COURT FILE NO.: CRIMJ(P) 425/17

DATE: 2018 07 19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Christina Lynch, Crown Attorney

Respondent

• and -

MUSTAFA MUHAMMED and FAROGH SADAT

Mary Cremer, for the Applicant, Mustafa Muhammed

Marianne Salih for the Applicant, Farogh Sadat

Applicants

HEARD: May 11 and 28, 2018

RULING ON S. (11)(b) CHARTER APPLICATION

Trimble J.

[1] I heard argument in these two 11(b) applications over two full days - May 11 & 28, 2018. Because the pre-trial motions were set to begin five weeks after May 28, I advised orally on May 28 that for written reasons to be released separately, both Applications were dismissed and the trials would proceed as scheduled. These are those reasons.

The Charges

[2] The Crown alleges that on September 6, 2014, in Peel Region, Messrs. Sadat, Muhammed and Kozuch kidnapped Hasmatulla Ghafoori, confined him for 12 hours, and assaulted him with a gun, a Taser, and their fists before releasing him. There were also related investigations and charges relating to these events in York Regions, and Toronto.

[3] With respect to the Peel Region charges, the Information with respect to Mr. Muhammed was sworn on February 10, 2015 and he was arrested on February 9, and the information with respect to Mr. Sadat was sworn on February 5 and he was arrested on February 13, 2015. Therefore the "Jordan" date for Mr. Muhammed is August 8, 2017 and for Mr. Sadat, August 12.

[4] In August, 2015, the current indictment was issued joining all three current accused, and a fourth, Mr. Zaban. Mr. Zaban's charges have been resolved.

The Applications

[5] Both Mr. Muhammed and Mr. Sadat moved to stay the Peel Region charges under s. 24(1) of the Charter based on violation of their 11(b) right to trial of the charges against them in a reasonable time as required by R. v. Jordan, 2016 SCC 27, and R. v. Williamson, 2016 SCC 28.

[6] Pre-trial motions in this trial (aside from this 11(b) motion) are set to begin July 18, 2018 and are to run for five weeks. Jury selection is set for August 14, 2018. The trial is set to commence on September 17, 2018, and take three to four months. The common view is that the trial will end in either November or December, 2018. Therefore, the total time passing between the swearing of the original Informations and end of trial is between 45 and 46 months. Each of Mr. Muhammed and Mr. Sadat calculates his net delay at 34.5 months using a Jordan analysis.

Result

[7] Using the Jordan analysis, alone, the cases are complex. The total delay for each of the accused, on their own estimates, is 34.5 months, only 4.5 months above the presumptive limit. This is reasonable given the complexity of the files and the circumstances of this case.

[8] In any event, I recalculated Mr. Muhammed’s net delay at 28.5 months, and Mr. Sadat’s at 31.75 months.

[9] Using the contextual analysis applicable to cases in the transition period, I also find that the delays in this case are reasonable. The charges are serious. There were four accused, originally, only one of whom has resolved his involvement. The factual basis of the claim arises from investigation of murder and attempted murder charges in York Region, serious drugs and weapons offences in Toronto, and the kidnapping and forcible confinement charges here in Peel. All indications favour a trial of all accused together, as opposed to separately. The unavoidable consequence of this fact is that it was more difficult to coordinate timetables to obtain joint dates such as for the preliminary inquiry, committal hearing, and trial. Ultimately, there is no prejudice to the two accused arising from the delay, other than that caused by the charges, themselves.

Facts

[10] The facts and evidence in this case arise from events transpiring in three separate jurisdictions and can be addressed as below. The facts are taken largely from the police summaries, on which both the Crown and the Applicants relied in these Applications:

June 21, 2014 and the Toronto Charges

[11] On June 21, 2014, a maid cleaning a room at a Toronto hotel saw a handgun on a table in a room registered to Taleb Saleh. She saw a man in the room place the gun in his pants' waistband. Hotel staff contacted Toronto Police who searched the room. They found marijuana and a passport in the name of Mr. Sadat in plain view. There were no firearms in plain view. The police found in the safe in the hotel room two loaded handguns, three loaded magazines for the guns, and a muzzle suppressor.

[12] Mr. Muhammed returned to the hotel and was arrested as he entered the room using a card key. Police waited in the parking garage at the hotel near Mr. Saleh's car. Mr. Sadat was arrested after he approached his car, then attempted to flee when he saw police. Messrs. Saleh, Muhammed and Sadat were arrested and charged in Toronto with drugs and firearms offenses.

[13] In addition to the evidence referred to above, the Toronto police also seized a bulletproof vest, seven cell phones, a laptop computer, a handwritten journal, and 129 g of heroin.

[14] The laptop was analyzed. It contained a large number of photographs of Mr. Sadat and his family. The journal contained notes of detailed surveillance of someone conducted over number of days and referred to a tracker device having been placed on the target's car. Police determined the target was Mr. Ghafoori, a resident of Peel Region. They contacted Peel Police who warned Mr. Ghafoori that he was in danger. The Peel Detective provided Mr. Ghafoori with her business card.

[15] Messrs. Saleh, Mohammed, and Sadat that were all granted bail in respect of the Toronto charges.

