CITATION: R. v. Yaghoubi-Araghi, 2017 ONSC 6662
COURT FILE NO.: CR 7-038/17
DATE: 20171110
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
AMIR YAGHOUBI-ARAGHI
COUNSEL: Erin Pancer, for the Crown Carlos F. Rippell, for the accused
HEARD: November 2, 2017
K.L. Campbell J.:
Pre-Trial Ruling
Stay Application – Section 11(b) of the Charter of Rights
A. Overview
[1] The accused, Amir Yaghoubi-Araghi, currently faces charges: (1) that he unlawfully transferred a firearm (a Kel-Tec PF9) without authorization; (2) that he attempted to import into Canada a prohibited device (an over-capacity magazine) without authorization; (3) that he unlawfully possessed a prohibited firearm (a Kel-Tec PF9) without a license or registration certificate; (4) that he engaged in dangerous driving; and (5) that he was possession of a firearm while being prohibited to do so by court order. All of these offences are alleged to have taken place in Toronto on or about October 22, 2014.
[2] The allegations by the Crown are, essentially, as follows. Employing the username “Bennyblack,” the accused used the “dark web” to purchase, and import into Canada, a prohibited device, an over-capacity magazine for a submachine gun. The accused had the prohibited device sent to the Toronto address of another man, James Coyle. The police became involved in this transaction while posing, in an undercover capacity, as “gun traffickers” on a “dark web” market. The package containing this prohibited device arrived at the designated Toronto address on October 22, 2014. The police attended at this address, on the date of the delivery of the package, and executed a search warrant on the address, recovering the prohibited device. While the police were executing the search warrant, the accused arrived at the address. When he saw the police in attendance, the accused quickly fled from the area, both on foot, and then in a vehicle in a high-speed police chase. The Crown contends that the accused drove the vehicle dangerously during this chase. With the license plate from this vehicle, the police obtained a search warrant for another Toronto address, occupied by another man, Sameer Samji. When the search warrant for that residence was executed, the firearm was discovered. The accused and Mr. Samji were both arrested just outside this residence. The Crown contends that the accused had been in unlawful possession of this firearm and unlawfully transferred it to Mr. Samji. The police also obtained a search warrant for the residence of the accused and for his computer, which was seized during the execution of this warrant.
[3] The trial of these charges is scheduled to commence on November 14, 2017. However, the accused now seeks a stay of these proceedings. He contends that his constitutional right to a trial within a reasonable time, as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms, has been violated. The Crown advances the contrary position. For the reasons that follow, I have reached the conclusion that there has been no violation of s. 11(b) of the Charter of Rights in all of the circumstances of this case. Accordingly, this application must be dismissed. The trial should proceed as scheduled. I have already advised the parties of my conclusion in this regard. These reasons explain why I have reached this conclusion.
B. The Proceedings Up to the First Trial Date
[4] This application turns, in large measure, on an understanding and analysis of the events that took place in this court in January of 2017, when the scheduled trial of this matter was adjourned and re-scheduled to commence on November 14, 2017. It was the delay that ultimately flowed from that adjournment which sent this case beyond the 30-month presumptive constitutional ceiling announced by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. However, before turning to those key events, a brief review of the proceedings up until that point is necessary, in order to place those events in their proper context.
[5] As I have indicated, the offences are all alleged to have taken place on October 22, 2014. These criminal proceedings against the accused started that same day. The preliminary inquiry took place close to 11 months later, on September 10-11, 2015. The accused was committed for trial on all charges. Accordingly, the total delay in the Ontario Court of Justice was approximately 10 months and three weeks. The first appearance in the Superior Court of Justice was on October 28, 2015. Subsequently, on January 25, 2016, following the conclusion of a judicial pre-trial conference, the trial was scheduled to commence on January 9, 2017. It was anticipated that the trial would take approximately two weeks to conclude. The pre-trial motions began, as scheduled, on that scheduled start date.
[6] By that point in time, the total delay in this case was approximately two years, two months, and 19 days. Without conducting a detailed review of each individual court appearance, it is apparent that this case had proceeded, through both levels of court, with reasonable dispatch, at least when considered in the context of the principles surrounding the application of s. 11(b) of the Charter of Rights that governed the conduct of the parties at the time. Moreover, the total period of delay in the case was well within the 30-month presumptive Jordan ceiling. This is so, even though all major steps in the scheduling of this case took place prior to July 8, 2016, when the ground-breaking Jordan decision was released. In short, as defence counsel fairly conceded, had the trial proceeded as scheduled in January of 2017, there would not have been any application to stay the proceedings under s. 11(b) of the Charter. Under the formerly operative analytical regime for s. 11(b) of the Charter, the accused could not, realistically, have hoped to be successful in seeking a stay of proceedings. See R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771.
