his 11(b) application should be entertained given his failure to comply with the Rules for service. He gave the following reasons:

a) He was new counsel on board;

b) He required time to get transcripts and he acted as expeditiously as possible; and,

c) In Mr. Worsoff's view, service of the 11(b) applications 6 weeks in advance of trial is satisfactory. He urged this court to hear the application on the first day of trial "like they used to."

[16] This court informed Mr. Worsoff that it was not prepared to entertain the section 11(b) application on the first day of trial. Mr. Worsoff was also notified that I was not presiding over the next two weeks. This left the week before the first day of trial to entertain his request to supplement his written submissions with oral submissions. This Court provided Mr. Worsoff with two options on August 9, 2019:

a) Return after lunch to make oral submissions.

Mr. Worsoff declined because he had a prior appointment scheduled.

b) File supplementary written submissions with the court by August 16, 2019.

Mr. Worsoff declined.

[17] Reply submissions were scheduled for two business days before the trial was scheduled to commence, August 29, 2019. Mr. Worsoff advised the court that he was unfamiliar with the Practice Direction which limits reply submissions to 10 minutes.[3]

[18] Mr. Worsoff made reply submissions on August 29, 2019. He reiterated that in his view he had served the application in a timely fashion because it was served more than 30 days in advance of trial. Mr. Worsoff also tendered Exhibit 2 as additional evidence on this application. Exhibit 2 contains numerous court statistics from 2018 and appears to be a single page from a larger document. Counsel's explanation for not filing Exhibit 2 as part of his original application record was that he had only obtained it recently. The last line of Exhibit 2 reads: "The Ministry of the Attorney General collects this data on behalf of the court and as such the court cannot confirm the accuracy of this data." Given the late filing of this evidence, its unspecified source and disclaimer, it will be given no weight.

[19] For the first time in reply Mr. Worsoff also raised an additional argument not advanced in his original application. He submitted that the Information was not sworn as soon a practicable as required by section 505(b) and therefore the Jordan clock should start ticking as of the date of Mr. Ali's arrest, not the date the information was sworn.

[20] At the end of reply submissions both counsel were advised they could expect to be notified of the outcome of this application the following day and that my reasons would follow. These are my reasons. Attached as Appendix A is a copy of the correspondence sent to counsel the day before the trial was set to begin, August 30, 2019.

Result

[21] I dismiss this section 11(b) application for two reasons:

1. Counsel's failure to comply with the Rules for bringing section 11(b) applications 60 days in advance of trial; and

2. On the merits of the application. I am not satisfied the applicant has discharged his onus on a balance of probabilities. The defence has not demonstrated the net delay in this case exceeds the 18 months presumptive ceiling for cases being tried in the OCJ. Nor am I persuaded the defence took meaningful steps which demonstrate a sustained effort to expedite the proceedings.

1. Failure to Comply with the Rules of the Ontario Court of Justice

[22] This application is dismissed for counsel's failure to follow the Rules.

[23] Rule 1.1(1) of the Ontario Court of Justice sets out the fundamental objective of rules. Namely, to ensure that proceedings are dealt with justly and efficiently. Rule 1(3) obligates all counsel to act in accordance with the fundamental objective and to comply with the rules, practice directions and orders of the court.

[24] Rule 2.4(1)(e) of the Ontario Court of Justice provides that section 11(b) applications must be heard 60 days in advance of the trial date unless a court orders otherwise. Rule 2.4(3) requires section 11(b) applications be brought before the trial judge. The defence did neither.

[25] The Rules are to be followed by counsel unless a court orders otherwise. I decline to do so in this case for the following reasons:

1. Mr. Worsoff was not recently retained. He was retained for almost a year before he filed the application, since September 6, 2018.

2. The section 11(b) issue did not arise suddenly. On September 6, 2018 when the trial date was set it was apparent to all parties that Mr. Ali's trial was scheduled to be completed outside the Jordan timeline for trials in the Ontario Court of Justice. The transcript for September 6, 2018 clearly indicates Mr. Worsoff's agent turned his mind to section 11(b).

3. The late filing of the application was not due to a delay in obtaining transcripts. The transcripts filed on this application were all certified by transcribers on March 18, 2018.

4. There was ample time to file the application in compliance with the Rules.

[26] Disregard, or lack of appreciation, for the Rules of this Court should not be encouraged. In this case experienced defence counsel decided to serve this application on short notice and urged me to entertain the application on the first day of trial.