September 6, 2014 and the Kidnapping

[16] Between 5 and 6 am on September 6, 2014, Mr. Ghafoori was driving near his home. He was almost home when he was pulled over by what he believed to be an undercover police car as it had flashing lights. Mr. Zaban approached the driver's side of Mr. Ghafoori's car, showed Mr. Ghafoori a police badge, ordered him out of the vehicle, and told him he was under arrest. An unidentified man placed Mr. Ghafoori in handcuffs. A bandanna was placed over Mr. Ghafoori's eyes and a hood over his head. He was forced into the back of his own vehicle. The male who had placed Mr. Ghafoori in handcuffs got into the back seat with Mr. Ghafoori and held a gun to him. A third person got into Mr. Ghafoori's car to drive. Mr. Zaban followed in his van.

[17] As they drove, the man with the gun struck Mr. Ghafoori in the head with the gun, causing a cut. He made Mr. Ghafoori call his wife and tell her that something had come up and he would be home late. Mr. Ghafoori could hear the others communicating by way of walkie-talkie.

[18] After an hour, the vehicles all stopped at Mr. Kozuch's home. The four kidnappers searched Mr. Ghafoori's vehicle. While the four men were searching the car, somebody hit Mr. Ghafoori in the back of the head, and someone else tasered his neck and his side.

[19] The parties drove another 10 minutes, up a dirt road, and onto a property on which there stood a Quonset hut. The four men took Mr. Ghafoori into the Quonset hut where they removed his blindfold. Messrs. Sadat and Mohammed came into the Quonset hut with their faces masked. They closed the door. It was pitch black. One of them used his cell phone flashlight feature and shone it at Mr. Ghafoori. They then took off their masks. Mr. Ghafoori recognized Mr. Sadat, whom he had known since they were teenagers.

[20] The men told Mr. Ghafoori that they had been responsible for a home invasion in his house a year earlier, at which time they tied up Mr. Ghafoori, his wife, and their children, and took thousands of dollars in cash and jewellery, and a key to a drug stash-house that belonged to someone Mr. Ghafoori worked for. At that time, they knew that weekly, Mr. Ghafoori provided for others secure properties to be used as safe drug stash-houses, and clean the vehicle rentals, in exchange for cash.

[21] During Mr. Ghafoori’s time in the Quonset hut, people yelled and at him and hit him. Mr. Sadat and Mr. Muhammed went through his effects. They found the business card from Peel Region Detective Fynes. They accused Mr. Ghafoori of being "a rat". Mr. Ghafoori explained that the police had contacted him to say that he was in danger. This news appeared to frighten the kidnappers. They stopped abusing Mr. Ghafoori and had a hushed conversation in which Mr. Ghafoori heard them discuss what had been written in the journal that the police found in the Toronto hotel room. The kidnappers told Mr. Ghafoori that they would let him go if he helped them kidnap somebody else so they could get the money they needed to pay the men who had kidnapped Mr. Ghafoori. Mr. Ghafoori agreed.

[22] The men drove Mr. Ghafoori to Mr. Kozuch's house a short distance away. They stayed at the house for a while and discussed Mr. Ghafoori coming back the next day to help them kidnap somebody else. Mr. Zaban drove Mr. Ghafoori back to his home. By this time the kidnappers had detained Mr. Ghafoori for about 12 hours. They gave Mr. Ghafoori a cell phone and said that they would be in touch the next day. Mr. Ghafoori did not call the police. Later that night one of the three kidnappers arrived at Mr. Ghafoori's home and gave him money and drugs. The next day someone arriving gave him more money. The cash totalled $5,000.

September 8, 2014

[23] That evening, Mr. Ghafoori was contacted on the cell phone that the kidnappers gave him and was told to meet the kidnappers where they would tell him the plan to kidnap somebody else. The kidnapping was supposed to happen that night. Mr. Ghafoori did not want to be part of this plan. He called detective Fynes of Toronto Police and asked her to pick him up. He was picked up and taken to the Peel Police 21 Division. He provided a videotaped statement. He did not tell them that he knew Mr. Sadat or Mr. Mohammed.

September 9, 2014

[24] Peel Police showed Mr. Ghafoori a series of photo line-ups which contained pictures of Mr. Sadat and Mr. Muhammed. Although Mr. Ghafoori recognized them he did not tell this to police.

September 23, 2014 - York Region Shooting

[25] A shooting occurred outside Mr. Sadat's home in Woodbridge. He was living there with his parents, his sureties for release under the Toronto charges. While Mr. Sadat was home at the time, two other men were shot as they left the home. One was killed and the other injured. Police believed that Mr. Sadat was the target.

September 30, 2014

[26] Mr. Ghafoori reviewed a second photo line-up, this time, picking out pictures of Mr. Sadat and Mr. Muhammed.

Other Police Investigation Results

[27] Police confirmed from video surveillance that Mr. Ghafoori had been pulled over by a dark van with flashing lights. They executed a search warrant on Mr. Ghafoori's vehicle and found a receipt for a Canadian Tire and a Zehr’s store on the date of the kidnapping. The surveillance footage from the Canadian Tire store showed that on the same day that Mr. Ghafoori was at the store, Mr. Kozuch was shown purchasing gas for his white pickup truck and other items. Mr. Muhammed was also on the video with Mr. Kozuch. Mr. Muhammed was wearing a distinctive sweatshirt that is later located during a search warrant at his home.

