Publication Ban Warning

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 01 08 COURT FILE No.: Central West - Brampton 22-1267

BETWEEN:

HIS MAJESTY THE KING

— AND —

GHASSAN ALSOUKI

Before: Justice W. J. Blacklock

Heard on: December 22, 2023 Reasons for Judgment released on: January 8, 2024

Counsel: Adam Bernstein ................................................................................. counsel for the Crown Jonah Parkin................................................... counsel for the accused Ghassan Alsouki

Reasons for Judgment

Blacklock J.:

[1] I have before me Mr. Ghassan Alsouki. He is charged with a sexual assault that is said to have arisen during the course of his employment as a driving instructor. The Crown has proceeded summarily and the matter is scheduled for 3 days. There appear to be four to five witnesses and an Arabic interpreter. In addition, it is anticipated that the Crown will also be adducing certain text messages.

[2] The aspect to this matter that I am dealing with, on the consent of both parties, is an application for a stay on the basis that the accused’s right to be tried within a reasonable time has been violated.

[3] The overall delay in this case runs from February 1st 2022 until the anticipated end of the trial which is now February 23rd 2024. That total period of time is 24 months 22 days. On its face at least, this is a period of delay beyond the presumptive ceiling established in R. v. Jordan 2016 SCC 27.

[4] The central issue here is whether any period between October 17 2022, when the matter was formally set down for trial and the anticipated end of that trial should be deducted as defence delay.

[5] At the trial scheduling meeting, which was held on October 4th 2022, a potential trial date of November 7-9 2022 was offered by the Trial Coordinator. The Crown was said to be available but the defence was said, on the Trial Coordinator’s scheduling form, as not being available.

[6] At the time the dates were formally set on October 17th 2022 defence counsel did not indicate that they were otherwise scheduled on the November dates rather the comment was that that date was “extremely close” in time.

[7] The next date offered by the Trial Coordinator was 15 months off from the November dates.

[8] As a matter of background, it will be recalled that this court was still experiencing to some degree the aftereffects of the Covid pandemic in 2022. The pandemic originally hit in March of 2020. It caused significant court closures. The Ontario Court only fully re-opened in this jurisdiction as of November 2020 and then again was closed for a brief period in the Spring of 2021. Even when the courts came back to full strength many of them functioned for a significant period in a less than efficient way due to the fact that remote proceedings were required, and other accommodations were necessary in various processes of the court. Furthermore, the matters that had been vacated were set in priority to new cases. See comments by the then local administrative judge Justice Monahan in R. v. Toor 2021 ONCJ 103 para 19 and following.

[9] The effects of this on the Province were clearly on-going into at least 2022. This appears to be confirmed by this court’s own statistics which are publicly available on the court’s web site.

[10] I am satisfied I can have recourse to them as a matter of judicial notice at least for the limited purpose of providing general background in this case. The offence-based statistics found there show that in 2018 and 2019 there were roughly 112,000 to 121,000 pending charges pending at the end of those years Province wide. In 2020, the year of the longest Covid shut down, the number of pending offences had ballooned to over 176,000. While there was a significant reduction in the charges that remained pending at the end of 2021 to approximately 156,000, that level of backlog remained stubbornly in the same realm at the end of 2022. There were still approximately 155,000 charges still listed as pending in 2022. Indeed, the stubbornness of this backlog is one factor that has led the Chief Justice of this court to recently direct that cases are to now be set within the Jordan guideline even if that means stacking cases on top of one another to whatever degree it takes to achieve this end. It will be left to the Crown to then triage, as best they can, those cases not reached as a result.

[11] I also would observe as a matter of background that in this jurisdiction the Crown does not attend the trial scheduling meeting although a representative of Peel Regional Police is present to deal with issues of officer availability. At the time this matter was set down the Trial Coordinator was not making any effort to prioritize cases on the Crown’s behalf in offering the dates she does. Nor does she today. Nor could she given her role. She simply proceeds on the basis of what court dates are open to list further cases in the ordinary course in accordance with the direction she receives from the court’s administrative judges.

[12] It also seems to me fair to say that even if a representative of the Crown was present at those meetings it would be difficult for them to prioritizing any given case over others already listed in that setting on the fly.

[13] Coming back more directly to the circumstances of this case, on October 17 2022 the matter was spoken to formally set the trial date before Justice of the Peace Burton. The clerk indicated that she had the matter as a three day trial scheduled for February 21 to 23 2024. At that point all that defence counsel said was

“I am going to say, put on the record, that- so, the trial scheduling meeting was October 4th. The only other date I was offered was in November of 2022. That is extremely close to the trial sitting. Defence counsel would have had dates throughout the period of November and- of 2022 and the ultimate date of February 2024. So it has skipped a year after the initial date that was given. I just want to put those records on the record.

