R. v. Basha and Dokaj, 2017 ONSC 5897

CITATION: R. v. Basha and Dokaj, 2017 ONSC 5897

COURT FILE NO.: 14-G2165

DATE: 2017/10/06

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty The Queen

Respondent

– and –

Valdrin Basha

Applicant

COUNSEL:

C. Reccord and J. Corbeil, for the Federal Prosecution Service

R. E. Conway, for V. Basha

ARGUED: September 15, 2017

REASONS FOR DECISION ON S. 11(b) CHARTER APPLICATION

[1] Mr. Basha was arrested and charged on September 4, 2014 with 13 offences which are alleged to have occurred on July 15, 2014, 11 of which he was charged jointly with Mr. Dokaj. Those charges include possession of crack cocaine and cocaine for the purposes of trafficking contrary to s. 5(2) of the Controlled Drugs And Substances Act, S.C. 1996, c.19, numerous firearms offenses related to a sawed off 410 shotgun and possession of proceeds of crime.

[2] Mr. Basha was further charged with possession of cocaine on September 4, 2014 to which he plead guilty at the commencement of trial on February 13, 2017. That left the 11 joint charges against the two co-accused and 2 charges against Mr. Basha which proceeded to trial as to the events of July 15, 2014.

[3] The background to these charges includes the following:

a) The Ottawa Police Service executed a search warrant of an apartment in Ottawa on July 15, 2014. Police during that search of unit 232 found cocaine and crack cocaine as well as a sawed off 410 shotgun in the apartment.

b) Mr. Basha and Mr. Dokaj were arrested on that date at a traffic stop. Cocaine was located in the vehicle of Mr. Basha and on his person. Neither accused was charged on July 15, 2014.

c) During the execution of the search warrant of unit 232, police found documents in bedrooms connecting each accused to the apartment.

d) Police continued their ongoing drug investigation after July 15, 2014 and subsequently arrested and charged Mr. Basha and Mr. Dokaj on September 4, 2014 as to the July 15, 2014 alleged events;

e) Mr. Basha was released September 5, 2014 on a promise to appear and an undertaking to notify police within 24 hours in writing of any change of address, employment or occupation; to abstain from commuting directly or indirectly with the 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. The condition prohibiting to possess and use a cellular telephone was subsequently deleted by court order.

f) Mr. Dokaj was acquitted of all charges on September 14, 2017.

g) The court on September 14, 2017 adjourned its decision as to the charges against Mr. Basha pending argument of this application for a stay of these charges. That s. 11(b) Charter application was argued on September 15, 2017 and then adjourned for a decision to October 2, 2017.

Application And Position Of The Parties

[4] Mr. Basha in argument submitted:

a) His right to a trial within a reasonable time was infringed or denied as guaranteed under s. 11(b) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, Schedule B to the Canada Act (UK), 1982 c. 11;

b) He and the Crown have agreed that the focus of this application is the period of time subsequent to the January 5, 2017 dismissal of the first s. 11(b) applications brought by himself and Mr. Dokaj (“First Application”);

c) The two relevant time periods on this application, are:

i. the extended length of the trial to May 18, 2017 beyond the original scheduled 2 week trial which was to end on February 24, 2017: and

ii. the period of judicial deliberation after final trial submissions from May 19 to September 14, 2017.

d) the Crown is responsible for this trial extending beyond the two weeks originally scheduled, namely from February 24, 2017 until the completion of submissions on May 18, 2017 as it called an excessive number of witnesses, consumed almost all of the two weeks scheduled for the trial and did not close its case until February 23, 2017;

e) The defence was thereby prevented from starting their case until the next trial date on March 9, 2017;

f) the subsequent adjournment after final submissions on May 18 until September 14, 2017 for judicial deliberation and to render a decision was too lengthy; and

g) the resulting delay of 36 months and 1 week since the date of charge on September 4, 2014 until September 14, 2017 constitutes an unreasonable delay and a breach of his right to a trial within a reasonable time pursuant to s. 11(b) of the Charter.

[5] The other grounds citied in Mr. Basha’s Notice of Application and factum were not argued on this application.

[6] The Crown in argument:

a) agreed that the relevant periods as to this application are the extended length of the trial from the scheduled February 24 until completion of final argument on May 18, 2017 and from that date until September 14, 2017;

b) submitted that all counsel had agreed that the two weeks originally scheduled for this trial of February 13-24, 2017 was a reasonable estimate;

c) the Crown’s case was based on circumstantial evidence which necessitated it call each of its 11 witnesses who testified;

d) The Crown attempted to avoid the extended length of the trial by:

i. Repeatedly expressing its concern during the trial as to the length thereof;

ii. Electing not to call several other witnesses it had under subpoena;

ii. Requested and obtained extended sitting hours during the trial;

iii. Attempted to shorten its final submissions by submitting a written summary of surveillance evidence which Mr. Basha objected to until later in argument; and

iv. Proceeded on the dates scheduled with final submissions notwithstanding the absence of senior Crown counsel due to tragic circumstances involving a member of that Counsel’s immediate family;

e) that the extended period since final argument taken by the court to consider and render a decision, namely between May 19 and September 14, 2017:

i. Is not relevant to this application as the length thereof is not shocking, inordinate and unconscionable;

ii. The Crown lacked control, the ability to reply and knowledge as to the reasons for the length of this deliberation period. This period of time therefore should not be considered on this application;

iii. Alternatively, this period of deliberation is a discrete event, an exceptional circumstance and should not be included in the 30 month ceiling pursuant to Jordan; and

iv. In the further alternative, if this deliberation period is not a discrete event, this is a transitional case under Jordan pursuant to which the Morin factors are applicable under which this time period should be classified as neutral delay given the purpose thereof, the fact that Mr. Basha has not been in custody since charged and the seriousness of the offences charged, such that a stay of this proceeding is not warranted.