[28] Peel Police attended at the Zehr’s in Uxbridge and seized video surveillance from that store which showed that on the same day that Mr. Ghafoori was at the store, Mr. Kozuch and Mr. Muhammed were shown purchasing, various items.

[29] Peel Police were able to locate the property with the Quonset hut in Uxbridge Ontario, a six minute drive from Mr. Kozuch's home and a nine minute drive from the Canadian Tire and Zehrs store where Messrs. Kozuch and Muhammed were seen on video.

[30] Cell tower locations confirmed that the cell phones believed to be those of Messrs. Sadat, Muhammed, Zaban, and Kozuch were all in the Uxbridge area during the time that Mr. Ghafoori was being held in the Quonset hut. Further, the cell phones show the following:

(1) Between August 13 and October 9, 2014, Mr. Zaban's phone was used to phone Mr. Muhammed's phone 103 times, three of which were on the day of the kidnapping and one at the exact time of the kidnapping. Mr. Zaban's phone contacted Mr. Ghafoori's phone on each of the three days following the kidnapping.

(2) Between June 9 and October 17, 2014 Mr. Kozuch's phone contacted Mr. Muhammed's phone 101 times, with five on the day of the kidnapping.

(3) Between June 29, 2014 and September 21, 2014, Mr. Muhammed's phone contacted Mr. Sadat's phone 305 times, with 36 of those contacts on the date of the kidnapping.

[31] The police seized several items in their search of the Quonset hut for which DNA evidence was taken showing:

(1) Mr. Kozuch's DNA was found on a cigarette butt just outside the door of the Quonset hut and on an Aquafina water bottle found in the Quonset hut;

(2) Mr. Sadat's DNA was found on a Red Bull can and a McDonald's straw located in the Quonset hut;

(3) Mr. Muhammed's fingerprint was located on a Montclair water bottle found in a garbage can inside the Quonset hut;

(4) Peel Police found blood stains and blood spatter on the east wall of the Quonset hut and north of the main door which was confirmed to be Mr. Ghafoori's blood. His blood was also found on a used bandage found inside the Quonset hut.

January 7 to February 4, 2015

[32] While investigating the homicide at Mr. Sadat's home in Woodbridge, York Police obtained authorizations to intercept communications. On January 15, Mr. Sadat was recorded speaking with the Woodbridge murder victim's father. Mr. Sadat told the other man that he has video of Mr. Ghafoori's kidnapping where the latter's hands were tied and he was beaten and his eyes bled.

[33] On January 16, Mr. Sadat and Mr. Muhammed are recorded discussing the Toronto charges and that they had "dodged a bullet" because the maid could not identify them. They discussed the tracking device that was placed on Mr. Ghafoori's car and Mr. Sadat throwing away his room key card before the police arrested him. They discussed Mr. Muhammed putting Mr. Sadat's "stash" in a room under Mr. Muhammed's name and Mr. Muhammed's belief that he was just a "goon" for Mr. Sadat. They also discuss the video that they have of the kidnapping and that the father of the homicide victim wanted to see it.

[34] In November 2015, Mr. Saleh pled guilty to one count in the Toronto charges. The Toronto charges against Mr. Sadat and Mr. Mohammed were stayed.

The Jordan Analysis

The Law

[35] On Friday, July 8, 2016, the Supreme Court of Canada released its judgment in Jordan, creating a shift in the assessment of unreasonable delay under s. 11(b) of the Charter, overturning the framework established in R. v. Morin, [1992] 1 S.C.R. 77.

[36] Jordan established a new framework wherein the ceiling for the time it should take to bring an accused to the end of trial in the Superior Court is 30 months. Beyond 30 months, the delay is presumptively unreasonable.

[37] I must follow the framework set out in Jordan. This framework was summarized by the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, para. 34 to 41).

[38] According to Jordan, a judge hearing an application for a stay of proceedings based on unreasonable delay must analyze the delay in the following manner:

Step 1 - Calculate the Total Delay

[39] The judge is to calculate the total delay, from the date of the charge to the end or anticipated end of the trial.

Step 2 - Subtract Defence Delay

[40] Defence delay is subtracted from the total delay. Defence delay comprises two components: 1) delay that is a clear and unequivocal waiver of the accused's s. 11(b) rights, and 2) delay caused solely by the conduct of the defence, including unavailability for trial when the court and the Crown are ready to proceed. The resulting number is called the net delay.

Step 3 - Compare Net Delay to Presumptive Ceiling

[41] Once the net delay is calculated, the net delay must be compared to the presumptive ceiling of 30 months for cases tried in Superior Court.

Step 4 - Net Delay Exceeds Presumptive Ceiling

[42] If the net delay exceeds the presumptive ceiling, the delay is presumptively unreasonable. It is open to the Crown, however, to establish that there is delay attributable to exceptional circumstances that should be subtracted from the net delay. These exceptional circumstances include delay caused by circumstances that were a) reasonably unforeseen or unavoidable, and b) could not be reasonably remedied by the Crown once they arose. The list of exceptional circumstances is not closed.

[43] If the Crown has established that there are exceptional circumstances, then that delay is subtracted from the net delay, to total the "remaining delay".

