COURT FILE NO.: 416/11 and 359/10

DATE: 20130307

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

- and -

PARHAM PAKJOU and

YOUSEF PAKJOU

Eugene McDermott, for the Crown

Stephen T. Lyon, for the accused

HEARD: February 7, 2013

Mr. Justice Kenneth L. Campbell:

Pretrial Ruling on Section 11(b) Charter Application

I

Introduction

[1] On September 17, 2008 the two applicants, Yousef Pakjou and his son Parham Pakjou, were arrested and charged with extortion and uttering death threats. The offences were alleged to have been committed against the complainant, Amir Vala, around August 29-30, 2008.

[2] Essentially, the Crown alleges that when Mr. Vala failed to safely deliver an illegal shipment of methamphetamine to British Columbia, due to its seizure by the police, the applicants claimed that Mr. Vala owed them $460,000. The applicants, together with others, threatened to kill Mr. Vala if he did not repay this alleged debt.

[3] The applicants are scheduled to be tried, commencing on April 2, 2013. It is anticipated that the trial will last approximately four weeks. Originally, the applicants were the only accused charged in relation to these offences. However, the police investigation continued and eventually, months later, a number of other accused were arrested and charged with the same extortion and threatening offences, and some related drug and firearm crimes. The applicants are now indicted together with three of these subsequently charged individuals, namely, Tow Chan, Jordan Cheng and Lin Liu.

[4] The applicants have brought an application to stay these proceedings, arguing that they have not been tried within a reasonable time as required by s. 11(b) of the Charter of Rights.

[5] By the anticipated end of this trial, around April 30, 2013, the total delay in this case will be well in excess of 4½ years – it will be four years, seven months and two weeks to be precise. That is a very long period of delay, especially given that the two charges against the applicants are not at all complex. Indeed, it is too long. Having regard to the total period of delay, the nature of the charges, the various reasons for the individual periods of delay, the prejudice suffered by the applicants, and all of the other circumstances of this case, I am driven to conclude that there has been a violation of s. 11(b) of the Charter. The proceedings against the applicants must, accordingly, be stayed.

II

The Facts of the Alleged Offences

[6] The complainant, Amir Vala, is a truck driver. He met Parham Pakjou in 2007, and Parham introduced Mr. Vala to his father. In 2008, Yousef Pakjou asked Mr. Vala to assist him in the delivery of some “diet medications” to British Columbia. In return for his assistance, Mr. Vala was to be paid a $1,000 fee and his return airfare between Ontario and British Columbia would also paid. When Mr. Vala agreed, Parham made arrangements to have Mr. Vala pick up four or five taped cardboard cartons, a cell phone and a BlackBerry from a man in Thornhill. Mr. Vala was advised that his “contact” for the delivery would call him on the cell phone when he arrived in Vancouver, and that Mr. Vala was to give him the cartons and the BlackBerry.

[7] Mr. Vala picked up the cartons and arranged to send them to Vancouver by means of a freight company. His intention was to fly to Vancouver, retrieve the cartons from the freight company office, and then deliver the cartons and BlackBerry to his “contact.”

[8] On August 25, 2008, the Royal Canadian Mounted Police (R.C.M.P.) in Vancouver intercepted the shipment of cartons, examined their contents, and learned that they contained ten kilograms of methamphetamine.

[9] Mr. Vala arrived in Vancouver on August 27, 2008. He received a call from someone who directed him to a specific location where he met a man who instructed him to ship several heavy barrels of alcohol back to Toronto. The barrels were loaded into a pickup truck, and the driver of the truck followed Mr. Vala to the freight company office.

[10] When Mr. Vala got to the freight company office, he was met by R.C.M.P. officers and he was arrested for possession and trafficking in methamphetamine. When Mr. Vala was interviewed by the R.C.M.P. officers, he denied any knowledge of the true contents of the shipment. He was released on a promise to appear and returned to Toronto on August 28, 2008.

[11] On August 29, 2008, Mr. Vala met briefly with Parham and an unknown male. Mr. Vala then returned to his home, a condominium unit at Queen’s Quay. Shortly thereafter, Parham and approximately six other men attended at this condominium unit. Mr. Vala alleges that, upon their arrival, this group demanded to know the whereabouts of the cartons and claimed that if they were not returned, Mr. Vala owed them $460,000. One of the men described Mr. Vala as a “dead man.” At one point, one of the unidentified males held a gun to Mr. Vala’s head. Mr. Vala alleges that, later that same day, Yousef called him and told him that he was a “dead man.”

[12] Mr. Vala’s passport and the keys to his condominium were taken by one of the men and most of the men left. However, two of the men remained and controlled access to the condominium, permitting others to return intermittently, until the early morning of August 30, 2008. Eventually all of the men left and Mr. Vala was permitted to go to work.

[13] Over the course of the next two weeks, there were a number of meetings or encounters between Mr. Vala and a number of other men regarding the whereabouts of the cartons that he had shipped to Vancouver. Neither of the applicants were involved in any of these meetings. During the course of these meetings, Mr. Vala sought to collect evidence that he believed might potentially identify these men. He kept used tissues, cigarette packages, and food containers.

[14] Finally, on September 12, 2008, two men attended at Mr. Vala’s condominium and again questioned Mr. Vala about the cartons. They located and faxed some of Mr. Vala’s personal documents, including the deed to his condominium and his bank statements. They seized the keys to his car and his condominium locker. At one point, Mr. Vala was left alone with one man he knew only as “Andy.” Andy pulled out a gun and threatened to kill Mr. Vala. He tried to drag Mr. Vala to the balcony and threatened to throw him off the balcony. After a struggle, Mr. Vala was able to escape, run into the hallway, and seek the assistance of a neighbour. Again, neither of the applicants were involved in this encounter with Mr. Vala.

[15] The two applicants were the only people known to Mr. Vala, and he quickly identified them to the police as two of the men that were involved in the original threats and extortion. The applicants were arrested and charged accordingly.

III

Section 11(b) of the Charter of Rights

The General Analytical Framework

[16] The law is well-settled that where an accused claims that he or she has not been tried within a reasonable time, the accused has the burden of establishing the alleged violation of s. 11(b) of the Charter on the balance of probabilities. According to the Supreme Court of Canada decision in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at pp. 787-788, in considering whether or not there has been a violation of s. 11(b) of the Charter, the following factors must all be taken into account:

(1) the length of the delay;

(2) any waiver of time periods by the accused;

(3) the reasons for the delay, including:

a. the inherent time requirements of the case;

b. the conduct of the accused or delays attributable to the accused;

c. the conduct of the Crown or delays attributable to the Crown;

d. systemic or institutional delays;

e. any other reasons for delay; and

(4) any prejudice to the accused.

[17] Once all of these constitutionally relevant factors have been considered, the final stage of the analysis requires a balancing of the various individual and state interests that s. 11(b) of the Charter is designed to protect, against the factual background of these factors. Essentially, the court must balance the societal interest in seeing that persons charged with offences are brought to trial against the interest of both society and the accused in prompt adjudication. Before staying the charges, the court must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial. See: R. v. Morin, at pp. 786-787, 809-810; R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1219-1223; R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, at para. 28-38; R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 (Ont.C.A.) at para. 9; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 30; R. v. Austin (2009), 2009 ONCA 329, 245 C.C.C. (3d) 284 (Ont.C.A.) at para. 42-43. R. v. Mahmood, 2012 ONSC 6290, at para. 8-10, 104.

IV

Narrowing the Issues

[18] There are at least two issues that are not controversial between the parties on this application. First, the parties are agreed that the total four year, seven month and two week delay in this case, from the institution of charges against the applicants to the anticipated conclusion of their trial, is sufficiently lengthy to justify a careful analysis of the various factors under s. 11(b) of the Charter.

[19] Second, the parties are agreed that neither of the applicants have waived any of the individual time periods that comprise this total period of delay.

[20] Accordingly, this application turns largely upon an accurate understanding of the reasons for the various delays in this case, an assessment of the prejudice that the applicants allege they have suffered as a result of those delays, and the final balancing of interests. Each of those issues will be addressed in turn.