C. The Discovery of the New Evidence – The Adjournment of the Trial
[7] The trial did not, however, proceed as scheduled in January of 2017. As the pre-trial proceedings began to unfold, the parties worked jointly on an agreed statement of facts. As part of that agreed statement of facts, defence counsel sought the Crown’s agreement that there was no evidence found on the accused’s computer which was relevant to his involvement in the alleged offences, and that there had been no illegal use of his computer. Before agreeing, the Crown asked a police officer from the “Technological Crimes” unit of the Toronto Police Service (TPS) to confirm that this proposed concession was correct.
[8] It was at this point that the “Technological Crimes” officer searched and located, on the accused’s computer, an electronic “hiberfil.sys” file that contained remnants of text messages from the user name “Bennyblack.” Indeed, this evidence seemingly establishes that it was, indeed, the accused’s computer that had been used to order the over-capacity magazine, the prohibited device, which was delivered on October 22, 2014. On January 10, 2017, when the trial judge was told about the finding of this evidence, the Crown described this evidence as being so “highly relevant” that it might “change the nature of the case.”
[9] By January 11, 2017, the Technological Crimes officer had provided the parties with a preliminary report regarding this new evidence, and the parties discussed this issue in court. The Crown explained that, generally speaking, when the Technological Crimes Unit of the TPS gets a computer, and they have a warrant to examine it, they use a program called “Internet Evidence Finder” (IEF), which “downloads the contents of the computer,” but they do not conduct searches of that data for particular programs like “Agora” or “Bit Torrent.” When the Technological Crimes officer had been asked by the Crown to conduct a search of the data, however, he found the new electronic file on the “desktop” of the accused’s computer. As the Crown explained, the “text” from that data file was consistent with the text of the messages that were sent by “Bennyblack” to the “weapons guy” seller. The Crown agreed that this evidence changed the “whole landscape of the trial,” as the Crown was now able to establish that the accused was the computer user “Bennyblack.”
[10] In response to this new development, defence counsel indicated that his preference was to go ahead with the trial with the Crown not relying upon this new evidence. The Crown would not, however, forgo reliance upon this important new evidence implicating the accused. Defence counsel agreed that there was “no doubt” that this new evidence was “clearly important disclosure” that “changes things,” and he expressed an interest in having “some time” to better understand it. Defence counsel also expressed an interest in both: (1) bringing an application to exclude this evidence; and (2) a further judicial pre-trial conference. He also conceded that the Crown had not been withholding the evidence, and that it was discovered in “good faith” as the parties worked together on the agreed statement of facts.
[11] The Crown indicated that, if the trial was to proceed, they needed to “get started” if it was going to be completed in a timely way. However, if there was to be a “resolution,” the Crown was “okay” with a further judicial pre-trial conference, as there would have to be an “implicit s. 11(b) waiver.” Nevertheless, the Crown indicated that, as these were “Jordan times,” she was “leery about giving up the time in the trial” with the trial judge if the matter was “going to go ahead.”
[12] The following day, on January 12, 2017, defence counsel brought an application for an adjournment of the trial proceedings. After hearing the submissions of counsel, the trial judge ruled that she was prepared to grant the adjournment request, “but only on the basis that the trial be expedited.” The trial judge suggested that the contemplated s. 8 Charter application by the accused also be scheduled on an “expedited” basis, before a different judge, given the “urgency” that Jordan requires these cases must be pursued. Following a recess, the Crown proposed that the matter be put over to the following day, for scheduling purposes, in front of McMahon J., who had heard the judicial pre-trial conference, as he had “promised” that the parties would get new trial dates “within the Jordan timeline.” The trial judge did just that.
[13] It is important to appreciate that, as this case was started on October 22, 2014, the critical 30-month “Jordan date” in this case was April 22, 2017.
D. The Scheduling of the Trial Proceedings
[14] On January 13, 2017, the parties appeared before McMahon J., following a further judicial pre-trial conference before him, to schedule the s. 8 Charter motion, and the trial proceedings.
[15] The parties agreed that they would argue the s. 8 Charter motion on February 10, 2017.
[16] The Crown confirmed that the parties had been promised dates that were “within the Jordan time” ceiling, and that, indeed, they had a list of several such dates. The Crown expressed its availability on the last two of those offered court dates, namely, March 13, 2017 and April 3, 2017, for a two-week long trial. Defence counsel indicated, however, that he was not available on either of those dates and, indeed, was not available until September 5, 2017 – some 4½ months beyond the 30-month Jordan presumptive ceiling. Defence counsel also noted that there were three specific dates in September when he was also not available. The Crown indicated that, based upon that availability of defence counsel, the “earliest dates” that the trial co-ordinator could offer that “worked for everybody” was November 14, 2017.
