Court File and Parties

Court File No.: 14-G2165 Date: 2017/01/27 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Valdrin Basha and Anton Dokaj, Applicants

Counsel: Christa Reccord, for the Federal Prosecution Service Rosalind E. Conway, for the Applicant, Valdrin Basha John H. Hale, for the Applicant, Anton Dokaj

Heard: December 12, 2016 and January 4, 2017.

Reasons on Section 11(b) Charter Applications

Maranger J.

[1] The applicants are jointly charged with possession of crack cocaine and cocaine for the purposes of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act (CDSA), S.C. 1996, c. 19, with numerous firearms offences relating to a sawed off 410 shotgun, as well as possession of proceeds of crime contrary to section 355(b) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] Both accused have applied for a stay of proceedings on the basis that their right to be tried within a reasonable time as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982, c. 11, has been infringed. On January 5, 2017 both applications were denied with written reasons to follow. These are those reasons.

Valdrin Basha

[3] The factual background relating to the two applications can be summarized as follows:

• On July 15, 2014 the Ottawa Police Service executed a search warrant at 232-790 Springland Drive in the city of Ottawa, believing it to be the address of the applicant, Valdrin Basha. During the execution of the search warrant, powder and crack cocaine as well as a sawed off 410 shotgun in the gun were seized. Valdrin Basha was arrested on that date at a traffic stop, cocaine was also located in the vehicle. However on that date, he was not charged.
• During the execution of the search warrant, documents were found in the bedroom connecting Anton Dokaj to the apartment. He was arrested at the same time as Valdrin Basha while they were both in the same vehicle.
• The applicants were not charged on that date because the police were conducting an ongoing investigation, they were arrested a second time on September 4, 2014 and was then charged.
• Valdrin Basha was released on a promise to appear in an undertaking given to a peace officer. The conditions of the undertaking were: to notify Detective Hansan within 24 hours in writing of any change of address, employment or occupation; to abstain from commuting directly or indirectly with the two co-accused; to deposit his passport with Detective Hansan; not to possess any CDSA substances; and not to possess or make use of any mobile phones. Anton Dokaj was released on similar conditions.
• The information charging the applicant was sworn in September 15, 2014. Trial dates are set for February 13 to February 24, 2017. The Crown and the Applicant Valdrin Basha agree that the total period of delay between the time the information was sworn and the last day scheduled for trial is 29 months and 10 days. In the case of Anton Dokaj it is 28 months.

Legal Principles

[4] On July 8, 2016 the Supreme Court of Canada released the decision of R v. Jordan, 2016 SCC 27, 398 D.L.R. (4th) 381. The decision dramatically changed the law in deciding whether an accused’s right to be tried within a reasonable time had been violated.

[5] The previous framework for analysing whether the right to be tried within a reasonable time came out of the case of R v. Morin, [1992] 1 S.C.R. 771. Morin required the court to balance four factors:

1. The length of the delay;
2. defence waiver;
3. the reasons for the delay including the inherent needs of the case, defense delay, Crown delay, institutional delay, and other reasons for delay; and
4. prejudice to the accused’s interests in liberty, security of the person and a fair trial prejudice can be actual or inferred from the length of the delay.

[6] The majority in Jordan described the Morin approach as “too unpredictable, too confusing, and too complex. It has itself become a burden on already overburdened trial courts” (paragraph 38). The Court went on to indicate that these doctrinal problems have contributed to problems in practice, which have led to a culture of complacency towards delay in our criminal justice system.

[7] I would summarize the essential governing principles or framework to be taken from the Jordan case in the following manner:

