Her Majesty the Queen v. Wayne Isaacs and Azhar Hussain, 2016 ONSC 6214

COURT FILE NO.: CR-13-888-00 DATE: 2016 10 12

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen A. Falls, Counsel for the Respondent Respondent

• and -

Wayne Isaacs and Azhar Hussain H. Doan, Counsel for Wayne Isaacs M. Fahmy, Counsel for Azhar Hussain Applicants

HEARD: September 19, 20, 22, 23, 26-30 and October 3, 2016

REASONS FOR JUDGMENT ON 11(B) APPLICATION

LEMAY J.

[1] This is an 11(b) application brought by both of the accused, Wayne Isaacs (“Isaacs”) and Azhar Hussain (“Hussain”), claiming that they have not been tried within a reasonable time. Both accused are charged with committing a fraud for a criminal organization (s. 467.12), conspiracy to commit a fraud (s. 465(1)(c)) and possession of property obtained by a crime (s. 354(1)(a)). In addition, Mr. Isaacs is charged with instructing the commission of a fraud for a criminal organization (s. 467.13(1)).

[2] These charges were all laid in 2011. The matter was to proceed to trial before me commencing on September 12th, 2016 as a jury trial. At a trial management conference on August 8th, 2016, counsel for both accused advised that they might bring a motion under section 11(b) of the Charter to have the charges stayed for delay: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s.11(b). Counsel subsequently advised that they were bringing this motion, and a timetable was set for the filing of materials.

[3] The basis for this motion was the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, 398 D.L.R. (4th) 381. This decision provides a new framework for the consideration of delay in criminal cases, including ceilings over which the delay is presumptively unreasonable. It also provides transitional provisions for cases that are already in the system, in order to prevent the wholesale staying of criminal charges that followed R. v. Askov, [1990] 2 S.C.R. 1199, 59 C.C.C. (3d) 449.

[4] The complex factual and procedural history of this case requires me to analyze both the new framework in Jordan, supra, and the transitional provisions set out in Jordan. It is helpful to start with a review of the underlying allegations and procedural history in this case.

Underlying Allegations and Procedural and Investigative History

a) The Allegations

[5] I have set out the charges above. The Crown outlined the theory of their case in the voir dire. I heard testimony from Constable Glen Morash, who became the Officer in Charge (“OIC”) of this case in late April of 2011. None of the Crown’s allegations have been proven at this point and what follows is my summary of the allegations.

[6] Constable Morash testified about the alleged fraud, the investigation and the work that he did to produce records in this case. From this testimony, I understand that the Crown’s case will be that Mr. Isaacs, who worked as a tow truck driver, and Mr. Hussein, who had an ownership interest in a physiotherapy clinic, were involved in a scheme whereby they would stage motor vehicle accidents (“MVA’s”) and then claim accident benefits from various insurance companies.

[7] The scheme involved approximately fourteen (14) accidents and, in most cases, they were staged. In a few cases, there were accidents that actually took place, but in those cases, the people involved were allegedly coached to exaggerate the extent of their injuries. The staging was done with several people in each car, and an accident report would be prepared by a friendly Peel Police Officer, Carlton Watson. Mr. Watson has been convicted in a separate trial, and is out on bail pending appeal.

[8] Once the accident report was completed, claims for various benefits would be made. These claims would include income loss benefits for individuals who were in the cars, as well as property damage claims as a result of damage to the cars. There would also be claims for various statutory benefits such as physiotherapy, medical assessment and chiropractic benefits. These claims would be advanced through one or more clinics.

[9] At the centre of the Crown’s allegations are three medical assessment and/or physiotherapy clinics and four individuals in addition to Cst. Watson. The three clinics are PhysioMed Hanson, Work Plus Assessments and Brampton Total Rehabilitation. These clinics were all owned and/or operated by one or more of the individuals involved in the fraud, and each clinic was also involved in the fraud. At this stage in the proceeding, I have not heard much evidence about the actual workings of the clinics or of their ownership structures.

[10] The individuals were the accused in this case as well as two other individuals. Mr. Isaacs worked as a tow truck operator and is alleged by the Crown to be the leader of the criminal organization. Mr. Hussein had ownership interests in the clinics. In addition, there was a Dr. Balraj Thind, who is a chiropractor, and an individual who was identified as Mr. Kenny Arora.

[11] In the course of the investigation, it became clear to the police that Mr. Arora was using an alias. Part of the investigation involved following up on a quantity of false identification. Eventually, he admitted to his real name in Court: Kishan Wadhwa. I will refer to him throughout these reasons as Mr. Arora, as that is what was on the indictment and the bulk of the transcripts that I reviewed.

[12] In October of 2013, all four individuals were committed to stand trial for various charges relating to this scheme after a preliminary inquiry in the Ontario Court of Justice, and they were all included on the same indictment. However, neither Dr. Thind nor Mr. Arora is part of this indictment any longer. Dr. Thind brought a certiorari application shortly after his case arrived in the Superior Court of Justice, and the charges against him were ultimately withdrawn by the Crown. Mr. Arora, who had been held in jail for more than two years after being charged, entered a plea and was sentenced in early 2014. I am not aware of the details of this plea.

b) Investigative History

[13] An investigation was begun by Peel Police’s Internal Affairs unit in the fall of 2010 into whether Cst. Watson had been falsifying MVA reports. This investigation was started because of a tip from a confidential informant. The focus of the internal affairs investigation was on the falsification of the MVA’s.

[14] However, on April 14th, 2011, a series of search warrants were executed on various locations, including some of the clinics. These warrants were executed by officers from both Internal Affairs and the Fraud Bureau. At that time, Mr. Isaacs was charged and released from the station. It is also at this time that Cst. Morash became involved in the case. The information respecting Mr. Isaacs was sworn on May 11th, 2011.

[15] In April of 2011, the Fraud Bureau took over the investigation relating to all of the principal suspects except Cst. Watson. Further investigations were completed in the summer of 2011, and on September 6th, 2011, Mr. Isaacs was re-charged. At the same time, charges were laid against Mr. Arora and Dr. Thind. Mr. Hussein was travelling in India, and was not charged until his return on September 30th, 2011.

[16] Both Mr. Hussein and Mr. Isaacs were held in jail for a period of time. Mr. Isaacs was held in jail from his arrest on September 6th, 2011 until a detention review application in the Superior Court resulted in his release on December 24th, 2011. Mr. Hussein was held in jail from September 30th, 2011 until November 18th, 2011.

[17] As part of the investigation, there were more than ten (10) search warrants executed, as well as at least five (5) third party production Orders that were issued against various banks. Some of the search warrants were for safety deposit boxes.

[18] Cst. Watson, as a Peel Police officer, was prosecuted separately by a retired Durham Region prosecutor. His case went to a jury trial last year. While the charges laid in April of 2011 against Mr. Isaacs were part of the same indictment with Cst. Watson’s charges, the April 2011 charges against Mr. Isaacs were dropped on April 15th, 2012 while the case was still in the Ontario Court of Justice.

[19] In the course of the investigation, the Insurance Bureau of Canada (“IBC”) assisted the police by providing them with several boxes of documents, along with a detailed spreadsheet outlining the claims that were made (by type), along with the claimants and an indication of who received the money. The spreadsheet itself was filed as an exhibit on this motion, both electronically and in printed form. The printed copy is an 8 foot by 4 foot scroll of paper covered in 8 point font. I used the electronic version in my review of testimony and evidence.

[20] In addition, in executing the search warrants the police seized a quantity of documents as well as a number of computers. I will briefly review the documents that the police seized and then turn to the computer records.

[21] Two issues arose with respect to the documents. First, there were in excess of 70 banker’s boxes of documents that were reviewed and produced by the Peel Police in this case. Second, many of the records seized from the medical clinic related to patients who had allegedly made fraudulent benefit claims. These records were arguably subject to issues relating to privilege, which caused Cst. Morash to begin to redact certain personal information from these records. This process, which was cumbersome and time-consuming, went on until Crown Counsel (Mr. Stephen Sherriff) determined that the patients who had allegedly made fraudulent claims were unindicted co-conspirators and the whole records could be disclosed without redaction.

[22] Then there are the computer records. There were more than ten electronic devices seized, including computers, an iPad and cell phones. These computers were all imaged, which took from April of 2011 to September of 2012. The records were then produced after the preliminary inquiry was scheduled. They amount to approximately 19 Gigabytes (GB) of data.

[23] Counsel for Mr. Hussein alleges that the computer records were completely irrelevant to the case and should not have been disclosed by the Crown. Indeed, Mr. Fahmy argued that the disclosure of these records by Cst. Morash was a tactic designed to make life more difficult for the defence counsel and, as a result, the extra time that the defence required to review these documents should not count towards delay. I will return to that issue below.

[24] However, from a factual perspective, I note the following: a) There were documents that were produced from the computer searches that were duplicative of the documents in the original disclosure. Those documents were relevant. b) Mr. Fahmy put a document that he thought was irrelevant to Cst. Morash. That document, according to Cst. Morash, could have assisted in the identification of Mr. Arora’s real name. I find that the document might have corroborated the identity of Mr. Arora and was, therefore, arguably relevant. c) Mr. Falls provided a document that was a phone list showing the telephone numbers and other contact information of some of the accused. Again, this document is arguably relevant.

[25] Given the foregoing, I find that the disclosure that was provided from the computers contained at least a few documents that were arguably relevant to this case. In reaching this conclusion, I acknowledge that Cst. Morash stated that these documents did not have any investigative value. He went on to state that he did not know if they had any value to the defence.

