Court File and Parties

COURT FILE NO.: 688/13 DATE: 20160819

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Andrew Falls, for the Respondent/Crown Respondent

- and -

WAYNE ISAACS and AZHAR HUSSAIN Harry Doan, for Wayne Isaacs Mark Fahmy, for Azhar Hussain Appellant

HEARD: September 22, 2015

Reasons for Adjournment

DURNO, J.

[1] On October 31, 2014, Wayne Isaacs and Azhar Hussain, agreed to an October 5, 2015 trial date with a three-month estimate for the jury trial. Mr. Isaacs was represented by Mr. Doan who was on the record as counsel. Mr. Fahmy had only been retained by Mr. Hussain to bring an application for the release of seized funds for legal fees. While he participated in the pre-trial conference at which the time estimate was obtained, he was not retained for trial. Mr. Hussain’s trial date was set with or without counsel.

[2] By notice of application returnable September 11, 2015, Mr. Hussain applied to adjourn his trial date because Mr. Fahmy was not retained until August 27, 2015, would have insufficient time to prepare for trial and had not been granted Big Case Management funding approval for the required preparation. Further, Mr. Fahmy submitted that he now thought the three-month trial estimate was inadequate and that the trial would be longer.

[3] Mr. Isaacs also applied to adjourn the trial date because he had not retained Mr. Doan. In the circumstances, Mr. Doan was not prepared for trial.

[4] Mr. Coughlan appeared for the Crown and sought an adjournment of the application so that the assigned Crown, Andrew Falls, could be available to argue the application and file responding material. He indicated that the Crown was opposed to the adjournment as framed but could be open to starting the trial three or four weeks later.

[5] The application was adjourned to September 22, 2015, and the Crown filed responding material. At the outset, Mr. Fahmy sought an adjournment of the application to prepare responding material until Mr. Falls clarified the Crown’s position in regards to Mr. Hussain’s diligence in pursuing counsel for the purposes of the application.

[6] Mr. Fahmy submitted that his first available date for a three-month trial would be in August of 2016. Mr. Doan did not provide his available dates. He submitted that while he was seeking to adjourn the trial date, his client had raised the issue of s. 11(b) as the case had been outstanding for a considerable period of time. Mr. Falls for the Crown indicated he would look forward to responding to any s. 11(b) application.

[7] Mr. Fahmy said that the disclosure involved 110,000 files over 25 gigabytes of data. The preparation would take seventy-five 24 hour days. He had not reviewed the disclosure because he had no approval for funding for the preparation that was required. While an agreement was reached, because of the anticipated length of the trial, it required approval for Big Case Management at Legal Aid Ontario. No application had been made for that approval as of September 22, 2015.

[8] Mr. Fahmy was unable to advise what pre-trial motions would be brought nor how long they would take. He described himself as being “in the dark” about what the case was about. While he had indicated some uncertainty about being “ready to go” on October 5, 2015 when retained, it became apparent on August 28, 2015 that the October 5 trial date was not feasible.

[9] Mr. Falls opposed the application which was simply to adjourn the trial date. However, he suggested that the pre-trial motions should be held later in the three-month period with the trial at a later date. Mr. Falls submitted that the Court was “stuck” and had “little choice” but to adjourn the October 5, 2015 trial date.

[10] At the conclusion of the application I adjourned the trial date and set the week of December 5, 2015, for the applications in relation to Mr. Hussain’s statements to be determined with the trial set for September 12, 2016 for three months with further pre-trial conferences to be held. I indicated in the course of submissions that I was leaving for a vacation in three days and would provide reasons at a later date. While the notes and summary of the ruling were prepared, I neglected to finalize and release the reasons. The reason arose during a case management conference with the trial judge and the issue brought to my attention.

[11] I have reviewed the summary, my notes from the applications and listened to the arguments again. These are the reasons why the adjournment was granted and the dates set for December 7, 2015, and September 12, 2016.

Reasons for the Adjournment

[12] This case has a very lengthy history. It has been one of the more frustrating cases to case management that I have encountered. The case started with five co-accused’s. Only the applicants remain. With regards to Mr. Hussain, he was not represented by counsel at the preliminary inquiry.

[13] Once in the Superior Court, Mr. Hussain retained Mr. Fahmy to apply for the release of funds seized from him to be used for legal fees. The indictment shows ten dates between January, 2014 to August 24, 2015, when either the application for the return of seized funds or a Rowbotham application was noted. No application to return funds was ever brought and after three appearances an out-of-court agreement was reached for funding. The Rowbotham application was set for July 24, 2015, adjourned to August 14 and finally to August 24 when the endorsement notes that it was abandoned as an agreement had been reached.

