R. v. Kourdal, 2022 ONCJ 659

CITATION: R. v. Kourdal, 2022 ONCJ 659

DATE: 2022-11-30

Toronto

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

AYOUB KOURDAL

Before Justice Mara Greene

Reasons for Judgment released November 30, 2022

Counsel: L. Zhao and E. Vandersanden for the Crown G. Lafontaine and J. Kushnir for Ayoub Kourdal

Reasons for Judgment

M. Greene, J:

[1] On November 8, 2020, Mr. Kourdal was charged with refusing to provide a breath sample. His trial did not conclude until October 14, 2022, well over 18 months after the information was laid in this case.[^1] Mr. Kourdal has argued that his rights as guaranteed by section 11(b) of the Charter have been violated due to what he argued was an excessive delay in this case. Crown counsel conceded that this matter has been delayed but argued that much of that delay was solely caused by Mr. Kourdal.

Summary of the Delay in this Case

[2] The information in the case at bar was sworn on December 24, 2020. Mr. Kourdal’s first appearance in court was one month later, on January 26, 2021.

[3] By the time of the first appearance in court, Mr. Kourdal had already retained counsel. The matter was adjourned to late February at the request of the Crown. On February 24, 2021, counsel for Mr. Kourdal attended court and suggested a return date in four weeks. Crown counsel opposed this request and instead sought a longer adjournment. Crown counsel stated,

Okay, so counsel we’re no longer having matters return so quickly when competent counsel are on board. Matters, this court does not need to babysit matters, all steps can happen outside of court, setting trial dates, setting plea dates, et cetera. So, I’m suggesting April 28^th in this court.

[4] On April 28, 2021 the matter was adjourned again so that a judicial pre-trial could be conducted. The original judicial pre-trial was scheduled for May 10, 2021 but had to be rescheduled for eight days later as the Crown inadvertently doubled booked herself.

[5] At the next court appearance on June 30, 2021, counsel for Mr. Kourdal attended court and advised the presiding judicial officer that he had sent the trial form to the trial coordinator a month earlier but had not yet heard back from the trial coordinator about a trial date. This case was adjourned again for four weeks so that trial dates could be set, even though the judicial pre-trial had been completed a month earlier and counsel had sent in the requisite material to the trial coordinator.

[6] It appears that a trial scheduling conference took place on July 7, 2021 but the trial dates were not confirmed until July 27, 2021. I say this because on July 27, 2021, counsel for Mr. Kourdal sent an email to the trial coordinator’s office asking about the trial dates. The email stated,

Further to the Trial Scheduling conference held on July 7, 2021, I have not received any updates on the set trial dates.

[7] Later this same day, trial dates of March 7 and 9, 2022 were confirmed in court. According to the trial scheduling form, the Court and the Crown were available from January 18 until March 7, 2022 to conduct this trial, but defence counsel was not.

[8] On March 7, 2022, the trial was adjourned at the request of the Crown because no interpreter was present. According to the material filed on this motion, Mr. Kourdal required a French interpreter for his trial. Mr. Kourdal also wanted an in-person trial. It appears that in the week leading up to the trial, the interpreter’s office advised the Crown that they would be unable to provide an interpreter for an in person trial. The French interpreter that had been scheduled for this trial was refusing to attend in-person proceedings.

[9] A new trial date of September 28 and 29 was scheduled. In the days leading up to the second trial date, counsel for Mr. Kourdal filed an application for a stay of proceedings because of an alleged breach of Mr. Kourdal’s s.11(b) rights. Due to the late filing of the motion, the motion was to be heard at a later date, after the evidence on the trial proper was heard.

[10] On September 28, 2022, Mr. Kourdal was arraigned, and the Crown called her first witness. Partly through this witness, both counsel agreed that no further viva voce evidence was required, instead they would file an agreed statement of fact. Unfortunately, they were unable to complete the agreed statement in the time allotted, so the matter went over to October 14, 2022. On October 14, 2022 I heard the remainder of the trial evidence and submissions on the 11(b) motion and submissions on the trial proper. My judgment was scheduled for November 3, 2022 but this date was adjourned at the request of the defence due to unforeseen circumstances.

Analysis

[11] Pursuant to section 11(b) of the Charter, every person charged with an offence has a right to be tried within a reasonable time. In R. v. Jordan, 2016 SCC 27 the Supreme court of Canada set out the framework for analyzing whether a person’s section 11(b) rights have been violated. In Jordan, the court created presumptive ceilings. Where the delay, less delay waived or exclusively caused by the defence, exceeds the presumptive ceiling, the onus shifts to the Crown to demonstrate that the delay was nonetheless reasonable. Delay beyond the presumptive ceiling will be reasonable if it is caused by a discrete event or if the case is particularly complex.

