SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-12-90000085-0000
DATE: 20131010

RE: R. v. Khalid Mohamed

BEFORE: Molloy J.

COUNSEL:
Kandia Aird, Counsel for the Crown (Responding Party)
Anthony La Bar, Counsel, for the Defendant (Applicant)

HEARD: October 7, 2013

ENDORSEMENT

(Application under s. 11(b) of the Charter)

Introduction

[1] Khalid Mohamed was charged with possession of cocaine for the purpose of trafficking. At the outset of his trial before me, sitting without a jury, he sought an order staying the charge based on the delay in getting the matter to trial, which he alleged violated s. 11(b) of the Charter. I dismissed that application indicating that reasons would follow. The trial proceeded, at the conclusion of which I acquitted Mr. Mohamed of the charge against him, for oral reasons delivered at that time. My reasons with respect to the s. 11(b) application are set out below.

Background Facts

[2] The date of the alleged offence was August 7, 2011. Mr. Mohamed was arrested on August 10, 2011. His trial commenced before me on October 7, 2013, a total delay of approximately 26 months.

[3] There was a preliminary hearing in the Ontario Court of Justice, which concluded on January 3, 2012 with Mr. Mohamed being committed for trial. There is no issue with respect to any delay in the provincial court. Both counsel agree that there was a normal intake period and a total of approximately two months of institutional delay after that, over and above the inherent time requirements of the case. These times are well within the general guidelines established by the Supreme Court of Canada in Morin.[^1]

[4] The progress of the case in the Superior Court of Justice is more problematic. The first appearance was on February 29, 2012 and a judicial pretrial was conducted on March 14, 2012. At that point, a trial date was set for January 7, 2013 (a period of approximately 10 months). Defence counsel concedes, and I agree, that if the trial had proceeded on January 7, 2013, there would be no basis for staying the case for delay.

[5] Unfortunately, there was no judge available to hear the case during the week of January 7, 2013. Therefore, on January 9, 2013 the case was adjourned to the next available trial date, which was October 7, 2013. That is a delay of a further 9 months.

Analysis

[6] There was no waiver of any time periods and no delay caused by the actions of either the Crown or the defence. There was nothing about this case to increase the normal amount of time required to process any criminal case. There are three periods of delay characterized by the defence as institutional delay due to lack of resources in the court: 2 months in the provincial court; 10 months in the superior court up to the first trial date; and 9 months in the superior court prior to the second trial date. The Crown accepts that this is the correct characterization of the delay, and I agree. The Crown raises one caveat relating to the defence estimate of the time required for the trial, which I consider to be a valid point and to which I will return.

[7] In Morin, the Supreme Court held that institutional or Crown delay of between 14 and 18 months would usually be acceptable for a case that proceeded through a preliminary hearing and then to trial in the superior court. This case took 26 months to reach trial post-arrest, including institutional delay totaling approximately 21 months. Clearly, that is sufficient delay to warrant scrutiny by the court.

[8] Given the length of the delay, prejudice to the accused can be inferred. In this case, the defence also alleges actual prejudice beyond that which can be inferred because of the length of the delay.

[9] Mr. Mohamed testified that the delay has caused him considerable stress, that he has had trouble eating, has lost weight and was prescribed medication by his doctor to control his nausea. It is difficult to assess what weight to give to this evidence given that Mr. Mohamed did not produce any documentary evidence to support it, no medical reports, no prescription receipts or copies and, indeed, could not remember the name of the doctor he had seen. I accept that there was some stress and that the delay exacerbated that stress, but I do not find it to be very serious.

[10] Mr. Mohamed was 18 years old at the time of his arrest and was held in custody until granted bail on November 15, 2011, after a successful review of the original decision refusing bail. He was in custody for 96 days spread over three different institutions. He testified about how difficult this time was for him. While I do not doubt this fact, the time spent in custody was as a result of the charge against Mr. Mohamed. It occurred for a relatively short period of time immediately following his arrest. It is not prejudice relating to the delay.

[11] Upon his release from custody, Mr. Mohamed was placed under bail terms that included house arrest, which stayed in place until January 11, 2012 when his trial date was adjourned. The defence position is that these original bail conditions were very onerous and were a significant restriction on Mr. Mohamed’s liberty. Clearly, there was some restriction of liberty. However, there were exceptions to permit Mr. Mohamed to attend school, to go to and from school, and to leave the house at any time when accompanied by his sureties. Although Mr. Mohamed was young, he was not without criminal antecedents and in the circumstances I do not consider the terms to have been overly onerous.

[12] One of Mr. Mohamed’s complaints about this period of time, as set out in his affidavit, is that he was unable to “assist or meaningfully participate in his girlfriend’s pregnancy.” His girlfriend became pregnant with his child in March 2012 (during the period of his house arrest), and the baby was born on December 4, 2012. On cross-examination, Mr. Mohamed testified that what he meant by this statement about his inability to assist his girlfriend during the pregnancy was that he could not go to visit her without his surety, which was sometimes difficult, and that he was unable to get a job to support her. However, he also testified that he made considerable attempts to get jobs in Toronto without success and that his bail conditions did not interfere with his ability to search for a job. He said he had a job offer to work as a fork lift operator in Edmonton and that his bail conditions prevented him from taking that job. It is difficult to reconcile Mr. Mohamed’s testimony that he was prejudiced by not being able to visit his pregnant girlfriend because of his bail terms with his testimony that he wanted to move to Edmonton for work while she was here in Toronto.