i. There is a 30 month presumptive ceiling for matters tried in the Superior Court of Justice. The clock runs from the date that the accused is charged and ends with the actual anticipated end of the trial. If that timeframe exceeds 30 months there is a presumption that the delay has become unreasonable. ii. There is a three-step analysis to be used: first calculate the delay; second deduct from the total any delay waived by defence or caused by the conduct of the defence; third, where the net total exceeds the presumptive ceiling, the onus shifts to the Crown to rebut the presumption of unreasonable delay by demonstrating that there are exceptional circumstances. If the Crown fails to do so, a stay must follow. iii. In cases that were in the system prior to July 8, 2016 there is a fourth step, where the delay exceeds the presumptive ceiling, the Crown can nonetheless invoke transitional, exceptional circumstances, the Crown has to demonstrate that the time was justified on the basis of relying on the previous state of the law. iv. Defence waiver can be explicit or implicit. It has to be clear and unequivocal, a complete understanding of the right and the effect of waiving the right must be demonstrated. v. Delay attributable to the Defence would include: conduct that causes or directly contributes to delay; calculated tactics designed to delay the matter, such as frivolous applications or requests; defence unavailability, so long as both the court and the Crown are ready to proceed. If they are not, the delay will not be found to be caused by the Defence. vi. Any conduct by the Defence undertaken to legitimately respond to the charge will fall outside of the definition of Defence delay. vii. Exceptional circumstances are those that are outside of the control of the Crown. They have to be reasonably unforeseen or unavoidable and the Crown must not have been able to reasonably remedy the delay caused in the circumstances. They come into two categories: discrete events and particularly complex cases. Importantly, when such a delay occurs, it is incumbent upon the Crown and the court to do what it can to mitigate the effect of the delay. The seriousness of the offence standing alone will not be considered an exceptional circumstance. viii. The court also established guidelines for dealing with transitional cases (cases currently in the system). While the new framework applies it has to be applied contextually and flexibly. For cases that exceed the presumptive ceiling, “a transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the party’s reasonable reliance on the law as it previously existed”. Thus, the factors that were relevant under the Morin framework can inform the analysis of cases in the system before Jordan. ix. In cases that fall below the presumptive 30 month ceiling, stays will be rare and limited to the clearest of cases. The reason being that the ceiling “factored in tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increased complexity of most cases” (paragraph 83) Jordan further indicated that staying proceedings will be difficult to obtain for cases currently in the system that are beneath the presumptive ceiling, given the level of institutional delay tolerated under the previous approach. x. If the period of delay is under 30 months in the Superior Court of Justice, the burden shifts to the Defence to show that the delay is unreasonable. The Defence must show that it took meaningful, sustained steps to expedite the proceeding, and that the case took markedly longer to conclude that it should have.

In R v. Williamson, 2016 SCC 28, 398 D.L.R. (4th) 577, the Supreme Court of Canada provided the considerations applicable to transitional cases. Madam Justice Parfett, in R. v Picard, 2016 ONSC 7061, [2016] CarswellOnt 18062, nicely summarized the principles at paragraph 25 where she said:

[25] In R. v. Williamson, [24] the Supreme Court fleshed out the considerations to apply in transitional cases. It suggested that relevant circumstances to consider in a contextual analysis include:

• The complexity of the case;
• The period of delay in excess of the Morin guidelines;
• The Crown’s response, if any, to any institutional delay;
• Defence efforts, if any, to move the case along; and
• Prejudice to the accused. [25]

Principles Applied in the Case of Valdrin Basha

[8] The delay in this case falls below the 30 month ceiling, nothing in the record before me supports the proposition that the case took “markedly longer to conclude that it should have.” It is not a clear case where a stay should be ordered. I agree with the Federal Crown that the delay in this case relates to inherent time requirements of the case and institutional delays. All parties were generally ready and prepared to set dates, although there were some dates not available to either the Crown or the Defence. Disclosure was substantially completed by November 12 2014.

[9] The accused primarily relies upon the prejudice caused to him by the amount of time it took to get this matter to trial. I am in agreement with the Crown that any “prejudice” suffered by the accused was, in most respects, minimal and related to the nature of the offences that he is facing. His conditions of release were reasonable given the charges that he was facing. The surrender of a passport and a cell phone for someone charged with drug offences are standard. In any event, he could have taken steps to vary these conditions, but he did not. The stress and pressure he feels is directly related to being charged with serious offences and not to the delay in getting the matter to trial. This was by no means a clear case justifying a stay.

[10] Therefore, for all of the above reasons, the application by Valdrin Basha to stay the proceedings is dismissed.

Anton Dokaj

[11] The applicant Anton Dokaj is a co-accused with Valdrin Basha. It is common ground that in the case of this applicant, the delay was 28 months.

[12] The thrust of the argument by this applicant was that the Crown should have agreed to sever his case from the co-accused. Had there been a severance, his trial could have taken place on an earlier date. Failing to do so markedly increased the amount of time necessary to bring this case to trial.

