CITATION: R. v. Keedi, 2017 ONSC 6092

COURT FILE NO.: CR-15-11172

DATE: October 13, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Peter Barnes, for Her Majesty the Queen

Respondent

• and -

PIERRE KEEDI

Applicant

Self-Represented Applicant

HEARD: September 6, 2017

DECISION ON SECTION 11(B) CHARTER

JAMES J.

1This is an application brought by Mr. Keedi to have the charges against him stayed due to a failure to have his trial within a reasonable time.

2He is charged with two counts of intimidation of a justice system participant pursuant to section 423.1 of the Criminal Code of Canada.

3His trial is set to proceed by judge and jury on March 19, 2018 for two weeks. If the trial proceeds as scheduled, the anticipated time from charges being laid until trial will be just over 33 months.

4Mr. Keedi is self-represented. He has numerous grievances respecting his treatment, his bail conditions and the trial process. Prior to the commencement of the preliminary hearing, Crown counsel applied to have a lawyer, Mr. Azzi, appointed for the purpose of cross-examining the Crown witness. After initially accepting the appointment, Mr. Azzi withdrew from this role a few months later in early 2016.

5The preliminary hearing was originally scheduled to proceed before Justice K. Mulligan on January 29, 2016 for one day with one Crown witness. Since the charges in this case relate to an Ottawa Assistant Crown Attorney, it was deemed appropriate to arrange for an out of town judge to preside at the preliminary hearing. Justice Mulligan is from Toronto. The hearing did not actually commence that day. Instead, the proceeding focused on Mr. Azzi’s withdrawal and the need to vary some of Mr. Keedi’s bail conditions, one of which did not permit his unescorted presence in the courthouse. This requirement was varied on consent.

6A new preliminary hearing date was set for June 13, 2016 for two days. Again the presiding justice was Justice Mulligan.

7The sole Crown witness, Moise Karimjee, was examined in chief for about three quarters of a day. He was then cross-examined by Mr. Keedi for the rest of the first day and all of the next day but the cross-examination was not completed.

8The incomplete preliminary hearing was adjourned at the end of the second day to July 8, 2016 for the purpose of scheduling the completion of the hearing.

9Mr. Keedi did not appear on July 8. The case was further adjourned to July 22. At that time a further 3 days were scheduled for October 24, 25 and 26, 2016. Three days were set aside at the direction of Justice Mulligan.

10A review of the transcript of the cross-examination in January discloses that the questioning was not sharply-focused on the relevant considerations and lengthy periods of time were spent on extraneous issues.

11When the preliminary hearing resumed on October 24, 2016, Mr. Keedi requested an adjournment for medical and other reasons. No medical information was provided to the court and the adjournment request was refused. At that point Mr. Keedi waived his right to complete his cross examination of Mr. Karimjee and the preliminary hearing was concluded with a committal for trial.

12At the S.C.J. Assignment Court on February 3, 2017 a date was set for a judicial pretrial on April 20, 2017. The pretrial conference was not completed on that date and a continuation was set for June 22. I note that at the pretrial conference in April Mr. Keedi said he had been accepted by legal aid and intended to retain counsel. This information appears to have been a significant factor in the decision to re-schedule the pretrial conference. When the pretrial conference resumed in June, Mr. Keedi appeared without counsel and said that someone in the Crown Attorney’s Office had interfered with his request for legal aid and consequently his application for legal aid was refused.

13The trial date for March, 2018 was set at the judicial pretrial. Also, the presiding pretrial judge set September 6, 2017 as the date for the hearing of this application because Mr. Keedi raised the issue of unreasonable delay. He was provided with a link to the applicable rules of court and a copy of R. v. Cody, 2017 SCC 17, [2017] S.C.J. No. 17.

14On September 6, 2017 both Crown counsel and Mr. Keedi appeared in court. No application material had been filed by Mr. Keedi who indicated at the outset of the hearing that as a self-represented accused person, the task of preparing the necessary paperwork and ordering the various transcripts was beyond his capabilities and financial resources.

15Crown counsel, however, was present with a factum and multiple copies of the relevant transcripts from numerous court appearances. The application was adjourned to give Mr. Keedi an opportunity to review the Crown factum and the transcripts and to deliver a written response before the end of September. The application was adjourned on September 6to October 13, 2017 for decision.

16Mr. Keedi delivered his written submissions as agreed on or about September 24 and Crown counsel delivered a brief reply on October 5, 2017.

17The current state of the law is that a trial in the Superior Court of Justice ought to be completed within 30 months from the date the charges were laid. In this case it appears likely that the total time from the laying of the charges (June 27, 2015) to the completion of the trial will be about 33 months. Delay caused by the defence is subtracted from the total time to determine what is referred to as the net delay. If the net delay is more than 30 months, there is a presumption that the accused person’s right to a trial within a reasonable time has been breached. If the net delay falls below the ceiling, then the onus is on the defence to show that the delay is unreasonable.

18In my view a review of the circumstances of a single aspect of this case, the commencement and continuation of the preliminary hearing, is sufficient to warrant a dismissal of Mr. Keedi’s application. In coming to this conclusion I do not include the appearance in January, 2016. That was shortly after Mr. Azzi indicated that he wished to be removed as counsel for the purpose of conducting the cross examination of Mr. Karimjee and as well there were protracted discussions with respect to Mr. Keedi’s bail conditions.

19Instead, I would focus on the reason why the preliminary hearing could not be finished in the two days allotted for its completion. Clearly, the defence is not to be blamed for every failure to complete a preliminary hearing on time. Also, I do not attribute fault to Mr. Keedi who is not legally-trained for the manner in which the cross examination was conducted. I’m sure he was doing the best he could in circumstances that were stressful and unfamiliar. The fact remains that extensive portions of the cross examination strayed well beyond the usual parameters of a preliminary hearing because of the manner in which Mr. Keedi conducted the cross examination.

20The point is this: having failed to complete the cross examination in June, 2016, thereby necessitating an adjournment of about four months, then waiving the rest of his cross examination when the hearing resumed, I would attribute this delay to Mr. Keedi and therefore he is not in a position to say his trial has been unreasonably delayed. The net delay projected forward to the anticipated trial date will likely be below the presumptive limit of 30 months.

21Crown counsel also submitted that there are exceptional circumstances present here due to the necessity of obtaining out of town judges for the proceedings in both the Ontario Court of Justice and the Superior Court of Justice. Mr. Barnes contends that the delay involved in making these special arrangements should operate to extend the time usually required to complete a trial since they constitute unforeseen or unavoidable delays. Because of my findings with respect to the delay in completing the preliminary hearing, it is not necessary to make a determination on that portion of the Crown’s submissions.

22Also, I am not including the two month interval between the commencement and the completion of the pretrial conference as a deduction due to defence delay in the calculation of net delay because, as I have indicated, the net delay here is already below the presumptive ceiling without considering this factor.

23The application is dismissed.