[17] In the result, the s. 8 Charter motion was scheduled for February 10, 2017, and the two-week trial was scheduled to start on November 14, 2017.
E. The Section 8 Charter Application
[18] On February 10, 2017, the application by the accused, pursuant to s. 8 of the Charter, was argued before Kelly J. Ultimately, that application was dismissed on February 28, 2017. In her Ruling on this application, Kelly J. concluded that the search of the accused’s seized computer was “overbroad” and its “manner of execution was unreasonable.” However, she concluded that the evidence was admissible under s. 24(2) of the Charter as, while the conduct of the police amounted to a “significant invasion of privacy,” the Charter violation was “not serious” but undertaken in good faith, in reliance on the search warrant, and the reliable “smoking gun” evidence found by the police on the accused’s computer advances the public’s interest in a trial on the merits.
F. The Belated-Offer to Start the Trial Early
[19] On the afternoon of March 8, 2017, defence counsel sent the Crown an email message indicating that, as another one of his cases was “not reached,” he was “now available for trial” for the next two weeks, and could now accommodate this trial commencing on March 13, 2017. He also indicated that he was still available for weeks in September and October of 2017. Predictably, given the timing of this suggestion, the Crown responded that the “earlier dates [were] no longer available.”
G. Analysis Under s. 11(b) of the [Charter of Rights](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
1. Introduction
[20] There is no doubt that the effective cause of the adjournment of his case, in January of 2017, was the late discovery of the “smoking gun” electronic “hiberfil.sys” file found on the accused’s seized computer. Given the potential significance of this evidence, and its likely overall impact on the case as a whole, it was not unreasonable for defence counsel to seek a brief adjournment of the proceedings in order to consider and assess this evidence and its potential impact on the trial.
[21] There is equally no doubt, however, that the effective cause of the lengthy delay that flowed from that adjournment, and which pushed the case beyond the 30-month Jordan presumptive ceiling, was the unavailability of defence counsel. If defence counsel had been available, or had made efforts to make himself available, within a reasonable time after the adjournment, the trial of this matter could have started on March 13, 2017 and been completed by March 24, 2017 – approximately one month before the presumptive “Jordan date” in this case. Importantly, this is true notwithstanding the fact that the Jordan decision was not released until July 8, 2016, some 20½ months after the proceedings in this case commenced. This reality, in my view, effectively compels the conclusion that there has been no violation of s. 11(b) of the Charter in all of the circumstances of this case. The other circumstances of this case, as I will explain, also support that conclusion.
2. The Governing Jordan Analysis
a. Introduction – Summary of the Applicable Jordan Analysis
[22] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, Gillese J.A., delivering the judgment of the court, helpfully summarized, at paras. 34-40, the governing legal analysis now required under s. 11(b) of the Charter of Rights, essentially, as including the following steps:
• The first step is to calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
• The next step is to subtract defence delay from the total delay, which results in the “net delay” (Jordan, at para. 66).
• Next, the court must compare the net delay to the presumptive ceiling on delay (Jordan, at para. 66).
• If the net delay exceeds the presumptive ceiling on delay, it is presumptively unreasonable. In order to rebut the presumption, the Crown must establish the presence of “exceptional circumstances” (Jordan, at para. 47). If the Crown cannot rebut the presumption, a stay will follow (Jordan, at para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, at para. 71).
• Accordingly, the court should subtract any delay caused by discrete events from the net delay, leaving the remaining delay, for the purpose of determining whether the presumptive ceiling for delay has been reached (Jordan, at para. 75).
• If the remaining delay exceeds the presumptive ceiling, the court must consider next whether the case was particularly complex, such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
• If the remaining delay falls below the presumptive Jordan ceiling for delay, the onus is on the defence to show that the delay is unreasonable (Jordan, at para. 48).
• The new legal framework, including the presumptive Jordan ceiling, applies to cases already in the system when Jordan was released, but there are issues to be considered for “transitional cases” (Jordan, at para. 96).