[26] However, at least a few of these documents do have some arguable relevance, at least at first blush, to the facts in issue in this case. As a result, and as indicated above, I find that there were at least a few documents in the computer searches that were arguably relevant to the Crown’s allegations. The legal effect of this disclosure and my factual conclusions about it will be considered below.

d) The Procedural History

The Ontario Court of Justice

[27] The parties appeared in the provincial court at different times, as Mr. Isaacs was charged in April of 2011, and Mr. Hussein was charged at the end of September, 2011. There were a number of appearances before Justices of the Peace between September of 2011 and early May of 2012. During that time, there were a number of discussions about scheduling a Judicial Pre-Trial. The Crown was anxious to have a JPT set, while some of the parties were concerned about the lack of disclosure.

[28] A JPT in the Ontario Court of Justice was eventually set for May 23rd, 2012, and the JPT continued over several months. During that time, at least one of the accused (Dr. Thind) elected for a trial by judge and jury.

[29] At an appearance on September 7th, 2012, the Ontario Court of Justice set hearing dates for the preliminary inquiry. The preliminary inquiry took eighteen (18) days over five weeks, running from May to July of 2013. There were more than 40 witnesses called, and the preliminary inquiry involved four accused, including Mr. Hussein who was self-represented at the time.

[30] A decision release date of September 26th, 2013 was provided by the Ontario Court of Justice. However, the decision had not been completed at that time, and the release date was changed to October 11th, 2013. At that time, all four of the accused (including Dr. Thind and Mr. Arora) were committed to stand trial on various charges.

The Superior Court

[31] The case arrived in the Superior Court for a first hearing on November 8th, 2013. The parties were originally offered a date of October 25th, 2013, but the defence was not available. Both accused acknowledge, on this motion, that the fourteen day delay between October 25th, 2013 and November 8th, 2013 is defence delay within the meaning of Jordan because counsel for the defence was not available to attend the Superior Court on October 25th, 2013, which was a date available to both the Court and the Crown.

[32] On November 8th, 2013, a pre-trial date was set for November 26th, 2013. At that pre-trial, the matter was adjourned for a number of reasons that I will explore below. Ultimately, quite a number of pre-trial dates and speak to dates were scheduled between November 26th, 2013 and October 31st, 2014.

[33] During that time, Mr. Arora pled guilty and the charges were withdrawn against Dr. Thind.

[34] On October 31st, 2014, Durno J. set trial dates starting October 5th, 2015 for both Mr. Hussein and Mr. Isaacs, with the matter to proceed “with or without counsel.” Any motions were to be brought at the outset of trial.

[35] On August 28th, 2015, counsel for both accused advised the Court that they might be bringing motion for an adjournment. Eventually, that motion was heard on September 22nd, 2015. Durno J. reluctantly granted that adjournment request for reasons I will review below.

[36] Between the adjournment in September of 2015 and the scheduled trial in September of 2016, Mr. Hussein brought a motion to determine the voluntariness of two statements that he had given the police. That motion was argued before Fragomeni J. over ten (10) days starting in December of 2015, and a decision was released in the summer of this year. I have not reviewed that decision.

[37] Finally, I held a trial management conference in this matter on August 5th, 2016. At that conference, counsel for the accused raised (for the first time) the issue of bringing a Jordan application in this case. I required the accused to decide whether they were bringing this application within a week of that trial management conference and to attend before Durno J. to advise him as to their decision. Transcripts were to be ordered, and materials were to be filed so that the application could be heard commencing the week of September 12th, 2016. The jury pool was originally scheduled to attend during the week of September 19th, 2016, as the trial was expected to commence then.

[38] In order to ensure that everything was proceeding as planned, Durno J. directed the parties to appear before me on September 6th, 2016 for a further trial management conference if they were going to be unable to complete their Jordan materials in a timely way. They duly appeared before me, and requested another week before proceeding with the hearing of this motion as the defence had only just received the last of the transcripts. I adjourned it to September 19th, 2016. Both accused re-elected to be tried by a judge alone at the appearance on September 6th, 2016. The Crown consented to this re-election.

[39] This motion has been heard over two weeks. Delays resulted from a procedural issue (as set out below) and as a result of the accused Isaac’s medical condition. Specifically, I was advised that, after Court adjourned on September 22nd, 2016, Mr. Isaacs suffered a heart attack. He attended in Court the next day, and after brief discussion with counsel, the matter was adjourned to Monday, September 26th, 2016.

[40] On September 26th, 2016, I was advised that Mr. Isaacs was ready to proceed, but had a medical appointment on Wednesday, September 28th, 2016 at 2:00 pm. As a result, I continued to hear evidence on Monday and Tuesday, as well as Wednesday morning. Court commenced at 8:45 am on Wednesday in order to minimize the lost time.

[41] Mr. Isaac testified that he had a heart attack on Thursday, September 22nd, 2016. Medical evidence was filed in support of this, but all it states is that Mr. Isaacs had chest - crushing pain, and that it was resolved with medication.

[42] An adjournment was also sought by Mr. Isaacs’ counsel for his own personal medical appointment on the morning of September 29th, 2016. As a result, Court did not start until 2:00 pm on that day, and concluded around 5:00 pm to minimize the lost time. We did not complete the evidence and returned to complete it on Friday morning. The evidence was eventually completed at the end of the day on September 30th, 2016, and the parties provided argument for a full day on October 3rd, 2016.

[43] Finally, I should note that, on Monday, September 26th, defence counsel asked for additional disclosure of Cst. Morash’s notes. These notes, which were disclosed, are not part of the evidence, but they relate to Cst. Morash’s work in providing disclosure to the Crown and defence. As a result, they were relevant and should have been disclosed earlier.

[44] I should address one issue in terms of evidence. On several occasions during the course of the last couple of days of hearing, I made rulings that limited a party’s ability to call evidence about the details of the Peel Police’s investigation and the details of the disclosure that the Crown had provided to the defence. I will review the limited evidence that I received below. The reasons for limiting the evidence were both practical and legal, and included the fact that had I permitted an unfettered inquiry into the minutiae of the investigation, it would have taken weeks of evidence. Indeed, as it was, Cst. Morash was cross-examined over parts of four (4) days.

[45] However, in limiting the evidence the parties called on these issues, I advised them that, if they required a granular, detailed review of the investigation to advance their positions on this motion, then I could hear and decide the motion as part of the trial. At the end of the evidentiary phase of the motion, all parties confirmed on the record that they were content with having me decide the motion based on the evidence that I had heard and received.

The Relevant Law and Analytical Framework

[46] This case arises in the transitional period as set out in Jordan. As a result, I must consider both the framework established in Jordan and the transitional provisions of that case. The transitional provisions require some reference to the previous framework for section 11(b) motions as set out in Askov and R. v. Morin, [1992] 1 S.C.R. 771.

a) The Analytical Structure

[47] On September 28th, 2015, while this motion was being heard, the Court of Appeal for Ontario issued its reasons in R. v. Coulter, 2016 ONCA 704, [2016] O.J. No. 5005 (QL), and R v. Manasseri, 2016 ONCA 703, [2016] O.J. No. 5004 (QL). Both cases address the interpretation of Jordan.

[48] The new Jordan framework requires the following steps to be completed: a. Calculate the Total Delay, which is the period from the charge to the actual or anticipated end of the trial. b. Subtract the Defence Delay from the Total Delay, which produces the Net Delay. c. If the Net Delay exceeds the presumptive ceiling of 30 months in this Court, then it is presumptively unreasonable. The Crown bears the burden of establishing the exceptional circumstances. d. Exceptional circumstances generally fall into two categories, discrete events and particularly complex cases. e. The delay from discrete events is subtracted from the Net Delay, which produces the Remaining Delay. The Remaining Delay is then compared to the presumptive ceiling. f. If the Remaining Delay exceeds the presumptive ceiling, then the Court has to determine whether the case was particularly complex such that the additional time taken was reasonable. The Crown has the onus to prove that the case is particularly complex. If the Remaining Delay is below the presumptive ceiling, then the onus is on the defence to show that the Remaining Delay is unreasonable. g. Once all of these steps are completed, for transitional cases only, if the Remaining Delay is above the presumptive ceiling, the Court must consider whether the contextual and factual application of the Jordan framework results in a transitional exceptional circumstance applying, rendering the delay reasonable.

[49] The issues that present themselves in this case focus on the question of defence delay, and what is meant by that term. As a result, a review of Jordan and some of the cases that have been decided since then is necessary.

b) The Meaning of Defence Delay

[50] One of the issues that will arise is whether the definition of defence delay has changed between the Morin and Askov cases, and the Jordan cases. I am not going to comprehensively address that issue in these reasons.

[51] However, some principles emerge from both Jordan and from of the subsequent cases, as follows: a. There are two components to defence delay, either delay waived by the defence or delay caused by the defence. b. The defence can waive delay either implicitly or explicitly, but the waiver must be clear and unequivocal. c. Delay caused by the conduct of the defence can be either actions that cause the delay, or tactical decisions taken to cause delay. d. If the Crown and the Court are able to proceed and the defence is not, then the period of delay is attributed to the defence. Putting it another way, the defence will have directly caused that delay if they are not ready to proceed, and the other parties are (Coulter, supra, at para. 44). e. If neither the Crown nor the defence are ready to proceed, then the time period will not amount to defence delay (see the discussion in R. v. Lam, 2016 ABQB 489, [2016] A.J. No. 887 (QL), and particularly paragraphs 57 and 58).