Step 5 - Remaining Delay Exceeds Presumptive Ceiling

[44] Where the remaining delay exceeds the presumptive ceiling, the Crown may only rebut the presumption of unreasonable delay by establishing that the case was particularly complex in that the nature of the evidence or the issues required an inordinate amount of trial or preparation time. Where the Crown cannot establish that the case was particularly complex, the charges against the accused will be stayed.

Step 6 - Remaining Delay Below Presumptive Ceiling

[45] Where the remaining delay is less than the presumptive ceiling, the defence may demonstrate that it was nonetheless unreasonable. The defence must establish two things: (1) they took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. The granting of stays for cases that fall below the presumptive ceilings should only be done in the clearest of cases.

Step 7 - Transitional Cases where matter commenced prior to Jordan

[46] The release of the Jordan decision should not automatically transform a previously reasonable delay into an unreasonable one. Where charges were instituted pre-Jordan and the net delay falls above the ceiling, the application of the new framework must be applied contextually and flexibly, taking into account whether the parties justifiably relied on the pre-Jordan state of the law, which did not require defence initiative, and which accepted institutional delay as a justification.

[47] Under the Morin regime, in very busy jurisdictions such as Brampton, the government and the Crown require time to respond to the Court's ruling. In such centres, cases of moderate complexity may not attract stays. Crown counsel's behaviour may be limited by systemic issues.

[48] As the Court of Appeal said in R. v. Pickard, 2017 ONCA 692 at para. 139, in cases where delay would not have resulted in a stay pre-Jordan, the imposition of a stay post-Jordan will only be in "relatively rare cases".

Jordan Analysis - This is a Complex Case

[49] Under Step 5 of the Jordan analysis, the Crown may rebut the presumption of excessive delay where the net delay is over 30 months by showing that the case is "particularly complex".

[50] For the purpose of this section of my reasons, I accept that the net delay for each of Messrs. Muhammed and Sadat is as they submitted: 34.5 months - 4.5 months in excess of the Jordan presumptive ceiling.

[51] Both of the accused advanced two arguments with respect to the Crown’s position that this matter is complex; a) that the Crown cannot establish that the case is complex, and b) complexity is already accounted for in the 30 month presumptive ceiling. I deal with these in reverse order.

The 30 day presumptive ceiling already includes complexity.

[52] Both accused submitted that only in the most extraordinarily complex of cases should delay beyond the presumptive ceiling be excused or justified, since, in Jordan, the Court held that the presumptive ceiling already reflected the "increased complexity of criminal cases since Morin", including the emergence of "[n]ew offences, procedures, obligations on the Crown and police, and legal tests" (see Jordan, at paras. 42 and 53). In short, both accused argued that the exceptional circumstances should be found to exist rarely, if at all.

[53] I disagree.

[54] In Jordan, the Supreme Court said that a "particularly complex" case is characterized as one requiring an "inordinate amount" of trial or preparation time because of the nature of the evidence or the nature of the issues. With respect to the evidence, a particularly complex case will usually have voluminous disclosure, many witnesses, significant expert evidence, and charges spanning long time periods. With respect to the issues a particularly complex case will have a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute.

[55] A typical murder trial, for example, will not, by its nature, automatically, be sufficiently complex to be a “particularly complex” case falling within the exceptional circumstance set out in Jordan at para. 78. Particularly complex cases will likely involve offences like terrorism, organized crime and gang-related activity (Jordan, at para. 81). The seriousness of the offence is no longer relevant in the analysis, although the more complex cases will tend to involve more serious offences (Jordan, at para. 81). If the case is particularly complex such that the time the case has taken is justified, the delay is reasonable and no further analysis is required (Jordan, at para. 80). Joint prosecutions may also affect complexity, as long as it is in the interests of justice to proceed jointly (Jordan, at para. 77).

[56] In R. v. Cody, 2017 SCC 31, [2017] 1 SCR 659, at para. 63 and 64 the Supreme Court of Canada refined its views on complexity saying that case complexity requires a qualitative, not quantitative, assessment of complexity. Complexity is an exceptional circumstance only where the case, as a whole, is particularly complex. Once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case's complexity as a whole may justify the time that the case has taken in excess of the presumptive ceiling and rebut the presumption that the delay was unreasonable (see Jordan, at para. 80). In Cody, the court adopted the Jordan definition of "a particularly complex case" in para. 77 as one that "because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time" (emphasis deleted). When determining whether a case's complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case's overall complexity. This is a determination that falls well within the expertise of a trial judge (see Jordan, at para. 79).

Has the Crown established "particular complexity" within the Jordan meaning?

[57] Yes. Why do I say this?

[58] First, everyone involved in the case has expressed the opinion that the case is complex.

[59] Mr. Muhammed thought that this case was complex. In paragraphs 62 to 64 of his affidavit of February 10th, 2016, sworn in support of his Rowbotham Application, under the heading "Complexity of the Charges", Mr. Muhammed admitted that that the Brampton charges were very complex. He said that the events underlying the charges took place over a number of years and involved three distinct police investigations, arrests, and sets of facts. As a result of those arrests, he said that he faced 21 charges between the three jurisdictions. He said that the evidence and the disclosure was multifaceted and voluminous, involving officers notes, statements from the accused and other witnesses, surveillance evidence, intercepted communications, forensic evidence, and other materials from three jurisdictions. In his Notice of Application for this Rowbotham application, paragraphs 6 to 9, he gave similar details of the complexity.

