Ontario Court of Justice

Date: 2022-10-03 Information Number: 21-2737

BETWEEN:

HIS MAJESTY THE KING

— AND —

MAHAMUD IBRAHIM

Before: Justice J.P.P. Fiorucci

Heard on: June 22, 2022 Reasons for Judgment on s. 11(b) Charter application released on: October 3, 2022

Counsel: T. Ormond and T. Moran, counsel for the Federal Crown D. Paquette, counsel for the accused, Mahamud Ibrahim

FIORUCCI J.:

INTRODUCTION

[1] On July 28, 2022, I granted Mahamud Ibrahim’s s. 11(b) Charter application, finding that his right to a trial within a reasonable time had been infringed. I stayed the proceedings pursuant to s. 24(1) and advised the parties that written reasons for my decision would follow. These are my written reasons.

[2] On October 31, 2020, Mr. Ibrahim and his co-accused, Ms. Marcela Manriquez, were charged with Possession of Cocaine for the purpose of trafficking (s. 5(2) of the Controlled Drugs and Substances Act) and Possession of Proceeds of Crime (Canadian Currency) exceeding $5,000.00 (s. 355(a) of the Criminal Code) on Information No. 20-9268. On the same date, Mr. Ibrahim was charged on a separate information with another co-accused. [1] All of Mr. Ibrahim’s charges were subsequently relayed on Information No. 21-2737.

[3] The date on which the original informations were sworn, October 31, 2020, is the start date for calculating delay. The anticipated end date of the trial was July 29, 2022. Therefore, the total delay in this matter is 20.9 months or 637 days. [2]

[4] The following is a summary of the significant dates within the case chronology:

30 October 2020 Arrest 31 October 2020 Informations sworn 10 November 2020 Initial disclosure and screening received 12 November 2020 First Court Appearance: Agent for Defence counsel appeared to advise that Defence counsel was in the process of being retained and requested an adjournment to November 19, 2020. 19 November 2020 Second Court Appearance: Accused appeared with Duty Counsel to advise that he was in the process of retaining Defence counsel’s office. Matter adjourned to November 25, 2020. 25 November 2020 Third Court Appearance: Accused appeared with Duty Counsel who had instructions from Defence counsel’s office to adjourn the matter for one week. Accused advised that he was in the process of retaining Defence counsel. Matter adjourned to December 2, 2020. 2 December 2020 Fourth Court Appearance: Accused appeared with Duty Counsel who had instructions from Defence counsel to adjourn the matter for one week to pursue disclosure that had been requested. Matter adjourned to December 9, 2020. 9 December 2020 Fifth Court Appearance: Duty Counsel appeared with instructions from Defence Counsel to adjourn the matter for one week as Defence counsel was continuing to review disclosure. Matter adjourned to December 16, 2020. 16 December 2020 Sixth Court Appearance: Accused appeared with Duty Counsel and requested a one-week adjournment advising that he had discussed the filing of an enhanced designation with Defence counsel’s office. Matter adjourned to December 23, 2020. 23 December 2020 Seventh Court Appearance: Counsel from Defence counsel’s office (C. McKenna) appeared in Court with the accused to advise that an enhanced designation was filed. Matter adjourned to March 23, 2021. 2 February 2021 Defence received further disclosure (drug logs and property list) 11 March 2021 Eighth Court Appearance: Defence counsel (D. Paquette) attended court to advise that the matter was brought forward from the March 23rd date to schedule a date for a bail hearing. Matter adjourned to March 17, 2021 for a bail hearing. 17 March 2021 Ninth Court Appearance: Bail Hearing conducted. Release ordered. Matter adjourned to March 24, 2021. 22 March 2021 Defence received further disclosure (officer notes, warrant for devices, drug log, non-drug log, certificates of analyst). 24 March 2021 Tenth Court Appearance: Defence counsel attended to advise that although the accused received bail on the charges, he was subject to a parole revocation and was awaiting a hearing. Crown counsel advised that the Crown was reviewing cell phone extractions from cell phones seized. Matter adjourned to April 21, 2021. 5 April 2021 Defence received further disclosure (redacted ITO for residences). Further disclosure was also available including additional officer notes and cell phone extraction report. 21 April 2021 Eleventh Court Appearance: Defence counsel attended to advise that, although bail was granted on these charges, the accused remained in custody on a parole suspension or revocation. Federal Crown advised that all charges had been combined onto one relay information, Information No. 21-2737 (with co-accused: Marcela Manriquez). Crown counsel confirmed that Information No. 21-2737 encompasses all charges originally included on 20-9268 and 20-9269. Defence counsel (D. Paquette) advised that he had received the ITO, that there will be a trial in the matter, and that the Defence will challenge the legality of the search. Defence counsel asked that the matter be adjourned to May 19, 2021 to conduct a Crown pre-trial. 11 May 2021 Defence received redacted ITO for cell phones. 19 May 2021 Twelfth Court Appearance: Defence counsel (D. Paquette) appeared for the accused who had a release on the charges but remained in custody on a parole revocation. Defence counsel (J. Orme) appeared for the co-accused Marcela Manriquez. Matter adjourned to June 2, 2021 to schedule Judicial Pre-trial (JPT). 20 May 2021 Defence received further disclosure (officer notes of Detectives Knickle and Tweedle and cell phone extraction reports). 31 May 2021 Defence received further disclosure (witness statements and officer notes of Officers Dickieson, Moberg, Mogford and Rawson, and redacted ITO’s for cell phones). 2 June 2021 Thirteenth Court Appearance: Defence counsel for the accused (D. Paquette) and Defence counsel for the co-accused, Ms. Manriquez (J. Orme) appeared in Court. Mr. Paquette asked that the matter be adjourned to June 16, 2021 for the JPT to be conducted on June 8, 2021. The Court advised that the June 16th court day was full. The matter was therefore adjourned to June 30, 2021. 8 June 2021 Defence counsel missed the JPT date. The JPT was rescheduled to June 18, 2021. 18 June 2021 The JPT was conducted. 23 June 2021 Defence counsel missed the Trial scheduling conference on this date. Trial scheduling conference rescheduled to July 2, 2021. 30 June 2021 Fourteenth Court Appearance: Defence counsel (D. Paquette) advised the Court that the Trial scheduling conference will take place on July 2nd and requested that the matter be adjourned to July 7, 2021 to schedule trial dates. Matter adjourned to July 14, 2021 at the request of the Federal Crown (T. Mimnagh). The accused remained in custody serving the remnant of a parole revocation. 2 July 2021 Defence Counsel provided the Trial scheduling form to the trial coordinator (TC). 9 July 2021 TC offered trial dates. 12 July 2021 TC confirmed trial dates with the parties. 14 July 2021 Fifteenth Court Appearance: Defence counsel (L. Wilhelm) appeared in Court to schedule the motion dates (April 25 and 27, 2022) and trial dates (July 28 and 29, 2022). 11 August 2021 The co-accused, Ms. Manriquez, appeared in Court to confirm her election and to confirm the motion and trial dates. 29 March 2022 Defence received further disclosure. 25 April 2022 Sixteenth Court Appearance: Garofoli application. Counsel made submissions on the accused’s application for leave to cross-examine the affiant of the ITO. At the end of the court day, Defence counsel (D. Paquette) advised that Mr. Ibrahim would be making a s. 11(b) application to stay the proceedings for delay. 27 April 2022 Seventeenth Court Appearance: Garofoli application continued. 22 June 2022 Eighteenth Court Appearance: Counsel made oral submissions on the s. 11(b) application. 29 July 2022 Anticipated end date of the trial.