[52] In this particular case, I am dealing more with allegations of defence caused delay than defence waived delay.

c) The Procedural Issues

[53] The Ontario Superior Court has issued a practice direction on the hearing of Jordan cases. This practice direction mandates that Jordan motions are to be heard expeditiously. In addition, the practice direction envisions only one set of materials, and requires the parties to categorize all of the periods of delay in their factums. Finally, it requires that the motion be heard at least sixty (60) days before the trial.

[54] However, because this case was one of the first to be heard, and the motion was brought less than a month before the scheduled trial date, the practice direction was not followed. The motion was heard at the outset of the trial.

[55] During the course of the motion, however, counsel for Mr. Hussein raised the question of competing onuses and the timing of evidence in this case. In essence, his argument was that the Court should consider a Jordan application in two parts. First, the Court should assess the reasons for delay and calculate the Net Delay (as defined in Coulter).

[56] Once the Court had rendered a decision on the calculation of the Net Delay, the parties should be entitled to file additional materials to address exceptional circumstances and/or prejudice, depending on whether the Net Delay is over 30 months, and the Crown has the onus to show exceptional circumstances, or the Net Delay is under 30 months, and the defence has the obligation to show prejudice. The filing of these materials in the second phase would be done depending on who had the onus.

[57] I rejected that assertion from the bench, and will briefly set out my reasons for doing so: a) Jordan mandates that all participants in the justice system ensure that trials take place in a prompt fashion. The Defence’s proposed method of hearing these cases would result in additional delay. b) Jordan states that the upper end for delay in the Provincial Courts is eighteen months, and that for matters in the Superior Courts it is 30 months. A two-stage Jordan hearing could take as much as six months, between the filing of the original motion and the decision on the second part of the motion, which would result in approximately twenty percent of the total time permitted for cases heard in this Court being lost on the Jordan hearing alone. c) Most of the evidence on these cases will be, in the words of Crown Counsel, “static.” In other words, it will be based on the documents and written records before the Court. The events of this case bear this conclusion out, as the Crown and Mr. Hussein were able to agree on a significant number of facts relating to his legal aid application and there were significant other facts that were not in serious dispute. These will be discussed in the analysis, below.

[58] As a result, I required the parties to lead all of their evidence on the Jordan hearing at once, with the defence proceeding first. Given that this issue was only squarely dealt with when I asked defence counsel if they had any additional evidence at the point where I thought their cases had concluded, I permitted them to provide additional evidence, including recalling their clients if necessary. Mr. Isaacs was recalled to address his medical condition. Mr. Hussein was not recalled, although additional evidence about his legal aid application was submitted in the form of an Agreed Statement of Facts.

The Jordan Analysis Applied to This Case

[59] In analyzing Jordan, each case is fact specific. I am considering two separate accused and, as a result, there will be differences in the analysis of each of them, which I will set out below. However, there will also be portions of the analysis (especially on exceptional circumstances) that apply to both accused. I will deal with those portions of the analysis together.

[60] I also note that, Mr. Doan, on behalf of Mr. Isaacs, simply adopted Mr. Fahmy’s submissions, and only addressed issues that related solely to Mr. Isaacs in his submissions. Since the bulk of the arguments were the same, it is appropriate to deal with most of the analysis in this case together.

a) The Delay Calculation Under Jordan.

[61] This is a simple arithmetical calculation for both accused, and was not an issue. For Mr. Hussein, the time period from the date of charge to the date of the anticipated end of the trial runs from September 30th, 2011 to December 5th, 2016, which is a period of just over 62 months.

[62] For Mr Isaacs, this time period runs from May 11th, 2011 (the date the information was sworn respecting him) to December 5th, 2016, which is a period of just under 67 months. Counsel argued that the period ran from April 14th, 2011 until December 5th, 2016, a period of just over 67 months. However, when R. v. Coulter is reviewed, paragraph 62 suggests that the time period runs from the date the information is sworn, which is the pre-existing law under R. v. Kalanj, [1989] 1 S.C.R. 1594. Either number (whether just over 67 months or just under 67 months) does not change the outcome in this case.

[63] I note that the end of trial is anticipated to be December 5th, 2016. During the original hearing, none of the parties made any submissions regarding the delay that has resulted from the hearing of this application, and whether that delay affects the anticipated end of trial date. However, after reflecting on this matter, I returned to Court on Tuesday, October 11th, 2016 and asked the parties for an update on when they anticipated that the trial would likely end. They advised me that, as a result of some very recent agreements on evidence, the trial was now anticipated to take seven (7) weeks, and would likely be completed by the originally proposed December 5th, 2016 date.

[64] I was also mindful of the fact that the time established for the end of trial is quickly approaching; I advised the parties that I would try and get a decision (at least a bottom line decision) out to them within 48 hours of completing the arguments on this motion. I also required the parties to be ready to start the trial immediately after I gave them this decision if I dismissed the motions.

[65] Unfortunately, due to the complexity of this matter, this decision required a couple of extra days to complete, and I advised the parties of that in Court on Wednesday, October 5th, 2016. This decision was given on October 12th, 2016.

b) Is Any of the Delay Defence Delay?

[66] In assessing delay under Jordan, the question is whether any of the delay is defence delay. This requires a consideration of each accused’s circumstances on an individual basis.

Mr. Hussein

[67] There are several small periods of delay in the Ontario Court of Justice that the Crown argues are defence delay. These periods, and my findings on them, are as follows: a. March 20th – April 9th, 2012: the Crown alleges that this was delay caused by the defence because the defendants were not prepared to set a Judicial Pre-Trial. The Crown was actively seeking the involvement of a judge to assist in managing the disclosure at this appearance. Further, it is clear from my review of the transcript from the appearance on March 20th, 2012 that Mr. Hussein’s counsel, Mr. Reiter, was moving very deliberately through the disclosure phase. In my view, Mr. Reiter should have consented to the JPT date, and I view these twenty days as a period of defence delay for Mr. Hussein. b. April 10th, 2012 – May 8th, 2012: on this appearance, Mr. Reiter, on behalf of Mr. Hussein took a firm position that a pre-trial date should not be set. In addition, counsel for Dr. Thind did not even attend at court with pre-trial dates. However, the Crown was pushing for a pre-trial date as soon as possible, as was counsel for Mr. Arora. In my view, Mr. Reiter’s insistence on not setting a pre-trial date in the face of a Court and a Crown that were ready to proceed is defence delay within the meaning of Jordan. The defence had already had time to address disclosure, and it was clearly time for a JPT. Resisting setting a date for one was not a reasonable position to take. Further, it was solely the defence that delayed the proceedings at this point. The Crown and the Court had dates and were ready to proceed. c. July 19th, 2012 – August 7, 2012: the Crown argues that this period is defence delay because the accused are delaying the unsealing of search warrants. Having reviewed the transcripts from this appearance and several others, it is clear that there was some confusion between the parties about the search warrants. As a result, it is not clear to me what caused the delay in this instance. I certainly cannot find that the actions of the defence were the sole cause of this period of delay. d. August 8th, 2012 – September 6th, 2012: the Crown alleges that there was further defence delay in this time period because Mr. Hussein, in particular, was refusing to make an election. I reject that assertion. It is clear from the transcript that a significant part of any delay flowed from the fact that the procedure in the Ontario Court of Justice required the case to be referred to a case management judge because the hearing was scheduled to be so long.

[68] In finding that the time periods where a judicial pre-trial was not set is delay on the part of Mr. Hussein, I am mindful of the words of Code J. in R. v. Ghandi, 2016 ONSC 5612, [2016] O.J. No. 4638, at para. 33, where he states: The judicial pre-trial, or JPT is arguably the most important tool of modern case-management. When faced with a case like this with disclosure problems, an experienced and capable judge can do at least three things to move it forward; first, give the officer in charge fixed deadlines for producing missing disclosure and keep bringing the officer back to ongoing JPT appearances until the deadlines are met; second, advise and mediate between the parties as to which requests for further disclosure are reasonable (and are likely to be ordered by a court) and which requests are unreasonable (and are likely to be denied by a court); and finally, order the parties to set a date for trial or preliminary inquiry, even though some further disclosure may still be outstanding, once a certain point in the process has been reached.

[69] As a result, I find that there was a period of forty-nine days, or almost two months, that was defence delay for Mr. Hussein during the proceedings before the Ontario Court of Justice.

[70] Then, there are four significant periods of delay in the Superior Court of Justice that the Crown argues should be categorized as defence delay. The Defence rejects all four periods, but acknowledges that some small amount of delay might be appropriate as a result of the adjournment of the application. The relevant periods are: November 26th, 2013 to June 1st, 2014; June 2nd, 2014 to October 31st, 2014; August 28th 2015 to September 21st, 2015; and September 22nd, 2015 to December 5th, 2016.

[71] Some background is necessary to understand the competing positions on these periods. The case arrived in the Superior Court in November of 2013. A pre-trial was set in the case for November 26th, 2013. However, that pre-trial could not proceed for a number of reasons. Mr. Hussein was self-represented at that time, and advised that he was attempting to complete his legal aid application.

[72] The facts before me confirm that Mr. Hussein had not filed his legal aid appeal at the November 26th, 2013 appearance, and that the appeal was only filed on December 2nd, 2013. The appeal was denied by Legal Aid Ontario (“LAO”) on December 20th, 2013, and a final decision was mailed to Mr. Hussein. The Court was advised of the denial at Mr. Hussein’s next appearance on January 24th, 2014. I will review the events around the legal aid appeal more fully below.