[60] The lawyers, too, said the case was complex.

[61] In argument, Mr. Muhammed submitted that his counsel's views expressed at various hearings were not admissions of complexity as defined in Jordan. I agree. The lawyers' statements about complexity, however is evidence I can consider in making my finding of complexity as defined in Jordan. I say this for two reasons. First, after Jordan's release in July, 2016, discussion with the Ontario Court in this matter was likely focussed on Jordan's impact on the case, and on complexity as defined in Jordan. Second, there is no doubt that once the matter reached the Superior Court in Brampton, Justice Durno's focus was on complexity as defined in Jordan and avoiding a Jordan problem.

What did lawyers and the Court say about complexity?

[62] Durno, J. was of the view (preliminarily) that the case was complex as illustrated by the following transcript excerpts:

a) June 27, 2017 Conference, Court to Mr. Muhammed's Counsel, p. 3, l. 17 "Are you suggesting this is not a complex case?" Answer: "Not at all, Your Honour. This is…a very complex case."

b) June 27, 2017 Conference, Court to Mr. Muhammed's Counsel, p. 4, l. 2 "There is no - no one could, with a straight face, say that his is not complex?" Answer: "No."

[63] The Crown was of the view that the case was complex as illustrated in the following transcript excerpts:

a) June 27, 2017 Conference, Crown to Court, p. 21, l. 12: "The Crown has made a decision to prosecute them all together given the complexity of the file."

b) March 8, 2016 Conference, Crown said to the Court that the case and disclosure is very complex.

[64] Mr. Muhammed's representatives were also of the view that the case was complex, as illustrated by the discussions, above, with Durno, J.

[65] Mr. Sadat's representatives were of the view that the case was complex, as illustrated by the following transcript excerpts:

a) June 27, 2017 Conference, Mr. Paradkar to the Court, p. 7, l. 33 to p.9, l. 5 - reciting the facts about the case that make it complex.

b) June 27, 2017 Conference, Mr. Paradkar to the Court re Mr. Sadat obtaining other counsel, p. 15, l. 20, "I don't know how Mr. Sadat could get counsel on a complicated case like this is [sic] to get even readied to argue it if - once the fall dates are sent."

c) January 30, 2017 Conference, Mr. Paradkar to Duncan, J. at the Preliminary inquiry, p. 13, "The case is complex."

d) July 19, 2016 email exchange between Mr. Paradkar and the Crown: Mr. Paradkar, whose retainer was confirmed only on July 13, 2016 was pressing for earlier dates for the preliminary inquiry. The Crown advised Mr. Paradkar to become "familiar with the disclosure as that may change the look of the prelim if Mr. Paradkar does not agree with Mr. Struthers' [Mr. Paradkar's predecessor] admissions or wants different witnesses heard from." Mr. Paradkar replied by saying "Thanks, Sara. For the heads up. This seems like a complex case and I had no idea about all of this. My client just wanted earlier dates. Looks like I need to get up to speed on all of this. Are the concessions in writing somewhere? Is what you gave the student all disclosure or just initial?"

[66] Second, setting aside the views of the two accused, the Crown, and the Court, the evidence indicates that this case clearly falls within the Jordan "particularly complex" exception for the following reasons:

(1) This case involves charges of kidnapping, unlawful confinement, assault with a weapon, and assault by all of the accused.

(2) There are three accused.

(3) The evidence, if accepted, shows that the kidnapping was carefully planned and executed.

(4) Counsel advised that the disclosure comprised approximately 15,000 pages taken from three jurisdictions' investigations, delivered in phases. Evidence on this application was incomplete, but it appears that most of the disclosure was made by August 31 or October 15, 2015, although by July 2017, only the Informations to Obtain the wiretap/communications intercept evidence was still outstanding.

(5) The evidence includes wire tab transcripts, DNA, fingerprint, video surveillance, as well as evidence from witnesses. It was not disclosed how many witnesses will be called at trial.

(6) The charges in the Brampton case (kidnapping, etc.) are inextricably related to those before the courts in Toronto (drugs and weapons) and York Region (homicide).

(7) Evidence relating to the kidnapping comes from the evidence found during the search of the hotel room conducted with respect to the Toronto weapons and drug charges.

(8) Evidence relating to the kidnapping comes from the statements made by Mr. Muhammed and Mr. Sadat in the communication intercepts from the York Region homicide charges.

(9) The preliminary inquiry consumed 5 days, hearing from Mr. Ghafoori, alone. It would have consumed more, had it continued as planned.

(10) There will be a number of pre-trial applications in the scheduled 5 weeks set aside for motions, including:

a) Crown application to have discreditable conduct evidence (disclosed during the searches with respect to the Toronto charges) introduced in the trial of the Brampton charges.

b) Defence application (Garofoli) to challenge the York region communication intercepts.

c) Defence application by one accused re 10(b) of the Charter.

d) Crown application to adduce in the Brampton trial a statement given by one of the accused to York Region Police with respect to the homicide investigation which the Crown alleges is inculpatory with respect to the Brampton charges.

e) Crown application re third-party records.