[27] I disagree with counsel's casual approach to the Rules of this court. Rule 2.5(2)(a)ii specifically prohibits section 11(b) applications being made on the first day of trial. The Rules require 11(b) applications be heard more than 60 days prior to the trial date for good reason. Advance rulings promote respect for the judicial process as civilian and professional witnesses are not required to attend court for trial unnecessarily in the event of a successful application. Successful applications heard in advance of the trial also promotes the efficient and orderly use of judicial resources because counsel are not required to prepare for trial unnecessarily if the application is granted. Compliance with the rules also ensures the rights of all defendants are protected and judicial resources can be re-allocated to accommodate other trials when an application is successful.

[28] In this case there was no compelling reason for filing the application late. Entertaining it on short notice, or on the first day of trial, undermines respect for the process of the court as well as the time of all judicial participants.

2. Merits of the Application

[29] The reasons offered for the late filing of this application were wholly inadequate. That said, I would also dismiss the application on its merits.

Analysis on Net Delay Calculation

Step 1: Calculate the Total Delay

[30] The expectation is that a trial such as this one will be completed in the Ontario Court of Justice within 18 months. As a first step in any section 11(b) application, a trial judge is to calculate the total delay.

[31] The defence position is the total delay in this case is the period between August 24, 2017, when Mr. Ali was arrested and charged by police, and the anticipated last day of a 10-day trial, September 16, 2019. According to the defence this amounts to a total delay of 24 months and 24 days.

[32] The Crown's position is the total delay in this case is 23 months and 11 days, comprised of the time period commencing September 27, 2017, when the information was sworn and the anticipated end of the trial, September 16, 2019.

Findings on Total Delay:

[33] Contrary to the position taken by the defence, the time "clock starts ticking" for the purposes of evaluating a section 11(b) claim with the laying of the information, not the arrest of the defendant. It continues until the anticipated completion of the trial.

[34] In Kalanj, the Supreme Court of Canada held that the meaning of the term "charged with an offence" in section 11(b) of the Charter refers to the time at which an information is sworn. Kalanj was subsequently relied upon by the Ontario Court of Appeal in R. v. E. (K.), 2013 ONCA 175, para. 20:

It is well-settled that a person is "charged with an offence" within section 11 of the Charter, when an information is sworn alleging an offence against him or her: R. v. Kalanj, [1989] 1 S.C.R. 1594, at p. 1607. Time reckoning for the purposes of claims of infringement of the right to be tried within a reasonable time commences with the laying of the information and continues until the completion of the trial.

[35] The defence did not provide me with any case law to support the argument that the "clock should start ticking" sooner because the information in this case was not sworn as soon as practicable as required by section 505 of the Criminal Code. This argument was only raised for the first time in reply on August 29, 2019, notwithstanding the defence was given the option to submit supplemental written submissions after receiving the Crown's response.

[36] Therefore, I find the operative time frame to calculate the total delay in this case is between September 27, 2017 when the information was sworn and the anticipated last day of trial, September 16, 2019. I find the total delay to be 23 months and 21 days, not 23 months and 11 days as calculated by the Crown.

Step 2: Subtract Defence Delay

[37] Defence delay is subtracted from the total delay. The resulting number is called net delay.

[38] According to Mr. Worsoff, there are only two periods of delay attributable to the defence in this case. The first being June 22, 2018 to July 19, 2018. The defence concedes there was an explicit waiver of 11(b). The defence also acknowledged that Mr. Ali is responsible for the adjournment between August 8, 2018 and September 6, 2018 when Mr. Ali changed lawyers. He discharged Mr. Patel and retained Mr. Worsoff. Notwithstanding these two-periods, the net delay remains above the presumptive ceiling of 18 months. The defence position is the remainder of the delay was caused by the Crown's incremental and tardy disclosure. The DVD witness interviews were outstanding until May 17, 2018 and the defendant's DVD videotaped statement was not disclosed until June 21, 2018.[6]

[39] The Crown's position is the delay between the first pre-trial on February 27, 2018 and September 6, 2018 is entirely attributable to the defence because the Crown was prepared to set a date for trial following the judicial pre-trial but none of the three defendants, including Mr. Ali, were prepared to do so because they had not retained lawyers for a 10-day trial. This delay amounts to 6 months and 11 days. By September 6, 2018 when the trial date was set only Mr. Ali had retained a lawyer for trial, Mr. Worsoff. If this argument is accepted, it would reduce the delay below the presumption ceiling, to 17 months and 10 days.

