Court File and Parties

Court File No.: CR-16-10000572-0000 Date: 2017-06-14 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Hassan Abdulle, Accused

Counsel: Stefania Fericean, for the Respondent-Crown Jason E. Bogle, for the Applicant-Accused

Heard: June 2, 2017

Reasons for Decision

G. Dow, J.

[1] Mr. Abdulle seeks a stay of the proceedings against him pursuant to sections 9, 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms. Mr. Abdulle submits there has been an unreasonable delay in bringing his case to trial, currently scheduled to commence July 4, 2017.

Background

[2] Mr. Abdulle is charged with a variety of offences arising from events on August 9, 2015, at about 3:00 a.m. He is accused of being the person who discharged a loaded, unlicensed firearm at a vehicle leaving the vicinity of the Marriott Hotel at 525 Bay Street in downtown Toronto. Mr. Abdulle turned himself in and was arrested on August 27, 2015. This sets the presumptive time limit for his case to be disposed of, to the date of February 27, 2018. This is in accordance with the 30 month limit for Superior Court matters outlined in R. v. Jordan, 2016 SCC 27.

[3] The Crown has produced videotaped statements from four individuals obtained shortly after the incident, the first being from Mark St. Pierre whom the Crown and police can no longer locate and the remaining ones being from Donald, Robert and William Cafero. These three individuals are siblings, resident in the United States and have indicated they are not willing to return to Toronto to give evidence in person.

[4] Mr. Abdulle has unsuccessfully attempted to obtain bail and be released on at least three occasions. As a result, he has been in custody for almost 22 months. Until recently, the Crown maintained it would continue with efforts to have the four civilian witnesses testify in person. However, the Crown acknowledged to me that they were no longer expecting this to occur.

[5] In their preparation for this application and in accordance with the direction given by our Court of Appeal in R. v. Coulter, 2016 ONCA 704, in determining the length of the delay, the defence acknowledges three months of defence delay, while the Crown calculated defence delay at 57 days (or just under two months). This reduces the non-defence related delay to 19-20 months and is thus well under the 30 month time limit beyond which such delay becomes presumptively unreasonable.

Analysis

[6] Counsel were in agreement that paragraphs 47 and 48 of R. v. Jordan, 2016 SCC 27, supra, should guide my analysis. That is, the total delay in this matter falls well below the presumptive ceiling. As a result, the onus was on the defence to show 19-20 months of delay is unreasonable. The defence is required to establish that Mr. Abdulle took “meaningful steps that demonstrate a sustained effort to expedite the proceedings, and” that this matter “took markedly longer than it reasonably should have” to proceed and complete the trial.

[7] For clarity, the defence must satisfy both tests.

[8] The Supreme Court of Canada added its direction that for stay applications which are less than the presumptive ceiling, successful cases would be “rare” and “limited to clear cases”.

[9] There is also consideration to be given to the transitional situation, such as this one given R. v. Jordan, 2016 SCC 27, supra, was released July 8, 2016 or after this proceeding commenced. In this case, R. v. Jordan, 2016 SCC 27, supra, was released some weeks before the preliminary hearing in this matter which commenced August 19, 2016. The Supreme Court of Canada directed in this situation (at paragraph 94) “to apply the framework contextually and flexibly”. The intent was to avoid “a reoccurrence of what transpired after the release of Askov”.

[10] Regarding a “sustained effort to expedite the proceedings”, I was provided with and reviewed two volumes of transcripts for appearances in this matter commencing August 27, 2015 until February 10, 2017. For completeness, there were 11 appearances in 2015, 19 appearances in 2016 and 5 appearances in 2017.

[11] On February 3, 2016, the defence first raised the issue of delay, particularly in light of Mr. Abdulle remaining in custody. Defence counsel acknowledged having “earlier available dates”. Defence counsel next raised having the matter “dealt with as expeditiously as possible” on October 20, 2016, being the second appearance in the Superior Court of Justice following the preliminary hearing.

[12] On October 24, 2016, Mr. Abdulle, through counsel, following a judicial pre-trial earlier that day, stated the defence was looking for a trial date “to move this matter with certain alacrity”. There is again reference to Mr. Abdulle being in custody and “Jordan considerations”. The July 4, 2017 trial date had already been scheduled and the matter was adjourned to November 16, 2016 to see if any earlier trial dates were available.

