MONDAY, OCTOBER 16th, 2017
THE COURT: Thank you counsel for your patience. I’ve been able to prepare a decision, to reflect and decide and prepare a decision. So these are my Reasons for Decision on the application under s. 11(b) of the Charter.
REASONS FOR JUDGMENT
ROGER, J. (Orally):
[1] This is an application by the defendant for a stay of proceedings under s. 11(b) of the Charter. The applicant or the defendant is charged with four offences, ie: failing to comply with a probation order, carrying a weapon, he’s charged with mischief, and he’s charged with assaulting a police officer.
[2] Applying the principles outlined in R. v. Jordan, [2016] SCC 27, the parties agree that the total period of delay runs from July 16, 2014 when the accused was charged up until December 1, 2017 which is the expected date of completion of a five-day jury trial that is scheduled to start here on November 27, 2017. The period of delay therefore totals slightly over 40 months or I’ve calculated 40 months and 15 days. The Crown agrees that there is no delay waived by the defendant that is applicable to this application. There’s been no waiver of any kind.
[3] As per the framework outlined in Jordan, I next consider whether there are any delays caused by the defence either calculated tactics, frivolous applications or unavailability when the court and the Crown were available. The Crown does not argue on this application that there were any calculated tactics or any frivolous applications by the defendant.
[4] I therefore deal with this analysis considering what is sought by the Crown at paragraph 27 of its Factum. I follow the same order that is outlined in paragraph 27 of the Crown’s Factum.
Vacation
[5] Item number one, defence counsel on vacation. Twenty-nine days is sought by the Crown as defence delay for the period from February 2, 2015 to March 3, 2015. Defence alleges that at best defence lawyer was on vacation for a period of two weeks which would be 14 days.
[6] I note from the summary provided by the Crown that initial disclosure was provided on December 11, 2014 and that at the appearance of January 6, 2015, the agent for Mr. White, who was then the lawyer for the accused, explained that Mr. White would be on vacation for the first two weeks in February 2015, but for whatever reasons, it is not stated, but for whatever reasons this agent request on behalf of Mr. White that the matter be remanded until March, and as a result the date of March 3, 2015 was set by the court. The court and the Crown were ready to proceed and the defence actually requested an adjournment until March. This is a defence delay of 29 days from February 2, 2015 to March 3, 2015.
April 7 to May 26, 2015
[7] The next item outlined at the Crown’s paragraph 27 of its Factum is the period of time between April 7, 2015 to May 26, 2015. For this period of time the defence agrees that there were defence delays for this entire period of time from April 7 to May 26, 2015, which total 49 days.
First set of subsequent charges
[8] The next item listed at paragraph 27 is the first set of subsequent charges. The Crown seeks a 42-day reduction for defence delays related to the first set of subsequent charges for the period from May 26 to July 7, 2015. The defence argues that these additional charges are an irrelevant consideration as the Crown and the court could nonetheless have proceeded with this matter. However, looking at the transcript of April 7, 2015, I observe:
- That the agent for Mr. White indicates that he wishes to marry or to consider together these new charges with the existing charges.
- I also observe that the court adjourned to May 12, 2015 to set dates as a final adjournment.
- I note as well that the court and the Crown were ready to set dates and that this was a final adjournment to May 12, 2015.
[9] On May 12, 2015, the agent for the defence requested a further adjournment to June 9, 2015. And on June 9, 2015, the accused was not available as he was in bail court at another location which resulted in a further adjournment to July 7, 2015. Consequently, the evidence from the transcripts is that the court and the Crown were available to set dates and that these were delayed at the request of the defence or because of his unavailability from May 12, 2015 to July 7, 2015 for a total of 56 days.
Cancer treatment and passing
[10] The next item is, defence lawyer undergoing cancer treatment and unfortunately passing. Mr. White, then counsel for the accused, suffered from cancer and unfortunately passed away on October 10, 2015. The Crown argues that this resulted in defence delays from July 7, 2015 until October 13, 2015 for a total of 98 days. I note that although this was treated as a defence delay by the parties it is more appropriately labelled a discrete event part of an exceptional circumstance that is outside of the control of the Crown. I am satisfied that given the very difficult and sad circumstances, the Crown acted appropriately at the time and that the delays were appropriately mitigated by the Crown and by the court. This is apparent from reviewing the transcripts that the Crown and the court wanted to proceed, were ready to proceed, yet appropriately balanced this unfortunate situation in a very professional manner.