POSITIONS OF THE PARTIES

[5] Mr. Ibrahim’s charges arose out of the search of two residences on October 30, 2020. On April 5, 2021, the Defence received disclosure of the ITO that the issuing justice relied on to grant search warrants for the residences. The ITO was redacted to protect informant privilege. At the court appearance on April 21, 2021, Mr. Ibrahim’s counsel put the Crown on notice that there would be a challenge to the legality of the searches.

[6] At the July 14, 2021 court appearance, pursuant to time estimates approved at the JPT, counsel scheduled the motion dates (April 25 and 27, 2022) and trial dates (July 28 and 29, 2022). At that point, the anticipated end date of the trial already exceeded the presumptive ceiling of 18 months.

[7] Mr. Ibrahim was arraigned and entered not guilty pleas on April 25, 2022. On that date, counsel made their respective submissions regarding the accused’s application to cross-examine the affiant of the ITO. At the end of the court day, Defence counsel advised that a s. 11(b) application would be brought.

[8] The Crown sought summary dismissal of the s. 11(b) application based on non-compliance with Rule 2.4(1) of the Criminal Rules of the Ontario Court of Justice; since the Defence did not provide adequate notice of its intention to seek a stay of proceedings for delay, the application could not be heard at least 60 days before the commencement of the trial on April 25, 2022.

[9] In its Notice of Response, the Crown stated that the failure of the Defence “to raise 11(b) as an issue in a timely manner also impacted the timeline of the proceedings”. The Crown led evidence regarding the criteria it uses to monitor and triage cases that are scheduled outside the presumptive Jordan ceiling. On the application, I also heard evidence regarding earlier trial dates that the TC offered to the Crown. Those earlier trial dates were not offered to Mr. Ibrahim.

[10] I permitted the s. 11(b) application to be argued on its merits despite the late filing. I will address in my reasons the Crown’s arguments regarding non-compliance with the Rules and the failure of the Defence to make an earlier complaint about the delay.

[11] The Crown says that the period between June 2nd and July 2nd, 2021 (31 days) [3] is attributable to defence delay. The case was addressed in Court on June 2, 2021. At that time, Defence counsel confirmed that a JPT had been scheduled for June 8th. Defence counsel missed the June 8th JPT which necessitated a rescheduling of the JPT to June 18th. The JPT was conducted on June 18th. However, on June 23rd, Defence counsel missed the Trial scheduling conference and, accordingly, trial dates could not be scheduled on the next court date which was June 30th. Defence counsel provided their Trial scheduling form to the TC on the new Trial scheduling conference date of July 2nd. Therefore, the Crown takes the position that the entire period of delay between June 2nd and July 2nd was caused solely by the conduct of the Defence.

