ONTARIO COURT OF JUSTICE
CITATION: R. v. Gharibi, 2021 ONCJ 63
DATE: 2021 02 05
COURT FILE No.: Toronto 18-45005120
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
GHARIBI, Kasra
Before Justice C. Faria
Heard on January 19, 2021
Reasons for Judgment released on February 5, 2021
Imran SHAIKH..................................................................................... Counsel for the Crown
Michael ENGEL........................................................................... Counsel for the Defendant
Faria J.:
A. INTRODUCTION
[1] Mr. Kasra GHARIBI was arrested on December 29, 2018 for Impaired Driving and Over 80. His trial is set for February 8 to February 10, 2021. The period between his arrest and the anticipated end of his trial is 25 months and 13 days (775days). It exceeds the 18-month ceiling in the Ontario Court of Justice established by the Supreme Court of Canada R. v. Jordan.[^1]
[2] Mr. Gharibi submits that his right to a timely trial pursuant to s. 11(b) of the Charter of Rights and Freedoms has been breached and he is therefore requesting a stay of his criminal charges.
B. ANALYTICAL FRAMEWORK
[3] Jordan sets out the analytical framework to determine a s. 11(b) violation as does Coulter.[^2]
(1) Calculate the period from the charge to the actual or anticipated end of the trial to determine total delay.
(2) Subtract defence delay from the total delay, which leads to the “Net Delay”. Defence delay may arise from a defence waiver, and/or a delay caused solely by defence conduct.
(3) Compare the Net Delay to the presumptive ceiling of 18 months in the Ontario Court of Justice.
(4) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable.
(5) The Crown may rebut this presumption if it establishes the presence of exceptional circumstances. Exceptional circumstances may be a discrete event or a particularly complex case.
(6) Subtract delay caused by any exceptional discrete events from the Net Delay, leaving the “Remaining Delay”.
(7) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the complexity of the case is such that the time the case has taken is justified.
(8) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable by demonstrating a sustained effort to expedite the proceedings and the case took markedly longer than it reasonably should have. Stays below the ceiling are expected to be rare and limited.
C. ANALYSIS
1. Total Delay
[4] Both parties agree that the Total Delay in this case is from the date of arrest to the anticipated end of the second trial date: December 29, 2018 to February 10, 2021, a period of 25 months and 13 days (775 days).
2. Net Delay
[5] There are two types of defence delay that may be deducted from Total Delay to determine Net Delay: a specific 11(b) waiver; and delay that is caused solely by the conduct of defence (Jordan, para 61 & 63).
i. 11(b) Waiver
[6] Both parties agree that on May 16, 2019 after a Judicial Pre-Trial, the defence waived a period of 3 weeks (22 days) until June 7, 2019 for the Crown to consider a proposed resolution. This is to be deducted from the Total Delay.
ii. Delay Caused by the Defence
Procedural History
[7] Before I assess delay caused by the defence, a review of the procedural history is required.
[8] On December 29, 2018, Mr. Gharibi was arrested and released. He was to appear on February 18, 2019. Unfortunately, that was on Ontario’s Family Day statutory holiday. On February 19, 2019, the next juridical day, there was no Information before the Court and no Mr. Gharibi. Mr. Gharibi had to be Summonsed to court for his first appearance on March 1, 2019. Both parties agree that the clock started when Mr. Gharibi was arrested and not when the Information was sworn.
[9] On March 1, 2019, Mr. Gharibi appeared in court for the first time and was provided with his initial disclosure. He requested a 6-week remand so that he could retain counsel. The Court found that was too long an adjournment and gave him 4 weeks to find a lawyer and start the retainer process.
[10] On March 29, 2019, an agent for Defence Counsel Mr. Michael Engel appeared for Mr. Gharibi. He filed a designation, confirmed he received initial disclosure and requested a 4-week adjournment to receive and review additional disclosure.
[11] Defence Counsel produced 4 letters his office sent to the Crown all dated March 27, 2019. In those letters, he requested a total of 9 items of further disclosure: all police videos; the most recent police directive relating to videotaping prisoner activities; the reasons for the lengthy detention of Mr. Gharibi after the breath tests: 911 calls; police radio calls; a copy for the SFST and DRE manual from which an officer was trained; the particulars of the training that SFST officer received; video of the roadside test if any; and photos.
[12] The Crown stated that substantial disclosure had been made and that a Crown Pre-Trial was to be scheduled. The Justice of the Peace agreed and adjourned the matter for 2 weeks “for the conversation to start”.[^3]
[13] On April 12, 2019, agent for Defence Counsel appeared without having had a Crown Pre-Trial or having scheduled one contrary to the Court’s direction. He repeated the list of requested disclosure and asked for a 3-week adjournment.