[23] See also R. v. Manasseri, 2016 2016 ONCA 703, 132 O.R. (3d) 401, at paras. 301-321, leave refused, [2016] S.C.C.A. No. 513; R. v. McManus, 2017 2017 ONCA 188, 36 C.R. (7th) 261, at paras. 20-24; R. v. Gordon, 2017 ONCA 436, 348 C.C.C. (3d) 426, at paras. 2-3, 5, 9, 14, 19-20, 23, 27-28; R. v. Mallozzi, 2017 ONCA 644, at paras. 24-31; R. v. Picard, 2017 ONCA 692, [2017] O.J. No. 4608, at para. 26.
b. The Total Period of Delay
[24] Under this new analytical framework, the first step is to calculate the total delay in the case, from the date the proceedings against the accused were started, until the anticipated end of the trial. See R. v. Jordan, at para. 60; R. v. Cody, 2017 SCC 31, at para. 21. In this case, the total period of delay is approximately three years and one month (or 37 months). This is seven months beyond the 30-month presumptive Jordan ceiling.
c. Delay Attributable to the Defence
[25] The next step of the Jordan analysis is to calculate and subtract the “delay attributable to the defence.” The defence should not be able to “benefit from its own delay-causing conduct.” The purpose of s. 11(b) of the Charter is to “expedite trials and minimize prejudice and not to avoid trials on their merits.” Delay caused by the conduct of the defence includes any time periods “waived” by the defence, and those situations where the accused’s acts either “solely or directly” caused the delay, or the acts of the accused are shown to be a “deliberate and calculated tactic employed to delay the trial.” See also R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1227-1228. Deliberate and calculated defence tactics aimed at causing delay, are the most straight forward examples of defence delay. See R. v. Jordan, at paras. 60-63, 66, 113; R. v. Morin, at p. 802; R. v. Cody, at paras. 22, 28-30.
[26] Once the “defence delay” is subtracted from the overall period of total delay, the “net delay” must then be compared to the presumptive Jordan ceiling: 30 months in trials that proceed in the superior court after a preliminary inquiry in the provincial court. The remaining analysis then depends on whether that “net delay” (i.e. the total delay not caused by the defence) is above or below that presumptive ceiling. See R. v. Jordan, at para. 60; R. v. Cody, at para. 22.
[27] In the present case, on January 12, 2017, defence counsel brought an application to adjourn the proceedings. That adjournment request was granted by the trial judge – but it was granted conditionally. The trial judge expressly stated, in her oral Ruling, that the adjournment request was granted “only on the basis that the trial be expedited” [emphasis added]. This condition of the adjournment was also noted in her written endorsement on the indictment. The court and the Crown accepted, and acted upon, that important aspect of the Ruling by the trial judge. Defence counsel did not. The court provided a list of expedited trial dates that permitted the trial to be completed within the presumptive 30-month Jordan ceiling. The Crown made sure that it was available to conduct the trial on two of those offered expedited trial dates. However, defence counsel simply indicated that his professional calendar was booked for close to eight months, and that he was unavailable until after September 5, 2017. Even thereafter, there were days he was not available. In so doing, defence counsel effectively ended any prospect of the trial proceeding on the expedited basis demanded by the trial judge. Indeed, the record of the proceedings in this case discloses no efforts on the part of defence counsel to in any way productively address and/or adjust his busy professional schedule so as to be able to take advantage of the expedited trial dates that were offered and available for the trial of the accused.
[28] The Supreme Court of Canada has made it clear that, generally speaking, where the court and the Crown are ready to proceed with a trial, but the defence is not, the resulting delay should be deducted from the total period of delay. However, periods of time during which the court and the Crown are unavailable will generally not constitute defence delay, even if defence counsel is also unavailable. See R. v. Jordan, at para. 64; R. v. Williamson, 2016 SCC 28, [2016] 1 SCR 741, at para. 20-22; R. v. Cody, at para. 30; R. v. Brissett, 2017 ONSC 401, [2017] O.J. No. 298, at paras. 10-11. The court has also emphasized, however, that it remains open to trial judges to find that other defence actions or conduct have caused delay and warrant a deduction from the total period of delay. See R. v. Jordan, at para. 64; R. v. Cody, at para. 30. In my view, seeking an adjournment of a criminal trial, obtaining that adjournment on the condition that the trial proceedings must thereafter be expedited, and then effectively preventing those proceedings from actually being expedited, so as to effectively cause the case to breach the presumptive Jordan ceiling, is yet another circumstance that must be viewed as deductible defence delay. That is what happened in this case.
[29] As the Supreme Court of Canada has repeatedly stressed, “every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused’s right to a trial within a reasonable time.” Indeed, “all participants in the justice system must work in concert to achieve speedier trials.” See R. v. Jordan, at paras. 5, 45, 116, 137; R. v. Cody, at paras. 1, 32-33, 35-36; R. v. Ny, 2016 ONSC 8031, 343 C.C.C. (3d) 512, at para. 15. That guiding principle applies to defence counsel, just as it applies to the Crown and the courts. By failing to fulfill that responsibility in the present case, in favour of maintaining the comfortable status quo of his fully booked calendar of professional obligations, and without giving any consideration to flexibly adjusting that schedule, defence counsel effectively caused the lengthy delay that ensued in this case. Indeed, in the unique circumstances of this case, where the case was on the verge of breaching the presumptive Jordan ceiling unless there was an expedited trial, the position advanced by defence counsel seemed designed to court a violation of s. 11(b) of the Charter, rather than avoid one. Yet, as the Supreme Court of Canada has stated, s. 11(b) of the Charter was “not intended to be a sword to frustrate the ends of justice.” See R. v. Morin, at pp. 801-802; R. v. Jordan, at para. 21.