Findings on Net Delay

[40] Jordan makes it clear that going forward defence caused delay will be calculated differently.

[41] Defence delay is comprised of two components.

[42] The first component is delay that is a clear and unequivocal waiver of the accused's section 11(b) rights.

[43] The second form of defence delay, delays caused solely or directly by the defence's conduct, is somewhat more complex. The example specifically given in Jordan of "delay caused solely by the conduct of the defence" is the situation where the Crown and court are ready to proceed but the defence is not: Jordan, para. 64.

[44] The rationale for excluding "delay attributable to the defence" from the calculation of section 11(b) unreasonable delay is that "the defence should not be allowed to benefit from its own delay-causing conduct:" Jordan, at para. 60. Similarly, in Askov Cory J. stated that "certain actions of the accused will justify delays," and in Morin, Sopinka J. stated, "Neither side, however, can rely on their own delay to support their respective positions."

[45] In this case I find the court and Crown were ready to move the matter forward and set a trial date after the first judicial pretrial on February 27, 2018. I find the defence is responsible for the delay between February 27, 2018 and September 6, 2018. The record reveals Mr. Ali opted not to set a date for trial until September 6, 2018 for the following reasons:

1. Between February 27, 2018 and June 21, 2018, the defence insisted on waiting to receive DVDs before setting a date for trial, notwithstanding they had been provided synopsis of the witness interviews.

The Court of Appeal has held that it is wrong to refuse to set a date for trial or preliminary inquiry until the Crown has disclosed everything. In R. v. M. (N.N.) (2006), 209 C.C.C. (3d) 436 (Ont. C.A.), Juriansz J.A. stated at para. 37:

Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial. As this court stated in R. v. Kovacs-Tator (2004), 192 C.C.C. (3d) 91 at para. 47: "the Crown is not obliged to disclose every last bit of evidence before a trial date is set."

2. After the defence received DVD disclosure on May 18, 2018, instead of setting a trial date they opted to schedule a second pre-trial for June 21, 2018;

3. On June 21, 2018 a second pre-trial was held. There was no change to the trial time estimate. No new motions were identified as a result of the DVD disclosure. Defence waived their section 11(b) rights while the Crown explored a proposed resolution with the complainant;

4. On July 19, 2018, rather than set a trial date a further adjournment was sought by the defence in order to learn the outcome of the meeting with the complainant. An adjournment was suggested by counsel who acted as an agent for Mr. Ali's lawyer;

5. On August 9, 2018 Mr. Ali discharged his lawyer Mr. Patel and indicated he intended to be represented at trial by Mr. Worsoff. Mr. Worsoff, nor his agent, were in attendance to set a trial date. This necessitated a further adjournment to September 6, 2018, at which time Mr. Worsoff sent an agent and the trial date was set; and

6. Throughout February 27, 2018 and September 6, 2018 Mr. Ali had not retained a lawyer to conduct a 10-day trial. Only when Mr. Ali finally did so on September 6, 2018 was a trial date was set.

Delayed Disclosure of DVD Interviews by the Crown

[46] The Crown's failure to provide the DVD interviews prior to the first judicial pre-trial and not until approximately six months after the defendants were first arrested, is troubling to say the least. This decision should not be interpreted as an endorsement that this is acceptable time frame to provide DVD disclosure. It is not.

[47] As a general rule, a judicial pre-trial cannot be meaningful if insufficient disclosure has not been provided sufficiently in advance of the judicial pre-trial to allow counsel to review it. A meaningful judicial pre-trial is critical to an efficient criminal justice system: R v. Jurkus, 2018 ONCA 489, at para. 32.

[48] Failure to provide sufficient disclosure before the judicial pre-trial is sufficient reason for an accused to refuse to move a case forward: R v. D.A., 2018 ONCA 96, para. 12-15. To meet the threshold of sufficiency, disclosure must "permit the accused to make an informed decision: R. v. Girimonte, [1997] OJ No. 4961 at para. 17.

[49] The Crown did not disclose the DVD interviews prior to the first judicial pre-trial on February 17, 2018. However, I am not persuaded the delay prevented the matter from moving forward because the defence were in receipt of written synopsis of the contents of the DVDs. On April 6, 2018 one of the defence counsel acknowledged they had summaries and were waiting for the corresponding DVDs. It is not always necessary for counsel to receive and view every DVD interview before being able to conduct a constructive pre-trial and arrive at a trial estimate. It is more realistic to expect both the Crown and the defence to have reviewed a detailed written synopsis of the interviews prepared and disclosed by the police.