[14] The Justice of the Peace refused the request. She questioned the agent for Defence Counsel: “So, what Counsel ignored the direction of the Court? Is there any explanation for – you don’t know.” The Crown again wanted a Crown Pre-trial. The Justice of the Peace insisted the matter return the following week on April 18, 2019 before a Judge for case management.[^4]
[15] On April 18, 2019, another agent for Defence Counsel appeared before Justice Hackett and stated that a call had been made to the assigned Crown, but no Crown Pre-trial had occurred, or been scheduled as the agent received an out of office email. Agent for Defence Counsel asked for another 3-week adjournment.
[16] Justice Hackett denied the defence request. She reviewed the outstanding disclosure item by item and did not find any to be a bar from conducting a Crown Pre-trial. She held the matter down for the parties to go set a Judicial Pre-Trial which they scheduled for May 16, 2019. A total of 19 earlier time slots were offered on April 29, May 6, May 8, and May 13, 2019.
[17] On May 16, 2019, a Judicial Pre-Trial was conducted and an agent for Defence Counsel requested an adjournment to June 7, 2019 with an 11(b) waiver for the Crown to consider a resolution proposal.
[18] On June 7, 2019, agent for Defence Counsel believed the matter would resolve on the next date of June 13, 2019. The Crown stated it had no indication this matter would resolve and was ready to set trial dates that day.
[19] On June 13, 2019, an agent for Defence Counsel appeared and informed the Court that he had been advised there would be no guilty plea and a 2.5-day trial should be set with or without counsel. Trial dates of April 1, 2, and 3, 2020 were set. Defence Counsel was unavailable on March 4, 5, 6, 2020 and March 23, 24, 25, 26, 2020.
[20] On January 10, 2020, agent for Defence Counsel advised the Justice of the Peace that he was now fully retained and listed several requested disclosure items that were still outstanding. The matter was adjourned to January 24, 2020.
[21] On January 24, 2020, agent for Defence Counsel advised there was one item of disclosure still outstanding. The matter was adjourned to February 7, 2020.
[22] On February 7, 2020, further disclosure was provided and the matter was adjourned to February 21, 2020.
[23] On February 21, 2020, an agent for Defence Counsel appeared and both parties agreed to return on the trial date even though there was one requested disclosure item still outstanding.
[24] On April 1, 2020, the first day of trial, the global COVID-19 pandemic resulted in the adjournment of the trial.
Positions of the Parties
[25] Defence Counsel for Mr. Gharibi submits that apart from the previously noted 22 days of 11(b) waiver, no further defence delay should be deducted as he was waiting for outstanding disclosure.
[26] The Crown submits that the Court should deduct four additional time periods due to defence delay totalling 57 days, as follows:
i. April 12 to April 18, 2019 because Defence Counsel refused to have a Crown pre-trial (6 days);
ii. April 29 to May 16, 2019 because Defence Counsel was not available on earlier Judicial Pre-Trial dates offered (17 days);
iii. June 7 to June 13, 2019 because the Crown was ready to set a trial date and agent for the Defence Counsel was not (6 days); and
iv. March 4, 2020 to April 1, 2020 because Defence Counsel was unavailable on the first trial dates offered (28 days).
Analysis
[27] I accept that on each of these occasions the Crown and the Court were ready to move to the next step of the process and Defence Counsel either chose not to or was unavailable. However, each period must be assessed in the context within which it arose.
[28] Although short, the first time period to assess is the most challenging: April 12, 2019 to April 18, 2019 (6days). These 6 days, in the context a case that will take 25 ½ months to complete will ultimately mean very little in the final calculation. However, this 6-day period reflects the challenges that must be overcome if two objectives are to be met: first that all participants in the criminal justice system cooperate to achieve reasonably prompt justice; and second, to eliminate the culture of complacency (Jordan para 5 and 40).
[29] It took two Justices of the Peace, two Crowns and a Judge to get Defence Counsel to have a conversation with the assigned Crown about the case and set a Judicial Pre-Trial.[^5]
[30] The Ontario Court of Appeal stated in R. v. N.N.M. “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 set a date for trial”.[^6]
[31] On April 18, 2019, Justice Hackett reviewed the outstanding items requested by defence, item by item, and deemed each not to be a bar from moving to the next step in the process.[^7] It should not come to that.