[73] On April 11th, 2014, the Crown raised the possibility of severing these cases because of the delay in obtaining the transcripts for Dr. Thind’s certiorari application. The Crown was advised that there were problems with retaining counsel for Mr. Hussein. Mr. Fahmy, who attended on this appearance, stated that Mr. Hussein needed time to get the funds together to retain counsel.

[74] On June 2nd, 2014, Mr. Fahmy attended in court on behalf of Mr. Hussein. The following exchange took place on the record: MS. VANDEN BROEK: Thank you, Your Honour. In regards to Mr. Hussain and Mr. Isaacs, the Crown is very concerned about delay. We’d very much like a trial date to be set on that matter. We’re prepared to sever Thind from the other two, so, while Thind might have reason to have delay, the other two do not. We’d really like delay to be addressed. MR. FAHMY: Good afternoon, Your Honour, Mark Fahmy, before you, F-A-H-M-Y, first initial M. I’m appearing with Mr. Hussain, and I will address his issue. I’m also appearing as agent for Mr. Doan who is Counsel for Mr. Isaacs, and I respectfully disagree with Crown’s concern with delay.

[75] Mr. Fahmy now argues that this exchange only concerned the fact that Mr. Hussein was not delaying in bringing his legal aid application, and does not relate to delay under section 11(d) of the Charter. I reject that assertion because of the context that this discussion arises in. In a number of transcript excerpts in this time period, it is clear that the Crown had been seeking to move this matter along, and on the June 2nd, 2014 appearance, had even gone so far as to suggest severing Dr. Thind’s case from the record.

[76] It is clear that the Crown was concerned about the overall delay at this stage. It is equally clear that the defence was not concerned about that delay. When an accused delays in bringing a Rowbotham and/or release of funds application, that delay usually delays the whole case. Certainly, that was the outcome here.

[77] This brings me to the question of why this period of delay occurred. It is clear from the record that Mr. Hussein had lost his legal aid appeal by December 20th, 2013. From this point forward, he was thinking of bringing an application to either release the funds that had been seized by the police through the search warrants or a Rowbotham application. However, no application had been brought by September 2nd, 2014. In Court on that day, Durno J. had the following exchange with Mr. Hussein: THE COURT: No, speak to me. Mr. Doan’s not your lawyer. What applications are you bringing? AZHAR HUSSAIN: You Honour, I don’t know the application name but I’m – my lawyer going to request to release the funds seized by the police. THE COURT: Right. AZHAR HUSSAIN: To pay my legal fees. THE COURT: All right, when is he going to bring that? AZHAR HUSSAIN: Probably end of this month he going to bring that or beginning of next month (indiscernible). THE COURT: Mr. Isaacs is going to September 12th at 10:00 for a bail review, estimate an hour and a half. Mr. Hussain, you’re going to come back September 12th at 9:00 o’clock and I want either your lawyer here or a letter from your lawyer when he’s bringing the application, that it’s going to take time, it’s going to take a while isn’t going to be good enough. We’re either setting a date or we’re moving on. Do you understand? AZHAR HUSSAIN: Yes, Your Honour. THE COURT: All right, I appreciate they take some time to complete the applications. It does not take months unless there’s something he’s waiting for that I don’t know about. Do you have any questions? AZHAR HUSSAIN: No, Your Honour. THE COURT: Thank you. MR. DOAN: I can tell Your Honour that when this trial eventually gets set, it will take at least, I would think at least a couple of months. THE COURT: Okay, well … MR. DOAN: So we can think about that being some time in the future. THE COURT: Well, it sure won’t be Monday. So, I appreciate the applications take some time but to continually come back and say well I’m thinking of a Rowbotham, I’m thinking of an application to release funds and it’s going to take time, seems to me you decide what application you’re bringing and bring it and that’s what we’re going to do on September 12th. All right.

[78] The parties returned to Court for a number of appearances after this exchange, and no application was brought by Mr. Hussein. Eventually, on October 31st, 2014, Durno J. set a trial date “with or without counsel.” The Rowbotham application was not brought until June of 2015.

[79] The time period between October 31st, 2014 and August 28th, 2015 is not defence delay, as agreed by the parties. It is the time it took the Court to schedule a three month jury trial for these parties. In the new Jordan framework this time period is, subject to exceptional circumstances, part of the 30 month ceiling.

[80] However, the parties disagree about the period between November 8th, 2013 and October 31st, 2014. Mr. Fahmy argues that the accused should not be penalized for having to wait to get counsel. The Crown opposes this position, and argues that the law should not permit the accused to delay his trial, either intentionally or by legitimate effort, and then claim that the right to a quick trial has been infringed. To put it another way, Mr. Hussein is not being penalized for having to wait to get counsel. However, if he has caused the delay by asking for time to get funds together to defend the case, then he cannot claim that the Crown or the Court is responsible for it.

[81] Mr. Hussein originally applied for legal aid in October of 2012. His request for legal aid was denied on April 23rd, 2013, and filed his first appeal on May 6th, 2013. His first appeal was denied on May 15th, 2013. In the time between October of 2012 and February of 2013 there were problems with the documentation, which caused the delays. Mr. Hussein did not file his second (and final) appeal until December 2nd, 2013, or a couple of days before that. It is clear from the transcript that it had not yet been filed on November 26th, 2013.

[82] I understand why Mr. Hussein may not have filed his legal aid appeal while he was proceeding in the Ontario Court of Justice. He had decided to represent himself. However, he knew that he was being committed for trial in October of 2013. The question then becomes whether the delay between November 8th, 2013 (the date the case arrived in the Superior Court) and October 31st, 2014 should be defence delay.

[83] Mr. Hussein advised the Court on November 8th, 2013 that he was trying to appeal the legal aid decision. As noted above, he did not file his appeal until December 2nd, 2013. The appeal was adjudicated and a decision denying the appeal was released on December 20th, 2013.

[84] In this particular case, it is also clear that the Crown and the Court were ready to move the case forward on January 24th, 2014, which was the next appearance after Mr. Hussein’s legal aid appeal had been denied. However, no progress was made on that date. Everything was waiting on two defendants. Mr. Hussein was to provide an update on his legal aid application on this date, and Dr. Thind was seeking to bring a certiorari application. Mr. Isaacs was content to wait (and not proceed to trial) for reasons I will address below.

[85] Determining whether the delays between November 8th, 2013 and October 31st, 2014 are defence delay for Mr. Hussein requires a consideration of two issues. First, should the failure of Mr. Hussein to retain counsel in a timely way count as defence delay? Second, if the answer to the first question is yes, does the fact that Dr. Thind had brought a certiorari application and was also delaying the matter lead to the conclusion that the delays in this time period should not be laid at Mr. Hussein’s feet?

The Legal Aid Application

[86] In answering the first question, I start with the arguments that Mr. Fahmy advanced about the legal aid application, and the search for counsel. In R. v. Boateng, 2015 ONCA 857, 128 O.R. (3d) 372, the Court of Appeal considered the effect of a delay in processing a legal aid application on the Morin analysis. At paragraph 32, Doherty J.A. stated: The Crown bears the responsibility of bringing an accused to trial within a reasonable time: R v. Godin, at para. 11; R v. Morin, at pp. 801-802. As the prosecutor, the Crown is best positioned to spot and react to potential delay-related problems caused when an institutional participant in the criminal justice system, like LAO, drags its feet and places the rights protected under s. 11(b) in jeopardy. If the Crown fails to react to these delays, it will bear responsibility for them in the s.11(b) calculus. That responsibility exists regardless of whether the LAO is classified as part of the government or the prosecution: see R v. Neil, 2001 ABQB 474, at paras. 50-60; R v. Chang, [2005] O.J. No. 4381 (S.C.); see also R v. Dow, 2012 MBQB 122, at paras. 35-47.

[87] Under the Morin analysis, a similar conclusion would be supported with Rowbotham applications, which are similar to an application for legal aid in that they are also an application to fund the accused’s defence.

[88] The question is whether the analysis of the way to treat the delay resulting from these applications changes under Jordan. In my view, it does not. In Jordan, at paragraph 65, the Supreme Court states that, “defence applications and requests that are not frivolous will also generally not count against the defence.” A Rowbotham application or an application to release funds are “defence applications.” As a result, in my view, unless a Rowbotham application or an application to release funds is without merit, the time spent between when it is brought and when it is adjudicated would not be defence delay within the meaning of Jordan. In other words, the time expended on this type of application would generally count towards the ceiling of 30 months.

[89] In my view, however, a delay in LAO processing an application, or the Court adjudicating an application, is different than the delay in an accused bringing the application. Doherty J.A. acknowledges as much in the footnote to paragraph 32 in Boateng where he states: My analysis would also support the conclusion that defence “foot dragging” during the Legal Aid process would count against the defence. Practically speaking, on a s. 11(b) application it may make little, if any, difference whether delay is treated as neutral or attributed to the defence.

[90] In the post-Jordan world, however, the characterization of this delay matters. In my view, if the case cannot be moved forward because the accused has not retained a lawyer, and is unable or unwilling to bring a Rowbotham application, then that is defence delay. In other words, “defence foot-dragging” should be considered defence delay. If the Crown and Court are ready to proceed and the defence needs time to consider whether to bring this type of application, then the delay is solely defence delay.

[91] There are a number of reasons to support this conclusion. First and foremost, if the delay in bringing a Rowbotham application is not defence delay, then an accused could simply decide not to bring the Rowbotham application for 30 months, seek continuing adjournments, and then claim that the case had been unreasonably delayed and should be stayed.