V

Reasons for Delay in the Ontario Court of Justice

1. The Intake Period

[21] When criminal proceedings are commenced there are invariably a number of preliminary matters that must be addressed by the parties. The accused will often wish to retain counsel. There may be an application for legal aid funding. There may a judicial interim release hearing and perhaps a bail review application. The Crown is obliged to provide timely disclosure to the accused. All of these preliminary matters take time. The courts have recognized that these preliminary matters are part of the inherent time requirements of any criminal case and, for the purposes of any s. 11(b) analysis, should be viewed as “neutral” in that they are not attributed to any party. See: R. v. Morin, at pp. 791-793. There is not yet any recognized nationally applicable guideline for the permissible duration of this “intake” period, but appellate courts have flexibly endorsed intake periods varying between as little as two months and as long as eleven months, depending upon the nature of the case and the degree and nature of the intake functions to be completed. See: R. v. Mahmood, at para. 38; R. v. Duhamel, 2012 ONSC 6448, at para. 35.

[22] The intake period in the Ontario Court of Justice in this case was at the upper end of this range, spanning a period of approximately 11 months. It commenced on September 17, 2008, when the applicants were arrested and charged, and ended on August 20, 2009, when the parties scheduled a judicial pre-trial conference. During this period of time, there were some 14 court appearances by the applicants, and a number of preliminary matters took place.

[23] Yousef Pakjou was originally ordered to be detained in custody. However, after spending approximately five weeks in custody after his arrest, he was released on October 29, 2008 following a successful bail review application. He was released on a recognizance in the amount of $90,000 on strict conditions, including: (1) that he not contact his son Parham except in the presence of counsel for the purposes of preparing a defence; (2) that he remain in Ontario and surrender his passport and any travel documents; (3) that he observe a curfew between the hours of 9:00 p.m. and 6:00 a.m. each day; and (4) that he otherwise remain under “house arrest” and only be outside his residence while in the presence of one of his sureties.

[24] Parham Pakjou was also originally ordered to be detained in custody. However, after spending more than 2½ months in custody after his arrest, he was released from custody on December 4, 2008 after a successful bail review application. He was released on a recognizance in the amount of $60,000 on conditions including: (1) that he remain in Ontario; and (2) that he remain under “house arrest,” and only be outside his residence while in the presence of one of his sureties, or between 8:30 a.m. and 5:30 p.m. for the purposes of attending university.

[25] The applicants clearly had difficulties retaining counsel. They ultimately applied for legal aid on March 12, 2009. The applicants were finally able to retain their respective lawyers by their May 14, 2009 court appearance.

[26] During the time period when the applicants were unrepresented, the Crown made significant disclosure directly to the accused personally. This disclosure took place in September through November of 2008.

[27] Neither of the retained counsel for the applicants appeared on May 14, 2009, but the matter was adjourned on that date, and through June and July of 2009, at their request, to permit pre-trial meetings with the Crown and to allow the defence lawyers to review the disclosure that had been provided.

[28] On August 20, 2009, the Crown appeared in court to address the matter, indicating that she had been in contact with both defence counsel for the applicants and they were content to schedule the judicial pre-trial conference for September 25, 2009.

[29] This was a relatively straightforward case in which the intake period in the Ontario Court of Justice could have been much shorter. The primary causes of delay at this early stage of the proceedings were the difficulties the applicants experienced in retaining counsel. Part of the problem, at least initially, was that the applicants were originally detained in custody. In any event, it took the applicants approximately eight months to finally retain counsel to represent them in this case. In these circumstances, and given that there were no complaints about any delayed disclosure by the Crown during this time period, I accept that this 11 month period was a reasonable, albeit lengthy, neutral intake period.

2. The Judicial Pre-Trial Conference

[30] The judicial pre-trial conference was conducted as scheduled on September 25, 2009. After this meeting, there was a brief court appearance at which the applicants appeared for the first time with their respective counsel. Counsel for the applicants asked for a short remand to allow them to come back to set a date after discussing the matter with their respective clients. The case was adjourned to October 8, 2009. On that date, the parties scheduled the preliminary inquiry. Accordingly, from the setting of the judicial pre-trial conference on August 20, 2009, to the scheduling of the preliminary inquiry date on October 8, 2009, over six weeks was consumed in order to accommodate the judicial pre-trial conference.

[31] According to the authorities, this period of time is properly attributed to the inherent time requirements of the case. See: R. v. Tran, 2012 ONCA 18, at para. 34; R. v. Khan, 2011 ONCA 173, at para. 44-45, 53-55; R. v. Lahiry (2011), 2011 ONSC 6780, 109 O.R. (3d) 187 (S.C.J.) at para. 116; R. v. Richards, 2012 ONSC 3479, at para. 9-10; R. v. Emanuel, 2012 ONSC 1132, at para. 13-15; R. v. Rutherford, 2012 ONSC 2969, at para. 41-42; Scott Latimer, “Defining JPT Time for s. 11(b) Purposes” (2011), 84 C.R. (6th) 244; R. v. Mahmood, at para. 54-61. In my view, in the circumstances of the present case, this was a relatively short and reasonable delay that was part and parcel of the inherent time requirements of this case.

3. Setting the Preliminary Inquiry Date

[32] On October 8, 2009, after meeting with the trial coordinator, the parties appeared in court and the one-day preliminary inquiry was scheduled for May 31, 2010. The period of time between these two dates is approximately seven months and three weeks.

[33] The record is clear that although the Crown was available, defence counsel for Parham Pakjou was not available on a number of earlier available dates that were offered by the trial coordinator in April and May of 2010. The earliest of these available dates was April 6, 2010. The availability of these earlier dates were confirmed by the Crown in court and reflected on the Trial Verification Form prepared by the trial coordinator.

[34] There is no evidence on the record as to the availability of counsel for Yousef Pakjou, other than the fact that she was available on the earliest court dates that were offered in April of 2010.

[35] Systemic or institutional delay is time that is legally attributable to the Crown. Systemic delay is properly defined as that period of delay which commences when the parties are ready for trial but the system cannot accommodate them. In an attempt to articulate the approximate permissible scope of systemic delay, the Supreme Court of Canada has set administrative guidelines of between eight to ten months in the Ontario Court of Justice, and between six to eight months in the Superior Court of Justice. See: R. v. Morin, at pp. 794-800; R. v. MacDougall, at para. 53-55; R. v. Chatwell (1998), 1998 CanLII 3560 (ON CA), 122 C.C.C. (3d) 162 (Ont.C.A.) at para. 11-16; Leave denied: 1998 CanLII 784 (SCC), [1998] 1 S.C.R. 1207; R. v. S.(L.) (1999), 1999 CanLII 3002 (ON CA), 133 C.C.C. (3d) 493 (Ont.C.A.) at para. 11.

[36] It is important to keep in mind, however, that these administrative guidelines are not inflexible limitation periods within which an accused must be brought to trial. Rather, if the systemic delay in any given case exceeds the applicable administrative guideline, this factor will weigh against the Crown in the overall assessment of the reasonableness of the total period of delay. See: R. v. Morin, at pp. 795-799; R. v. Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 192 C.C.C. (3d) 91 (Ont.C.A.) at para. 19, 27-30, 51-52; R. v. R.(T.) (2005), 2005 CanLII 18709 (ON CA), 75 O.R. (3d) 645 (C.A.) at para. 34.

[37] Moreover, institutional delay is not calculated simply by counting the days between the set date and the preliminary inquiry or trial date, even in cases where the parties have taken the first available date offered by the court. The proper calculation of institutional delay takes into account the reality that parties and their respective counsel must have time to prepare for the case and clear their calendars of their other professional responsibilities so they can conduct the litigation in the case. Parties are not deemed ready to proceed with the hearing immediately upon the date being set. This explains why, in setting hearing dates, counsel are obliged to provide the court with their earliest available dates, so that, if need be, some accurate measure of institutional delay can be undertaken. See: R. v. Lahiry, at para. 25-37; R. v. Tran, at para. 32; R. v. M.(N.N.) (2006), 2006 CanLII 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont.C.A.) at para. 28-29.