[32] The issue of the 911 tape is of note. The Ontario Court of Appeal addressed a Crown office policy of not providing 911 tapes as part of initial disclosure thus:
“it is unfathomable that over two decades after Stinchcombe, a local Crown Attorney’s office would promulgate and adhere to a policy of non-disclosure, at once ill-conceived and constitutionally infirm. Such a policy amounts to an abrogation of the Crown’s constitutional obligation, the creation of a Charter-free zone that bars entry by an accused to obtain his or her constitutional entitlement. If it persists to this day, it has exceeded its best before date by about 35 years and should cease immediately”[^8]
[33] The relevance and/or necessity of the requested disclosure is not the issue. The issue here, is that Defence Counsel would not discuss it with a Crown or a Judge. As a result of such resistance, I find these 6 days to be defence delay.
[34] In terms of availability, I agree with Justice Wells in Shim[^9] who quotes Justice Woollcombe in Ameerullah[^10], that s.11(b) requires:
“reasonable availability, flexibility and some level of cooperation. Clearly, when a single date or block of time is offered to the defence and counsel is unavailable on that date, not all of the delay to the next available date is necessarily defence delay……However, when the Crown is available on numerous dates that are offered by the court, and the defence counsel is repeatedly unavailable for any dates over a reasonable period, the delay that results is defence delay” .
[35] From April 29, 2019 to May 16, 2019 (17 days), Defence Counsel was offered 19 Judicial Pre-Trial spots on 4 separate dates. Given that multiple dates, and multiple times were offered, Defence Counsel’s unavailability for this period delayed the process. I find these 17 days to be defence delay.
[36] From June 7 to June 13, 2019 (6 days) the agent for Defence Counsel believed that a resolution was to take place on the next appearance before the Judicial Pre-Trial judge on June 13, 2019. It was reasonable for the agent to proceed as instructed. Indeed, on June 13, 2019 the record reflects that the assigned Crown had been in contact with Defence Counsel and he learned that there would be no resolution. This was a legitimate act undertaken by Defence Counsel as described in Jordan (at para 65). I therefore decline to attribute those 6 days to Defence Delay.
[37] From March 4, 2020 and April 1, 2020 (28 days), Defence Counsel was unavailable during the usual winter break when many individuals have family obligations. Defence Counsel was available for the very next set of dates which were within 4 weeks of those first offered. Given this fact specific context and its minor duration I do not find these 28 days to be defence delay.
3. Calculation of Net Delay
[38] I find the delay to be deducted from the total delay to be 1 ½ months (45 days) as follows: 22 days for the 11(b) waiver; 6 days for refusing to have a Crown Pre-Trial; and 17 days for Judicial Pre-Trial unavailability.
[39] Deducting 1 ½ months from the total delay of 25 months and 13 days, I find the Net Delay to be 24 months (775 days minus 45 days is 730 days).
[40] A 24-month Net Delay is above the Jordan ceiling of 18 months and is presumptively unreasonable.
4. Exceptional Circumstances
[41] The Crown may rebut the presumption of unreasonable delay by establishing the presence of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in the sense that: 1) they are reasonably unforeseen or reasonably unavoidable; and 2) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise (Jordan at para 69).
i. COVID-19 Pandemic
Position of the Parties
[42] Both the Crown and Defence Counsel agree that the impact of the COVID-19 global pandemic declared on March 11, 2020 by The World Health Organization is an exceptional discrete event.[^11]
[43] At issue is how much of the delay caused by the COVID-19 pandemic (“COVID Delay”) should be deducted from the Net Delay.
[44] Defence Counsel submits that the entirety of the COVID-19 Delay should not be deducted, but rather some portion, so that it not become a ‘pass’ permitting indefinite delay.
[45] The Crown submits that the entirety of the period from April 1, 2020 the first day of the first trial, to the end of the anticipated second trial on February 10, 2021, a period 10 months and 9 days, should be deducted from the Net Delay as the impact of COVID-19 on this case. In support of its position, the Crown has filed:
- The Declaration of the State of Emergency Order by the Premier of Ontario on March 17, 2020 that closed all non-essential businesses and prohibited large gatherings.[^12]
- Six Notices to the Profession issued by The Ontario Court of Justice between March 15, 2020 and August 12, 2020 taking the following action: [^13] i. March 15, 2020 immediately adjourning all non-urgent criminal matters for out-of-custody accused until the end of May 2020 to the summer months of June to August 2020. ii. March 28, 2020, confirming that all urgent criminal and family proceedings would be conducted by telephone and/or video. iii. May 4, 2020, outlining that no trials or Preliminary Hearings could be conducted until July 6, 2020 and the use of technology would be broadened. iv. June 17, 2020, announcing the re-opening of courthouses to start on July 6, 2020 with specifics Courthouse by Courthouse and Region by Region. v. July 2, 2020, identifying priority matters upon the re-opening of courts to be: in-custody continuations; in custody hearings adjourned due to COVID-19; new in-custody hearings and in-custody hearings adjourned on or after July 6/20; out of custody continuations; out of custody hearings adjourned due to COVID-19; and then new out of custody hearings. vi. August 12, 2020, organizing dates for matters to be addressed effective August 17, 2020 according to the previous priority list.