[12] The Crown concedes that when the defence delay (31 days) is subtracted from the total delay (637 days), the net delay is 606 days or 19.9 months, which exceeds the presumptive ceiling making the delay presumptively unreasonable and requiring the Crown to establish exceptional circumstances to rebut the presumption. The Crown says that at least 60 days should be deducted for the COVID-19 pandemic, an exceptional circumstance which affected this proceeding, “and in particular the scheduling of trial dates, up to the first day of trial offered by the Court, April 25, 2022”. [4]

[13] If I accept the Crown’s submissions regarding defence delay (31 days) and attribute 60 days to COVID-19 as a discrete exceptional circumstance, the remaining delay is below the presumptive ceiling (17.9 months or 546 days), which shifts the onus to the Defence to show that the delay is unreasonable.

[14] The Defence concedes defence delay for two periods of time: (i) between the missed JPT on June 8, 2021 and the new JPT on June 18, 2021 (11 days); and (ii) between the missed Trial scheduling conference on June 23, 2021 and the new Trial scheduling conference on July 2, 2021 (10 days). Therefore, the total defence delay conceded by the Defence is 21 days.

[15] The Defence submits that the Crown has tendered no evidence to support its position that at least 60 days should be attributed to COVID-19 in Mr. Ibrahim’s case. The Defence argues that, if the Court were to adopt the approach of deducting time for COVID-19 without a proper evidentiary foundation, accused persons will effectively have no s. 11(b) right for the foreseeable future, since the Crown would simply rely on COVID-19 as a phenomenon that caused a “significant domino effect” without having to establish that the pandemic caused any specific period of delay in the case before the Court.

[16] Ultimately, the Defence position is that the presumptive ceiling has been exceeded and a stay must follow.

THE JORDAN ANALYTICAL FRAMEWORK

[17] An accused’s right to a trial within a reasonable time is guaranteed by s. 11(b) of the Charter. In R. v. Jordan [5], the Supreme Court of Canada established a presumptive ceiling beyond which delay is presumptively unreasonable. The Court set the presumptive ceiling at 18 months for cases going to trial in the provincial court.

[18] In R. v. Coulter, the Ontario Court of Appeal summarized the Jordan framework for s. 11(b) applications as follows:

Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [6]

Defence Delay:

[19] The two components of defence delay are “delay waived by the defence”, and “delay that is caused solely by the conduct of the defence”. [7]

[20] As the Supreme Court of Canada explained in Cody, “the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from "its own delay-causing action or inaction" (Jordan, at para. 113)”. [8] The Court went on to say that, “[i]t applies to any situation where the defence conduct has "solely or directly" caused the delay (Jordan, at para. 66)”. [9]

[21] The Ontario Court of Appeal described it as follows:

Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64). [10]

[22] Defence actions legitimately taken to respond to the charges do not constitute defence delay. [11] The determination of whether defence conduct is legitimate is "by no means an exact science" and is a highly discretionary assessment made by the trial judge. [12]

Exceptional Circumstances:

[23] The Court in Jordan described exceptional circumstances as follows:

Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. [13]

[24] The two general categories of exceptional circumstances are “discrete events” and “particularly complex cases”. [14] The Court in Jordan stated that once the ceiling is breached, the Crown cannot simply point to a past difficulty, “[i]t must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling”. [15]

[25] The Court gave examples of steps that the Crown could take:

This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful - rather, just that it took reasonable steps in an attempt to avoid the delay. [16]

[26] It is left to the trial judge to determine how much, if any, time is subtracted from the net delay for discrete, exceptional events that arise, keeping in mind that the Crown and the justice system must be prepared to mitigate the delay resulting from a discrete exceptional circumstance:

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, [2016] 1 S.C.R. 625). 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). [17]

[27] The Court in Jordan said the following about the second category of exceptional circumstances, cases that are particularly complex:

….. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. [18]

[28] The Court went on to say that the trial judge should consider whether the Crown, “having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity”. [19] Where the Crown has failed to do so, it will be unable to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control. [20]

ANALYSIS

The Late Filing of the Application:

[29] On July 12, 2021, when the parties accepted the first trial dates offered by the TC, the Crown and Mr. Ibrahim were both in a position to know that the anticipated end date of the trial exceeded the presumptive ceiling.

[30] The fundamental objective of the Criminal Rules of the Ontario Court of Justice is to ensure that proceedings are dealt with justly and efficiently, including dealing with the prosecution and the defence fairly, and recognizing the rights of the accused person. [21]

[31] Rule 2.4(1) provides that a pre-trial application shall be heard at least 60 days before the trial unless the Court orders otherwise. This includes s. 11(b) applications for unreasonable delay. Rule 5.3 states that the Court may excuse non-compliance with any rule at any time to the extent necessary to ensure that the fundamental objective set out in Rule 1.1 is met. The Commentary to Rule 5.3 states that non-compliance with the Rules may result in consequences, including dismissal of the application without a hearing on the merits.

[32] The Crown sought summary dismissal of Mr. Ibrahim’s s. 11(b) application. I start by stating that, once the trial dates were scheduled beyond the presumptive ceiling, Mr. Ibrahim’s counsel ought to have raised the issue of delay with Crown counsel and obtained a date before the trial judge for the hearing of the s. 11(b) application at least 60 days before the April 25, 2022 start date of the trial. Defence counsel did not do so. Instead, the issue of delay was raised for the first time at the conclusion of the April 25th court date. This was clearly not in compliance with the Rules. Therefore, I have had to consider the effect of this non-compliance with the Rules and whether a summary dismissal of the s. 11(b) application is appropriate in this case.