(11) There are issues of privilege to be determined involving one document the Peel Crown received from Toronto Police over which privilege is claimed, and with respect to certain redactions from Peel Police notes. The latter were the subject of argument at the preliminary inquiry on January 31 and February 3, 2017.

(12) Mr. Muhammed was without counsel from Legal Aid's denial in July, 2015 until his Rowbotham Application was brought on February 11, 2016 and the Attorney General agreed to fund his defence on May 9, 2016.

(13) Mr. Sadat's retaining a lawyer for trial was still outstanding as of June 27, 2017.

(14) The trial is scheduled to take three to four months.

[67] Mr. Sadat argued that that it does not lie in the Crown's mouth to argue complexity. Mr. Sadat argues that, like the murderer who kills his parents then throws himself on the mercy of the court as an orphan, the Crown created the complexity in this case by proceeding on a multi-accused, multi-count indictment and cannot now claim complexity of its own creation as justification for exceeding the presumptive ceiling.

[68] The Crown originally proceeded on individual indictments, then in August, 2015 created a new indictment naming four individuals and many counts. While one, Mr. Zaban, resolved his issues shortly thereafter, much of the delay that followed the joint indictment arose from trying to coordinate the Crown's, 3 defence counsels', and the Court's schedules. Mr. Sadat says that the Crown, either ought never to have proceeded on a joint indictment from the outset, or, once it became clear that Jordan would be an issue, ought to have severed the accused.

[69] The Crown must be alive to the fact that any delay resulting from prosecutorial discretion to proceed in one indictment against several accused must conform to the individual accused's 11(b) right. The Crown has the obligation to bring the matter to trial within a reasonable time. It must be active to ensure that the actions of one or more co-accused in delaying a joint trial did not prevent another from being tried and timely manner. The Crown must balance that against the cost of prosecuting in separate actions, and the delays that arise from (R. v. Singh, 2016 BCCA 427, 2016 B.C.C.A. 427 at paras. 80-82 (B.C.C.A.).

[70] As the Court of Appeal said in R. v. Gopie, 2017 ONCA 728:

[168] … [I]n my view, the delays arising from the complexity of the case justify the delay.

[169] Delays arising from complexity may justify an otherwise unreasonable delay that exceeds the ceiling (Jordan, at paras. 80-81, 105). The nature of the issues and the evidence drive the complexity analysis under Jordan. Complexity may also arise from proceedings that involve more than one accused. As noted in Jordan, at para. 77, "[p]roceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case." The Supreme Court underlined this point at para. 6 of Vassell, stating that "[i]n many cases, delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial."

[170] Fairburn J. aptly summed up this point in Ny, at para. 47, stating:

[T]he concept of "reasonable time" within s. 11(b) may fluctuate depending on whether accused are standing alone or together. Provided it is in the interests of justice to proceed jointly, delay above the ceiling may reflect the realities of life in a joint trial and transform an otherwise unreasonable delay into a reasonable one.

[171] There may come a time when the interests of justice are no longer served by proceeding jointly, including where s. 11(b) rights are in jeopardy. The Crown has an obligation to continually assess whether the decision to proceed jointly remains in the best interests of justice. One accused cannot be held "hostage" by his co-accused's actions or inactions (Vassell, at para. 7; and Manasseri, at para. 323).

[172] The reasonableness of the delay above the ceiling must be assessed based on the circumstances of the case. I accept the application judge's finding that this was not a routine case and had inherent complexity due to voluminous disclosure, out-of-province witnesses, multiple accused, various pre-trial motions, a seven-day preliminary hearing and a month-long trial. Although the application judge used Morin principles in making his finding that the case was complex, using the Jordan framework, I am satisfied that this was a complex case.

[71] In this case, I have no doubt that preceding with all three accused on one indictment serves the interests of justice. To proceed otherwise would not be efficient. The time and resources required to prosecute the three accused separately would have been far greater than those required to prosecute the three accused jointly. The evidence is virtually identical with respect to each accused. Witnesses would have had to testify several times. Further, separate prosecutions could result in inconsistent verdicts and findings of fact. As it was, proceeding on one indictment meant that there was one preliminary inquiry of five days, one period of six weeks of motions and one trial of three to four months (as opposed to three times that number).

[72] As the Court of Appeal said in R. v. Jurkus, 2018 ONCA 4:

[67] … Among other things, the complexity of the matter is revealed by the length of the closing submissions and the fact that committal was so hotly contested. Moreover, the simple coordination of dates among the calendars of three defence counsel, the Crown and court added a layer of complexity to the proceedings. This is borne out by the record, including the counsel correspondence going back and forth. This is the type of inherent delay, arising in multiple accused trials, that was described as "a fact of life" in R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 6, a judgment released on the eve of Jordan.

[68] [X] suggests that the complexity of the proceeding was within the Crown's control, and that the accused should have been severed, allowing for a more streamlined proceeding against each. I disagree. There are a host of reasons why accused charged in relation to the same incident should be tried together, such as: conserving judicial and trial resources; avoiding inconsistent verdicts; and avoiding witnesses having to testify more than once: Gopie, at para. 138; R. v. Whylie (2006), 2006 CanLII 9037 (ON CA), 207 C.C.C. (3d) 97 (Ont. C.A.), at para. 24; R. v. L.G., 2007 ONCA 654, 228 C.C.C. (3d) 194, at para. 63. In this case, it was clearly in the interests of justice to proceed against the three accused together, even though, as acknowledged by the application judge, this added to the complexity of the matter.