[7] There is some incongruity in the fact this proceeding commenced in September 2014, which like many criminal proceedings led to a trial and determination of the charges, versus this court now being asked to stay these charges because the length of the trial and the subsequent period of deliberation to prepare the decision, when combined with the preceding 29 months and 10 days, exceeds the 30 month Jordan threshold created on July 8, 2016.

[8] This new 30 month net ceiling did not exist:

a) When this trial was scheduled in April 2016 for two weeks;

b) during the first 22 months of this proceeding prior to July 2016 which then lasted 32 months to May 18 or 36 months to September 14, 2017.

Right To Be Tried Within A Reasonable Time And Jordan

[9] S. 11(b) of the Charter creates the right of the accused to be tried within a reasonable time.

[10] On July 8, 2016, the Supreme Court created a 30 month ceiling for criminal proceedings between the date of the charge and the end of the trial in a superior court. Criminal proceedings in excess of 30 months to the end of trial will result in a presumption that the period of time since the date of charge is unreasonable, in which case a stay of proceedings will follow, subject to the Crown justifying delays that exceed the 30 month presumptive ceiling: R. v. Jordan, 2016 SCC 27, para 46, 47, 49, 56 and 68.

[11] This new 30 month time ceiling above which the length of time is presumptively unreasonable, is not solely a function of time. Compelling case specific factors remain relevant in assessing the reasonableness of a time period in excess of 30 months: Jordan para 51.

Determinations Made In First Application Decision

[12] Mr. Basha and Mr. Dokaj were unsuccessful on their prior applications to stay these charges pursuant to sections 11(b) and 24 of the Charter. Those applications were argued on December 12, 2016 and January 4, 2017 and were dismissed on January 5, 2017: 2017 ONSC 337.

[13] Those two applications proceeded on the basis of the time between the date of charge on September 4, 2014, to the end of the scheduled two week trial on February 24, 2017, namely 29 months and 10 days.

[14] In dismissing Mr. Basha’s January 2017 s. 11(b) application, Maranger J. held:

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 of is dismissed.

[15] In dismissing the stay of proceeding application by Mr. Dokaj. Maranger J. rejected his argument that a stay was appropriate as the Crown should not have charged him jointly with Mr. Basha who elected to proceed in superior court, thereby extending the period of time to trial and held:

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 then it should have.

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 interest of justice to do so.

22 The issue to be tried is who had knowledge and control over the drugs and the gun, and proving it, in the circumstances of this kind of case, justifies 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 (by the Crown) not to consent to a severance was in the circumstances of this case reasonable.

[16] Mr. Basha and Mr. Dokaj did not appeal the above dismissal of their s. 11(b) applications for a stay of these charges. Mr. Basha in argument of this application did not challenge that decision or the findings therein, which would have constituted a prohibited collateral attack thereof absent an appeal.

Time Elapsed Since Date Of Charge

[17] The time elapsed from the date of charge of Mr. Basha on September 4, 2014 was:

a) 29 months and 10 days to February 24, 2017 which was the last day of the scheduled two week trial;

b) 32 months and one day to the completion of final submissions at the end of trial on May 18, 2017;

c) 36 months and nine days to the date scheduled for the court to render its decision as to the charges.

[18] The length of this proceeding, unlike the 29 months and 10 days to the end of the scheduled trial on the First Application in January 2017 for a stay, now exceeds the 30 month presumptive ceiling created in Jordan to the end of trial on May 18 and to the scheduled date to deliver the decision with reasons on September 14, 2017.

Calculation Of 30 Month Ceiling

[19] Time attributable to:

a) delay waived or caused by the defence; and

b) exceptional circumstances;

is to be deducted in calculating the time in this proceeding as to this 30 month presumptive ceiling: Jordan paras 47, 49, 61, 63 and 75.

Defence Waiver

[20] Waiver can be explicit or implicit but must be clear and unequivocal with full knowledge of one’s rights and the effect waiver will have on those rights: Jordan, para 61.

[21] Mr. Basha at all times was represented by counsel experienced in criminal law and as such had full knowledge of his Charter rights, including under s. 11(b).

[22] There was no express waiver of time by Mr. Basha.

Defence Delay

[23] Defence delay are periods of time solely attributable to the defence such as:

a) where the accused actions caused the delay:

b) a deliberate and calculated tactic aimed at causing delay such as frivolous applications and requests; and

c) defence unavailability if the court and the Crown are ready to proceed.