[14] At a pre-trial conference Mr. Fahmy advised that he thought the trial would take 3 to 4 months. Having neither conducted the preliminary inquiry nor reviewed the disclosure it is not readily apparent on what basis he reached that conclusion. Neither counsel was prepared to have an Agreed Statement of Facts for certain witnesses so there was no prospect of the trial time being reduced to one month as had been the hope at previous pre-trial conferences. During submissions on this application, Mr. Doan said that his client could not agree to the losses by the insurance companies because if convicted, the Crown would seek a fine in lieu of forfeiture.

[15] With regards to Mr. Isaacs, Mr. Doan conducted the preliminary inquiry and appeared on his behalf on at least twenty dates in the Superior Court from October, 2013. There was no indication on the indictment that he was not retained for trial. However, there were appearances at which he had been unable to contact and/or have Mr. Isaacs respond to his inquiries. The problems, that I infer included retainer issues, were such that I issued a bench summons ordering Mr. Isaacs to court so that Mr. Doan could speak with him and on another date ordered him to attend personally. There were references to him having other expenses to which he gave priority.

[16] As of September 22, 2015, Mr. Doan was still not retained. What he had was Mr. Isaacs’ statement that his employer was willing to pay the legal fees. Mr. Isaacs’ application to adjourn the trial date was described as something akin to an application to be removed as counsel of record because his position was that he was not prepared for trial and not retained. While not binding on the Court, the Law Society Rules of Professional Conduct with regards to getting off the record close to trial would have been a very large hurdle on an application to be removed as counsel of record.

[17] While my initial reaction to the application was not favourable, I reluctantly agreed with the Crown’s assessment that there was simply no option. It was essentially a “gotcha” application by two accused charged with serious and sophisticated offences who were not prepared for trial. I understand the difficulties Mr. Doan had with Mr. Isaacs in getting him to focus on and address the issues that had to be addressed for this trial such as retainer. I accept how frustrating it must have been for counsel.

[18] Since it was raised on both dates of submissions, Mr. Isaacs’ concerns for s. 11(b) of the Charter and the length of time his case has been outstanding had to be considered notwithstanding his waiver of s. 11(b). The oft forgotten secondary element of s. 11(b), the public interest in a trial on the merits, is an important consideration. There was court time, a courtroom and assigned judge ready to proceed to trial. From Mr. Isaac’s perspective, his s. 11(b) concerns do not appear to have been an issue to which he was prepared to give priority over the past many months.

[19] In addition, for decades an important consideration in the s. 11(b) analysis is when all counsel are ready for trial and the court cannot accommodate the case or the defence is ready to go and the Crown is unavailable or not prepared. It is not readily apparent when Mr. Isaacs was prepared for trial on this record. Obviously, it was not on September 22, 2015. There is no suggestion that he was ready for trial on an earlier date and had become unprepared in 2015.

[20] From Mr. Fahmy’s representations, it was also apparent that Mr. Hussain was not prepared for trial on September 22, 2015. I am unable to see on this record that he was ever ready for trial at an earlier date. Based on Mr. Fahmy’s estimation of the time required to prepare for trial, even using 12 hour preparation days, it would be over five months. While I did consider Mr. Isaac’s s. 11(b) concerns, this is not the time or place to examine in depth the merits of s. 11(b) concerns for Mr. Isaac or of Mr. Hussain who alluded to the long time the case was outstanding.

[21] What the application came down to was practical considerations. They start with the Crown’s realistic position. This was a first trial date. While higher courts may not put it quite this way, absent a finding that one or both accused were deliberately delaying the proceedings or otherwise “playing games,” I seriously question whether the denial of the adjournment would be upheld if the applicants were convicted having represented themselves (assuming Mr. Doan was not forced to act while unprepared) and appealed.

[22] An outright adjournment made no sense in general and less sense given Mr. Isaacs and society’s s. 11(b) concerns. Mr. Fahmy was not available for a three-month trial until August, 2016. In the particular circumstances and with Mr. Isaacs waiving his s. 11(b) rights to the next trial date, the most prudent course was to set the pre-trial motions in regards to Mr. Hussain’s statement for the end of the three-month period and the trial in September, 2016.

[23] While Mr. Fahmy was available in August, 2016 for trial, to empanel a jury for a three to four month trial at any time can be a challenging endeavor. To try to do so in the midst of summer vacations for jurors made no sense. While very few exceptions have been made in the normal course, Brampton has full sittings for four weeks in the summer starting the last week of July. In those circumstances, I set the trial date for September 12, 2016.

DURNO, J.

Released: August 19, 2016

COURT FILE NO.: 688/13 DATE: 20160819 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent

• and – WAYNE ISAACS and AZHAR HUSSAIN Applicant REASONS FOR ADJOURNMENT Durno J. Released: August 19, 2016