[13] This application was not the type of clear case contemplated in Jordan that would warrant a stay of proceedings. The record of the proceedings leading up to setting the trial date do not support the proposition the fact that the Defence took meaningful, sustained steps to expedite the proceedings, or that the case took markedly longer to conclude than it should have.

[14] The applicant’s failure to take sustained steps to expedite the proceedings can be exemplified by the amount of time between the applicant losing his job in December 2015, and applying for Legal Aid on June 6, 2016. Furthermore, Legal Aid’s decision not to fund the case was handed down on July 19, 2016. The accused, through counsel, took until October 2016 to revive a Rowbotham application.

[15] With respect to the severance issue, the accused never brought an application to sever in the Superior Court of Justice. The trial dates in this matter were set on April 8, 2016. While the Supreme Court of Canada cautioned prosecutors to be live to any delay issues that may arise from prosecuting multiple accused, the Crown nonetheless retains considerable discretion in charging decisions, including whether to charge accused together where it is in the interest of justice to do so.

[16] There are cases where a severance is not in the interest of justice, despite any potential delay. In R. v. Singh, 2016 BCCA 427, 2016 CarswellBC 3058, at paragraph 81, the British Columbia Court of Appeal indicated the following:

[81] Severance is not a panacea when delay issues arise in a multi-party indictment. The Jordan framework does not require severing proceedings in all cases. While there may well be cases where severance would be appropriate to avoid some delay, the interests of justice may dictate otherwise. The comments of Fraser J.A. (as she then was) in R. v. Koruz (1992), 1992 ABCA 144, 72 C.C.C. (3d) 353 at 419 (Alta. C.A.), aff’d R. v. Schiewe, [1993] 1 S.C.R. 1134 are fitting:

Moreover, if the suggestion is that every time a number of defendants are charged with conspiracy, the Crown should be required to sever charges if and when timing problems arise, the implications for prosecuting these kinds of cases could be profound. Although the right to trial within a reasonable time is an individual right, one cannot ignore the practicalities of what is involved in the Crown’s prosecution of a conspiracy case. The mere fact that an accused has been charged with conspiracy does not confer upon him some inherent advantage in asserting a claim for a s. 11(b) breach if and when one of his co-defendants causes a delay in the proceedings. To suggest severance as a simple solution ignores the very real cost to the Crown and the public involved in prosecuting separate actions: R. v. McNamara (No. 1) (1981), 56 C.C.C. (2d) 193 (O.C.A.), affirmed R. v. McNamara (1985), 19 C.C.C. (3d) 1 (S.C.C.). In the end, this kind of approach will only serve to contribute to further delays in the administration of justice.

[17] I agree with the Crown’s analysis that this was a proper case to have the two accused tried together, that it was in the interests of justice to do so.

[18] The applicant is charged with jointly possessing cocaine and a firearm. The main issue for trial will be who had knowledge and control of the drugs and a firearm. The matters were not severed out of a danger of inconsistent verdicts: each accused might successfully point the finger at the other.

[19] Severance could impair the truth-seeking function of the court: with separate trials, one accused could testify at the other’s trial that the gun and the drugs belonged to him.

[20] Furthermore, two trials would not be an effective or efficient use of judicial resources given that much of the evidence and the same witnesses required by the court would be the same for both accused.

[21] The contention by the Defence that they could have had a two hour trial in the Ontario Court of Justice because of the admissions they were prepared to make, that the only issue to be determined was knowledge and control of the drugs of a firearm, seems a little simplistic. The Crown is entitled to put its best foot forward and would doubtlessly rely upon circumstantial evidence including surveillance evidence, the circumstances of the arrest, what was seized and where it was seized in the apartment. In their attempt to establish knowledge and control. The evidence between the two accused would clearly overlap.

[22] The issue to be tried is who had knowledge and control over the drugs and the gun, and proving it, and in the circumstances of this kind of a case, the Crown is justified in proceeding against both accused at the same time.

[23] I would add, in this case, that this was a drug case and the prosecution did nothing overt to add to the delay in getting the matter to trial. The decision not to consent to a severance was in the circumstances of this case reasonable.

[24] Therefore for the above reasons the application to stay the proceedings is denied.

Maranger J. Released: January 27, 2017