[24] Defence delay does not include:

a) defence unavailability if the court and the Crown are also unavailable;

b) the time reasonably required by the defence to prepare even if the court and the Crown are ready to proceed;

c) defence applications and requests that are not frivolous; and

d) such time periods are not to be deducted: Jordan paras 60 – 66.

[25] Mr. Basha is responsible for delay due to the unavailability of his counsel’s for:

a) a judicial pretrial date offered between January 19 and February 9, 2015 - 21 days; and

b) a judicial pre-trial conference between March 7 to 10, 2015 – 3 days;

c) 1 week for a JPT offered March 7, 2016;

for a total of 4 weeks and 3 days thereby reducing the reviewable time periods to 31 and 35 months respectively.

[26] When the length of a proceeding, less defence delay, exceeds 30 months, the Crown must establish the presence of exceptional circumstances to rebut the presumption that the length of the proceeding is unreasonable, failing which the delay is unreasonable and the charges will be stayed: Jordan para 47.

Transitional Proceedings

[27] The new Jordan framework and 30 month presumptive ceiling applies to criminal proceeding which commenced prior to that July 8, 2016 decision, subject to two qualifications, namely:

a. criminal proceedings in which the delay exceeds the 30 month ceiling and the Crown satisfies the court that the time the case is taken is justified based upon the party’s reasonable reliance on the law prior to Jordan. This requires a contextual assessment taking into account;

i. the manner in which the previous Morin framework was applied which included the level of prejudice and the seriousness of the offence, as the parties cannot be judged against the standard which did not exist and of which they had no notice;

ii. whether the parties and the system had time following the release of Jordan to correct their behaviour and adapt to the Jordan requirements; and

iii. proceedings of moderate complexity may exceed the Jordan ceiling because of significant institutional delay problems in a jurisdiction.

b. The second qualification relates to proceedings commenced prior to Jordan in which delay falls below its 30 month ceiling: Jordan para 94 –100.

[28] The Jordan framework is to be applied contextually and flexibly to such transitional cases like this proceeding as it would be unfair to strictly adjudicate the rights of the parties against the subsequent standard of which they had no notice: para 94.

[29] The parties had only the existing law in R v. Morin 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, were governed by that law prior to July 8, 2016 and therefore relied to rely upon the existing law prior to July 8, 2016. This proceeding meets the first exception requiring a contextual and flexible analysis pursuant to Morin.

[30] In a transitional proceeding as in this case, the judge must consider whether following the release of the Jordan decision on July 8, 2016:

a) the parties have had time to “correct their behaviour”; and

b) the system has had time to adapt to the changes created in Jordan: para 96.

[31] The Jordan decision does not automatically transform what previously would have been considered a reasonable delay into an unreasonable delay, as change takes time: Jordan, para 102.

[32] This is a transitional proceeding as the charges and first court attendance predate the July 8, 2016 decision in Jordan. The time period in issue exceeds 30 months.

Contextual Analysis Under Morin

Prejudice

[33] Prejudice no longer plays a role in the s. 11(b) analysis if the 30 month ceiling is exceeded and the court shall presume that an accused person will have suffered prejudice to their Charter protected liberty, security of the person and fair trial interests. Where the time period extends beyond the 30 months, the absence of actual prejudice does not convert an unreasonable delay into a reasonable delay: Jordan para 54.

[34] Transitional cases are an exception to the above principle that prejudice is presumed on a s. 11(b) application as prejudice and the seriousness of the charge were important factors under Morin which continue to need to be considered under that regime for transitional cases: Jordan para 96.

[35] The court on the First Application determined that the prejudice suffered by Mr. Basha was, in most respects, minimal. That determination was not appealed and not argued on this application.

Seriousness of the Charges

[36] These charges of drug trafficking involving a large quantity of drugs and the presence of a firearm are serious charges under the Code which represent risk of harm to the public and potential jeopardy to the accused if convicted.

Institutional And Crown Delay

[37] The Supreme Court in Morin set an administrative guideline, but not a ceiling, for the appropriate length of institutional delay, namely substantially 8-10 months in provincial courts and 6-8 months in superior courts: pp. 787-788.

Ontario Court of Justice

[38] There was neutral or inherent delay of 4 months between the date of arrest on September 4 to the October 15 first appearance in remand court and then to the substantial completion of disclosure by November 26, 2014.

[39] Maranger J. held disclosure was completed by November 2014 and thus reasonable and part of inherent delay.

[40] There was 3 weeks Crown delay for further disclosure between November 26 and December 17, 2014.

[41] There was 1 month inherent delay for the counsel pre-trial to January 14, 2015.

[42] Counsel for Mr. Basha and/or Mr. Dokaj were unavailable for the judicial pre-trial dates offered on January 14 for January 19 and February 9, resulting in that hearing on February 23, 2015. Mr. Basha was not responsible as counsel for Mr. Dokaj was also unavailable. I attribute this 1 month to inherent delay.

[43] The parties attended in the Ontario Court of Justice on March 4, 2015 to obtain three days to conduct the preliminary inquiry.

[44] The first three days available for the preliminary inquiry was almost 8 months later in October 2015.

[45] Of the dates thereafter offered by that court on March 4, 2015 for the preliminary inquiry, previous Crown counsel was unavailable for October 26 – 28, November 23 – 25 November 30 – December 2, 2015 and January 4 – 6, 2016. Counsel for Mr. Dokaj was unavailable on December 7 – 9, 2015.