[33] The parties filed an agreed statement of facts on the application (Exhibit 5) containing the following agreed facts: i) as of the date the trial was scheduled, the trial’s anticipated end date was beyond the presumptive 18 month ceiling set in Jordan; ii) the first trial dates offered by the TC were accepted by all parties; iii) as with all cases in the federal Crown’s office which are set for trial outside the presumptive Jordan ceiling, the federal Crown monitored and triaged Mr. Ibrahim’s case when new dates became available; iv) at the time Mr. Ibrahim’s matter was scheduled for trial and thereafter, it was/is not uncommon for trials to be set outside the presumptive Jordan ceiling in this jurisdiction, which is especially true for lengthier trial matters; and v) no earlier dates were offered from the TC’s office specifically in respect of Mr. Ibrahim’s case.

[34] The Crown filed the affidavit of Dena Castro, a senior paralegal involved in the scheduling of trials and preliminary inquiries for the federal Crown office that had carriage of Mr. Ibrahim’s case. Defence counsel, Mr. Paquette, cross-examined Ms. Castro on the contents of her affidavit.

[35] Mr. Paquette’s cross-examination focused on the portion of Ms. Castro’s affidavit which stated that, in response to the COVID-19 pandemic, and the resulting delay in matters being brought to trial, their office developed a procedure for tracking Jordan dates and for triaging them to mitigate delay when possible. Ms. Castro’s affidavit spoke to the criteria used to prioritize cases in this specific federal Crown office when the TC advises that earlier trial dates have become available.

[36] The following points emerged from Ms. Castro’s evidence:

(1) in identifying priority matters, the primary considerations include: (i) the nature of the allegations and seriousness of the offences alleged; (ii) whether the accused is in or out of custody; (iii) whether s. 11(b) is an issue that has been affirmatively raised by the defence at any stage in the prosecution; and (iv) the amount of overall delay, and in particular, delay which is prima facie attributable to the Crown or the Court; (2) the federal Crown gave limited rescheduling priority to Mr. Ibrahim’s prosecution due to the following factors: (i) Mr. Ibrahim had a release on these charges as of March 17, 2022; (ii) delays caused by the Defence in not attending the initial JPT and the initial Trial scheduling conference; and (iii) s. 11(b) concerns were not raised by the Defence during the proceedings, including when the trial dates were put on the record; (3) when additional dates become available, the federal Crown is required to triage all outstanding trial or preliminary inquiry matters.

[37] Mr. Paquette asked Ms. Castro when Mr. Ibrahim’s case was tracked as it proceeded through the system toward trial. Ms. Castro stated that their office reviewed the case when the TC offered freed up trial dates.

[38] Ms. Castro could not recall specifically when the TC offered earlier trial dates to her office. However, she believes that the TC offered her office earlier dates on two or three occasions, starting in April of 2022. The dates the TC provided in April of 2022 were not offered to Mr. Ibrahim. According to Ms. Castro, shortly after that, perhaps in the beginning of May 2022, the TC offered more dates. Again, those dates were not offered to Mr. Ibrahim’s case, nor was Defence counsel for Mr. Ibrahim advised that the TC had offered earlier dates to the Crown.

[39] In cross-examination, Ms. Castro testified that there were eight to ten cases on a list in their office to be taken into consideration when the TC offered earlier dates. The following exchange then occurred between Defence counsel and Ms. Castro:

Q. And was Mr. Ibrahim's case on that list within your office? A. It was not on that list no. Q. So you didn't monitor his case specifically at all. A. Well, it was not on that list because it did not meet the criteria that we established in our office. Q. It certainly met the criteria that if left undealt with, or moved forward, there was the potential 11(b) application after the expiration of 18 months. That was known to you throughout this entire period? A. Yes.

[40] The Crown relied on the recent Supreme Court of Canada case of R. v. J.F., 2022 SCC 17 [22]. The J.F. case is factually distinguishable as it dealt with an accused who did not raise the issue of delay at all in his first trial. The accused was acquitted on all charges at the first trial. A new trial was ordered on appeal. The accused filed a s. 11(b) motion seeking a stay of proceedings for delay in the first trial and the retrial.

[41] Therefore, the Court in J.F. addressed the issue of whether an accused can bring a s. 11(b) application complaining about the delay from their first trial after an appeal court has ordered a new trial. In doing so, however, the Court discussed some general principles concerning the Jordan framework.

[42] For instance, the Court stated that Jordan did not indicate the point in time when an accused must bring a s. 11(b) motion. However, an accused person who sees delay lengthening has a duty to raise an infringement of their s. 11(b) right in a timely manner. This “may mean filing a s. 11(b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected”. [23] The Court stated:

35…..In K.G.K., Moldaver J. interpreted the prospective approach adopted in Jordan as "encourag[ing] pre-trial s. 11(b) applications" (para. 43 (emphasis added)). The defence is in fact encouraged to act before the start of the trial, since the Jordan framework allows "the parties to know 'in advance, the bounds of reasonableness so proactive measures can be taken to remedy any delay'" (K.G.K., at para. 43, quoting Jordan, at para. 108 (emphasis in original)).