[11] Although when I was reading from my notes before, I wanted to say, I said, “Crown argues”, it’s true but defence agrees. So what’s important about this item is that the defence agrees. It’s not contested by the defence, the defence agrees that it was a delay of 98 days that resulted from the cancer treatment and passing of Mr. White. And then you have my analysis that although both parties have treated it as a defence delay, I think that it’s more appropriately labelled an exceptional circumstances for the reasons I’ve stated. And as well, for those reasons I have conducted the exceptional circumstances analysis. I’ve looked at the Crown’s onus and I’ve explained why I think that the Crown has met its onus under that exception if it had been treated as it should have been.
Breakdown of relationship
[12] The next item, number five, breakdown of solicitor/client relationship. The Crown seeks a reduction of 21 days for defence delays resulting from the breakdown in the solicitor/client relationship for the period between November 17 and December 8, 2015. The defence argues that the coming on board or the accused retaining Ms. Adair and Ms. Adair deciding to withdraw did not cause a delay and in any event her decision to withdraw was not caused by the accused.
[13] Dealing with the latter point first, we cannot distinguish between what is caused by the accused and what is caused by his lawyer. In this case this would be an unworkable distinction for this court to try to decide whether or not this resulted from him or from her, and in any event this is, in most cases, an unworkable distinction.
[14] In the transcript of November 17, 2015, the accused is self-represented. It’s obvious when we look at that transcript that the court wants to set dates and the accused indicates that he must obtain a new lawyer. At the request of the accused we observed in the transcript of November 17, 2015 that the court, at the accused’s request, adjourned to December 8, 2015, but the court indicated quite strongly yet again that it would set a date on December 8, 2015 no matter what. This is clearly a defence delay of 21 days in circumstances where the Crown and the court were ready to proceed.
Subsequent charges
[15] The next item, item six, second set of subsequent charges. The Crown argues defence delays from December 8, 2015 to January 5, 2016. The defence argues that these additional charges are irrelevant as they had no impact on delays. I point out that we have to remember that dates were expected, I just talked about December 8th, dates were expected to be set on December 8, 2015. The court had been clear when it adjourned this matter on November 17, 2015, the court had been clear that everybody was ready to proceed and that it wanted to set a date on December 8, 2015.
[16] It is apparent from reading the transcripts of the December 8, December 10 and December 11, 2015 appearances, that despite the court and the Crown being ready to set dates the defendant or the accused, because of the other charge was not, that he was busy dealing with his bail conditions. Consequently, I add an additional defence delay for the period from December 8, 2015 to January 5, 2016 of 28 days.
Total delays
[17] To summarize, the delays that I found up to now are the following; 29 days, 49 days, 56 days, 98 days, 21 days, and 28 days for a total of 281 days or slightly over nine months. If we subtract this period of delay of 281 days from the total period of delay of 1,234 days, we have 953 days or about 31 and three-quarter months, 31.76 months, approximately. I say about or approximately because I’ve divided by 30.
Exceptional circumstances
[18] The Crown admits that this case is not complex. However, the Crown argues that there are discrete events that constitute exceptional circumstances as defined in the Jordan decision. We have already dealt with the passing of Mr. White and with the replacement of his initial lawyer. As explained these were more appropriately to be labelled exceptional circumstances and for this I make reference to paragraph 72 of the Jordan decision. But as indicated the Crown convinced me from reading the relevant transcripts that the Crown and the court could not have mitigated the effects of these delays better than what was done.
[19] Similarly, if the delays resulting from the two other charges were rather described as exceptional circumstances instead of defence delays, I am satisfied from reading the relevant transcripts that the Crown and the court could not, in the circumstances of this case, have better mitigated the resulting delays.
[20] Now the Crown argues as a discrete, exceptional circumstance the delays resulting from the second intake period. The Crown argues that the passing of Mr. White resulted in a new intake period that began in November 2015 and ended on May 10, 2016. For this period the Crown adds 126 days. The defence argues a double counting of these periods of delays as we’ve already counted 98 days for the passing of Mr. White and 21 days for the replacement of his first replacement counsel. However, I note that the time for Mr. White, previously accounted for, ran from July 7, 2015 to October 13, 2015 and that the Crown now seeks to subtract a period from November 2015 and onward. Excepting the time for the replacement lawyer which is from November to December 2015, which has already been dealt with, it is not doubling up if we start counting for the second intake period in January 2016.