[46] This constituted 7 weeks Crown delay, 3 months institutional delay and 3 months and 1 week inherent delay.

[47] The preliminary inquiry proceeded January 11-13, 2016.

Ontario Superior Court

[48] Following their committal to stand trial, both accused on February 5, 2016 proposed trial dates in July, August and early September, 2016. The earliest two week trial date this court offered on March 10, 2016 was February 13–24, 2017, 11 months later.

[49] This lengthy institutional delay was largely caused by the failure to fill vacant Ottawa superior court judicial vacancies within a reasonable time. That problem persisted since 2010 until the summer of 2017. Judicial vacancy levels in this Ottawa court during that period at times continued in some cases for several years and approached 20% of judicial positions at one point.

[50] Some date to trial delay is to be expected to which I attribute 5 months inherent delay. The other 6 months is institutional delay.

[51] Jordan directs the court however to recognize jurisdictions where prolonged delay became the norm as in the Ottawa superior court for the above reason: Jordan, para 94.

[52] Time periods occasioned by institutional delay in a district that was reasonably acceptable prior to the decision in Jordan under the Morin framework, will be a component of the reasonable time requirements of a transitional proceeding commenced prior to Jordan, para 101.

[53] The Crown was unavailable and caused 1 week delay for a JPT on February 19 and March 1, 2016.

[54] The trial proceeded as scheduled on February 13 to 24, 2017 but was then extended and continued on March 9, 10 and April 3 to 5, 2017 and was then continued and completed on May 12 and 18, 2017.

[55] The limited level of prejudice, the seriousness of the charges against Mr. Basha given:

a) Inherent delay of 19 months; namely

i) Disclosure – 2 weeks;

ii) Time to JPT in OCJ – 1 month;

iii) Time to preliminary inquiry – 4 months;

iv) To trial date – 5 months;

v) Trial motion for directed verdict – 1 week;

vi) Extended length of trial – 3 months

vii) Judicial Deliberation at end of trial – 4 months

b) Institutional delay - 11 months with 4 months in O.C.J. and 7 months in O.S.C.;

c) Defence delay - 5.5 weeks; and

d) Crown delay - 2 months

does not justify a stay of these charges pursuant to Morin.

Discrete Exceptional Circumstances

[56] The next issue is whether any time periods associated with exceptional circumstances as considered in Jordan occurred as they are to be deducted regarding the presumptive ceiling of 30 months: Jordan, para 75.

[57] The Crown bears the onus to establish the presence of exceptional circumstances. The time period attributable to exceptional circumstances established by the Crown are excluded in calculating the 30 month ceiling: Jordan, para 47 and 68.

[58] Exceptional circumstances involve events and time periods which lie outside the Crown’s control that are:

a) reasonably unforeseen or unavoidable; and

b) the Crown cannot reasonably remedy the delays resulting from such exceptional circumstance once they arise: Jordan, paras 69 and 81.

[59] Exceptional circumstances are to be determined by the trial judge based upon:

a) the particular circumstances of that proceeding; and

b) experience: Jordan, para 71.

[60] Exceptional circumstances are not limited to, but include two categories, namely:

a) discrete circumstances and

b) complex criminal proceedings: Jordan, para 71.

[61] Exceptional circumstances are the only bases upon which the Crown may discharge its burden to justify a delay that exceeds the 30 month presumptive ceiling: Jordan, para 81.

[62] Without limitation, exceptional circumstances may include an illness, an extradition proceeding or an unexpected event at trial. The seriousness of the offense is not an exceptional circumstance however more complex cases often involve serious charges. Chronic institutional delay and the absence of prejudice do not justify delays after the ceiling is breached: Jordan, para 81.

[63] Exceptional circumstances may arise at trial which result in unforeseen and unavoidable delays resulting in the length of the proceeding extending beyond the time that counsel in good faith established as a realistic estimate of the length of trial: Jordan, para 73.[emphasis added]

Complexity

[64] The Supreme Court in Jordan stated that particularly complex cases require an inordinate amount of trial or preparation time which is justifiable because of the nature of the evidence or the nature of the issues.

[65] The complexity of a proceeding will qualify as an exceptional circumstance if it involved an inordinate amount of trial or preparation time as a result of the nature of the evidence or the issues in that case: Jordan, para 78.

[66] The Crown does not submit that this was a complex proceeding.

[67] Phillips J. of this court in granting Mr. Dokaj’s Rowbotham application on November 21, 2016 in oral reasons however stated:

a) “Furthermore, it is clear to me that this trial will be unusually complex. Mr. Dokaj is charged with very serious offenses. If convicted there is a strong prospect that he will go to jail for a significant time. He is charged along with others and will therefore face the prospect of a cutthroat defence and/or argument with respect to party liability”; and

b) “the Crown has constructed a complex indictment spanning 14 counts.”