36 In short, a duty to act proactively also rests on the accused. As a result, the accused must indicate that their right to be tried within a reasonable time has not been respected and, where the circumstances require, bring a motion for a stay of proceedings in a timely manner. As a general rule, this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have. However, it is not out of the question that, exceptionally, an infringement of the s. 11(b) right will reveal itself only once the trial has begun. In such a case, the accused must also act proactively. [24]

[43] In my view, it is important to note that when the Court in J.F. spoke of the accused’s lateness in raising the s. 11(b) issue, it did so in the context of a discussion about defence delay, which is comprised of two components: i) delay waived by the defence, and ii) delay caused solely or directly by the defence. [25]

[44] The Court rejected the Crown’s argument that an accused’s failure to raise an infringement of their s. 11(b) right during their first trial or on appeal amounts to a clear and unequivocal waiver or acceptance of the delay associated with a past trial. [26] The Court said:

I must reject that proposition. Although the time at which an accused raises the unreasonableness of trial delay may affect the outcome of their motion, waiver of the delay cannot be inferred solely from the accused's silence or failure to act. [27]

[45] Waiver must be clear and unequivocal and must be proved by the prosecution. [28] An accused’s mere silence or inaction cannot indicate a waiver of delay. [29] The Court also noted that where the “waiver” inquiry is done in the context of s. 11(b), “it is not the right itself which is being waived but merely the inclusion of specific periods in the overall assessment of reasonableness”. [30]

[46] The Court in J.F. said that “[l]ateness in bringing a s. 11(b) motion for a stay of proceedings nonetheless remains an important factor in determining whether an accused has waived delay”. [31] The fact that a motion is brought after trial would, in most cases, be fatal and “would normally amount to a waiver of any claim which may arise under s. 11(b) of the Charter". [32]

[47] Therefore, “[w]hile lateness in bringing a motion for a stay of proceedings may be a relevant factor, it cannot in itself establish waiver”. [33] As the Court in J.F. said, “[w]aiver is established on the basis of an accused's conduct (Askov, at p. 1228), having regard to the circumstances of each case (see, e.g., Warring, at paras. 11-13 and 27)”. [34]

[48] In Mr. Ibrahim’s case, I find that the failure to bring the s. 11(b) motion pre-trial did not amount to a waiver of any periods of delay. The Defence merely accepted the first available trial dates offered by the TC, which were beyond the presumptive ceiling. Furthermore, although the Defence did not comply with the Rules for filing the s. 11(b) application, the Defence brought the application prior to the conclusion of the trial.

[49] In assessing the second aspect of defence delay, I find that the lateness in bringing the application did not result in delay caused solely or directly by the Defence. According to the agreed statement of facts, the federal Crown monitored and triaged Mr. Ibrahim’s case when new trial dates became available, as it did with all other cases from their office which were set outside the presumptive ceiling. Therefore, the Crown was aware that the end date of Mr. Ibrahim’s case exceeded 18 months.

[50] Ms. Castro testified that Mr. Ibrahim’s case was given less priority than the eight to ten other cases that were “on the list”, partly because Mr. Ibrahim made no complaint about delay. However, there is no evidence about whether any of the eight to ten cases that were given priority by the federal Crown had their trials brought forward when the TC offered “limited” dates for the first time in April of 2022.

[51] By the time the TC offered dates to the federal Crown in May of 2022, Mr. Ibrahim had indicated his intention to bring the s. 11(b) application. No earlier dates were offered to Mr. Ibrahim either in April or May of 2022. In fact, Defence counsel for Mr. Ibrahim was not even made aware of the fact that the TC had earlier dates.

[52] There is no evidence that, in the circumstances of this case, if Mr. Ibrahim had raised the issue of delay earlier than he did, it would have resulted in earlier trial dates. The Defence conduct did not amount to waiver of any specific periods of delay, nor did it solely or directly cause any period of delay in these proceedings. No earlier trial dates were available until some unspecified time in April of 2022, and when further dates were available in May of 2022, after Mr. Ibrahim had raised the issue of delay, he was not offered any earlier dates.

[53] Therefore, on the record before me, I find that the Crown was not prejudiced by the failure of the Defence to raise the s. 11(b) issue earlier. This is not a case that warrants summary dismissal of the Charter application for failure to comply with the Rules. Summary dismissal in this case would place undue emphasis on compliance with the Rules and would not accord with the fundamental objective in Rule 1.1 of ensuring that proceedings are dealt with justly and efficiently including dealing with the parties fairly and recognizing the rights of the accused.

[54] I emphasize that my decision not to summarily dismiss the s. 11(b) application is based on the specific circumstances of this case. It is not meant to condone or encourage a Defence practice of not raising s. 11(b) as an issue at the earliest opportunity. As I stated above, when the trial dates were scheduled, it was clear to everyone that the dates exceeded the presumptive ceiling. The Defence ought to have raised the issue of delay with Crown counsel and obtained a pre-trial date before the trial judge for the s. 11(b) application.

Defence Delay:

[55] I will address first the delay arising out of the missed JPT. Since the Defence has conceded the period between the originally scheduled/missed JPT (June 8, 2021) and the rescheduled JPT (June 18, 2021), I am prepared to deduct 11 days as defence delay.

[56] However, I wish to make the following observations. On June 2, 2021, Defence counsel asked that the case be adjourned to June 16th to accommodate the JPT scheduled for June 8th. The Court advised that the June 16th court day was full. Therefore, the matter was adjourned instead to June 30th.

