DATE: May 16, 2023 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario

B E T W E E N :

HIS MAJESTY THE KING

-and-

WAQAS QURESHI (No 2)

REASONS FOR JUDGMENT

Duncan J.

[1] The defendant brought an 11B application to stay gun charges that are scheduled for trial in late June and August of this year. I dismissed the application by reasons in writing dated April 16 2023, now reported at 2023 ONCJ 189, [2023] O.J No 1903.

[2] On May 5 2023, the Supreme Court of Canada released reasons for judgment in R v Hanan 2023 SCC 12. That judgment has moved me to revisit and reconsider my earlier ruling on the critical issue of the consequences of defence unavailability for an offered trial date. Counsel have been given an opportunity to make submissions.

[3] Having given the matter my reconsideration, I have concluded that my earlier ruling has not been affected by Hanan. Accordingly, I affirm my dismissal of the 11B application. These are my reasons for that conclusion.

[4] The starting point of course is Jordan and its pronouncements on defence delay and, in particular, on delay resulting from defence unavailability for trial dates: (para 64)

64 As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).

[5] Ironically, this single paragraph has spawned two diametrically opposed “bright-line” interpretations and approaches, one usually urged by Crown and the other relied upon by the defence:

1. Crown: The defence is responsible for all of the delay that results from its unavailability on an offered trial date or block of dates. This approach is supported by the bolded sentence above and the logic that all of that extra delay “results from defence unavailability” because the case would have been completed but for the defence being unavailable on the earlier offered date.
2. Defence: The defence is only responsible for the actual days that it was unavailable, when the Court and Crown were available. Aside from those relatively few days, it can be assumed that the court was unavailable all the rest of the time because, if it had availability, dates would have been offered. This approach is supported by the italicized words in the Jordan passage above.

[6] While bright line rules are usually desirable for the simplicity and predictability they can provide, a major goal of the Jordan reformulation, experience has shown that when applied to real fact situations they can often produce unjust results.

[7] It is easy to posit an example of each bright-line where application would lead to unfairness. To take the example of a straight-line, no-complication (ie no rescheduling) set-date to trial situation: Suppose trial dates are available and offered throughout October but the defence is unavailable. The next dates available and offered are in December. Does November count as defence delay or is it added to the Jordan time – the delay that is counted toward the presumptive ceiling? It is counterintuitive to think that the defence should be responsible only for his unavailable dates in October and the Court/Crown should wear November, that is, that bright-line #2 should apply. But change the facts a bit and suppose that the next available dates were not December but rather the following June. Again, it in counterintuitive to think that bright-line #1 should apply and the defence should be responsible for all of that period.

[8] It is therefore not surprising that a more flexible approach has been applied by the Court of Appeal: see for example R v Albinowski 2018 ONCA 1084, [2018] O.J. No 6892:

46 Crown counsel argues that all the delay following the very first date offered for the preliminary inquiry must be assessed as defence delay. I disagree with such a categorical approach. It is necessary to consider the circumstances of this case……

[9] Turning to Hanan: It presented a complicated fact situation respecting delay. Put as succinctly as possible: A six-week murder trial in November 2018 had to be adjourned for a combination of reasons one being late disclosure and another being an unexpectedly absent witness. New dates had to be set. The defence offered to be tried by judge alone and keep the November trial dates, but the Crown refused consent. The next and only 6-week block available to the Court was June 3 – July 15 2019 – but the defence was unavailable. The next available dates were in October 2019.

[10] In assessing responsibility for delay for this period (June – October) the trial judge counted only the 6 weeks of the rejected block as defence delay. He reasoned that the rest of the time to October was caused by the unavailability of the Court. In short, he appeared to apply the bright-line #2 approach: See R v Hanan [2019] OJ 286 at paras 237-254

[11] Notwithstanding the defendant Hanan’s success on this point, his 11b application was dismissed as the trial judge found that the Jordan transitional exception rules applied. The accused was ultimately convicted of manslaughter.

[12] On appeal from conviction, 11(b) was again at issue: R v Hanan 2022 ONCA 229. The Appellant argued that the trial judge erred in applying the transitional exception. The Crown Respondent argued that there had been no error on the transitional point but that the trial judge was in error in failing to assess the time between July and October as defence delay. In other words, the Crown urged the bright-line #1 approach.