[38] With respect to Parham Pakjou, given the unavailability of his counsel until May 31, 2010, and his rejection of a number of earlier available court dates in April and May of 2010, I conclude that none of this period of time can properly be viewed as institutional delay. He was obviously represented by busy counsel whose personal calendar prevented him from agreeing to a preliminary inquiry date prior to May 31, 2010.

[39] With respect to Yousef Pakjou, it would be wrong to assume, in the absence of any evidence, that his counsel was ready for the preliminary inquiry on the set date appearance of October 8, 2009. It would be unrealistic to think that she had, at that point, already completed all of her preparations for the preliminary inquiry months away, and had no other court or professional commitments. As stated in R. v. Duhamel, at para. 49, that is simply not the “deadline-driven” modern reality of the practice of law for most criminal lawyers. However, it would be equally wrong to assume, in the absence of any evidence, that counsel for Youself was not available until May 31, 2010. In my view, with respect to Yousef, it is reasonable to conclude that two months of this time period should be viewed as part of the inherent delay to permit counsel to prepare and be available for the preliminary hearing. Most practicing criminal lawyers would likely be able to find time in their calendars to schedule and prepare for a one day preliminary inquiry in approximately that period of time (ie. two months). The remaining five months and three weeks should be viewed as systemic or institutional delay.

4. The Preliminary Inquiry

[40] The preliminary hearing was scheduled for May 31, 2010. It was anticipated to take one day and the only witness was the complainant, Amir Vala.

[41] Unfortunately, on May 31, 2010, Mr. Vala did not appear in court. He had not been subpoenaed and he had advised the police that he had secured work that he needed, which made him unavailable to attend court. The Crown sought a brief adjournment to permit Mr. Vala to attend. The applicants opposed this request, arguing that they were under strict bail conditions, were suffering prejudice from delay, and that the Crown ought to have ensured the attendance of Mr. Vala with a subpoena. The court granted the Crown’s request and adjourned the matter to June 3, 2010.

[42] The preliminary inquiry commenced on June 3, 2010, and Mr. Vala began his testimony. When his evidence could not be completed, the case was adjourned. The evidence of Mr. Vala was completed on August 16 and 17, 2010, and the applicants were committed for trial on August 17, 2010.

[43] The Crown must be responsible for the brief three-day delay between the scheduled start of the preliminary inquiry on May 31, 2010 and its actual start on June 3, 2010. The remaining period of time, of approximately 2½ months, between the start of the preliminary inquiry on June 3, 2010 and its conclusion on August 17, 2010, is properly viewed as part of the inherent time requirements of this case.

VI

Reasons for Delay in the Superior Court of Justice

1. The Intake Period

[44] The applicants first appeared in the Superior Court of Justice on September 29, 2010. At that time, a judicial pre-trial conference was scheduled for November 25, 2010. Accordingly, the “intake” period in this Court was a brief and reasonable one spanning just less than six weeks between August 17, 2010 when the proceedings in the Ontario Court of Justice concluded, and September 29, 2010, when the pre-trial conference in the Superior Court of Justice was scheduled.

2. Judicial Pre-Trial Conference

[45] The judicial pre-trial conference started as scheduled on November 25, 2010. However, certain matters remained outstanding, and the parties agreed that the judicial pre-trial conference should continue on January 11, 2011.

[46] Accordingly, the necessary judicial pre-trial meetings in this case spanned a period of approximately 3½ months, from the time the first meeting was scheduled on September 29, 2010 until the continuing meeting concluded on January 11, 2011. This period of delay is one of the inherent time requirements of this case.

3. Setting the First Trial Date

[47] On January 11, 2011, the parties briefly appeared in court to schedule the trial date in this case. The Crown indicated that the parties had “agreed upon a trial date” of December 5, 2011 for a two week long trial. The Crown also asked that the matter return on September 12, 2011 to be spoken to. Both of those dates were then fixed by the court.

[48] The matter was spoken to on September 12, 2011, and again on October 17, 2011. On the latter date, the Crown asked the court to “vacate” the scheduled trial date as it was anticipated that, by December 5, 2011, there would be a new indictment before the court adding at least three other accused and other criminal charges, and there would need to be another pre-trial conference, with the new parties, in order to discuss the scheduling of the trial on that new indictment. Counsel for the two applicants expressed their opposition to this request and threatened that, if the Crown presented a new indictment, they would bring applications to stay the proceedings for abuse of process and a violation of s. 11(b) of the Charter. In the result, the court vacated the scheduled trial date, but kept December 5, 2011 as the next appearance date.

[49] On December 5, 2011 the Crown presented the new indictment, and all five of the accused – Tow Chan, Jordan Cheng and Lin Liu, together with the two applicants – appeared in court. The Crown agreed that the earlier indictments should be withdrawn. In the result, the matter was adjourned to January 9, 2012 for a pre-trial conference.

[50] The total period of delay between the initial set date appearance of January 11, 2011 and the scheduled trial date of December 5, 2011, is approximately ten months and three weeks. There is no evidence on the record in relation to how this trial date was agreed by the parties, nor is there any evidence as to the prior availability of counsel. It is accepted by the parties to this application, however, that the December 5, 2011 trial date is the first date that was offered as available from the court.

[51] The applicants contend that this entire period of time should be viewed as institutional delay as they accepted the first date offered by the trial coordinator. However, as I have indicated, institutional delay is not simply a matter of calculating the time between the set date appearance and the agreed trial date, even in cases where the parties have taken the first available date offered by the court. Rather, the proper assessment of institutional delay acknowledges the reality that parties and their counsel must have time to prepare for the case and clear their schedules of their other professional commitments. Parties are not legally assumed to be ready to proceed with the trial instantly upon the trial date being set. See: R. v. Lahiry, at para. 25-37; R. v. Tran, at para. 32; R. v. M.(N.N.), at para. 28-29.

[52] In the absence of any indication on the record in this case, I am obliged to attribute a realistic and reasonable period of time to this inherent time requirement for preparation and scheduling. In my view, four months ought to be attributed to this aspect of the inherent time requirements of the case. Most practicing criminal lawyers would likely be able to find time in their calendars to schedule and prepare for a two week long Superior Court trial in approximately that period of time (ie. four months). Further, this appears to be a realistic assessment regarding counsel for the two applicants. As outlined in more detail below, when the trial proceedings were subsequently being scheduled on the new indictment on January 31, 2012, counsel for the applicants were not available for at least four months, albeit at that point they were scheduling a longer trial.

[53] After deducting this four month period of time as one of the inherent time requirements of the case, the remaining six months and three weeks should be viewed as systemic or institutional delay. This period of institutional delay is, of course, within the six to eight month period of permissible systemic delay recognized by the authorities.

4. The Proceedings on the New Indictment

a. The Facts

[54] The judicial pre-trial conference on the new indictment started on January 9, 2012, but was adjourned to January 31, 2012. Following the conclusion of the pre-trial conference, the parties appeared in court and scheduled the trial to take place, some 14 months later, starting on April 2, 2013 and lasting approximately four weeks.

[55] During the set date appearance on January 31, 2012, the Crown indicated that four-week trial dates had been offered by the court in both mid-May and early November of 2012. None of the defence counsel were available for the May trial dates, but counsel for the two applicants and all of the other defence lawyers, except one, were available for the November trial dates. More specifically, counsel for Parham indicated that he was available anytime after the end of May of 2012, while counsel for Yousef indicated that his calendar was clear from mid-July onwards.

b. The New Pre-Trial Conference Required

[56] The nearly two month period of time between the vacated trial date of December 5, 2011, and the conclusion of the necessary judicial pre-trial conference on the new indictment on January 31, 2012, would ordinarily be viewed as part of the inherent time requirements of the case. Clearly, when the new accused and new charges were added to the new indictment against the applicants, there had to be further discussions between the parties and the court regarding the court resources needed for the trial proceedings. A further pre-trial conference was, accordingly, required.

c. Inherent Delay – The Availability of Counsel

[57] The 3½ month period of time between the set date appearance on January 31, 2012 and the first available trial date in mid-May of 2012 would ordinarily be viewed as part of the inherent time requirements of this case as counsel for neither of the applicants (or any of the other defence counsel) was “ready” for trial and available for that potential trial date. As none of the accused, including the two applicants, were ready for such an early trial date, this period of time cannot properly be viewed as institutional delay.

d. Some Additional Institutional Delay

[58] Thereafter, a short period of institutional delay should be recognized. Counsel for Parham was available anytime after the end of May of 2012. The five month period of time between June 1, 2012 and the next available trial date in November should be viewed as institutional delay with respect to Parham. Similarly, since defence counsel for Yousef was available in mid-July of 2012, the 3½ month period of time from July 15, 2012 to November 1, 2012 should be viewed as institutional delay in relation to Yousef.