[13] Further, Mr. Mohamed provided no evidence to confirm this alleged job offer. He said that the job offer was still available to him at the time of trial. He alleged in his affidavit, and in his testimony, that he applied for a bail variation to enable him to work in Edmonton, but in fact, no such application was ever made. Mr. Mohamed’s former counsel sent a letter to the Crown in August 2012 inquiring as to the Crown’s position on such a variation, but no application was ever brought. Mr. Mohamed denied any knowledge of the Crown’s request for further, and more concrete, evidence of the job offer in Edmonton. That may well be the case. However, the fact remains that no solid evidence of the job offer was ever provided, at that time or since, and no actual application for variation was ever made.

[14] There is a further complicating factor. In May, 2012 Mr. Mohamed breached the house arrest term of his bail. Further, when he was stopped and questioned by the police, he gave them a false name. He was arrested and charged with breaching his bail and obstructing justice. Those charges were resolved on June 26, 2012 on the basis of time served plus one day. Given this conduct and the failure to seek a variation of any terms of the bail alleged to be overly onerous, it is difficult to attribute much credit to Mr. Mohamed’s evidence that he was seriously prejudiced by his bail restrictions during this time period.

[15] In any event, while recognizing that there is a cumulative affect from prejudice, I do note that this house arrest term of the bail was during the period of time when the delay was not so serious as to constitute a breach of the Charter. Once the initial trial date was not met, a bail variation was sought by the defence, was consented to by the Crown, and was granted by the court.

[16] It is also important to note that the variation sought by the defence was to change the house arrest to a curfew, and that the reason for this was to permit Mr. Mohamed to be able to spend more time with his child. Mr. Mohamed acknowledged that the variation accomplished this objective and he was able to spend time with the baby. However, the mother of the child moved with the baby to Edmonton in July 2013. Although Mr. Mohamed maintains that the job offer in Edmonton was still open to him, and that he wanted to move there to take that job, he took no steps to do so at any time prior to the commencement of trial and sought no further bail variations.

[17] Finally, there is the issue of timing and the estimates of trial length. Mr. Mohamed sought a jury trial, which is his right. He gave notice of his intention to bring a Parks challenge at the time of jury selection. He also brought an application under s. 8 of the Charter seeking to exclude the cocaine seized by the police from a car not owned by him. The cocaine was seized from the car after the driver of the car abandoned it and fled from the police. The two police officers who attempted to stop the driver and seized the cocaine testified at the preliminary hearing (and at the trial before me) that the driver was Mr. Mohamed, but their identification of him was pinpointed as a key issue for the defence at trial. In these circumstances, Mr. Mohamed’s standing to bring the s. 8 application was challenged by the Crown and would have been a difficult hurdle to overcome.

[18] At the initial trial date on January 7, 2013, Mr. Mohamed maintained his request for a trial before a jury – a trial that would be significantly more complex and longer than a judge-alone trial, both because of the selection of the jury and jury charge and deliberation process and because all of the evidence would be heard twice (once on the s. 8 application before the judge, and then again before the jury at trial). However, when the matter actually came on for trial in October, 2013, Mr. Mohamed re-elected to be tried by a judge sitting alone and abandoned his s. 8 application. The trial went from being seven days in length to less than two days. I am not suggesting that an accused person is not entitled to a jury trial, nor am I saying that there is anything wrong with filing Charter motions even if they are later abandoned. However, the reality of the situation is that two-day judge alone trials are far easier to accommodate in the court schedule than seven-day jury trials, particularly over periods of time that include the summer vacation period. If Mr. Mohamed had exercised his options earlier, it is very unlikely that the delay in re-scheduling his trial would have been anything close to nine months, if there would have been any delay at all.

[19] This is by no means a determinative factor, but I believe it is a relevant issue to consider in weighing the interests of the public in having criminal charges resolved on their merits as against the relative prejudice to the accused arising from delay.

[20] I accept that there was prejudice to Mr. Mohamed because of the delay. I also accept that his degree of stress resulting from the charges themselves was exacerbated by the delay and that there was some interference with his ability to work. However, I do not find this prejudice to be significant. The case involved a large quantity of cocaine left in a car by a driver who was operating that car along a public walkway in a housing project. There is a significant public interest in having such cases decided on their merits. The guidelines outlined in Morin are simply that – guidelines. They are not hard and fast rules. Further, in this case, the extent to which the delay deviated beyond those guidelines was not excessive. In all of the circumstances, I find that any prejudice to Mr. Mohamed does not outweigh the public interest in a trial.

Conclusion

[21] Accordingly, the defence application for a stay was dismissed by me on October 7, 2013.

MOLLOY J.

Date: October 10, 2013

[^1]: R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771