[68] Criminal proceedings may be complex because of the nature of the evidence, namely:

a) voluminous disclosure;

b) a large number of witnesses;

c) significant requirements for expert evidence; and

d) charges covering a long period of time: Jordan, para 71 and 77

[69] Criminal proceedings may be complex as the issues in the proceeding involve:

a. A large number of charges;

b. pretrial applications;

c. a large number of legal issues in dispute;

d. novel or complicated legal issues; or

e. joint proceedings against multiple co-accused: Jordan, paras 71 and 77.

[70] Complexity is not determined by the seriousness of a charge, however complex cases commonly involve serious criminal charges.

[71] Complexity may exist at varying levels.

[72] The case presented by the Crown against these two accused at trial was based upon circumstantial evidence. Proceedings in which the Crown has direct evidence of the misconduct alleged because of that fact take less time to prepare, present and decide.

[73] The direct evidence in this case was the presence of the drugs and the firearm found during the warrant search in the apartment as well as documentation in the name of each accused documentary in the apartment. Neither accused was present in the apartment at the time of the warrant search.

[74] Drug trafficking cases are often based on circumstantial evidence which requires presentment of detailed observations over time during surveillance which, absent direct evidence of trafficking, are sufficient to support the inference that the accused was trafficking in prohibited drugs.

[75] Police surveillance in this case against these two accused who are jointly charged with 11 counts included:

a) the 10 police officers who testified as to their observations; and

b) 112 hours of surveillance over 17 days.

[76] The Crown was required to present a large volume of circumstantial evidence gathered during surveillance sufficient to meet its onus in establishing that the court should draw reasonable inferences against each accused as to their knowledge, control and possession of the drugs and firearm and possession for the purposes of trafficking of the drugs found in the apartment. That is particularly the case as the accused were not present on July 15, 2014 and were not a lessee of the residence where the large quantity of drugs and a firearm were found during the warrant search as in this case.

[77] The Crown at trial presented the testimony of 10 police officers who participated in the surveillance and an expert witness. The Crown cancelled the subpoena of further police witnesses in that regard as well as a lay witness.

[78] The court disagrees with Mr. Basha’s submission that the Crown presented an excessive number of police witnesses as to their surveillance observations, the search warrant of the apartment, the Concord and the home of Mr. Basha’s parents on July 15, 2014, the arrests of the two accused on July 15 and again on September 4, 2014 and what occurred on those dates.

[79] The volume of evidence and the circumstantial nature of a lot of it created a level of complexity in this case.

[80] As to the complexity of issues:

a) there were two accused with 11 joint charges and 2 other charges as to July 15 and one charge against Mr. Basha as to September 4, 2014;

b) each accused brought an application for a stay of proceedings prior to trial;

c) Mr. Dokaj successfully brought a Rowbotham application before trial;

d) Mr. Dokaj brought a motion for a directed verdict of acquittal during the trial; and

e) Mr. Basha testified denying knowledge, control and possession of the apartment drugs and gun and the drugs in the Concord regarding the 11 joint charges. He called two witnesses to corroborate parts of his testimony.

[81] The fact there were two accused jointly charged with 11 offenses in a proceeding which included pretrial applications or motions are features articulated in Jordan of a complex proceeding based on the issues.

[82] Although not of the most complex nature, this proceeding had a material level of complexity as to the evidence and issues sufficient to constitute a particularly complex proceeding pursuant to Jordan as evidenced by the need of the parties of two full days for final submissions.

[83] Where a judge finds the case to be particularly complex such that the time the case is taken is justified, the resulting delay is not unreasonable and no stay will issue. No further analysis is required in that event: Jordan, para 78 – 80.

[84] I find this proceeding as to the evidence and the issues for the reasons stated meets that level of complexity. I will continue my analysis in the event another court disagrees this proceeding meets the level of a particularly complex case.

Exceptional Circumstances And Length Of Trial

[85] Unforeseen and unavoidable delays at trial constitute a discrete event and are therefore an exceptional circumstance. The time associated thereto to be subtracted in calculating whether the 30 month ceiling of the Supreme Court is exceeded: Jordan, para 73-75.

[86] Trials:

a) are not “well-oiled machines”; and

b) involve practical realities, which can include the necessity of a party to change its case during the trial; Jordan, para 73 and 74.

[87] The Crown at trial closed its case at 11 AM on February 24, 2017 which was the last day of the of the scheduled two week trial. Mr. Basha thereupon stated he would be testifying and calling witnesses. He could not start then as Mr. Dokaj had brought a motion for a directed verdict which needed to be argued and decided before the defence could proceed with its case.

[88] That motion for a directed verdict was argued during the balance of February 24, 2017. The court dismissed Mr. Dokaj’s motion for directed verdict on March 2, 2017.

[89] The one week delay associated to this motion for a directed verdict was inherent delay under Morin and a discrete exceptional event under Jordan which is to be excluded from the length of this proceeding under review.

[90] In closing its case at 11 AM on February 24, 2017, Mr. Basha faults the Crown for consuming almost all of the scheduled 2 week trial which left no time for the defence to present its case and thereby caused the delay to May 18, 2017 to finish the trial. This argument is invalid for several reasons.

[91] An accused in a criminal proceeding is not required to indicate whether defence evidence will be presented until the Crown closes its case. Estimating the length of criminal trials and the resulting scheduling of criminal trials most often occur without this knowledge. The estimated length and resulting scheduling of criminal trials are therefore often underestimated and inaccurate as the defence is not required to commit whether it will call evidence or the estimated length thereof before the Crown closes its case. Neither party argued this scheduled 2 week trial included a scheduled period of defence evidence.