[12] In the case at bar, the delay is 21 months and 20 days. This is approximately three and a half months over the 18-month ceiling. Counsel for Mr. Kourdal argued that all the delay was caused by the state. This is because Mr. Kourdal did not expressly waive any of the delay nor was any of the delay solely caused by the defence. Counsel further argued that there are no exceptional circumstances that justifies the excessive delay in this case.

[13] Crown counsel, on the other hand, argued that when one considers the delay caused by the defence and delay deducted by a discrete event, namely the pandemic, the overall delay is well below the presumptive ceiling. As such, counsel argued there was no violation of Mr. Kourdal’s 11(b) Charter rights.

Defence Delay

[14] Crown counsel has argued that defence counsel caused a significant portion of the delay in this case. Firstly, as per the trial scheduling form, this matter could have proceeded to trial long before the first trial date of March 7, 2022. As of January 18, 2022 both the Crown and the court could have accommodated this trial. It was only because defence counsel was not available from January 18, 2022 until March 7, 2022 that an earlier date was not selected. In my view, this is delay caused solely by the defence.

[15] This is not a case where the court only had one or two dates available over the course of a few months. In the case at bar, almost two months of dates were offered and defence counsel was not available. In these circumstances, defence unavailability can and should be considered defence delay. As was recently stated in R. v. Gharibzada 2022, ONSC 4667, where Goodman J. stated at paragraph 53,

Accordingly, actions that are not attributable to the state are excluded from the total calculation of delay. Defence unavailability can be considered defence delay if the court and the Crown are ready to proceed, but the defence is not. Where a date is available but refused by defence counsel, this is defence-caused delay: Jordan, at paras. 14, 120-124; R. v. Sookdeo, 2018 ONCJ 575, at para 18; R. v. Vidinovski, 2018 ONSC 2971, at paras 21-27; R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at paras. 21-22; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23; R. v. St. Amand 2017 ONCA 913, 358 C.C.C. (3d) 226, at paras.80, 97-98; and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 30.

[16] I therefore find that the 47 days from January 18, 2022 until March 6, 2022 is defence delay. This takes the delay down from 21 months and 20 days to 20 months and 7 days.

[17] The second period of time that the Crown attributes to the defence is from June 6, 2022 until August 11, 2022. This is because the Crown was available during this time frame but the defence was not. This time frame, however, differs from the earlier time frame attributed to the defence, because I have no evidence before me about whether the court was available.

[18] The evidence presented at this hearing in relation to the scheduling of the second set of trial dates was in the form of emails between the trial coordinators, the Crown and defence counsel. Counsel were not offered dates by the trial coordinator. Instead, the trial coordinators asked counsel to identify dates where they could proceed with this trial. As a result, I have a list of when counsel were available for this trial, but I do not have any information about what dates the court could accommodate.

[19] In an email dated March 10 at 1:00 pm, the Crown offered the following dates: June 6-7, August 8 -17, September 12-15 and 20-31. Counsel for Mr. Kourdal, in an email from March 10 at 1:05pm stated that he was available August 11 and 12, August 22-26, September 28 and 29, Nov 14-18. Upon receiving defence counsel’s dates, Crown counsel sent a follow up email at 1:10 pm where she advised that she was no longer available on August 11 and 12. There was a further exchange about November dates. Then at 1:25pm, the trial coordinator wrote the following to counsel: “I note there are September mutual dates – would you both prefer November”.

[20] Counsel for Mr. Kourdal responded that he would like the September dates if the Crown was still available. Counsel also confirmed that September 28 and 29 worked for him. Crown counsel responded that she could be available on the later September dates, but she was also free earlier that month. The trial coordinator then sent an email to all counsel confirming the trial date of September 28 and 29. Once the date was confirmed, the new trial date was put on the record in court. No new trial verification form was provided to the court. Instead, the new dates were added to the bottom of the original trial verification form. This is meaningful, because typically, the trial verification form identifies which dates the court offered to counsel.

[21] Crown counsel urged me to infer that the court would have been available on the dates the Crown was available in June because the trial coordinator requested counsel’s earliest dates. Respectfully, I do not agree. I cannot conclude from this single statement that the court was free on the very limited number of days that the Crown was also free. While I have no doubt that the court had some availability in June and July 2022, I cannot find that the court was free on the two days in June when the Crown was available. As such, I am unable to conclude that both the court and the Crown were available prior to September 28, 2022, nor can I conclude that counsel was offered an earlier date that he refused. As such, I do not find that the delay from June 6 until August 11 is defence delay. Nor do I find that the delay from August 12 until September 29 is delay caused solely by the defence. This is because I do not know the court’s availability during this time frame. I cannot find that the Court and the Crown were available.

[22] It is my view that the delay from September 29 until October 14, 2022 was delay caused solely by the defence. Crown counsel stopped calling evidence on September 28, 2022 at the request of defence counsel. When I expressed a concern about the process now recommended by counsel for Mr. Kourdal, he assured me that he and Crown counsel could quickly and easily create an agreed statement of fact. This turned out to be inaccurate. But for the defence request to alter the trial process, this matter would have concluded on September 29, 2022. I therefore deduct a further 17 days from the overall delay. This reduces the state caused delay to 19 months and twenty days.