[14] The Crown responded

“And the Crown would have been available as well. Your Worship for the record”.

[15] The court responded

“All right thank you”

[16] The February 2024 dates were then set without further comment by either party.

[17] It is important to the outcome I have reached in this matter to say that I do not see counsel’s comments as a clear indication that the defence had determined that an actual breach of 11(b) was going to be alleged by the defence in this case.

[18] Rather the comments of both counsel have the character of protecting the record should it ultimately be determined that the defence would bring such an application.

[19] Moreover, nothing further was done by the defence for a considerable period. No letter was subsequently written to the Crown indicating that the defence indeed had instructions to make 11(b) an issue if the trial dates remained as fixed. In fact, no 11(b) motion was even filed with the Crown or the court until November 27 2023 more than 13 months after the set date and at a point that the case was already 20 months out from the charging date.

[20] The Crown appears to me to take issue with the application before me on what are really two bases. They argue that the Crown and the court were available on the November 2022 date offered. The defence was not. As a result, they suggest that all subsequent delay should be attributable to the defence.

[21] I am not prepared to accept that notion in the context of this case.

[22] Only one date was offered not a range of dates and the one date that was offered was a little more than a month off from the trial scheduling meeting. I accept that the case on its face appears to be rather simple. On the other hand given what one can assume are counsel’s ongoing commitments, the need to spend time with the client, determine a final trial strategy, and potentially take other investigative and preparatory steps the matter can be seen as reasonably requiring something more than a month lead time. That all being the case I do not find that I should deduct anything as defence delay on this basis.

[23] There is, however, another aspect to this matter.

[24] As I said earlier, I do not see the defence comments at the set date as a clear indication that the defence was actually asserting that an application under section 11(b) would be advanced in this case. In addition, it is certainly clear that the defence did little else that would indicate they were truly desirous of an earlier date. There is no indication that they advised the Trial Coordinator at the trial scheduling meeting to schedule an 11(b) application in light of the dates offered. Nor did they ask for this two weeks later when the dates were formally set. They never wrote the Trial Coordinator indicating they wanted to be advised on any three day cancellations. They never scheduled any follow up meeting with the Trial Coordinator to see if earlier dates could be arranged. They never wrote the Crown asking them to take steps to prioritize this case over others. They did nothing more and did not even file an 11(b) application until the case was already 20 months old leaving little room to improve the trial date that had been set.

[25] Those omissions taken cumulatively, particularly where counsel was appearing throughout the intake process, satisfy me that the defence was markedly indifferent to securing a trial date inside the 18 month Jordan ceiling.

[26] That being the case there are a number of authorities in this Province and in this very courthouse which suggest that the resulting delay between the set date and the trial date should be apportioned in part to the defence as defence delay. See in that regard R. v. Napier unreported decision of the Ontario Court of Justice released Dec 12 2023, R. v. Kullab 2023 ONCJ 458 and other authorities referred to therein, R. v. Mills unreported decision of the Ontario Court of Justice April 6 2023 as well as R. v. Nigro 2023 ONCJ 41.

[27] I have concluded that in general terms this is a reasonable approach. It may be that one cannot say that the defence conduct here is the sole cause for the totality of the delay between the set date and the trial date but in these circumstances I am satisfied that it is correct here to say that the defence conduct was the direct cause of a significant portion of it. I have come to this conclusion largely on the same basis Justice Monahan of this court came to a similar conclusion in Kullab supra. What portion of that delay should be attributed to the defence I will come to later.

[28] Justice Monahan in Kullab supra proceeded on the basis that he believed before he could make any such deduction he would also have to be satisfied that it was more likely than not that the defence conduct could be said fairly to have caused the delay being deducted.

[29] He also, however, pointed out that that onus can be discharged without formal evidence. See in that regard Kullab supra para 34-35.

[30] Like the case in Kullab supra this is a multiday case of sexual assault. Moreover, it has some aggravating features. As noted, the allegations are said to arise in the context of the accused’s employment as a driving instructor. Again, as Justice Monahan has pointed out the Crown has in the recent past prioritized the more serious cases by stacking them on top of other matters. Again see in that regard Kullab supra para 37.

[31] I am satisfied that this case falls in the same category as Kullab supra. It is more likely than not is a matter the Crown would have and could have expedited had the issue been clearly raised in a timely way.

[32] What is the right apportionment here? Firstly, there are cases in which the Supreme Court of Canada has indicated that apportioning certain period of delay can still be appropriate. See R. v. Boulanger 2022 SCC 2 para 9 and 10. The court in Boulanger supra suggests that this depends in large part on what, in all circumstances, seems “fair and reasonable”. In addition, all of the authorities mentioned above in paragraph 26 in this type of situation have, in essence, apportioned the delay between the set date and the trial date on a 50 50 basis.