[92] Second, the Court and the Crown have the responsibility to move cases forward. However, they must do so in a way that protects the rights of the accused. If Mr. Fahmy’s argument was accepted, then Courts would be required to either say no very quickly to any accused who asked for a few weeks or a couple of months in order to consider bringing a Rowbotham application or to countenance the very culture of delay that Jordan is designed to eradicate.

[93] As a result, I view the time period between January 24th, 2014 and October 31st, 2014 as defence delay. I have chosen January 24th, 2014 as the start of this period of delay because it is the first Court appearance after LAO denied Mr. Hussein’s request for funding. After that time, the inaction in this case is solely the defence’s issue. The Crown was ready to proceed.

[94] However, it was reasonable for Mr. Hussein not to set a date for trial or otherwise move the action forward until the outcome of the legal aid application was known and disclosed to the Court at the end of January. As a result, the time between December 3rd, 2013 and January 23rd, 2014 is not defence delay.

[95] Finally, there is the period between November 8th, 2013 and December 2nd, 2013. In this time period, Mr. Hussein was considering bringing his legal aid appeal, but had not done so. He advised the Court that he had been trying to bring the appeal, and he was provided with information to do so. In my view, this time period is also defence delay.

[96] Accordingly, the time periods from November 8th, 2013 to December 2nd, 2013, and January 24th, 2014 to October 31, 2014, are periods of defence delay for Mr. Hussein.

[97] Although the time period after October 31st, 2014 is not defence delay, a review of the transcripts throughout 2014 and 2015 reveals the “foot dragging” that the defence is engaged in with respect to these applications both before and after October 31st, 2014.

[98] After these applications were addressed on June 2nd, 2014, Mr. Fahmy appeared on both July 25th, 2014 and August 22nd, 2014 and advised that there might be some delays in proceeding with the application. This resulted in the exchange on September 2nd, 2014 between Mr. Hussein and Durno J. that I have produced above. I note that Mr. Fahmy was not present for this exchange.

[99] Between September 2nd, 2014 and the request for an adjournment, the following is a summary of the most relevant Court appearances: a. On September 12th, 2014, Mr. Fahmy advised that he would be prepared to set a date for the release of funds application in a few weeks, on October 3rd, 2014. b. On October 3rd, 2014, Mr. Fahmy advised that he has been retained to bring the release of funds application, but cannot file the documents until mid-November. c. On January 8th, 2015, Mr. Fahmy advised that he had a week and a half when he could have brought the application in November, but his disclosure disc wasn’t working and as a result, he lost his opportunity to file the application. d. On February 3rd, 2015, Mr. Fahmy advised that he needs to have more time to bring the application. e. On March 6th, 2015, Mr. Fahmy advised that his client is now saving funds for the purchase of some software to assist in addressing his application because some new information has come to light. f. The paperwork for the application starts to flow in April of 2015, but is not brought until June of 2015.

[100] These appearances are not strictly relevant past October 31st, 2014, as the delay is no longer defence delay at that point. However, a review of them fortifies my conclusion that an accused should not be permitted to delay in bringing an application and be able to count any of that time period towards the ceiling in Jordan.

The Actions of the Co-Accused

[101] The second issue is the question of Dr. Thind’s certiorari application. As I have noted above, Jordan defines delay as being, inter alia, delay caused by the conduct of the defence. In this case, neither Dr. Thind nor Mr. Hussein was prepared to move the trial forward for different reasons. It could be argued that the delay was not solely caused by either defendant and, therefore, should not be defence delay within the meaning of Jordan.

[102] I reject that argument. If that argument were accepted, it would permit accused persons on the same indictment to seek delays of a case for their own purposes, and then claim that since they weren’t the “sole” cause of the delay, then it wasn’t defence delay. This would have the effect of permitting the defence to delay the case without bearing any responsibility for doing so.

[103] The difference between this case and R. v. Vassell, 2016 SCC 26, 29 C.R. (7th) 338, is significant. Mr. Vassell had been charged with possession of cocaine for the purpose of trafficking along with six other people. As time went on, the number of co-accused on the indictment dropped until Mr. Vassell was the only person who went to trial. It took three years for the Court to hear his three day trial. A stay was granted because the delay was too long, and because Mr. Vassell was not the cause of the delay. Indeed, Mr. Vassell had been proactively attempting to have the Court move his case along.

[104] In Vassell, the Supreme Court pointed out that the Crown and the Court must be alive to the risk that, in trying co-accused together, one of the accused’s section 11(b) rights may be infringed. However, in this case, the Crown raised the question of whether Dr. Thind should have his charges severed from the other parties on a number of occasions between January and October of 2014. Further, even if Dr. Thind’s charges had proceeded separately, Mr. Hussein would still not have been ready to proceed to trial because he did not have counsel. Therefore, even in the absence of Dr. Thind, Mr. Hussein would still have sought to delay this matter.

The Adjournment Application and the Delay in 2015-2016

[105] The last time period I must consider is the period between August 28th, 2015 and December 5th, 2016. I am of the view that this period needs to be broken into three separate parts. First, the time between August 28th and September 22nd, 2015. Second, the time between September 22nd, 2016 and September 12th, 2016. Finally, the time period between September 12th, 2016 and December 5th, 2016.

[106] At the August 28th, 2015 appearance, counsel for both accused suggested that they might need to bring an adjournment request. They were advised that the trial dates would remain in place at that time. An adjournment request was finally brought returnable on September 11th, 2015, and adjourned to September 22nd, 2015 so that counsel for the Crown, Mr. Falls, could speak to the matter. The adjournment application was heard on September 22nd, 2015.

[107] In his adjournment application, Mr. Hussein did not provide an Affidavit. Instead, one of the law clerks in Mr. Fahmy’s office provided one, which states (in part): The Applicant remained unrepresented throughout the course of these proceedings since May 2013. The Applicant brought a Rowbotham Application that was first scheduled to be heard on July 24th, 2015 but was adjourned on consent twice to August 14th, 2015 and August 24, 2015. The Applicant withdrew his Rowbotham Application after a funding agreement was entered into. The Applicant retained Mark Fahmy as counsel for his trial on August 27th, 2015 by means of a legal aid certificate. The Applicant and his Counsel will not have enough time to prepare for a three month jury trial before October 7th, 2015. It is an extremely complex case that the Crown is bringing against the Applicant which is clear when reviewing the disclosure, as it has 1,071 folders with 109,318 files in over 25 gigabytes of data. Due to the complexity of the case and the copious amount of disclosure the Applicant is not able to prepare for his trial and I am advised that this will impact his ability to make full answer and defence.

[108] In the course of cross-examination on this motion, Mr. Hussein acknowledged that he did not have counsel retained for this trial until August of 2015.

[109] In granting the adjournment request (which is R. v. Isaacs, 2016 ONSC 5123, [2016] O.J. No. 4514), Durno J. stated (at paragraph 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.

[110] In other words, the trial was adjourned because neither of the accused was ready to proceed to trial. Indeed, Durno J. found, on the record before him, that Mr. Hussein was never ready to proceed to trial at any time prior to September 22nd, 2015. On the record before me, and based on the facts set out above, I come to the same conclusion.

[111] As a result, the time period between September 22nd, 2015 and August 1st, 2016 should be treated as defence delay with one exception. The ten day voluntariness application was originally supposed to be heard at the outset of trial, which would have lengthened the trial by a further ten days. Mr. Hussein is entitled to a credit of ten days for this saved time.

[112] The time period between August 28th, 2015 and September 22nd, 2015 is not defence delay. I accept that Mr. Fahmy was only retained on August 27th, 2015. As a result, the delay of approximately two weeks to bring the adjournment application does not seem unreasonable. In addition, the Crown sought the accommodation to move the application from September 11th to September 22nd, 2015. These are the types of periods that are outside of defence delay as defined in Jordan.

[113] Similarly, Mr. Fahmy (and Mr. Hussein) were ready to proceed to trial on August 1st, 2016. The Court was not prepared to proceed to trial until September 12th, 2016 as a result of scheduling issues (see paragraph 23 of Isaacs, supra). As a result, that time period does not count as delay.

[114] Similarly, the time period between September 12th, 2016 and the end of the trial does not count as defence delay. It must be remembered that the time period between September 22nd, 2015 and August 1st, 2016 encompasses the time set aside for the adjourned trial. Counting the time that both the adjourned trial and this trial were supposed to take in the delay calculations would be double counting in my view.

[115] The periods that I find to be defence delay for Mr. Hussein are as follows: a. March 20th – May 8th, 2012: a period of approximately one and a half months (49 days). b. October 25th, 2013 – November 7th, 2013 (14 days) c. November 8th, 2013 – December 2nd, 2013 (25 days) d. January 24th, 2014 – October 31st, 2014: a period of just over 9 months (278 days) e. September 22nd, 2015 – August 1st, 2016: a period of 11 months and 9 days, less the 10 days of court time that was saved on the voluntariness application, which is not defence delay (total 314 days- February had 29 days)

[116] As a result, the total defence delay for Mr. Hussein in this case is 680 days, or slightly more than 22.3 months. This reduces the total non-defence delay in Mr. Hussein’s case to approximately 39.5 months.

Mr. Isaacs

[117] The same time periods that are claimed as defence delay by the Crown for Mr. Hussein are also claimed as defence delay for Mr. Isaacs. However, the analysis with him is modestly different because different facts apply.