[50] I find that notwithstanding the defence did not have the DVDs until after the first pre-trial on February 27, 2018, there was sufficient disclosure to enable the parties to have a meaningful pre-trial, arrive at a trial estimate that was endorsed by the pre-trial judge and set a date for trial. I come to this conclusion for three reasons:

1. There was no request to adjourn the pre-trial due to inadequate disclosure. Instead, the judicial pre-trial proceeded with three experienced defence counsel present, following which all counsel agreed to a 10-day trial estimate.

2. I do not accept that Justice Stribopoulos would authorize 10 days of court time to be set aside for trial unless there was adequate disclosure upon which to arrive at a responsible trial estimate.

3. After the DVDs were received, a second judicial pre-trial was conducted on June 21, 2018. The time estimate was not altered. No new motions were identified.

[51] Therefore, in the circumstance of this case I do not accept that it was necessary to delay setting a trial date until outstanding DVDs were delivered to the defence because a productive judicial pre-trial was capable of being conducted and a trial estimate was completed.

[52] That is not to say that it was not open to the applicant to seek to delay setting a trial date while he waited for the DVDs. Just as it was also open to him to waive his section 11(b) rights on June 21, 2018 to give the Crown time to meet with the complainant. It was also open to Mr. Ali to discharge his lawyer in August and adjourn the case for his new counsel. All of these choices had the benefit of providing Mr. Ali with additional time after the first judicial pre-trial in February to retain a lawyer for trial by September 6, 2018. Having made the choices Mr. Ali did, and having benefited from the delay by gaining more time to retain a lawyer, the shield offered by section 11(b) of the Charter is not to be converted into a sword to be used to defeat society's interest in having matters decided on the merits.

[53] In conclusion, I find the Crown and Court were ready to set a date after the first judicial pre-trial on February 27, 2018 and Mr. Ali chose not to do so until September 6, 2018. I therefore attribute the delay during this time period to the actions of the defence. This period amounts to 6 months and 11 days, which reduces the delay in this case to 17 months and 10 days.

Step 3: Compare Net Delay to the Presumptive Ceiling

[54] The net delay in this case after deducting defence delay is below the presumptive ceiling of 18 months for cases tried in the Ontario Court of Justice. Consequently, I need not consider whether the Crown can establish any delay attributable to exceptional circumstances or to the fact that the case was complex.

Step 4: Remaining Delay Below Presumptive Ceiling

[55] Where the remaining delay is less than the presumptive ceiling, the defence may demonstrate that it was nonetheless unreasonable. The defence must establish two things: (1) they took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. The granting of stays for cases that fall below the presumptive ceilings should only be done in the clearest of cases.

[56] The defence has not satisfied me that this is the clearest of cases in which they took meaningful steps which demonstrate a sustained effort to expedite the proceedings.

[57] Firstly, defence counsel's decision to repeatedly delay setting a trial after a constructive judicial pre-trial was held on February 27, 2018 is not consistent with making sustained efforts to expedite the proceedings.

[58] Second, the decision to delay filing the section 11(b) application is also inconsistent with taking meaningful steps which demonstrate an effort to expedite the proceedings. Meaningful steps which demonstrate a sustained effort to expedite the proceedings by the defence were described in Jordan to include conducting all applications, including section 11(b) applications, reasonably and expeditiously: Jordan, para. 85. The defence failed to do so in this case.

Result

[59] For the reasons indicated, Mr. Ali's section 11(b) application is dismissed.

Released: September 20, 2019

Justice Sandra Caponecchia

Appendix A

Date: September 20, 2019

R. v. Rashad Ali

Court File No.: Brampton 17-11664

1. Attached hereto and marked "Appendix A" is a copy of correspondence sent to counsel on August 30, 2019.

Footnotes

[1] See Exhibit 1, Tab 5.

[2] See Exhibit 1, Tab 13, p. 5

[3] The Practice Direction took effect on July 1, 2019 and is available on the Ontario Court of Justice website: http://www.ontariocourts.ca/ocj/legal-professionals/practice-directions/time-limits-oral-arguments/

[4] R. v. Jordan, 2016 SCC 27

[5] R. v. Kalanj, [1989] 1 S.C.R. 1594

[6] See Exhibit 1, Tab 15 and 16. Counsel discuss when they received the DVD recordings.

[7] R. v. Askov, [1990] 2 S.C.R. 1199 at p. 483

[8] R. v. Morin, [1992] 1 S.C.R. 771 at p. 16.