[33] In deciding what might be a “fair and reasonable” apportionment of the delay between the set date and the trial date here I would be prepared to accept the defence might reasonably need some additional time after receiving the trial dates to determine if 11 (b) was actually going to be said to have been breached. Here that time could actually be quite short given that defence firm retained had appeared throughout the intake process.

[34] It seems to me, however, that if the defence was serious about advancing the accused’s right to an earlier trial date they could have finalized their view of that and in some manner clearly advised the Crown that indeed the dates set were in their view constitutionally infirm long before they did in this matter. I do not see any reason whatsoever that that view should not have been formulated and plainly communicated in some fashion within at least 60 days of the set date on October 17th if not considerably sooner. By that time on these facts the defence would have been aware of the trial dates for 2 and ½ months.

[35] I think it fair and reasonable then to apportion at least the remaining delay between December 17 and the end of the proposed trial dates in February 2024 on a 50 – 50 basis. This would mean I should deduct at least 7 months 3 days leaving an overall net delay of 17 months 19 days as defence delay. This represents a net delay under the 18 months ceiling.

[36] It was also argued by the defence that a stay should be granted even if the net delay was found to be under 18 months as the defence had discharged their onus to satisfy me that they had taken meaningful steps showing a sustained effort to expedite the proceeding and that the matter took marked longer than it should have to come on.

[37] I am not satisfied for the reasons I already advanced that the defence took what can be described as sustained steps to expedite the matter.

[38] It is true that defence counsel was retained early and they took the first dates initially offered to them that afforded them reasonable time to prepare. Having said that, I do not see anything beyond that over the course of the proceedings which falls in the category of being designed to truly expedite the matter. As noted above there was no assertion an 11(b) application should be scheduled at the time the dates were provided at the trial scheduling meeting on October 7. No comments at the formal set date two weeks later that clearly asserted 11(b) would be an issue in the case. No request then that the Crown or court consider listing this matter on top of others. No follow up letters to the Crown indicating that the defence would be alleging that section 11(b) rights had indeed been violated given the dates provided. No letters to the Trial Coordinator making an effort to seek earlier dates that may come available. No effort to have a further trial scheduling meeting to see if any earlier dates had become available. Not even a filing of an 11(b) motion until after the case was well over 18 months out from the charge date.

[39] I appreciate that some may think the analysis I have outlined above is to ask too much of the defence. The suggestion might be that the approach I have taken in this case does not place enough emphasis on the fact that it is for the Crown to bring the accused to trial.

[40] It should be born in mind, however that section 11(b) rights have an unusual feature to them. The breach of other Charter rights cannot really be said to potentially operate in favour of an accused person. To be denied access to counsel subject to groundless arrest or search can really never be said to be in an accused’s interest. Delay, however, while it may be prejudicial to the defence, may also work to the defence’s benefit. Memories fade. As a result inconsistencies going to credibility can arise. Complainants move or no longer want to proceed for a myriad of other reasons. Prosecutors may consequently also see the case as less important. In short, delay in coming to trial can actually be beneficial to the defence in some circumstances. This reality suggests that it is appropriate to call upon the defence to play perhaps a more active role in the assertion of the right when they truly want to rely on it. [^i]

[41] Indeed, the Canadian authorities make it clear the defence does indeed have a certain degree of responsibility to ensure that cases come to trial within a reasonable time. This obligation has been recently underlined by some of the comments by the Supreme Court in R. v. JF 2022 SCC 17 para 31-34 as well as some of the authorities I have referred to above.

[42] I do not think it is asking too much to require the defence in some fashion to clearly indicate in a timely way that it is the defence position that the dates set for trial involve a breach of section 11(b). Should they fail to give that clear indication for a protracted period until there is little that can be done about the situation they are fairly taken as running the risk that they will be found to be markedly indifferent to trial delay. Such a finding may rightly then potentially give rise to the allocation of some of the ensuing delay to the defence for 11(b) purposes.

[43] This approach also has the strength of putting the Crown and the system in a position of being able to focus on and give priority to the accommodation of those cases that the defence truly wants to proceed expeditiously. This is particularly important when the court’s case load is such that, for whatever reason, some matters are being listed outside the 18 month Jordan ceiling.

[44] For all those reasons the application is dismissed.

Released: January 8, 2024 Signed: Justice W. J. Blacklock

[^i]: As a matter of interest the assertion of the right to a speedy trial, as well as the force with which that assertion is made, has been said to be one factor to be considered in the ultimate determination of whether or not the accused’s right to a speedy trial under the 6th amendment of the United States Constitution has been violated. See in that regard Barker v Wingo 407 US 514 (1972) at pg 528 -530. While the framework of analysis in Barker supra is different than Jordan supra both systems are based on the adversarial notion that the obligation to bring the accused to trial rests on the authorities not the accused him or herself.