[59] The Crown suggests that the entire 5½ month period of time between May 15, 2012 and November 1, 2012 should be viewed as neutral given that the two applicants were not available on the first offered trial date. I disagree. It would be unfair and unreasonable to hold that, because counsel for the two applicants were unavailable on the first available trial date offered by the trial coordinator, that subsequent months of unavailable court time do not constitute systemic delay. It only makes practical sense to review the other dates offered and the subsequent availability of counsel in order to try to accurately determine the potential scheduling impact of subsequent institutional delays. As Cromwell J. stated in R. v. Godin, at para. 23:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry – efforts which were ignored – suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: “To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.”

[emphasis added]

[60] When combined with the earlier period of institutional delay in the Superior Court of Justice consisting of six months and three weeks, this results in a total period of institutional delay in the Superior Court of 11 months and three weeks for Parham Pakjou, and 10 months and one week in relation to Yousef Pakjou. These total periods of institutional delay are beyond the recognized six to eight month range of permissible systemic delay for this court. This does not mean that the proceedings must be stayed. The recognized administrative guideline for permissible institutional delay is not a fixed ceiling or inflexible limitation period. However, it must be viewed as a factor in the governing s. 11(b) analysis.

e. The Busy Schedule of Counsel for the Co-Accused

[61] The five month period of delay from November 1, 2012, when both of the applicants could have been separately tried, to April 2, 2013, when the trial is scheduled to commence due only to the unavailability of counsel for one of the co-accused, would ordinarily be viewed as delay inherent in the nature of the case. In cases where multiple accused are jointly charged with the commission of criminal offences, it is only realistic to expect that there will be some delays caused by the actions of other accused and their respective lawyers. It is only reasonable for the parties to recognize that the greater the number of accused joined together on one indictment, and the greater the number of charges on that single indictment, the more time the trial proceedings (and the appearances leading up to the trial) will ultimately consume.

f. The Delay Caused by the New Indictment is Attributable to the Crown

(1) Introduction

[62] Thus far in my analysis of the 14 month period between January 31, 2012 and April 2, 2013, I have outlined how the individual periods of delay regarding the proceedings on the new indictment would “ordinarily” be attributed. In other words, this is the analysis that would normally be undertaken if the five accused in this case had all proceeded through the criminal justice system together, and trial dates were being set for the first time in the Superior Court of Justice.

[63] The reality of this case, however, is that the five accused did not proceed through the system together. The three co-accused were not arrested and charged with any of these offences until March 2, 2010. By that point in time, the applicants had already been in the criminal justice system for some 17½ months. Further, had the Crown not jointly indicted all of the accused on December 5, 2011, the applicants would have had their own two week trial and the criminal proceedings against them would have concluded around December 19, 2011. However, as a result of the Crown’s decision to jointly indict and try the two applicants and their three co-accused together, their joint four week trial will not conclude until around April 30, 2013.

[64] Accordingly, in a very practical sense, the entire 16½ month period of delay from December 19, 2011 to April 30, 2013, has been directly caused by the actions of the Crown. In my view, for all of the following reasons, and notwithstanding how the periods of delay might “ordinarily” be legally characterized or attributed, this entire 16½ month time period must be attributed to the actions of the Crown.

(2) The Resulting Delay in the Prosecution of the Applicants Was Predictable

[65] First, this 16½ month delay in the prosecution of the applicants was entirely predictable. Indeed, without some special effort by the Crown, this delay was inevitable.

[66] In the new proceedings, started on March 2, 2010, there were three co-accused and they were charged not only with the same extortion and threatening offences alleged against the applicants, but they were also charged with a number of other offences, including unlawful confinement, using a firearm during the commission of an indictable offence, pointing a firearm, and conspiracy to traffic in methamphetamine. Moreover, the case against the three new accused was significantly more complex. The Crown’s case against the applicants amounted, essentially, to the testimony of the complainant, Mr. Vala. The Crown’s case against the three other accused was much more complicated. The police investigation that continued long after the applicants were arrested and charged included detailed surveillance evidence and expert evidence regarding scientific DNA testing and fingerprint comparison evidence. In short, these new proceedings started in March of 2010 involved more accused, more charges, and were inherently more complex than the proceedings against the applicants.

[67] Accordingly, it would have been unrealistic for the Crown to have optimistically hoped that these new charges would proceed with any greater dispatch than the proceedings against the applicants. Indeed, the Crown ought to have realized that without taking any special steps to try to expedite the prosecution against these three new accused, it would predictably proceed no more quickly than the prosecution of the applicants. Indeed, the Crown ought to have anticipated that this prosecution of the three new accused might well proceed more slowly. There was certainly little realistic chance that the proceedings against the three new accused would proceed with such dispatch that their case would somehow quickly “catch-up” to the case against the applicants.

[68] From the outset of these new proceedings, it was clear that the Crown planned to, eventually, join all five accused on a single indictment and prosecute them together in the Superior Court of Justice. The Crown had to appreciate that, again, in the absence of taking any special steps to expedite the prosecution against these three new accused, this planned joint prosecution would require the applicants, who had a 17½ month “head-start” in the system, to at some point simply wait for the proceedings against the three new accused to “catch-up.” Predictably, that is precisely what happened.

(3) The Crown’s Interest in Joint Trials for Co-Accused Must Be Balanced Against the Applicants’ Right to be Tried Within a Reasonable Time

[69] In seeking to justify its decision to jointly indict the two applicants with their three new co-accused, the Crown relied heavily upon its interest in ensuring that accused who are alleged to have committed offences together are tried together. There is no gainsaying the accepted wisdom of this approach and the legitimacy of the Crown’s interests in seeking to have these five individuals tried together. The authorities are clear that it is generally in the interests of justice that where a number of individuals are alleged to have acted in concert in some common criminal offence, they should be tried together. See: R. v. McNamara et al. (No.1) (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont.C.A.) at p. 264; R. v. Agawa and Mallett (1975), 1975 CanLII 482 (ON CA), 28 C.C.C. (2d) 379 (Ont.C.A.) at p. 387; R. v. Kendall and McKay (1987), 1987 CanLII 180 (ON CA), 35 C.C.C. (3d) 105 (Ont.C.A.) at p. 127; R. v. Quiring and Kuipers (1974), 1974 CanLII 974 (SK CA), 19 C.C.C. (2d) 337 (Sask.C.A.) at p. 347-348; R v. Adams and Waltz (1989), 1989 CanLII 7161 (ON CA), 49 C.C.C. (3d) 100 (Ont.C.A.) at p. 114; R. v. Sternig (1975), 31 C.R.N.S. 272 (Ont.C.A.) at p. 283; R. v. McLeod, Pinnock and Farquharson (1983), 1983 CanLII 3605 (ON CA), 6 C.C.C. (3d) 29 (Ont.C.A.) at pp. 33; Affirmed: 1986 CanLII 70 (SCC), [1986] 1 S.C.R. 703; R. v. Pelletier (1986), 1986 CanLII 1179 (BC CA), 29 C.C.C. (3d) 533 (B.C.C.A.) at p. 539; R. v. Puffer, McFall and Kizyma (1976), 1976 CanLII 1316 (MB CA), 31 C.C.C. (2d) 81 (Man.C.A.) at p. 92; Affirmed: 1979 CanLII 176 (SCC), [1980] 1 S.C.R. 321; R. v. Ghavami, 2010 BCCA 126.