[46] In terms of specific prosecutorial efforts made in this case to mitigate the impact of the COVID-19 Delay, the assigned Crown:
i. Contacted Defence Counsel the same day of the August 12 Notice to re-schedule trial dates; ii. Did not wait for Defence Counsel to complete the Defence Trial Scheduling Form and did it himself; iii. Scheduled a COVID-19 Judicial Pre-Trial for August 26, 2020; and iv. Re-scheduled the trial on August 27, 2020 for February 8, 2021.
[47] The Crown also refers to six recent 11(b) decisions that have considered the impact of COVID-19 as an exceptional discrete event. In all the cases cited, the Courts have deducted all or most of the COVID Delay from Net Delay. [^14]
Analysis
[48] The impact of the COVID-19 pandemic on the criminal justice system is still yet to be fully determined and efforts to minimize both its impact on the system and the spread of the virus continues in a frequently changing landscape.
[49] New health screening procedures had to be put in place, the use of personal protective equipment was implemented, new cleaning protocols were required, plexi-glass protections had to be installed in every courtroom, safe air flow levels had to be measured and monitored daily, and building and room capacity levels were reduced. This is just to name a few changes that had to be implemented before courts could resume.
[50] In addition, the Court had to move from an ages-old system founded on in-person hearings and primarily reliant on paper, to a virtual, electronic, technology- dependent Court – in the colloquial – ‘over night’.
[51] As efficient as technology may appear, it is not always as secure and reliable as required to operate a criminal justice system. From security to sound quality to bandwidth to any number of other technology problems, operating virtually is to operate with frequent challenges, even when all parties are adept with the technology.
[52] Moreover, accommodations must be designed and implemented so that those with limited technological ability and access are not further marginalized in their participation in the criminal justice system.
[53] It is frequently said that ‘we are all in this together’, but the impact of this pandemic is not the same on all of us. It has exposed and amplified vulnerability and systemic inequity for vulnerable populations that interact with, and are subject to, the criminal justice system: homeless people; victims of violence, particularly women; people with mental challenges; those who struggle with substance addiction; and racialized people who bear the weight of racism, to name a few.
[54] These wide-spread changes are taking time. They have presented and continue to present challenges in terms of accessibility, consistency and availability to justice participants, particularly self represented accused persons, victims, witnesses, support workers of all types and support resources of all kinds.
[55] The efforts of Justice participants to mitigate the impact of COVID-19 on the operation of the criminal justice system in Ontario has been exceptional. The demands on professionals in the legal system deemed essential, and whose responsibility it is to ‘pivot”, in effect ‘create’ new ways to do just about everything is extraordinary.
[56] In the meantime, offences continue to be committed and people continue to be arrested. The backlog is piling up.
[57] There will be a time when what resources are provided to address and ameliorate the gaps exposed by COVID-19 in the criminal justice system will be evaluated. Jordan speaks to the issue when it states the:
“standpoint is now prospective. Participants in the criminal justice system will know, in advance, the bounds of reasonableness so proactive measures can be taken to remedy any delay” (para 108).
[58] However, that is not an assessment that can be made at this time in this case. To date, in response to an increasing number of positive cases in the second wave of the pandemic, on January 12, 2021 there was a Declaration of Emergency effective January 14, 2021. It has now been extended to February 9, 2021. Schools are closed in Toronto. A Stay-at-Home Order is in effect limiting people from leaving their home except to obtain groceries and medication, for medical appointments and exercise, and going to work, if work cannot be done remotely. Close contact is limited to members of your own household. Outdoor gatherings are limited to 5 people.
[59] Therefore, given the nature of the current impact of the COVID-19 pandemic on the criminal justice system, and the efforts made to mitigate that impact, I find that the entire period between April 1, 2010 and February 10, 2021, 10 months and 10 days to be an exceptional discrete event to be deducted from Net Delay.
ii. Complexity
[60] The Crown does not submit that complexity is an exceptional circumstance to consider, and I agree it is not applicable here.