[13] But the Court of Appeal rejected that submission in favour of a wider consideration of all the relevant circumstances. The majority of the Court wrote:

56 Once it is accepted that the reason for defence unavailability (other than legitimate defence preparation time) is not taken into account in determining defence delay, it does not necessarily follow, as the Crown urges this court to find, that there is a "bright-line" rule that, once the defence is unavailable, all of the delay until the next available date is characterized as defence delay. That would be inconsistent with the principle that the delay must be "solely or directly" caused by the defence, and the qualification that "periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable": Jordan, at para. 64. Like Roberts J.A. in R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, I would reject the "categorical approach" proposed by the Crown that all of the delay following the rejection of a date offered by the court must be characterized as defence delay, and I agree with her statement that "it is necessary to consider the circumstances of [the] case": at para. 46. The court must take a contextual approach that considers the circumstances relevant to whether, in respect of a particular period of time, the defence refusal of a date is the "sole or direct" cause of the resulting delay. (bolding added)

[14] On further appeal to the Supreme Court of Canada, 11(b) was again in issue and the Crown Respondent again argued that both the trial judge and Court of Appeal erred in failing to apply bright-line #1. In brief reasons, the Court rejected that submission and adopted the Court of Appeal’s flexible contextual approach:

9 Like the majority and the dissent below, we reject the Crown's proposed "bright-line" rule according to which all of the delay until the next available date following defence counsel's rejection of a date offered by the court must be characterized as defence delay. We agree with van Rensburg J.A. and Tulloch J.A., as he then was, at para. 56, that this approach is inconsistent with this Court's understanding of defence delay. Defence delay comprises "delays caused solely or directly by the defence's conduct" or "delays waived by the defence" (Jordan, at para. 66). Furthermore, "periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable" (para. 64). All relevant circumstances should be considered to determine how delay should be apportioned among the participants (R. v. Boulanger, 2022 SCC 2, at para. 8). We share the view of the majority and dissenting judges in the Court of Appeal that, in the circumstances of this case, it is unfair and unreasonable to characterize the entire period between June and October 2019 as defence delay (paras. 59 and 136).

[15] There can be no doubt that the Court of Appeal and the Supreme Court rejected bright-line #1. While perhaps a little less clear, it is my view that both Courts also rejected bright-line #2. Both Courts emphasized that there are no bright lines; that each case turns on its particular circumstances and a contextual approach is required. Cases that fall along the entire spectrum can arise depending on the circumstances. Examples given by the Court of Appeal endorse some situations where all of the delay following unavailability can be characterized as defence delay (see C of A para 57) and other cases where only those dates actually offered and rejected will be defence delay (as in Hanan itself).

[16] Both Courts focussed on whether the defence refusal of a date was the sole or direct cause of the resulting delay in the particular period: (see bolded passage from C of A above para 13). In Boulanger supra, referred to by both Courts, about half the period of delay was caused by the judge, and the defence therefore was not the sole or direct cause of all of the delay. In Hanan the defence did not cause the adjournment of the original trial date in November and in fact offered to proceed at that time (and thereafter) by judge alone. But the Crown would not consent, resulting in the initial adjournment and the Court’s very limited ability to reschedule to accommodate a 6-week jury trial. Again, the defence was plainly not the sole or direct cause of the delay other than the one specific period of defence unavailability.

[17] It should be emphasized that the focus is on the particular period. It is not to the point for the defence to point to other delays caused by the Court or Crown at other times in the history of the case. For example, delays in disclosure that caused the case to stall or delays in the Court/Crown offering priority dates are not relevant to this particular issue. I double-down on what I said in my initial reasons in this case:

31 The defence argues that there was an "additional cause" in this case in that the Crown did not seek to reschedule this case until December 2022 when it had been known and discussed between counsel as early as July and September 2022 that delay was a problem.

32 It is not known why there was this delay. It may have been that there simply were no available dates to offer before December (when four additional judges were appointed to Brampton). But even if the Crown inaction was the result of a less benign explanation, its impact was on delay that occurred before the offer of dates on December sixteen. It did not cause or contribute to delay after the March dates were declined due to defence counsel's unavailability. (bolding added)

[18] In conclusion, it is my view that my earlier reasons and ruling are consistent with the law as stated in Hanan. The defence unavailability in March was the sole and direct cause of the delay thereafter to the present anticipated trial date. There was no other contributing cause. That period is properly considered defence delay. I affirm my earlier decision.

May 16 2023 B Duncan J

M Sodhi for the defendant: D Ida for the Crown