[30] In my view, in order to avoid rewarding that defence complacency regarding s. 11(b) of the Charter and the fact that defence counsel ignored the direction of the trial judge to expedite the trial proceedings, the defence must accept responsibility for the entire 7½ month period of delay between April 3, 2017 (the second expedited trial date the accused was offered) and November 14, 2017 (the date the parties ultimately agreed upon for the second trial).
[31] The deduction of this period of defence delay brings the “net delay” in this case beneath the 30-month presumptive Jordan ceiling.
[32] Defence counsel argued that it was “completely unrealistic” to expect him to be available on the offered expedited trial dates, or even within a period of six months from the January 12, 2017 adjournment date. Further, he relied upon the decision in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, especially at paras. 21-23, to argue that he was not obliged to accept the expedited trial dates offered in March and April of 2017, and was not obliged to otherwise hold himself “in a state of perpetual availability” for purposes of s. 11 (b) of the Charter. At the same time, defence counsel noted that, in any event, on March 8, 2017, he advised the Crown that he was then available to start the trial on March 13, 2017. Accordingly, in fact he did make himself available for one of the expedited trial dates. I reject these arguments.
[33] First, in my view it is not at all unreasonable or unrealistic to expect that, where an adjournment has been granted on the condition that the subsequent proceedings be expedited, all of the participants in the justice system will make the necessary efforts to abide by that ruling, and take the necessary steps, individually and collectively, to see that the subsequent proceedings are, in fact, expedited. In such circumstances, the party that requested the adjournment cannot, once it is granted, promptly ignore the condition upon which it was granted, relying only upon counsel’s busy professional calendar – which would have been fully known to counsel at the time the adjournment was sought and conditionally granted. See R. v. Jordan, at paras. 5, 45, 116, 137; R. v. Cody, at para. 1, 32-33, 35-36.
[34] In this regard, it is important to appreciate that the conditional nature of the adjournment granted by the trial judge means that, had the trial judge known that defence counsel was unavailable for nearly eight months, and was not going to make any efforts to try to flexibly adjust his future professional commitments to accommodate an expedited trial date, the adjournment sought by defence counsel would simply have been refused. The parties would have had to proceed with the trial, as scheduled.[^1] That would have been a perfectly acceptable result. As the Supreme Court of Canada observed in R. v. Cody, at para. 37, in scheduling a case, a court “may deny an adjournment request on the basis that it would result in unacceptably long delay, even where it would be deductible as defence delay.”
[35] Second, I do not view the email offer, made by defence counsel at 4:07 p.m. on the afternoon of Wednesday, March 8, 2017, to start the trial on the morning of Monday, March 13, 2017, as a genuine, good faith offer to try to expedite the trial proceedings in this case. Defence counsel knew, I am confident, that a two-week criminal trial in the Toronto Region simply could not be accommodated on what amounted to two clear business days notice. Indeed, defence counsel knew, I am sure, that the “expedited” trial dates that were available on January 13, 2017, would no longer be available nearly two months later, on March 8, 2017, and also knew that the Crown would not be able to practically ready the case (i.e. subpoena and organize the witnesses, arrange for interpreters, etc.) on such extremely short notice. In these circumstances, I am driven to conclude, as a matter of fact, that this email message was sent to the Crown only as a matter of strategy, in a tactical effort to improve the defence position in relation to the already anticipated application under s. 11(b) of the Charter. Defence counsel conceded during the argument of the motion that, once the adjournment was granted in January of 2017, this s. 11(b) Charter application was inevitable.
[36] In concluding that the defence must bear the responsibility for the entire 7½ month period of delay between April 3, 2017 and November 14, 2017, I hasten to add that this analysis is not meant to assign “blame” to the accused or defence counsel. In the governing analysis under s. 11(b) of the Charter, there is no need to “impute improper motives” to an accused or their counsel. See R. v. Morin, at pp. 793, 794. Rather, this is merely an analytical exercise in attempting to accurately calculate and subtract the “delay attributable to the defence” as a matter of law for purposes of s. 11(b) of the Charter.
d. Exceptional Circumstances
[37] As the Supreme Court of Canada indicated in Jordan, at paras. 47-48, if the total delay in the case, minus the defence delay, exceeds the presumptive ceiling, then the net delay is presumptively unreasonable. In order to rebut this presumption, the Crown must establish the presence of exceptional circumstances. If exceptional circumstances cannot be shown by the Crown, the delay will be unreasonable, and a stay of proceedings will follow. However, if the total delay in the case, minus the delay attributable to the defence, or a period of delay attributable to exceptional circumstances, falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. In order to accomplish this, the defence must establish that: (1) it took “meaningful steps that demonstrate a sustained effort to expedite the proceedings;” and (2) the case took “markedly longer than it reasonably should have.” Stays of proceedings in cases beneath the presumptive Jordan ceiling should be rare, and limited to clear cases. See R. v. Cody, at para. 24.