[57] Although Defence counsel missed the June 8th JPT, the JPT was conducted on June 18th and a Trial scheduling conference was obtained for June 23rd. The JPT and the initial Trial scheduling conference could both have been conducted prior to the June 30th return date had Defence counsel not missed the June 23rd Trial scheduling date. Therefore, notwithstanding that the JPT was conducted 11 days later than it should have been, the missed JPT may not have, in fact, delayed the setting of trial dates in this matter.

[58] Again, due to the concession made by the Defence, I will deduct 11 days of defence delay attributable to the missed JPT (June 8th to June 18th, 2021). I appreciate that this 11-day period could be seen as defence delay as defined in Jordan, since the Court and the Crown were ready to proceed with the June 8th JPT which the Defence missed. Therefore, the conduct of the Defence was the sole cause of the delay in conducting the JPT.

[59] The Crown says that defence delay should run from the court appearance that immediately preceded the missed JPT (June 2nd) to the date of the new Trial scheduling conference (July 2nd), a total of 31 days. There is no basis to run the period of defence delay from June 2nd, a date that is prior to the Defence conduct at issue, especially in light of the observations I have made above regarding the practical effect of the missed JPT.

[60] When the Defence missed the June 23rd Trial scheduling conference, this created a delay in the scheduling of the trial dates. The parties had to adjourn the June 30th court date to accommodate the new Trial scheduling conference on July 2nd. The Crown is not asking that any delay beyond July 2nd be attributed to defence delay. Therefore, I deduct a further 10 days (June 23rd to July 2nd, 2021) as defence delay.

Calculation of Net Delay:

[61] The total delay in this case is 20.9 months or 637 days. I subtract 21 days of defence delay from this total, which leaves a net delay of 20.3 months or 616 days. The net delay exceeds the presumptive ceiling. The Crown must establish the presence of exceptional circumstances to rebut the presumption of unreasonable delay.

Exceptional Circumstances: The COVID-19 Pandemic:

[62] The Crown stated in its materials and oral submissions that it is difficult to quantify delay attributable to the COVID-19 pandemic particularly “for matters which proceeded entirely during COVID, for which trial dates are being scheduled in the first instance”. [35] By this, I take it that the Crown is drawing a distinction between cases which had trial dates adjourned due to COVID-19 shutdowns in court operations and those cases, like Mr. Ibrahim’s case, which were scheduled for trial after courts had resumed court operations.

[63] The Crown seeks a deduction for COVID-19 of at least 60 days. The Crown does not point to any specific period in Mr. Ibrahim’s case that it says was delay caused by COVID-19, but rather states that it is unreasonable to conclude that COVID-19 had no effect on the scheduling of Mr. Ibrahim’s case.

[64] In support of its position, the Crown filed Notices to the Public that the Ontario Court of Justice issued at various times regarding the suspension of court operations due to COVID-19. For instance, the Crown referred to the following Notices:

(1) March 16, 2020: Ontario Court of Justice released “Notice to Public Regarding Criminal Matters in the Ontario Court of Justice”. All non-urgent criminal matters for out-of-custody accused were presumptively adjourned due to the COVID-19 pandemic; (2) March 20, 2020: Ontario Court of Justice directive that all criminal trials and preliminary hearings between March 20 and May 29, 2020 are suspended, subject to a judge seized with a continuing matter ordering otherwise; (3) May 4, 2020: Ontario Court of Justice directive that no trials or preliminary inquiries will be conducted until July 6, 2020 at the earliest, unless a judge seized with a continuing matter orders otherwise; (4) July 2, 2020: Ontario Court of Justice issued Notice to Counsel and the Public advising that on July 6, 2020, the Court will resume setting criminal trial and preliminary inquiry dates, including rescheduling trials and preliminary inquiries that were adjourned due to the COVID-19 pandemic; and (5) May 4, 2021: Ontario Court of Justice issued a notice reducing out-of-custody trials and preliminary inquiries between April 26 and May 21, 2021. Between those two dates, all criminal trials and preliminary inquiries involving out-of-custody accused persons would be adjourned, including both in-person and virtual proceedings, subject to a judge seized with a continuing matter ordering otherwise.

[65] The Crown points out that the suspension of court operations between March 20 and July 6, 2020 represents 108 days or 3.6 months and the suspension of court operations between April 26 and May 7, 2021 represents a further 25 days or 0.8 months. Therefore, the Crown says that, in total, Court functions in the Ontario Court of Justice were “severely limited” for 133 days or 4.4 months, specifically with respect to criminal trials and preliminary inquiries. The Crown submits that although these disruptions occurred before Mr. Ibrahim obtained his trial dates from the TC in July of 2021, it is only reasonable to conclude that COVID-19 is to blame for at least 60 days of the delay in this case.