[21] I agree with the Crown that the passing of Mr. White was unforeseen, obviously unavoidable, and that it occasioned a second intake period with resulting delays. Excepting the time relating to Ms. Adair and starting in January 2016, we see that the parties were back dealing with disclosure issues and issues related to the intake process. We also see in the transcript of January 5, 2016 that the court was cognizant of the very particular circumstances, the passing of Mr. White, but nonetheless that the court and the Crown attempted to proceed with this matter as expeditiously and as best they could in the circumstances or the delicate circumstances of this case. We see that in the transcript of January 5, 2016.
[22] The Crown seeks 126 days for this second intake process. I think that this period of time is too significant, however, allowing 60 days seems more reasonable. This seems a reasonable period of time for the second intake period because even if I accept that the Crown could have pushed the disclosure process to Mr. Reesink a little bit faster or at a faster pace than it actually did, it still leaves at least two months of the parties repeating what had previously been accomplished. Allowing 60 days brings the delay under 30 months.
Transitional exceptions
[23] Nonetheless, the Crown also argues transitional exceptions. The decision in Jordan came out on July 8, 2016. This case started almost two years before on July 16, 2014 and while I recognize that this analysis, the analysis related to transitional exception, is only to be conducted when the other deductions do not reduce the delay below the presumptive ceiling it is still appropriate, in this case, to conduct this exercise considering that the delay is at approximately 29 months, just under the presumptive ceiling, and as well considering the very particular circumstances of this case.
[24] Indeed in this case when I consider the pre Jordan period of time and the period of time immediately following Jordan which would have allowed reasonable time for the parties to adapt, it seems to me that the Morin analysis, applicable at the time, applied contextually and flexibly would have justified as reasonable the delays incurred in this matter. Applying the Morin analysis it seems clear that even if the time was in a range between 30 and 34 months that in these circumstances it would have been reasonable for the parties to have acted as they did.
[25] In conclusion, in this case, there is no evidence of meaningful and sustained steps by the defence to expedite the matter and considering that the delay is below the presumptive ceiling, and considering as well that this is not one of those rare cases, the application is therefore dismissed.
Any questions?
MR. PURCELL: Thank you, Your Honour. As my friend and I agreed to earlier, if there is anything to discuss before the trial date, even with Your Honour or perhaps with another pre-trial judge then we will contact either Your Honour or another judge through the appropriate channels. I thank you for your time today.
THE COURT: Please do. I’ll just look to see what we’ve endorsed on the record. Thank you. It reads here, “Corbett application disposed as per Exhibit One, filed.” I will just note underneath it, “subject to the evidence at trial”, correct?
MR. PURCELL: Yes, thank you Your Honour.
THE COURT: “Exhibit One and subject to the evidence at trial”. If you need anything please contact the court and we’ll do our best to accommodate this, otherwise we’ll start on the 27th, correct?
MR. PURCELL: Thank you.
THE COURT: There’s no issue that I’m aware of regarding the jury. It’s straight forward. I’m not aware of anything. Thank you counsel.
C O U R T A D J O U R N E D
FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Carmen Bergeron, certify that this document is a true and accurate transcript of the recording of HER MAJESTY THE QUEEN V. BABAK SAIDI on October 16, 2017, in the Superior Court of Justice held at 29 Second St. West, Cornwall, Ontario taken from Recording CD#: 3911_CR04_20171016_10_ROGER which has been certified in Form 1 (by Louise Schultz).
October 20th, 2017
Date Carmen Bergeron, Certified Court Transcriptionist
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
V.
BABAK SAIDI
E X C E R P T
REASONS FOR JUDGMENT
(ON 11(B) CHARTER APPLICATION)
GIVEN ORALLY BY THE HONOURABLE JUSTICE ROGER
on October 16th, 2017 at CORNWALL, Ontario
APPEARANCES:
Purcell, M. Counsel for the Crown
Reesink, M. Counsel for Babak Saidi
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
Reasons for Judgment Page 1
Legend
[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) – Indicates preceding word has been spelled phonetically.
Transcript Ordered: October 17th, 2017
Transcript Completed: October 20th, 2017
Ordering Party Notified: November 22nd, 2017