[118] I start with the four time periods in the Ontario Court of Justice. My analysis for the time periods from July 19th, 2012 to August 7th, 2012, and August 8th, 2012 to September 6th, 2012, is the same as set out at paragraph 67, for the reasons set out there. None of these time periods are defence delay within the meaning of Jordan.

[119] The one time period in the Ontario Court of Justice where I reach a different conclusion is for the time period between March 20th, 2012 and May 8th, 2012. On that occasion, while Mr. Hussein’s counsel was not prepared to set a JPT date, Mr. Isaacs’ counsel was. As a result, this is not defence delay for Mr. Isaacs.

[120] Finally, there is the time period between October 25th, 2013 and November 8th, 2013. Both defendants conceded that this was defence delay.

[121] This brings me to the time periods in Superior Court as they apply to Mr. Isaacs.

[122] It is clear that the time period between September 22nd, 2015 and August 1st, 2016 is also defence delay on the part of Mr. Isaacs. In granting the adjournment application in Isaacs, supra, Durno J. stated at paragraphs 15 and 16: 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 which he gave priority. 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 wold have been a very large hurdle on an application to be removed as counsel of record.

[123] As a result, for the same reasons as given with respect to Mr. Hussain, the time period between September 22nd, 2015 and August 1st, 2016 is defence delay in Mr. Isaacs’ case. I would add two facts to this analysis. First, it is clear that Mr. Isaacs was not ready to proceed to trial in August of 2015, and that he would not become ready to proceed to trial until August 1st, 2016. Second, as I have set out below, it is clear that Mr. Isaacs had prioritized other expenses and issues during this time period.

[124] In determining whether the period of delay from August 28th, 2015 to September 22nd, 2016, as well as the delay between November 8th, 2013 and October 31st, 2014 should also be classified as defence delay for Mr. Isaacs requires a detailed review of the context.

[125] First, in his adjournment application, Mr. Isaacs swears an Affidavit that states: 4. I am making an application for the adjournment of my said trial date, because I have been unable to retain my present counsel for the trial. 5. I have been unable to retain my present counsel because I have had matrimonial difficulties and other financial problems. As well I am currently being examined by a Cardiac specialist because of heart problems I am currently experiencing. 6. At the present time I have not been able to retain Mr. Doan for trial because my available funds have been exhausted as a result of my aforementioned difficulties. 7. As a result of my lack of funds, my counsel has not prepared for trial. I recognize that the case is complex and that there is a large amount of disclosure to review.

[126] Then, in an appearance on June 26th, 2015, Mr. Doan advises the Court as follows: MR. DOAN: Well, I had the trial coordinator put Mr. Isaacs on the list. He’s… THE COURT: Right. MR. DOAN: … been remanded to October the 2nd but I had her put it on the list to see if I can get a hold of him. I’ve been unable to contact him for the last two and a half months or the last time this case was in court. So, if I can’t contact him then I’ll be bringing the appropriate application… THE COURT: Can I see the… MR. DOAN: …to get myself removed from the record. THE COURT: …file, please? Right. This case is becoming problematic in a number of ways, including that counsel want three months for a trial where one counsel isn’t retained and one accused is not making himself available.

[127] There was a follow-up appearance on July 3rd, 2015 at which Mr. Doan and Mr. Isaacs had some discussions. No commitments were made by either of them regarding their ability to proceed to trial at this appearance or at any of the subsequent appearances. Indeed, it is clear that Mr. Doan was not yet retained to conduct the trial.

[128] Part of the context comes from the appearances on both February 21st, 2014 and March 21st, 2014, where Mr. Doan failed to even attend. On the February 21st, 2014 appearance, it was because of a flood in his office, and on the March 21st, 2014 appearance it was because he was stuck in traffic. In addition, on the February 21st, 2014 appearance, the transcript suggests that there are issues with respect to Mr. Isaacs’ retainer of Mr. Doan.

[129] I acknowledge the April 11th, 2014 appearance, where Mr. Doan states that he wants to get things moving. However, when the transcript is reviewed, it is clear that Mr. Doan is focused (as he is throughout the spring of 2014) on addressing issues of bail rather than moving the case towards trial.

[130] When all of this is reviewed in the context of the Affidavit that Mr. Isaacs swore for the adjournment application in August of 2015, it is clear that Mr. Isaacs was never ready to go to trial at any time between the arrival of the case in the Superior Court and the trial date itself.

[131] As a result, I am of the view that the delay between January 24th, 2014 and October 31st, 2014 is defence delay for the purposes of Mr. Isaacs’ case as well. He was not ready to go to trial. The Crown was seeking trial dates. Indeed, Mr. Doan did not even attend a number of these appearances.

[132] The mere fact that neither Mr. Doan nor Mr. Isaacs says “we need a delay because Mr. Doan is not retained” does not absolve them of the delay in this time period. It is clear that they were not ready to go to trial, and it is clear that they were supporting, or at least acquiescing in, the delays sought by the other defence counsel, even in the face of the Crown’s requests to expedite the matter.

[133] In addition, when the context is reviewed I come to different conclusions for Mr. Isaacs on a few periods of the delay in the Superior Court. First, the adjournment application should have been brought by Mr. Doan on August 28th, 2015. Mr. Doan should have been well aware that he was not going to be ready for trial by the appearance on July 2nd, 2015. As a result, the delay in the adjournment application is also defence delay. Waiting until Mr. Hussein had brought his Rowbotham application, and then asking for an adjournment at the same time that Mr. Hussein asked for one could be viewed as conduct whereby the accused Mr. Isaacs was seeking the delay, but seeking to avoid responsibility for it.

[134] Second, in the time period between November 28th, 2013 and January 24th, 2014, Mr. Isaacs had the opportunity to consider setting trial dates. He chose not to, and relied on the other accused, Mr. Hussein and Dr. Thind, to raise other reasons why the matter could not proceed to trial. The fact is that none of the accused was ready to proceed to trial, and the Crown was pushing the issue towards resolution. As a result, this period counts as defence delay for Mr. Isaacs as well.

[135] I find that the following periods are attributable to defence delay for Mr. Isaacs within the meaning of Jordan: a. October 25th, 2013 – November 7th, 2013 (14 days). b. November 26th, 2013 – June 1st, 2014 (188 days) c. June 2nd, 2014 – October 31st, 2014 (152 days) d. August 28th, 2015 – September 12th, 2016, less the ten days for the voluntariness application for Mr. Hussein, as this would otherwise have been trial time (371 days total – February had 29 days)

[136] As a result, the total defence delay in Mr. Isaacs’ case is 725 days, which is almost exactly 24 months. This reduces the total delay in Mr. Isaacs’ case to just under 43 months from April 14th, 2011 or just over 42 months from May 11th, 2011.

c) Case-Specific Exceptional Circumstances

[137] There are two types of potential case-specific exceptional circumstances. First, there are discrete events. Second, there is the question of whether the delay arises from the complexity of the case. I will address each area in turn.

Discrete Events

[138] In this case, the Crown argues that the 129 days in 2012 that they spent obtaining an expert’s report from Grant Thornton should be counted as a discrete event that amounts to an exceptional circumstance. The defence challenges this assertion on the basis that the report was not necessary, preparing it was not particularly complex and its preparation does not amount to an exceptional circumstance within the meaning of Jordan.

[139] A modestly redacted version of this report was filed in evidence before me and contains a number of charts and other analyses of where money was received from, who paid it, and where the money went. It was described by Cst. Morash, in part, as a sources and uses of funds report. It also provides other information, and a summary of the transactions.

[140] Considerable data was provided to Grant Thornton to create this report. As there has not been a trial in this case, I cannot say whether this report was necessary, or whether preparing it was a complicated or time consuming undertaking.

[141] However, I agree with the defence that the time taken to prepare this report does not amount to an exceptional circumstance within the meaning of Jordan. For a circumstance to be exceptional, the delay that it causes must be outside of the control of the Crown in that the delay is either reasonably unforeseeable or unavoidable, and the Crown cannot reasonably remedy the delay.

[142] There are two reasons for rejecting the Crown’s position on this issue. First, in this case, the bank records were seized in the fall of 2011. Grant Thornton was not retained until the spring of 2012. Even if the delay in completing the report was unforeseeable or unavoidable, it could have been ameliorated by retaining Grant Thornton earlier. Further, I heard no explanation as to why Grant Thornton took a third of a year to complete the report.

[143] Second, there is the Court of Appeal’s decision in Manasseri, supra. In that case, the Crown argued that an unforeseen circumstance was the emergence of a second expert’s report that made the trial more complex. The Court of Appeal rejected this argument on the basis that this report was foreseeable, given the way the case had developed, and that it was not a report that converted the case into “a joint trial of compelling complexity” (paragraph 354).

[144] Similarly, in this case, the allegations involved fraud, and it would be important for the Crown, in advancing its theory of the case, to be able to show where the money came from, and where it was going. As a result, preparing an expert report on the sources and uses of funds is something that should have been foreseeable to the Crown and the police back in September of 2011.

[145] Accordingly, there will be no deduction for any delay caused by discrete events.

Complexity of the Case

[146] The defence argue that this case is a relatively straightforward fraud, and that this case is not particularly complex. The Crown asserts that this case is exactly the type of case that fits within the definition of complex cases as set out in Jordan. At paragraph 77 of Jordan, the majority stated: As indicated, exceptional circumstances also cover a second category, namely cases that are particularly complex. This too requires elaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

[147] This case has a number of the hallmarks of a particularly complex case, as follows: a. There are in excess of eighty (80) different witnesses who are anticipated to be called at trial. b. The documentary disclosure in this case occupies in excess of 60 bankers boxes. c. The alleged scheme itself is complex, as it involves several clinics, several accused, and a host of unindicted co-conspirators. d. The disclosure issues were complex, as there were questions about the privacy interests of individuals whose records were seized as part of the search warrants in this case. e. The types of claims that were alleged to be made by various individuals are varied and complex, and will take time to understand. f. The whole case itself will involve questions relating to the automobile insurance scheme under the Insurance Act, R.S.O. 1990, c. I.8.