5. Calculation of Remaining Delay
[61] When the 10 month and 1 week COVID-19 Delay is deducted from the New Delay of 24 months, the Remaining Delay is 13 months and 3 weeks.
6. Analysis of Delay Below the Presumptive Ceiling:
[62] An 18 month ceiling is not an aspirational target and delay that falls under the presumptive ceiling may be unreasonable if the defence can demonstrate: 1) that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and 2) that the case took markedly longer than it reasonably should have. Such stays will be rare and limited to clear cases (Jordan, at para. 56, 82 -83, 48).
[63] The defence has not shown either in this case.
i. Sustained Effort to Expedite the Proceeding
[64] As explained earlier, the defence conduct demonstrated a pre-Jordan flavour of complacency in its decision making to simply voice its concerns on the record without acting and taking initiative.
[65] Defence Counsel also did not mention any concern with delay, either at the setting of the first trial, just over 15 months from the arrest date on June 13, 2019, or at the setting of the second trial date on August 27, 2020.
[66] The first notice the Crown received that delay was an issue was on December 7, 2020 when Defence Counsel informed the Crown it was pursuing an 11(b) Application for a stay of proceedings.
[67] To expedite the process given the short timelines, the assigned Crown immediately facilitated the scheduling of the motion date. The Application was served by the defence on December 11, 2020, and transcripts were not provided until December 18, 2020. The assigned Crown responded by December 29, 2020 notwithstanding the intervening holiday season.
[68] The specific and cumulative effect of the defence conduct in this case is not one that demonstrates an effort to expedite it.
ii. Markedly Longer
[69] Regarding whether the case took “markedly longer”, I do not find it so.
[70] The early delay to set a date for trial was predominantly the result of the defence resisting moving forward. The delay from June 13, 2020 to April 1, 2020, is not markedly longer, in a very busy jurisdiction, for a multi-witness trial with allegations of three Charter breaches that requires three days for an out of custody accused person. The defence also did not communicate any concern with delay and the Crown had no opportunity to address and mitigate any such a concern.
[71] As a result, I do not find that the defence has shown the Remaining Delay of 13 months and 3 weeks to be unreasonable delay.
D. CONCLUSION
[72] After a review of the law, the materials, the submissions of both counsel and the circumstances of this case, I find that Mr. Gharibi’s 11(b) right has not been breached.
[73] Accordingly, the Application is dismissed.
Released: February 5, 2021
Signed: Justice C.C.G. Faria
[^1]: R. v. Jordan, 2016 SCC 27, 2016 SCC. 27, [2016] 1 S.C.R. 631 [^2]: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433 at paras 34-41 [^3]: Application Record, Transcript, March 29, 2019, pgs. 5, 23-26 [^4]: Application Record, Transcript, April 12, 2019, pgs. 3- 5 [^5]: Applicant Materials, Transcripts: March 29, 2019, April 12, 2019, April 18, 2019. [^6]: R. v. N.N.M. (2006) 209 C.C.C. (3d) at para 37 (Ont. C.A.) [^7]: Applicant Materials, Transcript: April 18, 2019 [^8]: R. v. MGT 2017 ONCA 736 at para 150 and following [^9]: R. v. Shim 2019 ONCJ 686 at para.18. [^10]: R. v. Ameerullah 2019 ONSC 4537 at para 28-29. [^11]: Respondent Application Record, Affidavit Ovais Ahmad, Exhibit A: World Health Organization Declaration [^12]: Respondent Application Record, Affidavit Ovais Ahmad, Exhibit C, Order in Council [^13]: Respondent Application Record, Affidavit Ovais Ahmad, Exhibits B, D, E, F, G, H. [^14]: R. v. Drummond, 2020 ONSC 5495, decided September 14, 2020, Justice P.J. Cavanagh deducted 5 months. R. v. Gutierrez, 2020 ONSC 6810, decided October 30, 2020, Justice Byrne deducted the entire 10 months and 12 days. R. v. Simmons, 2020 ONSC 7209, decided November 13, 2020, Justice S.S. Nakatsuru deducted the entire 9 months and 26 days. R. v. Stack, 2020 ONCJ 544, decided November 23, 2020, Justice A.R. MacKay deducted the entire 7 months and 10 days R. v. G.R., 2020 ONCJ 578, decided December 19, 2020, Justice K. Doorly deducted the entire 9 months. R. v. Truong, 2020 ONCJ 613, December 22, 2020, Justice J. North deducted 4.41 months