[92] Counsel were asked at the opening of trial on February 13, 2017 whether this trial could be completed in the scheduled 2 weeks. Crown counsel responded in the affirmative. Defence counsel did not respond. It was then premature for the defence to advise whether they would be presenting evidence, which subsequently occurred and lengthened this trial.

[93] Counsel on February 24, 2017 estimated that another five days was needed to complete the trial including argument. That eventually became 7 more days.

[94] The court on February 24, 2017 expressed its preference to schedule five consecutive days. Dates were then offered and discussed to resume and complete the trial. Mr. Basha’s counsel was unavailable to do so between February 27 and March 3, 2017 which was available to the court resulting in 1 week delay attributable to Mr. Basha.

[95] Counsel for Mr. Basha and the Crown were unavailable during the week of March 13-17, 2017 offered by the court. Trial continuation dates of March 9, 10 and April 3, 4 and 5, 2017 were thereupon offered and accepted by the parties.

[96] In obtaining these extended trial dates subsequent to February 24, the court advised trial coordination that the hearing would proceed in facilities outside the court house if necessary to obtain earlier trial completion dates.

[97] The testimony of Mr. Basha and his witnesses and cross-examination thereon consumed March 9, 10, April 3, 4, and one half of April 5, 2017.

[98] Defence final submissions proceeded in the afternoon of April 5. Crown submissions and defence reply submissions proceeded on May 12 and 18, 2017. Submissions included those regarding the defence evidence which Mr. Basha, as he was entitled, only notified he would present on February 24, 2017.

[99] This legal reality of defence only advising whether it will call evidence at the end of the Crown’s case often results in such delay to complete criminal trials in a system that is operating at capacity. A longer trial of 2 weeks and then 7 additional days spread over individual days during the following 2.5 months as in this case, often will be completed earlier if originally scheduled as a 3.5 week trial. This is one of the “practical realities” of criminal proceedings referred to in Jordan, para 74.

[100] Mr. Basha’s argument ignores this reality and faults the Crown for this trial extending a further 7 days during the subsequent 2.5 months in order to introduce defence evidence on March 9, 10, and April 3, 4, 5, 2017. There is no merit to this argument.

[101] Mr. Basha in faulting the Crown for consuming almost all of the original 2 weeks of trial time further ignores the length of time of defence cross-examination of Crown witnesses, which each accused had the full legal right to exercise. The Crown consumed a total of 19 hours and 40 minutes during its examination-in-chief and re-examination of its 11 witnesses. The combined length of defence cross-examination of Crown witnesses was 18 hours and 15 minutes.

[102] On faulting the Crown for this extended trial, Mr. Basha also omits the fact that 2 days were lost during the initial 2 weeks scheduled, namely:

a) One day during the initial 2 weeks was a Provincial holiday;

b) Counsel for the co-accused was unavailable due to a teaching commitment and could not be present for one half of February 13, 2017;

c) Due to doubled booking, I was unable to sit on February 21, 2017 for half a day. On two other occasions, another 2.5 hours in total were lost as I completed matters in other criminal proceedings.

[103] The above two days during the trial as originally scheduled are discrete exceptional events to be deducted.

[104] Efforts to limit the length of this trial included:

a) agreement at the start of trial and introduction of evidence without the need to call testimony regarding the continuity of drugs and the gun seized, laboratory test results identifying the substances as cocaine and crack cocaine, the absence of any firearm permit by either accused and the fact Mr. Basha was on probation at the relevant time;

b) a summary of the time and periods of surveillance presented by counsel for Mr. Dokaj during the trial;

c) a 22 page Crown summary of surveillance evidence per date of surveillance with individual times per identified police officers and a description of their evidence including which observation the Crown alleged constituted possession of drugs for the purposes of trafficking in order to reduce the length of the Crown’s final submissions;

d) several cautions by Crown counsel concerning delay during the trial;

e) extended sitting dates during the trial at the request of the Crown;

f) reduction of the number of Crown subpoenaed witnesses thereby reducing the evidence in its case;

g) completing the Crown’s final submissions in May, 2017 despite the extenuating personal circumstances of the lead Crown counsel who could no longer participate.

[105] Crown counsel was proactive in preventing delays and in taking concrete measures to respond to delay as they occurred. The Crown was not responsible for this trial not being completed by February 24, 2014 as scheduled.

[106] The reality is that insufficient time had been scheduled on April 8, 2016 to complete this trial which the Crown was unable to accurately estimate given the legal right of the defence on February 24, 2017 to decide whether it would present evidence and if so the extent and the length thereof which would impact the length of final submissions.

[107] Unforeseeable or unavoidable delays occurring during trials that are scheduled to conclude close to the 30 month ceiling, as in this case, will likely qualify as constituting an exceptional circumstances: Jordan, para 74. This 3 month period to May 18, 2017 in this case constitutes an exceptional circumstance which is to be subtracted from the total period of delay for the purposes of determining whether the ceiling has been exceeded: Jordan, para 75.