[38] Even if, contrary to the conclusion I have reached, the entirety of the 7½ month period of delay, between April 3, 2017 and November 14, 2017, is not properly attributed to the defence, resulting in a breach of the 30-month presumptive Jordan ceiling, I would have concluded, in any event, that the Crown had established that, in the “exceptional circumstances” of this case, the additional delay was as a result of the technological complexity of this case.
[39] Significantly, this is one of the very first cases involving a police investigation of internet transactions taking place through means of the “dark web.” As criminal offenders devise new methods of trying to conveniently, but surreptitiously, conduct their unlawful transactions through the internet, the police must respond with new investigative techniques that effectively pierce the increasingly secretive methods of offenders, in order to properly protect the public. Sometimes it will take time for police investigators to discover that formerly successful investigative techniques, even sophisticated, technology-based techniques, will not capture all of the evidence that is available. See R. v. Jordan, at paras. 77, 79; R. v. Cody, at para. 64.
[40] In my view, this case serves as an apt example of this reality. Typically, in past cases involving use of the internet by offenders to commit criminal offences, the police employment of the IEF program has been successful in gathering all of the relevant evidence. Child pornography cases, for example, are typically investigated by means of the employment of the IEF program. See, for example, R. v. Beierle, 2017 ONSC 1520, [2017] O.J. No. 1234, at paras. 31, 33, 54. Accordingly, it is not surprising that the police anticipated that their use of the IEF program in the present case would similarly yield all of the evidence that was relevant to the case.
[41] Of course, had the police earlier employed the more case-specific, topic-sensitive search that was eventually used by the Technological Crimes officer, to find the “hiberfil.sys” file on the desktop of the accused’s computer, which file contained remnants of the “Bennyblack” text messages, they would have discovered this evidence in a more timely manner. But, contrary to the submission by defence counsel, the failure of the police to immediately understand the need for such a search, in the context of this new type of case involving the use of the “dark web” to hide criminal conduct, is not evidence of negligence on the part of the investigators. Once a solution is found to a new problem, the answer often appears obvious, especially with the perfect 20:20 vision that invariably accompanies hindsight. I am not, however, prepared to call the late-breaking police discovery of this critical evidence negligence. In my view, it was simply something that happened in the “exceptional circumstances” of this novel type of case. See R. v. Jordan, at para. 77; R. v. Cody, at paras. 54, 58; R. v. Pyrek, 2017 ONCA 476, 349 C.C.C. (3d) 554, at paras. 16-22.
[42] In summary, the delay experienced in this case, due to its exceptional technological complexity, also serves to bring this case beneath the presumptive Jordan ceiling.
e. The Delay Below the Presumptive Jordan Ceiling
[43] The delay in any particular case may prove to be unreasonable, and in violation of s. 11(b) of the Charter, however, even if it falls below the presumptive Jordan ceiling. In such circumstances, the accused bears the onus to establish that the delay is unreasonable. In order to do so, the defence must establish: (1) it took “meaningful steps that demonstrate a sustained effort to expedite the proceedings;” and (2) the case took “markedly longer than it reasonably should have.” In the absence of proof of both of these factors, the s. 11 (b) Charter application must fail. Moreover, stays of proceedings in cases where the delay is “beneath the ceiling” should be granted “only in clear cases.” See R. v. Jordan, at para. 82-91; R. v. Cody, at para. 23.
[44] In my view, the accused is unable to establish either of these two preconditions. First, the defence cannot show that it took “meaningful steps” that demonstrate a “sustained effort to expedite the proceedings.” Indeed, in January of 2017, when it mattered most, and when the adjournment sought by the defence was conditional upon the parties taking meaningful steps to expedite the proceedings, the defence took no such steps. Second, it cannot reasonably be said that this case has taken “markedly longer than it reasonably should have” in all of the circumstances.
f. The Transitional Period for Cases Already in the System
[45] In any event, once the important transitional considerations in this case are taken into account, it must be concluded that there has been no violation of s. 11(b) of the Charter in the circumstances of this case.