[13] On December 14, 2016, the parties were advised no date earlier than the scheduled July 4, 2017 date had become available and that counsel was concerned about Mr. Abdulle being in custody and unreasonable delay in accordance with R. v. Jordan, 2016 SCC 27, supra.

[14] On February 2, 2017, the parties spoke about setting a date for this application. An April date was provided but due to late filing of materials, the matter did not proceed before me until June 2, 2017.

[15] In my view, the application fails for the following reasons. First, as part of a “sustained effort to expedite the proceedings” I am guided by the comments of the Supreme Court of Canada (quoted below from paragraphs 84 through 86) that “it is not enough” to “simply put on the record that it wanted an earlier trial date”. The defence must “demonstrate having taken meaningful and sustained steps to be tried quickly” as part of the establishment of the ceiling and the strong presumption which occurs in the accused’s favour when the elapsed time is above the ceiling. In this regard, I was not provided with any other meaningful or sustained steps on the part of the defence which would support unreasonable delay.

[16] While it is clear and I recognize the defence is entitled to rely on the Crown’s onus to prove each element of each charge beyond a reasonable doubt, there was no indication that the defence had waived any of the procedure or steps involved as part of obtaining an earlier disposition of this matter. To the contrary, the Crown pointed to union records filed by the accused as an exhibit at his initial bail hearing being objected to as evidence at the preliminary hearing. This, in my view, is not part of the “defence being part of the solution” to enhance timely justice (at paragraph 86).

[17] The circumstances before me also fail the requirement that matters less than the presumptive ceiling are limited to “clear cases” and the Supreme Court of Canada’s expectation stays in these situations would be “rare”.

[18] It is not necessary to consider the second part of the test given my conclusion on the first part and the conjunctive nature of the test. However, given the submissions made, I shall address why, in my view, this application fails with regard to taking “markedly longer than it reasonably should have”.

[19] This test requires that there be a balance between of the offence or offences and the evidence to be tendered. Presumably, the fewer the offences and the more straightforward the evidence, the less time the matter requires and the earlier unreasonable delay can occur. The material before me noted the Crown’s efforts to locate and rely on the evidence of Mark St. Pierre were ongoing but in submissions were acknowledged to be at an impasse. In addition, the effort to secure the attendance of the remaining three civilian witnesses from the United States has been met with their unwillingness to return to Toronto. It was more recently proposed they give evidence by video link and they have been non-responsive to this suggestion.

[20] Further, in addition to the nine counts scheduled to proceed to trial on July 4, 2017, there were additional charges that no longer form the indictment scheduled to proceed to trial July 4, 2017. The Crown material also references charges laid after Mr. Abdulle was in custody.

[21] The tendering of the evidence upon which the Crown relies is in a form which results from the civilian witnesses not being available in person. It has been subject to applications by the Crown at the preliminary hearing which were opposed. This leads me to conclude this matter has some level of complexity and has not taken “markedly longer than it should have” in proceeding to trial or being unreasonably delayed.

[22] The defence also submitted the ramifications to Mr. Abdulle’s life having been in custody for almost 22 months be considered as part of whether this matter has taken “markedly longer than it should have” to be concluded. The impact of this is lessened by the evaluation on at least three occasions that Mr. Abdulle should not be permitted bail. Further, it does not alter my conclusion on this part of the analysis to be conducted. This was one of four factors previously balanced in R. v. Morin, [1992] 1 S.C.R. 771, another of which addressed the reasons for delay, including institutional delay with provision for 14-18 months of institutional delay for matters in a Superior Court. Both parties calculated institutional delay in this matter at 12 months, or less than the guideline set out in R. v. Morin, [1992] 1 S.C.R. 771, supra.

[23] I am reinforced in this conclusion by the Supreme Court of Canada referencing (at paragraph 60), the comment of Justice Sopinka in R. v. Morin, [1992] 1 S.C.R. 771, supra (page 802) that “the purpose of s. 11 (b) is to expedite trials and minimize prejudice and not to avoid trials on the merits”.

Conclusion

[24] As a result, this application is dismissed and the charges against Mr. Abdulle remain scheduled to proceed to trial commencing July 4, 2017.

G. Dow J.

Released: June 14, 2017