[70] This bona fide interest must, however, be balanced against the constitutional right of an accused to be tried within a reasonable time. Normally, this concern about the timeliness of the trial is not the driving influence in the analysis because normally co-accused are arrested and charged with their alleged offences in the same general timeframe. However, in exceptional cases, like the present case, where accused persons enter the criminal justice system at very different points in time, the Crown’s interest in trying them together cannot dictate the pace of the litigation regardless of the requirements of s. 11(b) of the Charter of Rights.

[71] The judgment of the Court of Appeal for Ontario in R. v. Heaslip et al. (1983), 1983 CanLII 3519 (ON CA), 9 C.C.C. (3d) 480, remains instructive on this issue. In that case, six accused were arrested and jointly charged, in October of 1977, with 40 counts of fraud and a single count of conspiracy to commit fraud. The preliminary inquiry was scheduled to commence in September of 1978. Most of the accused waived their right to a preliminary inquiry and consented to their committal to trial. However, their co-accused, Garofoli, insisted on a full preliminary inquiry, which proceeded intermittently until he too was committed for trial in June of 1980. Following his committal for trial, Garofoli sought prerogative relief by way of a writ of certiorari to quash his committal for trial. That application remained outstanding until it was finally dismissed in June of 1983. It was not until November of 1982 that the Crown forced the other accused into assignment court in the District Court to try to get a date for trial.

[72] At that point, given that five years had elapsed since the case had commenced, the other accused asserted that their right to be tried within a reasonable time had been violated. The trial judge agreed, and quashed the indictment. In dismissing the Crown appeal to the Court of Appeal, Martin J.A., delivering the judgment of the court, concluded, at pp. 496-497:

Counsel for [the Crown] further contended that the trial judge in attributing fault to the Crown for the delay fell into error in failing to give appropriate weight to the Crown’s obligation to bring the accused who were alleged to be involved in a joint enterprise to trial together, particularly in a complex case involving a lengthy trial and numerous witnesses.

The Crown’s legitimate interest in ensuring that the accused be tried together must, however, be balanced against the accused’s constitutional right to be tried within a reasonable time. The Crown’s desire to ensure that all the accused be tried together was, of course, entirely proper, but it imposed a corresponding obligation on the Crown to take appropriate measures to ensure that Garofoli’s motion proceeded expeditiously, and to move to have the application dismissed if Garofoli’s counsel did not proceed promptly.

In the result, I am of the view that there is no basis upon which the finding of the trial judge, attributing fault to the Crown in respect of the inordinate delay which occurred in this case, should be disturbed.

[emphasis added]

[73] The Court of Appeal expressed similar sentiments, more recently, in R. v. Schertzer et al. (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270; Leave denied: [2010] S.C.R. xv. In that case, six police officers with the Central Field Command Drug Squad of the Toronto Police Service were charged with numerous criminal offences, including conspiracy to obstruct justice. Following their committal for trial, the Crown prepared two indictments: a long indictment that charged all of offences against all of the accused except one officer named Benoit, and a short indictment that charged Benoit with the offences of extortion and assault against one of the complainants. The Crown decided to pursue the trial on the long indictment first. That trial was anticipated to last some six months. The Crown determined that, at the end of that lengthy trial, it would try Benoit on the short indictment. The trial judge stayed the proceedings against all of the accused on the basis of perceived violations of s. 11(b) of the Charter. While the Court of Appeal reached a different conclusion with respect to all of the other accused, the decision to stay the proceedings against Benoit was upheld. More specifically, in dismissing the Crown appeal in relation to Benoit, the Court of Appeal stated, at para. 145-147:

In our view, Benoit stands in a starkly different position from the Schertzer respondents. The approximately 29-month delay to his committal for trial is fully explained and not unreasonable; it is what occurred thereafter that led to a violation of Benoit’s rights. From the first appearance in the Superior Court of Justice in June 2006, counsel for Benoit sought the earliest possible trial date. Benoit’s trial was relatively simple and could have been tried within a few months. The trial itself would have taken, at most, one week, not six months as was the projected length of the trial of the long indictment. It was because the Crown took the position that Benoit’s trial should follow the trial of the long indictment that some two and a half to three years more would elapse before Benoit could be tried. That a relatively simple case should take that time to try in the Superior Court of Justice after the lengthy period of time spent in the Ontario Court of Justice is unreasonable.

We accept that the courts should be hesitant to second guess or monitor the tactical or strategic decisions of Crown counsel in deciding the order in which cases are tried. But where that decision leads to an unreasonable and unnecessary delay, the courts must protect the accused. Obviously, the trial court will give careful consideration to Crown submissions as to the order in which trials should proceed. But once the two indictments were laid before the Superior Court of Justice, that court had the power to order that Benoit’s trial proceed before the trial of the long indictment so as to protect his constitutional rights.

In short, Benoit should not have been held hostage to the trial of the long indictment. No cogent reason has been provided as to why the Crown could not try Benoit first. Benoit had a right, which his counsel repeatedly sought to vindicate, to have his trial held as soon as possible. That trial did not have the complexities of the long indictment trial. Benoit suffered serious prejudice from the delay. The difference between him and the other respondents is that the delay in his case is unjustified and inexcusable. His case, while serious, does not have the same seriousness as do the charges in the long indictment, especially the allegation in that indictment of a long-standing conspiracy to obstruct the course of justice.

[emphasis added]

[74] Similarly, in R. v. Ghavami, the British Columbia Court of Appeal confirmed, at para. 41, that the rule preventing court review of Crown charging decisions absent an allegation of abuse of process does not “preclude a court called upon to balance conflicting interests on a s. 11(b) application from bringing into that balance the Crown’s conduct of the prosecution” in order to examine “its effect on an accused’s constitutional right to be tried within a reasonable time.” Following the cautionary admonition from R. v. Schertzer, at para. 5, that this examination must not become the “medium through which the quality of the prosecution’s performance is measured,” the court noted that the focus of the inquiry must remain “exclusively on delay and the causes of that delay.”

[75] In the present case, while the Crown’s desire to ensure that all of the accused were tried together was legitimate, this desire imposed a corresponding obligation on the Crown to take the appropriate measures to protect the applicants’ right to be tried within a reasonable time. As the Crown’s decision to belatedly prefer a new indictment in this case against all five of the accused effectively delayed the trial of the two applicants for some 16½ month, it is only fair that this decision be assessed in terms of its consequences to the applicants in relation to their claim under s. 11(b) of the Charter. See also: R. v. Satkunananthan (2001), 2001 CanLII 24061 (ON CA), 152 C.C.C. (3d) 321 (Ont. C.A.) at para. 53; R. v. Topol, [2007] O.J. No. 3094 (S.C.J.) at para. 50-54; Affirmed: 2008 ONCA 113, at para. 13.

(4) The Applicants Always Insisted on their Right to a Trial Within a Reasonable Time

[76] Significantly, the applicants have always insisted on their right to be tried within a reasonable time, have consistently opposed any delays that would have permitted the Crown to conveniently join and try all five of the accused together, and have never waived their rights under s. 11(b) of the Charter.

[77] On March 10, 2010, shortly after the arrest of Tow Chan, Jordan Cheng and Lin Liu, the Crown wrote to counsel for the applicants to notify them of their arrest and to seek their input regarding their potential “joinder.” In this correspondence, the Crown indicated that, as a matter of efficiency, it would make sense for all accused to be joined together, but he was not suggesting a joinder of the accused as it would “inevitably result in delay” in the trial of the applicants. In response, counsel for the applicants made it clear that they would not consent to any adjournment of their preliminary inquiry, then scheduled for May 31, 2010, and were opposed to any delay.

[78] At the end of April of 2010, the Crown provided counsel for the applicants with a Notice of Application seeking an adjournment of the preliminary inquiry. Counsel for the applicants expressed their opposition to the application, relying on their right to be tried within a reasonable time. This adjournment application was heard on May 10, 2010 by Speyer J. At the hearing of that application, Crown counsel indicated that, by the end of the month, it was anticipated that there would be a new information joining all of the accused together. The Crown explained that an adjournment of the applicants’ preliminary inquiry was sought as the other accused would not have sufficient disclosure to proceed at that time. The Crown acknowledged that this adjournment would cause some delay. In court, counsel for the applicants expressed their strenuous opposition to this proposed adjournment, noting that the applicants had already endured restrictive conditions of bail for a considerable time. Indeed, defence counsel argued that, if an adjournment were granted, it would likely result in a violation of s. 11(b) of the Charter. Counsel for the applicants observed that there was “no way” they were waiving their s. 11(b) right to a trial within a reasonable time. In the result, the adjournment application was denied by Speyer J.