[66] The COVID-19 pandemic has been recognized as a discrete exceptional event within the meaning of s. 11(b). [36] As I observed and acknowledged in R. v. McCudden, 2022 ONCJ 138, “[i]t is undeniable that the pandemic created a backlog of cases and delay in the criminal justice system”. [37] However, as I said in McCudden, “Courts saddled with the task of applying the Jordan framework require an evidentiary basis to deduct time as an exceptional circumstance related to the pandemic”. [38]

[67] Most of the authorities relied on by the Crown are cases in which trial dates were adjourned due to COVID-19 shutdowns in court operations, requiring the rescheduling of trial dates. [39] The Crown also provided cases in which Courts faced with a s. 11(b) application deducted time for presumptive adjournments due to COVID-19 suspensions of court proceedings. [40]

[68] In Mr. Ibrahim’s case, COVID-19 did not cause the adjournment of a trial, nor were there any presumptive adjournments directly caused by the pandemic suspension of court operations. The original informations were sworn on October 31, 2020. The parties were ready to obtain application and trial dates from the TC in July of 2021 and accepted the first available dates the TC offered.

[69] In its materials, the Crown included the Ontario Court of Justice decision of Wright J. in R. v. Ajgirevitch. In Ajgirevitch, the Crown adduced evidence on the s. 11(b) application that the backlog of cases created by the COVID-19 pandemic led to an increase in time-to-trial from approximately nine months to twelve months despite the increased practice of double and triple booking trials in the Scarborough courthouse. Wright J. also had specific evidence of the steps taken within the Scarborough TC’s office to attempt to remedy the delay that was occasioned by the pandemic and the attempts the Crown made to secure earlier trial dates for the matter.

[70] The Crown has adduced no evidence to establish that the COVID-19 pandemic caused at least 60 days of delay in Mr. Ibrahim’s case. For instance, no evidence or statistics were tendered to establish that the time-to-trial post-pandemic increased by 60 days, or any other quantifiable amount, from the pre-pandemic time-to-trial. Had evidence been led to show that, due to the pandemic, it took longer to obtain the four days of court time required for Mr. Ibrahim’s case than it did pre-pandemic, the result in this case may have been different.

[71] The Crown pointed to the reference in Ajgirevitch to the unreported Scarborough case of R. v. Hamidi, wherein Chapman J. held that 60 days was a reasonable, though likely modest, amount of time to deduct for the system-wide impact of COVID-19. Wright J. stated, at paragraph 57 of Ajgirevitch, that “Chapman J. does not seem to have had the same evidence before her from the Trial Coordinator’s Office of the general difference in time-to-trial being experienced due to the pandemic”.

[72] I was not provided with a copy of the unreported Hamidi decision. However, the Crown relied on Hamidi to support its submission that at least 60 days should be deducted for COVID-19. With respect, in cases like Mr. Ibrahim’s where COVID-19 did not cause an adjournment of trial dates or any presumptive adjournments because of the suspension of court operations, any deduction for COVID-19 must be made based on a proper evidentiary foundation. COVID-19 deductions without evidence would make this exceptional circumstance “endlessly elastic”. [41]

[73] In s. 11(b) applications brought after the onset of the COVID-19 pandemic, Courts have grappled with the issue of how to deal with the pandemic in their Jordan analysis. There is no dispute in the caselaw that the pandemic constitutes a discrete exceptional circumstance. In COVID era s. 11(b) applications, no Crown factum is complete without reference to the oft-cited passages from Nakatsuru J.’s decision in R. v. Simmons, 2020 ONSC 7209, including the following:

Second, the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime. [42]

[74] The context of the Simmons case is important. Mr. Simmons’s original trial date of March 16, 2020 was adjourned as a result of the COVID-19 pandemic. The new trial date was January 11, 2021. The Crown argued that all the time from the adjournment of the March trial date to the new trial date of January 11, 2021 should count as delay caused by the discrete exceptional event of the pandemic. Mr. Simmons took the position that the period attributable to this discrete event should end on September 14, 2020, when the Superior Court of Justice in the Toronto Region ended the suspension of jury trials due to COVID-19 and began scheduling them.

[75] Nakatsuru J. agreed with the Crown that the whole period to the new trial date was attributable to COVID-19 stating that, “the discrete exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials”. [43] Nakatsuru J. went on to say:

The trial takes place in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and in assessing what the Crown and the court can reasonably do in mitigating the delay. [44]

[76] Nakatsuru J. then reviewed what the Crown did to mitigate the delay created by COVID-19 in Mr. Simmons’s case, including giving the case priority and trying to secure earlier trial dates.

[77] In Simmons, the calculation of the delay caused by the COVID-19 pandemic was quantifiable. It was the time from the original trial date that was adjourned due to the pandemic to the new trial date.

[78] In Mr. Ibrahim’s case, the Crown simply points to the pandemic as a discrete exceptional event and seeks a deduction from the delay to account for the pandemic. The Jordan framework requires a quantification of periods of delay. When the Supreme Court of Canada drew the line in the sand at 18 months for cases in the provincial court beyond which delay is presumptively unreasonable, it created a mathematical formula to be applied by trial judges.

[79] Where there is a dispute about the apportionment and calculation of delay in a particular case, that dispute must be resolved, as all other factual disputes are resolved in a court of law, with evidence. As the authors of The Law of Evidence, Eight Edition, point out, “‘evidence’…is the data factual decision-makers…use when resolving factual controversies”. [45]

[80] I adopt Agro J.’s words from R. v. Rubletz, which apply in equal measure to Mr. Ibrahim’s case:

Even if I were to arbitrarily apportion some of the time to COVID-19 backlog, assessing that time …would be akin to throwing darts at a board while blindfolded. A risky and inappropriate approach to the adjudication of Charter rights. [46]

Calculation of the Remaining Delay:

[81] There are no delays caused by discrete events to subtract from the net delay. Therefore, the remaining delay is 20.3 months or 616 days, which exceeds the presumptive ceiling.