[46] When the Supreme Court of Canada pronounced its new analytical approach to s. 11(b) of the Charter, in its decision in Jordan, released on July 8, 2016, the court expressly recognized, at paras. 93-104, that its “new framework” was a “departure from the law” that had been applied to s. 11 (b) Charter applications in the past, and that there was a “variety of reasons” for courts to apply the new framework “contextually and flexibly for cases currently in the system.” As the court indicated, it did not want to see a repeat of the unfortunate Askov aftermath, where “tens of thousands of charges were stayed in Ontario alone as a result of the abrupt change in the law.” This does not create a “Charter amnesty” for cases “currently in the system,” but means that the behavior of the parties and the courts, which is “an important consideration in the new framework,” must be “evaluated in its proper context.” See also R. v. Mills, 1986 17 (SCC), [1986] 1 S.C.R. 863, at pp. 948.
[47] In the result, the court in Jordan indicated, at paras. 96-97, that in relation to cases in which the delay exceeds the newly-created presumptive ceiling, a “transitional exceptional circumstance may arise” where the charges were brought prior to the release of the Jordan decision. As the court noted, 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 test requires a “contextual assessment,” sensitive to the manner in which the previous analytical framework was applied, and the fact that previous conduct of the parties “cannot be judged strictly, against a standard of which they had no notice.” Accordingly, for cases “currently in the system” as of July 8, 2016, reliance upon the earlier applicable Morin principles may have been “reasonable.” However, if the parties have had time, after July 8, 2016, to “correct their earlier behavior and the system has had some time to adapt,” this should also be taken into account. See R. v. Cody, at para. 25, 67-70.
[48] The court in Jordan also noted, at paras. 100-101, that where there has been an institutional delay that was “reasonably acceptable” under the Morin framework of analysis, before July 8, 2016, that period of institutional delay “will be a component of the reasonable time requirements of the case for cases currently in the system.” Accordingly, given the “level of institutional delay tolerated” under the Morin principles, a stay of proceedings in cases “below the ceiling” presumptively created in Jordan will be “even more difficult to obtain for cases “currently in the system.” In short, the court in Jordan recognized, as mentioned at para. 102, that “[c]hange takes time.”
[49] As I have already indicated, the accused in the present case was charged with these offences on October 22, 2014, more than 19½ months before the release of the decision in Jordan. By the time Jordan was released, all of the proceedings in the Ontario Court of Justice had been completed, and the January 9, 2017 trial date in the Superior Court of Justice had already been scheduled. Indeed, that trial date was set on January 25, 2016, some 4½ months before Jordan was decided. Clearly, this case was one of the cases contemplated by the Supreme Court of Canada in Jordan as being “currently in the system” and subject to these important transitional considerations. Moreover, as Doherty J.A. stated, in delivering the judgment of the court in R. v. Gordon, at para. 23:
In most cases, especially when all of the delay occurred prior to the release of Jordan, if the court concludes that the delay was not unreasonable under Morin, the transitional exceptional circumstance described in Jordan will justify delays beyond the 30-month cap.
[50] In these circumstances, in my view, the following four considerations must be taken into account in the determination as to whether or not the accused has established that there has been a violation of s. 11(b) of the Charter in all of the circumstances of the present case:
• No Pre-Charge Delay: The indictment in this case alleges that the offences were all committed on October 22, 2014, the very day that the accused was arrested, and the very day these criminal proceedings were commenced. Under the Morin principles, the complete absence of any pre-charge delay would properly be taken into account in assessing the reasonableness of the post-charge delay. As Sopinka J. stated in R. v. Morin, at p. 789, pre-charge delay may “have an influence on the over-all determination as to whether post-charge delay is unreasonable” even though pre-charge delay is itself “not counted in determining the length of the delay.” See also R. v. Young (1984), 1984 2145 (ON CA), 13 C.C.C. (3d) 1 (Ont.C.A.), at pp. 12-20; R. v. Tindale (1997), 1997 632 (ON CA), 104 O.A.C. 300, at para. 6. The parties in this case would, therefore, have reasonably understood that a somewhat longer period of post-charge delay would be considered reasonable in all of the circumstances of this case, given this complete absence of any pre-charge delay. The parties would have acted accordingly.
• Prejudice was Minimized: The accused was released on bail on October 28, 2014, just days after his arrest. Given the importance, under the operation of the Morin principles, of prejudice to the accused, the parties would reasonably have understood that this release of the accused minimized any prejudice to the ongoing liberty interests of the accused. As this case, thereafter, could not have been viewed by the parties and the court as one involving someone “in custody,” the case would not have been given the priority that was applicable under Morin for accused persons who remained in custody. See R. v. Jordan, at para. 96.