[79] In the fall of 2011, when the parties appeared in the Superior Court of Justice to “confirm” the upcoming December 5, 2011 trial date, and the Crown again expressed its plan to proceed on a “consolidated” indictment against all five of the accused, ultimately asking that the December 5, 2011 trial date be vacated, counsel for the applicants expressed their opposition to this plan. More specifically, counsel for the applicants opposed the Crown’s request to vacate the scheduled trial date, indicated that they were prepared to proceed with the trial on the scheduled December 5, 2011 date and that they were not waiving, but rather were reserving, their rights under s. 11(b) of the Charter. Counsel for the applicants also contended that presentment of this consolidated indictment would amount to an abuse of process by the Crown.

[80] At the January 31, 2012 appearance to set the new trial date on the new indictment, the parties also discussed the scheduling of the s. 11(b) Charter motion to be brought by all of the accused. The two applicants, of course, proceeded with their motion in this regard.

(5) A Direct Indictment Would Have Solved the Delay Problem

[81] Significantly, this 16½ month delay was entirely avoidable. Indeed, it was within the power of the prosecution to take steps that would have quickly joined the three new accused with the two applicants and permitted their joint trial in the Superior Court to proceed with dispatch.

[82] Under s. 577 of the Criminal Code, R.S.C. 1985, chap. C-46, the Attorney General and his or her lawful Deputy have the statutory power to prefer a direct indictment to effectively obviate the need for a preliminary inquiry. More particularly, under the heading of “Direct indictments,” s. 577(a) of the Code provides:

Despite section 574, an indictment may be preferred even if the accused has not been given the opportunity to request a preliminary inquiry, a preliminary inquiry has been commenced but not concluded or a preliminary inquiry has been held and the accused has been discharged, if

(a) in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes, the personal consent in writing of the Attorney General or Deputy Attorney General is filed in court; …

[83] This power has consistently been upheld as constitutionally valid by the appellate court authorities. Moreover, while the exercise of this power in individual cases may certainly be challenged in the courts, the law is clear that its exercise will not violate the constitutional rights of any accused where the accused, who has been deprived of a preliminary inquiry that the Criminal Code would otherwise permit, has been provided with full disclosure of the Crown’s case. See: R. v. Smythe, 1971 CanLII 831 (SCC), [1971] S.C.R. 680, at pp. 685-686; R. v. Stolar (1983), 1983 CanLII 3479 (MB CA), 4 C.C.C. (3d) 333 (Man.C.A.) at pp. 336-344; Re Balderstone and The Queen (1983), 1983 CanLII 2803 (MB CA), 8 C.C.C. (3d) 532 (Man.C.A.); Leave denied: [1983] 2 S.C.R. v; Re Arviv and The Queen (1985), 1985 CanLII 161 (ON CA), 19 C.C.C. (3d) 395 (Ont.C.A.) at pp. 402-406; Leave denied: [1985] 1 S.C.R. v; Re Patrick et al. and A.G. Canada (1986), 1986 CanLII 1167 (BC SC), 28 C.C.C. (3d) 417 (B.C.S.C.); Affirmed: (1987), 1987 CanLII 2820 (BC CA), 35 C.C.C. (3d) 551 (B.C.C.A.); R. v. Moore (1986), 1986 CanLII 4765 (MB CA), 26 C.C.C. (3d) 474 (Man.C.A.) at pp. 475-477; R. v. Kevork (1986), 27 C.C.C. (3d) 27 (O.H.C.J.) at pp. 276-282; R. v. Ertel (1987), 1987 CanLII 183 (ON CA), 35 C.C.C. (3d) 398 (Ont.C.A.) at pp. 411-424; Leave denied: (1987), 36 C.C.C. (3d) vi (S.C.C.).

[84] Most recently, in R. v. L.(S.J.), 2009 SCC 14, [2009] 1 S.C.R. 426, in the context of approving the legal propriety of direct indictments in cases of “young persons” prosecuted under the Youth Criminal Justice Act, S.C. 2002, c. 1, Deschamps J., delivering the judgment of the majority of the Supreme Court of Canada, stated, at para. 21-23:

It is well established that the preliminary inquiry is a screening mechanism for the purpose of determining whether the Crown has sufficient evidence to commit the accused to trial: … However, there is no constitutional right to a preliminary inquiry or to the outcome of such an inquiry: ….. Dispensing with the screening process therefore does not result in a deprivation of fundamental justice, since the accused continues to be presumed innocent and retains the right to make full answer and defence: …

Similarly, although the preliminary inquiry may also allow an accused to test the credibility of witnesses and better appreciate the Crown’s evidence … such incidental benefits do not give rise to a constitutional right to this proceeding: …

….. an accused has had a right under the Constitution to the disclosure of all relevant information that is distinct from the right to a preliminary inquiry. But the Crown’s duty in this respect does not extend to producing a witness for discovery: … Consequently, the incidental function of the preliminary inquiry as a discovery mechanism has lost much of its relevance:

[citations omitted – emphasis added]

[85] Importantly, in R. v. Ertel, the Court of Appeal for Ontario took judicial notice of the many reasons that might justify a direct indictment. Lacourciére J.A., delivering the judgment of the court, at pp. 422-423, referred to the text, Criminal Procedure in Canada (1982) at p. 323, wherein Bruce MacFarlane and Judith Webster, in the chapter on “Preferred Indictments,” indicated that one of the important justifications for direct indictments, as summarized by the court in R. v. Ertel, is that such indictments “may be the only way to remedy an unconscionable delay in bringing the matter to trial.” As Deschamps J. observed in R. v. L.(S.J.), at para. 9, by preferring a direct indictment, the prosecution can “skip the preliminary inquiry stage” of the criminal process.

[86] If the Attorney General or Deputy Attorney General had exercised this statutory power in the present case, and preferred a direct indictment in a timely manner against the five accused now before the court, I am confident that the two applicants (and the three other accused) could all have been tried by mid-2012. If the Crown had moved diligently following the arrest of the three other accused on March 2, 2010, and quickly provided those accused with full disclosure, a direct indictment could have been preferred in the Superior Court of Justice in the fall of 2010, around the same time the applicants’ case arrived in this court. While this would have resulted in the three new accused having to forgo a preliminary inquiry, such a step would have ensured that all of the accused were tried within a reasonable time, and at the same time would have permitted the Crown to try all five of the accused together.

[87] Unfortunately, the Attorney General was not asked to consider taking this step. In the Ontario Ministry of the Attorney General Crown Policy Manual statement on “Direct Indictments,” dated March 21, 2005, the authority to prefer a direct indictment is referred to as an “extraordinary” power that is “used infrequently in Ontario.” It also states, however, that Crown counsel may request the consent of the Attorney General to a direct indictment where there are “compelling circumstances” which require in the “interests of justice” that “the matter be brought to trial forthwith” bearing in mind the strength of the Crown’s case and the seriousness of the charge.[^1] While this case seems to have presented compelling circumstances justifying, in the interests of justice, the speedy trial of the accused for these alleged offences so as to avoid violating the s. 11(b) Charter rights of the applicants, the Attorney General was not asked to consider preferring a direct indictment in this case. This fact was confirmed by the Crown during the oral argument of this application.

[88] It is noteworthy that, in her Ruling on May 10, 2010 dismissing the Crown’s adjournment application seeking to postpone the applicant’s pending preliminary inquiry, Speyer J. alerted the Crown to this very possibility. More particularly, Speyer J. stated:

… I have to weigh that [the Crown’s interest in avoiding multiple preliminary inquiries] against the right of the accused to a trial within a reasonable time. I also have to weigh the fact that this is a preliminary inquiry that’s scheduled and not the trial proper. If the preliminary inquiry goes ahead as scheduled it may be that the Crown will have other avenues open to it with respect to the other … accused. For example, by joining them together in the Superior Court once their preliminary inquiry is dealt with, or even preferring an indictment in the Superior Court and joining them with the [two applicants].