[148] The accused argued that the increasing complexity of criminal law was considered by the majority in Jordan in setting the ceilings of 30 months. As a result, the accused took the position that the complexities in this case were already accounted for in the ceilings. I disagree. The complexities that the Court was discussing in Jordan were the complexities that flow from challenging search warrants, adjudicating Rowbotham applications and considering other complex pre-trial motions. The complexities in this case arise from the underlying facts of the case, which is not accounted for in the Jordan ceilings.

[149] The defence also argued that the police had received the assistance of the IBC in collecting all of the facts. In essence, the case had been handed to Cst. Morash, without the need for much work. I reject that assertion for two reasons. First, as Cst. Morash noted, accepting the information provided by the IBC without independent investigation would be tantamount to accepting the word of a victim. The police have an obligation to conduct an independent investigation. Second, the IBC review would be incomplete. The police were required to interview witnesses, gather additional information and fill out a complete picture.

[150] Further, the defence argued that there were three levels of complexity in dealing with cases. First, on a Rowbotham application, there are cases that do not require a lawyer (the least complex). Then, to meet the Rowbotham test, there are cases that are complex enough to require a lawyer. Finally, a case that meets the Rowbotham threshold may not be complex enough to meet the much higher threshold for complexity that the Court should apply in considering whether cases meet the Jordan threshold.

[151] In my view, determining whether this case is complex enough to be a “complex case” within the meaning of Jordan does not require me to address this argument. I note, however, that both Mr. Fahmy and Mr. Doan advanced the argument that this was a complex case when they sought the adjournment in September of 2015.

[152] Finally, the defence argued that the Crown’s disclosure of the computer records provided by the Crown was inappropriate, and was a tactic designed to make the case more complicated for the defence. As a result, the defence is advancing two propositions, as I understand it. First, that the case is much less complicated than the Crown made it out to be. Second, that there should be a deduction in the defence delay to take account of the unnecessary preparation time that the Crown forced upon the defence. This second argument was not put as starkly as I have just stated it, but it is what I understand the thrust of Mr. Fahmy’s questioning and submissions on this point to be.

[153] I reject both arguments. My analysis starts with the Supreme Court’s decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326, where the Court stated (at paragraphs 19 and 20): In R v. C. (M.H.) (1998), 46 C.C.C. 93 d) 142 (B.C.C.A.), at p. 155, McEachern C.J.B.C after a review of the authorities stated what I respectfully accept as a correct statement of the law. He said that: “there is a general duty on the part of the Crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it”. This passage was cited with approval by McLachlin J. in her reasons on behalf of the Court (R. v. C. (M.H.), [1991] 1 S.C.R. 763). She went on to add: “This Court has previously stated that the Crown is under a duty at common law to disclose to the defence all material evidence whether favourable to the accused or not” (p.774). … A discretion must also be exercised with respect to the relevance of information. While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant. The experience to be gained from the civil side of the practice is that counsel, as officers of the court and acting responsibly, can be relied upon not to withhold pertinent information.

[154] In essence, the Crown is required to disclose the fruits of the police investigation to the defence, and has a very broad disclosure obligation. Information that the police view as having, in Cst. Morash’s words “no investigative value” cannot be withheld solely for that reason.

[155] In the course of argument, I asked Mr. Fahmy whether he would have brought a production motion if he had been told in this case that the police had records from a dozen computers, but that he didn’t need to worry about them because none of them were relevant. I did not get a clear answer to the question. In my view, however, the answer to the question is clear. A competent defence counsel would have felt compelled to ask for those records. Given that some of these records were arguably relevant, it is clearly possible that a Court would have ordered their disclosure.

[156] In light of that analysis, it was reasonable for the Crown to provide this disclosure. As a result, there should not be any deduction from the period of defence delay as a result of the Crown’s “tactics” in this case.

[157] This brings me to the question of whether, without this disclosure, the case is still complex. In my view it is. First, the volume of paper records that I have set out above does not include the computer records because those were never printed by the police. Second, this disclosure does not change the witness list in any meaningful way. We still have a seven week trial with a significant number of witnesses. Third, this disclosure was part of the investigation that was done in this case. Fourth, the alleged fraudulent scheme is complex, and has many moving parts.

[158] In my view, therefore, this is exactly the type of complex case that would require time above the thirty month ceiling set out in Jordan. The question is how much additional time would be required. My analysis of that point starts with the amount of in-court time that this proceeding will consume.

[159] The amount of in-court hearing time for the preliminary inquiry, the pre-trial motions and the anticipated time for the trial itself is significant enough to qualify this as a complex case. The preliminary inquiry was four weeks, the motion on the voluntariness of the statements was two weeks, and the hearing on the Jordan application was also two weeks. In addition, the trial is expected to take seven (7) weeks or perhaps longer. In short, there will have been more than four (4) months of in-court time on this case, over and above the routine appearances that are required in every case. This clearly supports my conclusion that this is an exceptional case.

[160] It also demonstrates that there will be delays at every step of this proceeding, which would necessitate an additional 12 to 15 months of time, over and above the 30 month ceiling that Jordan imposes on this case.

[161] Finally, Jordan (at paragraph 79) directs trial judges to consider whether the Crown, in a complex case, has developed a concrete plan to address the inherent delays that will arise. The defence argues that the Crown did not take any such steps in this case. I disagree, and note the following: a. The Crown ensured that the disclosure was organized in different electronic folders, and made that disclosure searchable. b. The Crown produced a case summary for the Ontario Court of Justice and for the defence. c. The Crown dispensed with the vetting of personal information from the records of unindicted co-conspirators. d. The Crown was prepared to sever these matters from Dr. Thind’s case in order to try and reduce the delay.

[162] It must be remembered that the Crown took all of these steps pre-Jordan. The Crown was not aware that their efforts to streamline this case would be scrutinized within the Jordan framework but steps to move this forward more promptly and efficiently were still taken.

[163] As a result, I am of the view that the delay in this case is reasonable for both accused when the remaining delay for each accused is considered in the context of the complexity of the case. However, I note that the delay in Mr. Isaacs case is at the outer edge of what would be tolerated in a post-Jordan analysis.

[164] Finally, I note that there has been a reduction in the estimated amount of trial time required. I note that this reduction is a very recent event and that it does not detract from the overall complexity of the case. The alleged scheme is still quite complex.

[165] This brings me to the transitional exceptional circumstances.

d) Transitional Exceptional Circumstances

[166] The transitional exceptional circumstance requires the Court to consider whether the parties were acting reasonably under the old law. In Jordan, the majority described this analysis as follows (at paragraphs 94 to 97): Here, there are a variety of reasons to apply the framework contextually and flexibly for cases currently in the system, one being that it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice. Further, this new framework creates incentives for both the Crown and the defence to expedite criminal cases. However, in jurisdictions where prolonged delays are the norm, it will take time for these incentives to shift the culture. As well, the administration of justice cannot tolerate a recurrence of what transpired after the release of Askov, and this contextual application of the framework is intended to ensure that the post-Askov situation is not repeated. The new framework, including the presumptive ceiling, applies to cases currently in the system, subject to two qualifications. First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account. Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, Crown counsel’s behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov. This transitional exceptional circumstance recognizes that change takes time, and institutional delay – even if it is significant – will not automatically result in a stay of proceedings.

[167] In my view, this requires an assessment of the delay under Morin, as well as a review of all of the circumstances that exist in this case. There are significant similarities in the analysis between the two accused, so I will conduct the analysis for both of them together, with separate comments about prejudice.

The Morin Analysis

[168] The Morin analysis has been described in many cases. A recent explanation of this analysis, in the context of Jordan is set out in R. v. Swaminathan, 2016 ONSC 4913, [2016] O.J. No. 4150, at para. 8: The court must consider the following: (1) Length of the delay; (2) Waiver of any time periods by the accused; (3) Reasons for the delay, including: (a) The inherent time requirements of the case; (b) Conduct of the accused or delay attributable to the accused; (c) Conduct of the crown or delays attributable to the crown; (d) Systemic or institutional delays; and (e) Any other reason for the delay (4) Prejudice to the accused: Morin, at para. 31 and R v. Tran, 2012 ONCS 18 at para. 20.

[169] There is a very significant delay between the date that the accused were charged and the date that the trial was scheduled to start for each accused. It is the type of delay that, in the pre-Jordan world, would require the Court to embark on the Morin analysis.

[170] The starting point for a Morin analysis is the date the information is sworn (see R. v. Kalanj, [1989] 1 S.C.R. 1594). Accordingly, for Mr. Isaacs it is May 11th, 2011 and for Mr. Hussein it is the day that he was charged with these offences, as he was held pending a bail hearing.

[171] Once this starting point is determined, the Court must analyze the delay to determine what periods are intake, inherent and defence delay and what periods are Crown and/or institutional delay. For cases in the Superior Court of Justice, Morin sets a guideline of 14 to 18 months of Crown and/or institutional delay. This period can be adjusted upwards or downwards, depending on a host of factors in the case, including prejudice to the accused, the seriousness of the charges and the like.