• Complexity and Gravity of Offences: Under the Morin framework, a longer period of delay was acceptable for complex cases that involved allegations of the commission of serious criminal offences. Given the gravity of the offences charged against the accused, and the complexity of the case generally (i.e. this being one of the first prosecutions involving internet transactions employing the “dark web”), the parties would reasonably have understood that a longer total period of delay was acceptable in this case. They would have acted accordingly. See R. v. Baron, 2017 ONCA 772, [2017] O.J. No. 5170, at paras. 42-43, 44-46, 53, 73-75.
• Acceptable Institutional Delay: According to the Morin guidelines, the total permissible period of systemic or institutional delay was 18 months (i.e. between eight to ten months in the provincial court and an additional six to eight months in the superior court). The parties in the present case could only have reasonably relied upon those well-established guidelines in setting the dates for the preliminary inquiry and the trial proceedings in this case. In the result, in the present case there was an institutional delay of 5½ months in the Ontario Court of Justice, and an institutional delay of 11½ months in the Superior Court of Justice, for a total of 17 months of institutional delay – just under the flexible upper limit of systemic delay tolerated under the Morin framework. This makes it “even more difficult” for the accused to obtain a stay of proceedings. See R. v. Jordan, at paras. 100-101; R. v. Gopie, 2017 ONCA 728, at paras 107, 180; R. v. Baron, at para. 66.
[51] The only significant delay in this case that took place after the release of the Jordan decision was the adjournment and re-scheduling of the trial in January of 2017. At that point in time, all of the participants in the criminal justice system would have been well aware of the new framework of analysis required under Jordan.
[52] When the new evidence of the “hiberfil.sys” file on the desktop of the accused’s computer was discovered and disclosed, the court and the Crown both displayed a clear and immediate sensitivity to the new Jordan regime. On Wednesday, January 11, 2017, when defence counsel suggested another judicial pretrial conference “either Friday or early next week,” it was Crown counsel who expressed an interest in proceeding with the trial and a reluctance about “giving up” the time allotted for the trial given that “these are Jordan times.” The next day, the trial judge granted the defence request for an adjournment, but “only on the basis that the trial be expedited,” expressly conscious of “the urgency with Jordan.” After a recess, the Crown indicated that the parties were suggesting that the matter be returned before McMahon J. the following day as he had “promised” the parties that they would “get on within the Jordan timeline.” Sure enough, on January 13, 2017, that was precisely what happened. The court provided a list of potential trial dates that would have permitted the case to be tried before the presumptive Jordan ceiling, and the Crown made sure that it was available on two of those potential dates.
[53] The “fly in the ointment” for this plan for an expedited trial was the position of defence counsel. In contrast to the efforts made by the court and the Crown to have the matter expedited, as required by the trial judge, defence counsel indicated that he was simply not available until September 5, 2017 – a date nearly eight months away (and even on some days beyond that date). There was no suggestion that any efforts had been made, or might potentially be made, to try to address his other professional responsibilities, and to make other scheduling arrangements in order to try to accommodate the required expedited trial in this case. His busy professional calendar simply prevented the required expedited trial date. This approach was not “part of the solution,” but was simply a “business as usual” approach, which reflected the “culture of complacency” toward delay so lamented by the Supreme Court of Canada in R. v. Jordan, at paras. 4, 40-41, 45, 85-86, 107, 113, 135.
H. Conclusion
[54] In summary, there has been no violation of the accused’s constitutional right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter. Accordingly, as I have already advised the parties, the application by the accused to stay the proceedings must be dismissed. The accused will be tried for these offences commencing on November 14, 2017.
Kenneth L. Campbell J.
Released: November 10, 2017
CITATION: R. v. Yaghoubi-Araghi, 2017 ONSC 6662
COURT FILE NO.: CR 7-038/17
DATE: 20171110
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
AMIR YAGHOUBI-ARAGHI
Pre-Trial Ruling
Stay Application
Section 11(b) of the Charter of Rights
K.L. Campbell J.
Released: November 10, 2017
[^1]: I must note that, in reaching this conclusion, I did not have the benefit of a transcript of the hearing of the defence adjournment application on January 12, 2017. That transcript, which presumably would have outlined the positions of the respective parties, was simply not filed on this application. The transcript of the January 12, 2017 court proceedings that was filed on this application notes simply that court was “in session” and that there were “Charter concerns discussed.” Those transcript notes, by the court reporter, were followed immediately in the transcript by the Ruling of the trial judge, indicating that she was “prepared to grant the adjournment in those circumstances, but only on the basis that the trial be expedited.” Accordingly, I am not aware of what was actually said by the parties to the trial judge on that adjournment application. Nevertheless, in the absence of this transcript of the adjournment application, the conclusion I have drawn seems to me to be a reasonable one.