[emphasis added]

[89] In this Ruling, Speyer J. held, in effect, that the applicants’ rights to be tried within a reasonable time, guaranteed by s. 11(b) of the Charter, prevented the Crown from delaying the prosecution against the applicants until the other accused could be joined with them in an information so that they might have a joint preliminary inquiry. Speyer J. also indicated, however, that the Crown might consider other procedural options, including seeking the consent of the Attorney General to prefer an indictment in the Superior Court of Justice joining the new accused together with the applicants. In my view, the Crown would have been well-advised to follow her advice and heed the effect of her Ruling. Instead, the Crown did not seek a preferred indictment from the Attorney General, but simply caused the same delay in the Superior Court of Justice, by its presentment of a new indictment, that it was not permitted to cause in the Ontario Court of Justice by virtue of the Ruling of Speyer J.[^2]

VII

Prejudice to the Accused

1. The Governing Legal Principles

[90] The primary purpose of s. 11(b) of the Charter is to protect the individual rights of accused persons. More specifically, s. 11(b) is intended to protect: (1) the right to security of the person, by minimizing the anxiety, concern and stigma of exposure to criminal proceedings; (2) the right to liberty, by minimizing exposure to restrictions on liberty from pre-trial incarceration and restrictive bail conditions; and (3) the right to a fair trial, by ensuring that proceedings take place while evidence is available and fresh. See: R. v. Morin, at pp. 786-787; R. v. Askov, at pp. 1219-1223.

[91] Prejudice to these individual rights is not presumed to have been suffered by an accused in every case. While some degree of prejudice may, in the appropriate circumstances, be inferred from the sheer length of the delay itself, it is up to the court as to whether or not to draw that inference in the circumstances. Of course, as a matter of logic, the longer the period of delay the more likely it is that such an inference of prejudice will be drawn. See: R. v. Morin, at pp. 786, 789; R. v. Sharma, [1992] 1 S.C.R. 841, at pp. 817-818, 828-829; R. v. Koruz; R. v. Schiewe (1992), 1992 ABCA 144, 72 C.C.C. (3d) 353 (Alta.C.A.) at p. 392; Affirmed: 1993 CanLII 130 (SCC), [1993] 1 S.C.R. 1134; R. v. White (1997), 1997 CanLII 2426 (ON CA), 114 C.C.C. (3d) 225 (Ont.C.A.) at pp. 238-245; R. v. Godin, at para. 31, 37.

[92] It is also important to keep in mind that the focus of the constitutional protection provided by s. 11(b) of the Charter is in relation to the prejudice that may arise from the delay in disposing of the matter, not the prejudice the accused may suffer as a result of having been charged with the commission of an offence. See: R. v. Conway, 1989 CanLII 66 (SCC), [1989] 1 S.C.R. 1659; R. v. Kovacs-Tatar, at para. 32-34. This principle is important in the present case as the Crown contends that most if not all of the prejudice that has been suffered by the applicants has been caused by the fact that they were charged with these offences.

2. The Evidence of Prejudice – Generally

[93] Both applicants provided affidavit evidence and viva voce testimony in support of their claims under s. 11(b) of the Charter. In their evidence, the applicants addressed the prejudice they suffered as a result of the criminal charges against them and the delays they encountered in the trial of those charges. While the applicants did not suggest that their fair trial interests were prejudiced as a result of the delays in this case, they did explain the prejudice they have suffered to their security and liberty interests. I accept their evidence. They struck me as credible, reliable witnesses. The Crown’s cross-examination did not cause me to question the veracity of their testimony.

[94] Yousef Pakjou is 47 years old. He is a Canadian citizen with no previous criminal record. Prior to these charges, he was in the business of importing and selling Persian rugs and antiquities. This business, which he started in 1995, had been successful and had provided him and his family with a comfortable living. His arrest, immediate detention, and the terms of his subsequent bail order, have had significant personal consequences. In jail, he suffered from insomnia. After his release, he was not able to effectively continue his business in the same way. He could not travel to purchase merchandise, and customers stopped dealing with him, apparently thinking he was involved in the illegal sale of drugs. The volume of his sales steadily diminished. Ultimately, he lost his business, his family home, his three cars, and his savings. His business continued to disintegrate until its doors were closed in 2010. He sold his cars in 2009-2010, and he sold the family home in 2010-2011. He now relies on social assistance and lives in a small apartment with his wife. He continues to suffer from clinical depression, which commenced shortly after he was taken into custody upon his arrest, and for which he takes prescribed medication.

[95] Parham Pakjou is 26 years old. He is also a Canadian citizen with no criminal record. Prior to these charges, he worked with his father in their family business. In his evidence he confirmed the financial and psychological impact that these charges had upon his father. He testified that his father has not been the same since his arrest. As to the effect that these charges and the delay in the trial has had on him personally, Parham testified that the conditions of his bail order prevented him from working for a significant period of time, and ultimately destroyed the financial stability he had previously enjoyed. He lost his apartment and had to sell his car in 2009. For several months, he survived on social assistance. He also explained that these charges caused him to suffer from anxiety and depression. He too was prescribed anti-depression medication upon his release from custody and he still remains under his doctor’s supervision.

3. Liberty Interests

[96] There is no doubt that the applicants have suffered prejudice to their liberty interests as a result of delay. Most obviously in this regard, both of the applicants spent some time in pre-trial detention. Yousef spent approximately five weeks in custody after his arrest before he was released on a successful bail review application. Parham spent 2½ months in jail before he was similarly released. The applicants explained the impact of this pre-trial detention. It is only fair to observe, however, that the applicants did not suffer this prejudice as a result of any delay in the prosecution of their charges. They would have suffered this same prejudice regardless of the speed with which the Crown pursued the case against them.

[97] Even after their release from custody, however, the applicants suffered prejudice to their liberty interests as a result of their strict conditions of judicial interim release.

[98] When he was originally released from custody, Yousef was prohibited from having any contact with his son Parham, except in the presence of a lawyer and for the purposes of preparing a defence to the criminal charges. He was required to remain in Ontario and surrender his passport and any other travel documents. He was also subject to a curfew between the hours of 9:00 p.m. and 6:00 a.m. each day, and was otherwise under “house arrest,” only being permitted outside his residence while in the presence of one of his sureties.

[99] This bail order was subsequently varied, with the Crown’s consent, a number of times. On June 7, 2010, it was varied to permit contact with his son, and to remove the curfew. Yousef remained under “house arrest,” however, except when in the company of a surety. On May 10, 2011, this bail order was again varied to remove the “house arrest” condition, and to permit him to travel outside Ontario with his surety. On January 31, 2012, this bail order was varied to permit Yousef to travel to Iran and Turkey for February and March of 2012. Finally, on August 28, 2012, this bail order was varied to permit him to travel overseas.

[100] Parham was subjected to similar restrictions on his liberty when he was released from custody. While he was not prohibited from contact with his father, that prohibition in his father’s bail order had the identical effect on him until it was removed. Further, Parham was required to remain in Ontario, and was also under “house arrest,” except while in the presence of one of his sureties, or between 8:30 a.m. and 5:30 p.m. for the purposes of attending university.

[101] This bail order was subsequently varied, with the Crown’s consent on a number of occasions. On June 1, 2009, this order was varied to remove the “house arrest” condition, but substitute a curfew between the hours of midnight and 6:00 a.m., except when in the presence of a surety. On February 9, 2012, this order was varied to remove the curfew. On June 28, 2012, this order was varied to permit him to travel outside of Ontario for work purposes, provided that he advised the investigating officer of his itinerary and notified him promptly of his return.

[102] While these judicial interim release orders were gradually relaxed to permit the applicants’ greater liberty, it is apparent that they caused significant prejudice to the applicants by interfering with the operation of their business, and their respective livelihoods. Some of the financial hardships suffered by the applicants are, no doubt, due to the mere fact that they were charged with these offences. I conclude, however, based upon the evidence of the applicants, that each of them also suffered some of these adverse financial consequences as a result of the delays in the prosecution of this case. I reject the Crown’s argument to the contrary.