[73] Further, in the circumstances of this case, a delay of 4.5 months beyond the Jordan 30 months presumptive ceiling, in this transition case, is not unreasonable, given the complexity.

[74] Having decided that the 11(b) applications must fail because the case is particularly complex, I need not consider other arguments. I do so, in the event that I am incorrect in my finding of complexity.

Net Delay

[75] Each of the accused assessed his net delay at 34.5 months. The Crown assessed the net delay for each at below 30 months.

[76] In addressing defence delay, the Supreme Court said in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 31-32:

[31] The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge" (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.

[32] Defence conduct encompasses both substance and procedure - the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

Mr. Muhammed's Defence Delay

[77] The Crown said that the net delay was 28 months, four days to 29 months, four days (depending on when the trial ends). Mr. Muhammed assessed the net delay at 34.5 months assuming a four month trial.

[78] I assess Mr. Muhammed's net delay at 28.5 months, accepting the defence estimate of net delay of 34.5 month then reducing it for a further six months, as explained blow.

[79] The Crown raised the following additional periods as defence delay, with which Muhammed took issue:

July 7, 2015 to February 10, 2016 - 7 Months Between Being Denied Legal Aid and Bringing a Rowbotham Application.

[80] The Crown says Mr. Muhammed, having lied to Legal Aid in 2014 with respect to the non-Peel charges, ought to have known that his application for Legal Aid on the Peel charges would not succeed. The Crown says that Mr. Muhammed knew that the whole Legal Aid process with respect to the Peel charges was doomed to failure and a waste of time, and that this whole period should be counted as defence delay. Under my questioning, the Crown conceded that regardless of whether Mr. Muhammed's Legal Aid application for the Peel charges was doomed to failure, in order to bring a Rowbotham application, he needed to go through the Legal Aid application, review and appeal process.

[81] Unless the Crown can establish that Mr. Muhammed's Legal Aid and Rowbotham applications were without merit, the time that each took to be determined is not be defence delay. The delay in bringing either, however, may be counted as defence delay or foot dragging. The accused has the onus to establish justification for the delay in bringing either (see R. v. Isaacs, 2016 ONSC 6214 (S.C.J.), paras. 86 to 90).

[82] The record is clear that on July 2, 2015, Mr. Muhammed's representative told the Ontario Court that his Legal Aid routes were exhausted. On February 10, 2016, Mr. Muhammed's representative told the OCJ that Mr. Muhammed's Rowbotham Application would be filed on February 11, 2016.

[83] Between July 2, 2015 and February 10, 2016, there were 16 adjournments (July 2, 7, 22, August 13, 18, 25, September 21, October 5, 13, 27, November 2, 10, 17, December 10, January 19, 2016, and February 10). During that time, Mr. Muhammed did not have counsel retained. Different counsel assisted him from time to time. At least eight of the adjournments arose specifically because Mr. Muhammed had not yet filed his Rowbotham Application. It was served and filed on February 11. On April 8, 2016, the Application was scheduled to be heard. On May 9, 2016 Mr. Muhammed and the Ministry of the Attorney General settled the Rowbotham Application.

[84] Why was there a delay of at minimum seven months, seven days between Legal Aid's denying Mr. Muhammed funding and his filing his Rowbotham Application? Does this count as defence delay?

[85] Mr. Muhammed did not file an affidavit to explain this delay or how long it would have taken him to prepare and file his Rowbotham application in the normal course. I am left to draw inferences.

[86] As indicated, the Legal Aid application, although perhaps doomed to fail, was a necessary prerequisite to Mr. Muhammed's Rowbotham Application. I do not count as defence delay any of the time involved in Legal Aid issues before July 2, 2015. Likewise, I do not count as defence delay any of the time involved in the Rowbotham application, once brought.

[87] The only time in issue is the time between Legal Aid's denial of funding and the filing of the Rowbotham application. I count six months of this delay as Mr. Muhammed's delay. There is nothing in the Rowbotham Application that indicates that it was complicated or required over seven months to draft and file. Most of the information in the Rowbotham Application would have come from the documents filed in support of the Legal Aid application. While I accept that drafting and filing would have taken some time, that time would have been relatively short in a straightforward Rowbotham Application. Allowing Mr. Muhammed the benefit of the doubt as to how long it might reasonably have taken him to draft and file the Rowbotham Application, and notwithstanding the absence of an Affidavit from his counsel or him on the point, I find that six months of the seven months, seven days, is defence delay.

April 17, 2015 to April 8, 2016 - 12 Months re Lack of Counsel

[88] The Crown says, for this same time period, that the delay is defence delay because Mr. Muhammed insisted on having his counsel of choice, not the Legal Aid lawyer appointed to assist him while the Legal Aid application moved forward. His insistence on his own counsel, which required the Legal Aid and Rowbotham process to play out, prevented setting any dates, such as dates for judicial pre-trials and preliminary hearing. The Crown says that the periods of delay due to lack of retained counsel are April 24 to November 6, 2015 (6 months, 12 days).