[82] In its written materials, the Crown stated that Mr. Ibrahim’s case was relatively complex, involving challenges to search warrants which were part of a large CDSA investigation. The Crown said that, on the spectrum of cases heard by the Ontario Court of Justice in this jurisdiction, Mr. Ibrahim’s case was not comparable to cases involving charges like theft under, failure to attend court or simple assault.

[83] In oral submissions, Crown counsel did not make submissions that this was a particularly complex case. However, since it was raised by the Crown in their written materials, for the sake of completeness, I will address it.

[84] If the Crown initiates a prosecution that could reasonably be expected to be complex, it must develop and follow a concrete plan to minimize the delay occasioned by such complexity. Where the Crown fails to do so, it will be unable to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control.

[85] No evidence was tendered to show that the Crown identified Mr. Ibrahim’s case as a complex case and developed and followed a concrete plan to minimize the delay resulting from its complexity. The fact that Mr. Ibrahim’s case was not on the list of eight to ten cases that were considered for earlier trial dates belies the suggestion that the federal Crown considered this to be a particularly complex case as defined in Jordan.

CONCLUSION

[86] Mr. Ibrahim’s right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter was breached. A stay of proceedings is entered under s. 24(1) of the Charter.

Released: October 3, 2022 Signed: Justice J.P.P. Fiorucci

[1] Mr. Ibrahim was charged on Information No. 20-9269 with Proceeds of Crime Over $5,000.00 with Mr. Zohaib Khan. On July 28, 2022, Crown counsel (T. Ormond) withdrew Information Nos. 20-9268 and 20-9269.

[2] I have included the anticipated end date of the trial in the calculation which results in a total delay of 637 days. I have used the formula set out in R. v. Shaikh, 2019 ONCA 895, footnote 2, for converting days to months by dividing by 30.417, which is approximately 365/12. As in Shaikh, I have rounded month figures to one decimal point.

[3] Crown counsel stated that this period is 30 days. I have included the end date in the calculation which results in 31 days.

[4] Respondent’s Notice of Response, para. 11.

[5] R v. Jordan, 2016 SCC 27, at paras. 5 and 46.

[6] R. v. Coulter, 2016 ONCA 704, at paras. 34-40.

[7] R. v. Jordan, supra, at paras. 61 and 63; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 (S.C.C.), at para. 26.

[8] R. v. Cody, supra, at para. 28.

[9] Ibid, at para. 28.

[10] R. v. Coulter, supra, at para. 44.

[11] R. v. Jordan, supra, at para. 65.

[12] R. v. Cody, supra, at para. 31.

[13] R. v. Jordan, supra, at para. 69.

[14] Ibid, at para. 71.

[15] Ibid, at para. 70.

[16] Ibid, at para. 70.

[17] Ibid, at para. 75.

[18] Ibid, at para. 77.

[19] Ibid, at para. 79.

[20] Ibid, at para. 79.

[21] Rule 1.1 (1), (2)(a) and (b).

[22] R. v. J.F., 2022 SCC 17.

[23] Ibid, at para. 34.

[24] Ibid, at paras. 35-36.

[25] Ibid, at para. 33.

[26] Ibid, at paras. 43-44.

[27] Ibid, at para. 44.

[28] Ibid, at para. 47-48.

[29] Ibid, at para. 47.

[30] Ibid, at para. 46, citing R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1686, quoted in Jordan, at para. 61.

[31] Ibid, at para. 49.

[32] Ibid, at para. 49, citing R. v. Rabba, (1991), 64 C.C.C. (3d) 445 (S.C.C.), at p. 447.

[33] Ibid, at para. 49.

[34] Ibid, at para. 49.

[35] Respondent’s Notice of Response, para. 47.

[36] R. v. Simmons, 2020 ONSC 7209, at paras. 59-77.

[37] R. v. McCudden, 2022 ONCJ 138, at para. 64.

[38] Ibid, at para. 65.

[39] R. v. Simmons, supra; R. v. Belzil, 2021 ONSC 781; R. v. Ali, 2021 ONSC 1230; R. v. Gharibi, 2021 ONCJ 63; R. v. Hyacinthe, 2022 ONSC 1444; R. v. Obregon-Castro, 2021 ONSC 1096; R. v. Henry, 2021 ONSC 3303.

[40] R. v. Drummond, 2020 ONSC 5495; R. v. M. T.-S., 2022 ONSC 2471; R. v. Zenger, (December 16, 2021), Hamilton, 20-3700, 20-649 (ONCJ, Wendl J.).

[41] R. v. Obregon-Castro, supra, at para. 41, (Code J.).

[42] R. v. Simmons, supra, at para. 70.

[43] Ibid, at para. 72.

[44] Ibid, at para. 72.

[45] The Law of Evidence, Eight Edition, David M. Paciocco, Palma Paciocco, Lee Stuesser, Toronto, Ont.: Irwin Law Inc., 2020, Chapter 1, p. 1.

[46] R. v. Rubletz, (March 30, 2022), Hamilton, 20-3205 (ONCJ, Agro J.), at para. 74.