[108] The extended length of this trial beyond February 24 to May 18, 2017 of 3 months, is the result of the practical realities of criminal litigation which are important factors to be considered under the Morin analysis.

[109] The three months delay in the extended length of the trial combined with the 2.5 days lost during the originally scheduled two week trial are exceptional circumstances which are to be excluded from the 30 month presumptive ceiling.

[110] Subject to the subsequent period of deliberation, deducting the 4.5 weeks of defence delay and 3 additional months to complete the trial results in the length of this proceeding being less than the 30 month presumptive ceiling.

Judicial Deliberation After Trial

[111] Deliberation and determination as to whether the Crown has met its onus in a trial involving a significant amount of circumstantial evidence commonly takes longer than a trial in which there is direct evidence as to actions alleged.

[112] Courts pre-Jordan characterized a reasonable time for judicial deliberation as inherent delay under Morin: R v. Cranton, 2008 ONCA 751, para 50 and R v. Wong 2012 ONCA 286, para 3, R v. Lamacchia, 2012 ONSC 5943, para 7, R v Belchevski, 2012 ONSC 6158 para. 20 and R v. Williams 2015 ONSC 5943, 38.

[113] Mr. Basha submits the time for judicial deliberation is part of the 30 month ceiling and was excessive. This court disagrees.

[114] At the end of counsels final submissions on May 18, 2017, the court indicated it would take the trial decision under reserve, could not commit to a specific date to render its decision and reasons but estimated that might take a few months and that a return date therefore should be at the end of August or the beginning of September, 2017. The court suggested a return date of August 28. Counsel for the co-accused due to the summer holiday period requested a return date of September 6–8 or 11 2017. Counsel for Mr. Basha was not available until September 13 or 14, 2017. September 14 was selected as the return date.

[115] Although legally not required to do so, defence counsel at this point did not express concern about the anticipated length of the period of deliberation or ask whether a decision could be delivered prior to September 14, 2017.

[116] Mr. Basha subsequently on July 21, 2017 asked the trial coordinator for dates to present and argue a new s. 11(b) application, then withdrew that request on July 25 and then asked for dates again to do so on August 28 which were granted with argument of this application on September 15, 2017.

[117] The applicant does not argue that his s. 11(b) right entitled him and obliged the court to render the trial decision on May 19, 2017. Mr. Basha thereby acknowledges that some period of time was required after May 18 to deliberate and render the decision. He submits that the four months from May 18 to September 14, 2017 was too long however given the length of time since the date he was charged on September 4, 2014 and that this judicial delay thereby breached his s. 11(b) right to be tried within a reasonable time.

[118] Judges must be conscious of the practical realities of trials, especially when the scheduled conclusion of the trial, as in this case, was below the 30 month Jordan presumptive ceiling, but extended and exceeded that ceiling. In that event, the focus becomes whether the Crown made reasonable efforts to respond to and to conclude the trial under the ceiling: Jordan para 74.

[119] The Crown made such reasonable efforts in responding to the lengthening period of this trial as indicated. Its ability to do so however was limited and did not include the period for judicial deliberation.

[120] It becomes more difficult however for the Crown and the court to respond with a timely solution when an issue arises at trial close to the 30 month ceiling: Jordan, para 74.

[121] The issue is whether an accused’s s. 11(b) right to “be tried within a reasonable time”, is to the completion of trial evidence and final argument or includes the subsequent period of deliberation to prepare and deliver the court’s decision.

[122] The Jordan decision does not address the issue whether the length of judicial deliberation is within the 30 months and if so, the length thereof.

[123] Section 11(b) of the Charter right is to be tried within a reasonable time.

[124] The system of justice including the assignments and work of a judge cannot come to a halt to address the needs of one proceeding, as the need of all cases must be accommodated: R. v. Allen, 1996 CanLII 4011 (ON CA), [1996] O.J. No. 3175, para 27 (O.C.A.).

[125] This was a trial and not an appeal. My role was that of a single trial judge, not as a member of an appeal panel.

[126] Subject to the above qualifications, the court as to what is a reasonable period for deliberation notes that:

a) An accused’s jeopardy in fact or potentially remains outstanding during the period of an appeal of a trial conviction or an acquittal, which was the reason why the Supreme Court in R v. Rahey 1987 CanLII 52 (SCC), [1987] 1 SCR 588 held the s. 11(b) period extended to the judge’s decision.

b) The time between the end of argument and the decision in the following criminal appeal cases were:

i) R v. Jordan - 9 months;

ii) R v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741 - 9 months ( a companion case to Jordan);

iii) R v. MacDougal – 5 months;

iv) R v. Rahey – 10 months; and

v) R v. Manasseri, 2016 ONCA 703 - 8 months and 3 weeks

[127] Four months was a reasonable period for judicial deliberation in this case to decide the 11 charges against two co-accused, involving the number of witnesses, the length of trial and the complexity level of the evidence and issues.

What is The End of 30 Month Ceiling?

[128] As to the end of the 30 month presumptive ceiling, the court in Jordan uses the phrase “to the end of trial”: para 49.