[172] With this framework in mind, I turn to consider this case. I start with a fundamental proposition that applies to this case. As Sopinka J. noted in Morin, the delay does not begin to run until the parties are ready for trial. It is clear from the record above that, for virtually the entire time that this case was in the Superior Court, neither of the accused were ready to proceed to trial. It is only on August 1st, 2016 that Mr. Fahmy and Mr. Doan were prepared to go to trial. As a result, the institutional delay in the Superior Court could arguably be limited to a month.

[173] Similarly, when the delays in the Ontario Court of Justice are considered, there are significant periods of either intake delay or inherent delay that is required to either provide disclosure or to prepare for the preliminary inquiry. In this case, the Crown identifies the following periods of Crown and/or institutional delay: a. December 5, 2011 – March 20th, 2012: Crown delay regarding disclosure. b. September 7th, 2012 – October 11th, 2013: institutional delay, in that it is the time between when the preliminary inquiry dates are set and the Court finally renders a decision.

[174] This is a total period of about fifteen months. The accused in both cases accept the bulk of this calculation, with the exception of a period between March 20th and May 8th, 2012. In my view, for the reasons set out in the Jordan analysis above, this was neither Crown nor Institutional delay.

[175] However, in their calculations, the accused point to one important fact. Specifically, that some time should be attributed as preparation time before the parties are ready for the preliminary inquiry. They have credited back a month of this time. I do not view that as sufficient in this case.

[176] As Code J. noted in R. v. Lahiry, 2011 ONSC 6780, 244 C.R.R. (2d) 248, at para. 34: Finally there is no place for fictions when seeking to prove Charter violations. It is rarely true that counsel is immediately available for trial, when setting a date. Whenever counsel take on a new case they complete various preliminary steps during the intake period. Once they have taken these steps and are ready to set a date for trial, they need to set aside sufficient time in their calendars to prepare the new case for trial and to then conduct the trial. If the case is lengthy and complex, or if counsel are very busy, it may be some considerable period of time before counsel are ready for trial. To use a simple hypothetical, if counsel has no time in his/her calendar to prepare a new case for trial and to then try it until ten months in the future, and the earliest date that the Court has available for the trial is twelve months in the future, then systemic congestion in the Court is the cause of only two months of delay. The other ten months is delay that the accused needs, for entirely beneficial reasons, in order to allow his/her counsel of choice to prepare the case for trial and to accommodate it in an otherwise busy calendar. It is good and necessary delay that would have occurred in any event, even if the Court had earlier available dates. It is a fiction to characterize this kind of useful delay as unwarranted or unreasonable or prejudicial.

[177] This is a complex case. It would have taken significant time for counsel to prepare for the preliminary inquiry, and there would be some inherent delay attendant in the scheduling and hearing of that inquiry. As a result, in the Ontario Court of Justice, I am of the view that three months of the time between when the preliminary inquiry dates are set and the preliminary inquiry is held is preparation time for the defence. I am also of the view that at least two months of the time between when the dates are set and the accused are committed should be treated as inherent time, given the complexity of the prosecution. As a result, I am of the view that the Institutional/Crown delay at the Ontario Court of Justice level was no more than ten (10) months.

[178] This brings me to the delay in the Superior Court. The parties have accepted that the delay between October of 2014 and September of 2015, when the trial was adjourned, is institutional delay, as this is the time that is required to schedule such a lengthy trial. The parties advised me that looking behind this time period would require consideration of more detailed evidence, so I have not looked behind it.

[179] Even accepting that agreement, however, it limits the institutional delay in the Superior Court of Justice to a maximum of 11 months, and the institutional delay in the Ontario Court of Justice to a maximum of 10 months. This is over the Morin guidelines. However, in my view, this amount of delay is not unreasonable because of the complexity of this case and because of the length of the trial.

[180] However, that does not end the inquiry. I must also consider the prejudice to the accused and conduct a balancing.

[181] There is a difference between prejudice that flows from the charges themselves and the prejudice that flows from a delay in having the charges heard. Second, there is a difference between actual and inferred prejudice.

[182] On the second point, the difference between actual and inferred prejudice is that actual prejudice must be demonstrated on a case-by-case basis by the accused. Inferred prejudice flows from the length of time that it has taken between the date of the charges and the date of the trial. In this case, inferred prejudice clearly exists with both accused, as the total delays in this case are very significant. This brings me to actual prejudice.

[183] Mr. Isaacs testified that he had suffered prejudice because he developed medical conditions, including a heart condition, diabetes and high blood pressure. He also testified that he suffered from anxiety attacks. In cross examination, however, Mr. Isaacs acknowledged that he could not say that the development of these conditions was related to the delay in hearing his case. I do not view the development of Mr. Isaacs’ medical condition as being related to the delays in this case.

[184] Mr. Isaacs also testified that he had restrictive bail conditions, and had lost relationships with friends and family as a result of those conditions. Again, however, I cannot find that this actual prejudice related to the delays in the case as opposed to the charges themselves.

[185] Mr. Hussein testified that he had suffered depression and anxiety as a result of the charges, and has remained in his room much of the time since the charges were laid. In terms of his depression and anxiety, however, I note that Mr. Hussein’s mother, father and brother-in-law all died in 2011. Indeed, when Mr. Hussein first learned of the charges, he was in Pakistan tending to his mother, who had suffered a brain haemorrhage.

[186] I do not see that this depression and anxiety caused Mr. Hussein any prejudice that is related to the delay in hearing his case for two reasons. First, the condition arose very quickly after Mr. Hussein was charged, and I have heard no evidence about it getting worse. Second, I am of the view that other factors in his life might have contributed to the development of Mr. Hussein’s depression and anxiety.

[187] In terms of the medical prejudice that both accused are advancing, I also note that neither of them furnished the Court with any documentation that supported their positions.

[188] Given the foregoing, I find that the neither accused has provided any evidence of actual prejudice.

[189] This brings me to the balancing. In my view, the institutional and/or Crown delay in this case is only modestly above the Morin guidelines. Other than inferred prejudice, the accused have not demonstrated any significant prejudice. Given that the case is complex, in my view, the delays in this case are not unreasonable and, under the Morin analysis, a stay would clearly have been denied.

[190] This is not a complete Morin analysis. However, it demonstrates that neither of the accused would have been successful in any meaningful way in bringing a section 11(b) motion under the Morin framework. This is clear from the fact that neither accused brought an application under 11(b) until Jordan was released.

The Flexible Approach to Jordan

[191] The flexible, contextual approach to Jordan requires an analysis of a number of other factors as set out above.

[192] First, the parties’ behaviour should not be judged strictly against the Jordan framework. In this case, the Crown sought to expedite the matter, and was prepared to work with the other parties to move it along. It was the Crown that raised the issues of delay at various points in the journey to bring this case to trial.

[193] Second, in every assignment Court in Brampton, the obligation of accused to raise issues of delay is set out at the opening of the Court, and the statement is appended to transcripts. In this case, neither of the accused ever advanced an application to address the delay.

[194] Third, there is the fact that the administration of justice cannot countenance a repeat of the wholesale stays that arose after Askov, supra was decided. In my view that is an important factor in this case. We have two accused, neither of whom were ready to go to trial for a period of almost three years. It would bring the administration of justice into disrepute if the accused were permitted to rely on a change in the law coupled with their own unpreparedness to avoid a trial in this case.

The Total Picture

[195] A number of decisions identify the risks of getting lost in the trees and missing the forest when delay is being considered. Having been through the trees, it is now time for me to step back and look at the forest.

[196] Both cases are over the 30 month threshold in Jordan. As a result, the delays in each case are prima facie unreasonable.

[197] However, it is clear from the evidence that I heard throughout the course of this application that the case is a particularly complex one and is the very type of case where Jordan will permit additional time to be taken to hear the case.

[198] In addition, these are cases that arise in the transitional period, where there was no time for the Crown or the Court to address the issues raised in Jordan. As a result, the question is whether the parties and, in particular, the Crown and the Courts, were reasonably relying on the law as it previously existed. In my view, both the Crown and the Court were reasonably relying on the law as it previously existed. As discussed in the analysis above, it is unlikely that either accused would have succeeded on a section 11(b) application under the Morin analysis.

[199] I also note that the volume of cases and, therefore, the length of delays in Brampton are above average. This is a factor that the Supreme Court directs us to consider in addressing the transitional exceptional circumstances (see Jordan, paragraph 97).

[200] Finally, it is important to remember the key underlying fact in this case. Neither accused had retained counsel for the trial prior to August of 2015. Neither accused were ready to go to trial until 2016. As noted in Jordan (at paragraph 102), “the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one.” This is especially true when the accused’s actions (or inaction) have made a considerable contribution to the delay, and the Crown has been ready to proceed promptly.

Mr. Hussein

[201] Mr. Hussein will have had to face approximately 10 months of additional delay that is not defence delay over and above the 30 month ceiling in Jordan. Given the analysis I have set out, and my comments about the complexity of the case and the transitional exceptional circumstances, I find that the delay faced by Mr. Hussein is not unreasonable, and a stay should not be granted.

Mr. Isaacs

[202] Mr. Isaacs will have had to face approximately 13 months of additional delay that is not defence delay over and above the 30 month ceiling in Jordan. Given the analysis I have set out, and my comments about the complexity of the case and the transitional exceptional circumstances, I find that the delay faced by Mr. Isaacs is not unreasonable, and a stay should not be granted.

Conclusion

[203] For the foregoing reasons, the motions brought by the accused to stay these proceedings are denied.

LEMAY J.

Released: October 12, 2016