Discrete Event

[23] The Crown also argued that part of the delay in this case was caused by a discrete event, namely the covid 19 pandemic. This is because, the only reason the first trial date was adjourned was because the system could not find a French interpreter that was willing to attend court in person due to concerns about contracting covid 19.

[24] It is now well established that the covid 19 pandemic is properly characterized as a discrete event that justifies going over the ceiling for delay (see R. v. Greenidge, 2021 ONCJ 57, R. v. Pinkowski, 2021 ONCJ 35, R. v. Truong, 2021 ONCJ 613, R. v. Simmons, 2020 ONSC 7209, R. v. Drummond, 2020 ONSC 5495). I do not see the delay in this case, however, as being caused by the pandemic. Instead, it was caused by a failure of the state to take proper steps to secure an interpreter who would attend in person. I note that this case was set to be heard two years after the start of the pandemic, the courts were not closed and none of the parties were ill.

[25] In the week leading up to the trial date the Crown was advised that the interpreter scheduled for this case refused to attend court in person due to concerns around Covid 19. According to the emails filed on this motion, on February 28, 2022, just one week before the trial date, Crown counsel notified counsel for Mr. Kourdal that the interpreter scheduled for this matter was refusing to attend court in person. She wanted Mr. Kourdal’s consent to have the interpreter attend by Zoom. Counsel for Mr. Kourdal advised that he did not consent to the interpreter attending by zoom. This matter had been set months earlier for an in-person trial and Mr. Kourdal maintained his desire for a fully in person trial. Unfortunately, at that late date, the Crown was not able to secure an interpreter who could attend in person for Mr. Kourdal’s trial. Since Mr. Kourdal wanted an in-person trial, Crown counsel sought an adjournment in the hopes that on the subsequent date the interpreters would be able to attend in person.

[26] I appreciate that the pandemic affected the interpreter’s decision about not coming to court, but this did not have to lead to an adjournment. It is unclear to me why this issue with the interpreter was not known earlier. This was not a case where the interpreter had covid or was recently exposed to covid and that was why he/she was not available. The interpreter scheduled for this in person trial was an interpreter who was unwilling to attend in person trials. Two years into the pandemic when courts were conducting in person trials, it is difficult to understand why steps had not been taken earlier to confirm whether the interpreter scheduled for this case would attend in person. Had this matter been addressed earlier and canvassed properly, the Crown may very well have been able to secure an interpreter to attend in person. In the email communications, the Crown wrote that many interpreters were refusing to attend court. This means that some were still willing to attend court in person. One would have thought that there would be a list identifying which interpreters would and would not attend court in person so that they could be assigned accordingly.

[27] If this had been early on in the pandemic, I may have reached a different conclusion. Early on, when most of the courts were hearing cases remotely, the expectation was that the case would proceed remotely. Here, however, the case was set to proceed in person at a time when other cases were also being heard in person. This was known when the trial date was set and the Crown ought to have communicated with the interpreter’s office about the necessity for an in person interpreter.

[28] I am mindful that Mr. Lafontaine, on behalf of his client, did not oppose the Crown’s request for an adjournment. Given his comments in court, however, I view his failure to oppose the application as an acquiescence to the inevitable. Mr. Lafontaine stated as follows,

Yes, my client flew in from Montreal for his trial last night. It’s unfortunate in the circumstances. And I would oppose the adjourned if there was a rational basis to do so, so as to protect my client’s section 11(b) rights, but I don’t, I don’t see any reasonable position that, that I could oppose it, but in the circumstances, we’re not able to proceed.

[29] At the time that Mr. Lafontaine made this submission, the interpreter, who attended remotely, had already been excused. There was clearly no interpreter present at all by this point to assist with the trial.

[30] To be clear, I do not begrudge anyone who has health concerns associated with covid 19 such that they are unable to attend court. But this does not mean that cases, two years after the start of the pandemic, should just be adjourned. In my view, steps should have been taken early on to secure an interpreter who was willing to attend court in person. This should not have been an issue that only came to light the week before the trial date. Given the facts as presented in this case, I do not find that this delay is covid caused and is not an exceptional circumstance or a discrete event that justifies the excessive delay in this case.

Conclusion

[31] Taking into account the delay caused solely by the defence, the overall relevant delay in the case at bar is still in excess of 18 months. In my view the Crown has not established a basis to find that the excess delay was reasonable. As such, I find that Mr. Kourdal’s s.11(b) Charter rights were violated. The remedy of a stay of proceedings is granted.

Released November 30, 2022

Justice Mara Greene

[^1]: My judgment in this matter was scheduled for November 3, 2022. There has been some delay since November 3, 2022. It is agreed by all parties that the delay from November 3, 2022 until today’s date is delay caused solely the defence.