[129] The Supreme Court in Morin used similar language and stated:

Leaving aside the question of delay on appeal, the period to be scrutinized is the time lapsed from the date of change to the end of the trial”: Morin, para. 27

[130] The Supreme Court in Rahey as to the right under s. 11(b) dealt with an 11 month delay to decide a motion for a directed verdict brought during the trial which was thereby adjourned. The Supreme Court held that the time frame to be considered in completing trial is from the date of charge and continues until the end of the matter, as the stigma of being an accused does not end when the person is brought to trial but rather when the trial is at an end and a decision is rendered: para 40.

[131] The Supreme Court in Rahey agreed with the trial judge that an 11 months on a motion for directed verdict was a “shocking, inordinate and unconscionable” and confirmed the stay of the charges: para 43.

[132] The Supreme Court in R v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, held that s. 11(b) delay period extends beyond the date of the decision to the date of sentencing: paras 19 to 27 and 39.

[133] The Supreme Court in Rahey stated it was not deciding the point but commented that the appeal period and the time it takes to finally determine an appeal may be relevant in the calculation of s. 11(b) delays.

[134] The Court in R v. K.G.K., 2017 MBQB 96, held that a delay of nine months after the close of argument until judgment was not considered relevant and must be excluded in conducting the new 30 month ceiling analysis under Jordan as:

a) a judge has the responsibility to take the time required to come to a reasoned decision based on all the evidence which takes time and results in a delay;

b) the amount of time required to perform this responsibility is connected to the complexity and length of the proceeding, is unpredictable and is subject to the ongoing competing demands of other cases and older reserve decisions;

c) the principle of judicial independence and the time required to come to a reasoned decision interface and may, depending upon the prior length of the proceeding, cause tension with or negatively impact the accused right to a trial within a reasonable time under S 11(b). This interface and tension were not addressed, reconciled or decided in Jordan;

d) inclusion of judicial reserve time in the Jordan presumptive ceiling would require the Crown, the defence and the courts to schedule and complete all steps in a proceeding well in advance of the 30 month presumptive ceiling in order to accommodate a reasonable period for deliberation and decision writing thus effectively lowering the newly created Jordan ceiling;

e) to include the length of deliberation in the 30 month presumptive ceiling impairs the ability of the Crown to account and meet its burden to establish why this extended judicial delay was required as the Crown lacks information as to the cause of that delay or the ability to address or remedy it; and

f) the test of whether the delay caused by the time in preparing a decision was “shocking, inordinate and unconscionable” pursuant to Rahey: paras 53 – 55, 59, 60 and 65.

[135] Delays caused by a judge reserving a decision is a discrete event and constitutes exceptional circumstances as defined in Jordan, as that period of deliberation is reasonably unforeseen and unavoidable. The Crown has no control as to that event occurring or the length thereof: R. v. Lavoie, 2017 ABQB 66, paras 37-39.

[136] Courts since Jordan, in addition to the decision in K.G.K. have excluded all or parts of the period for judicial deliberation after final argument at trial on the basis that:

a) The period of time was reasonable;

b) Beyond the control of the Crown; and

c) Constitute a discrete exceptional event and therefore exception under Jordan: R. v. Lavoie 2017 ABQB 66, paras 37-38, R v. Ashraf, 2016 ONCJ 584, para 76 and R v. Bolan, 2017 ONCJ 111, paras 116-117.

[137] Logically, given the shortness of time, it is doubtful the Supreme Court in creating this 30 month Jordan presumptive ceiling intended to include the following time periods therein:

a) Judicial deliberation after closing argument at trial;

b) Periods after the trial to sentencing; or

c) Periods of appeal and to the decision thereof;

as each of those:

d) Are beyond the control of the Crown which has the onus to justify time in excess of 30 months;

e) To include those additional time periods materially reduces the time available to the parties to “the end of trial”; and

f) Were not matters or time periods addressed in Jordan.

[138] Based upon the above authorities, since Jordan, the court concludes that the period for judicial deliberation and to prepare its decision between May 19 and September 14, 2017:

a) is to be excluded from the Jordan 30 month presumptive ceiling analysis as to whether Mr. Basha’s s. 11(b) right to be tried within a reasonable time was denied;

b) in the alternative, is not a shocking, inordinate or unconscionable period of deliberation pursuant to Rahey, given there were two co-accused with 11 joint charges, two other undivided charges, the number of witnesses, the length of trial, the circumstantial nature of the case presented and the level of complexity; and

c) in the further alternative, is a discrete unexpected event and exceptional circumstance pursuant to Jordan which the Crown could not control, rectify or now justify and is to be excluded from the period of delay to be considered on this application; and

d) in the final alternative, is inherent delay pursuant to Morin.

[139] Excluding the three month extended length of this trial, the four month judicial delay for deliberation and preparing its decision and 4.5 weeks defence delay results in the length of this proceeding being below the Jordan 30 month presumptive ceiling.

[140] For all of the above reasons this application is dismissed.

Mr. Justice Paul Kane

Released: October 6, 2017

CITATION: R. v. Basha and Dokaj, 2017 ONSC 5897

COURT FILE NO.: 14-G2165

DATE: 2017/10/06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty The Queen

Applicant

– and –

Valdrin Basha

Respondent

REASONS FOR DECISION ON S. 11(b) charter application

Kane J.

Released: October 6, 2017