4. Security Interests

[103] With respect to an accused’s security interests, s. 11(b) of the Charter provides protection against “overlong subjection to the vexations and vicissitudes of a pending criminal accusation,” and seeks to minimize the “stigmatization, loss of privacy, and stress and anxiety created by criminal proceedings.” See: R. v. Morin, at p. 786; R. v. K.(A.) and V.(A.) (2005), 2005 CanLII 80909 (ON CA), 195 C.C.C. (3d) 501 (Ont.C.A.) at para. 172; R. v. Duhamel, at para. 80.

[104] By the anticipated end of the trial in this case, the applicants will have had these criminal charges hanging over their heads for some four years, seven months and two weeks. Both of the applicants have been suffering from depression since shortly after their arrest. They both remain on anti-depression medication. They have also suffered a great change in their lifestyles given the sharp decline in their financial circumstances in consequence of these pending charges and the delays in their prosecution. In these circumstances, I conclude that the applicants have suffered significant prejudice to their security interests by the delays in the prosecution of these charges.

XIII

The Final Balancing Assessment

[105] In the final analysis, there must be a balancing of both the individual and societal interests sought to be protected by s. 11(b) of the Charter, together with an understanding of the total length of the delay and the causes of that delay. See: R. v. Morin, at p. 788; R. v. Batte (2000), 2000 CanLII 5750 (ON CA), 145 C.C.C. (3d) 498 (Ont.C.A.); R. v. Qureshi, at para. 10, 41; R. v. K.(A.) and V.(A.), at para. 184-197; R. v. Kovacs-Tatar, at para. 57-58; R. v. Bains (2010), 2010 BCCA 178, 254 C.C.C. (3d) 170 (B.C.C.A.) at para. 40-41, 66; R. v. Thomson (2009) 2009 ONCA 771, 248 C.C.C. (3d) 477 (Ont.C.A.) at para. 25; R. v. Steele, 2012 ONCA 383, at para. 31. As McLachlin J., as she then was, stated, in her concurring judgment in R. v. Morin, at pp. 809-810:

It is easy, in considering the factors which can bear on that determination, to lose sight of the true issue at stake – the determination of where the line should be drawn between conflicting interests. On the one hand stands the interest of society in bringing those accused of crimes to trial, of calling them to account before the law for their conduct. It is an understatement to say that this is a fundamental and important interest. Even the earliest and most primitive of societies insisted that the law bring to justice those accused of crimes. When those charged with criminal conduct are not called to account before the law, the administration of justice suffers. Victims conclude that justice has not been done and the public feels apprehension that the law may not be adequately discharging the most fundamental of its tasks.

On the other side of the balance stands the right of a person charged with an offence to be tried within a reasonable time. When trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.

The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused’s interest in prompt adjudication. In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial.

[106] There is no doubt an important public interest in a trial on the merits in this case. The applicants are charged with extortion and threatening death, both serious criminal offences to be sure. But in my view, this is one of those rare cases where the interests of the applicants and society in a prompt trial outweigh the interest of society in bringing the accused to trial on the merits. In reaching this conclusion I have considered all of the circumstances of this case, but place particular reliance upon the following considerations.

[107] First, the total length of the delay in this case is quite exceptional. Rarely do courts countenance total delays in cases of over 4½ years in the absence of some complexity or some compelling justification for the delays. While the Crown was able to cite authorities that have found no violation of s. 11(b) of the Charter despite even longer periods of delay, none of those authorities are factually comparable to the applicants’ case. For example, in R. v. Schertzer et al., one of the cases relied upon by the Crown, the court held that there was no violation of s. 11(b) of the Charter with respect to most of the accused notwithstanding a delay of four years and eight months. However, R. v. Schertzer was a case of vastly greater complexity and infinitely greater inherent time requirements than the relatively simple case against the two applicants. The R. v. Schertzer case involved an extensive Special Task Force investigation that spanned 2½ years, and generated literally hundreds of thousands of pages of disclosure. The preliminary inquiry in the Ontario Court of Justice took five months, as did the many pre-trial motions in the Superior Court of Justice. The R. v. Schertzer decision is simply not in any way comparable to this case – except for the way the Court of Appeal dealt with Benoit.

[108] Second, the criminal charges against the applicants were in no way complicated or complex. There were no significant inherent time requirements in this prosecution. The Crown’s case against the applicants consisted of, essentially, one important witness, Mr. Vala. This was not at all the kind of case that should take more than 4½ years to come to trial. The fact that the case against the other accused was much more complicated and depended upon different evidence, is not helpful in assessing the degree of complexity in the case against the applicants.

[109] Third, at no point did the applicants ever waive any of their s. 11(b) Charter rights. Indeed, at every opportunity, when the Crown suggested that they should delay the case so that all of the accused might be prosecuted together, the applicants strenuously resisted the adjournments and postponements sought by the Crown.

[110] Fourth, the main causes of the significant delays in this case, beyond the initial intake stage in the Ontario Court of Justice, must be attributed to the Crown. The Crown must accept responsibility for institutional delay and, in the Superior Court of Justice, that delay totaled 11 months and three weeks for Parham, and 10 months and one week in relation to Yousef. Both of these figures are beyond the permissible limits of systemic delay in this court. More importantly, however, by joining the two applicants with the other accused in a new indictment on the applicant’s originally scheduled trial date, the Crown effectively caused a total delay of some 16½ months. While there is certainly some overlap in relation to these totals, these are still significant delays that are attributable to the Crown.

[111] Fifth, as I have already outlined, the two applicants suffered significant prejudice to their respective liberty and security of the person interests as a result of the delays in the prosecution in this case.

[112] Finally, while the Crown had certain procedural steps reasonably available to it to try to expedite the joint trial of the applicants and the other accused – most notably the mechanism of a direct indictment preferred by the Attorney General or his Deputy – the Crown did not request that this step be taken. Instead of protecting the interests of the applicants in a trial within a reasonable time, as it was obliged to do when requiring a joint trial, the Crown caused significant, and in my view needless, delay in the prosecution.

[113] In cases like this one, where accused persons allegedly involved in the same offences enter the criminal justice system at significantly different points in time, the Crown must either diligently take the necessary procedural steps to have the accused quickly tried together, or be prepared to prosecute the accused separately. In cases where the initially charged accused are suffering significant prejudice from delay, it is not acceptable for purposes of s. 11(b) of the Charter to simply make them wait until it is more convenient for the Crown to try them together.

IX

Conclusion

[114] In the final analysis, after considering all of the relevant factors, and all of the circumstances of this case, I am satisfied that the applicants have established that their rights to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter, have been violated. In the result, there is no alternative but to stay the criminal proceedings against the applicants. See: R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588. The proceedings against them are, accordingly, stayed.

___________________________

Kenneth L. Campbell J.

DATE: March 7, 2013

COURT FILE NO.: 117/12

DATE: 20130307

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

- and -

PARHAM PAKJOU and

YOUSEF PAKJOU

REASONS FOR JUDGMENT

Pretrial Ruling on

Section 11(b) Charter Application

Kenneth L. Campbell J.

Released: March 7, 2013

[^1]: This formal Crown Policy Manual statement on “Direct indictments” is conveniently available online at: http://www.attorneygeneral.jus.gov.on.ca/english/crim/cpm/2005/DirectIndictment.pdf

[^2]: This was not the only time the Crown received helpful judicial “advice” in relation to this matter. On May 31, 2010, when Mr. Vala failed to appear at the scheduled preliminary inquiry and the Crown was forced to seek a brief adjournment, the parties returned to a discussion of the potential joinder of the accused. During this discussion, Fairgrieve J. expressed the view that it was “unreasonable” for the Crown to expect the applicants, who have had their charges outstanding for months, to be “kept waiting” for the other accused to get through the system, and that this “obliged” the Crown to “exercise some diligence” in dealing with the other accused, especially since the charges against the applicants were not particularly complicated.