[89] The record indicates that from February 10 to March 4, 2015, Mr. Muhammed was represented by E. Brown. From March 11 to June 15, 2015, Mr. Scully acted. During that time, there were 14 adjournments at the defence request, a number of which were for no reason, or solely for retainer reasons. That period is from April 24 to June 16. On June 16, 2015, Mr. Muhammed advised that Mr. Scully was no longer his counsel.

[90] As indicated above, I reject the Crown's position. During all this relevant time, Mr. Muhammed was at the mercy of Legal Aid. This is not defence delay on a Jordan analysis. I have addressed, already, the delay in bringing a Rowbotham application.

MR. SADAT’S DEFENCE DELAY

[91] The Crown said that the net delay was 27 months, six days to 28 months, six days (depending on when the trial ends).

[92] In his written material and at the outset of his argument, Mr. Sadat assessed the net delay at 34.5 months assuming a four month trial and 12 months defence delay. Counsel, during argument, began to doubt her calculation and undertook to file a new "Jordan Chart" at the second day of the argument. In the charts she filed at the second day of argument, Mr. Sadat’s counsel calculated net delay at 36 months, based 10 months of defence delay. I did not understand and do not accept counsel's recalculation of net delay.

[93] I assess Mr. Sadat's net delay at 31.75 months, accepting the original defence estimate of net delay then reducing it for a further 2 months, 21 days as explained blow.

[94] The Crown raised the following additional periods as defence delay, with which Mr. Sadat took issue.

December 10, 2015 to March 8, 2016 - 2 months, 28 days re Counsel Unavailability

[95] The Defence accepts, and has taken into account, that the adjournment from January 16 to 30, 2015 is his responsibility (14 days). He says that the balance of the delay is Mr. Kozuch's fault as his counsel was not available (37 days between December 10, 2015 and January 16, 2016) and because the matter was adjourned for committal (36 days, between January 30 and March 8).

[96] With respect to multi-count, multi-accused indictments, as indicated above, delay must be assessed under Jordan, individually. With respect to the time between December 10, 2015 and January 16, 2016 (37 days), there is a discrepancy between the transcripts for the December 10, 2015 joint pre-trials filed by the two applicants. One of their lawyers said "We've had a very productive pre-trial. We're going to continue that on January 19th." No one suggested that this reference was other than a request for a continuation of the JPT. One transcript attributes this statement to Mr. Kozuch's solicitor, and the other to Mr. Sadat's.

[97] The onus to establish that this 37 day time period is defence delay by Mr. Sadat is on the Crown. The Crown fails in discharging its onus. I do not accept it as defence delay.

February 3 to April 24, 2017 - 2 months, 21 days re Changed Positions on Committal

[98] Mr. Sadat conceded that he reversed his position on committal causing an unnecessary adjournment of 31 days (from March 24 to April 24) so that he could join Mr. Muhammed in making submissions regarding committal. This, says Mr. Sadat, is the effective defence delay given his change in position, which Mr. Sadat has taken into consideration as defence delay.

[99] The record shows that Mr. Sadat contested committal until February 3, 2017 at which time he conceded committal. On March 10, he changed his position and contested committal. He conceded committal it at the April 24, 3017 hearing.

[100] Looking at delay individually between the accused, the whole delay caused by Mr. Sadat's three changes of mind on committal is two months, 21 day, which counts as his delay.

BOTH ACCUSED

[101] Both accused raised other considerations of what they say is either Crown delay or systemic delay.

Incomplete Disclosure

[102] The accused say that there was significant delay in disclosure which rendered irrelevant much defence delay. The Crown said that disclosure was completed early in this file, and that delays relating to production arose from the accuseds changing counsel which required counsel to familiarize themselves with the file.

[103] In their facta, all parties said that disclosure was complete by October 15, 2015. In oral argument on the first day, all parties changed their positions. The Crown thought that disclosure might have been completed before October 15, 2015. The defence pointed to a number of emails which suggested that as late as June 27, 2017, disclosure was still not complete. I suggested that there should be records which make clear when disclosure was made and complete.

[104] On the second day of argument, the Crown clarified matters. She said that the October 15, 2015 date Mr. Muhammed referred to in his factum as the date for completed disclosure was based on his counsel's understanding that disclosure was made on September 15, and that counsel would have reasonably required 30 days to review it. No one questioned this explanation.

[105] In terms of hard evidence, on consent, the Crown entered letters dated August 31, 2015 from the Crown to Mr. Kozuch's and Mr. Sadat's then counsel providing disclosure. At the next court attendance, the Crown advised the Court and Mr. Muhammed that his disclosure was on a thumb drive awaiting his lawyer, when appointed.

[106] The transcripts of the various appearances refer generically to questions about disclosure, and, between November 2016 and June, 2017, only to Mr. Paradkar's statement that disclosure of the Information to Obtain used to obtain the wire-tap/communication intercepts in the other jurisdictions was the only disclosure outstanding.

[107] Based on the evidence before me, albeit probably incomplete, I find that with the exception of the IOT's for the wire-tape/communication intercepts, disclosure was complete by October 15, 2015. I do not adjust the net delay for either accused on this basis.

Crown Attempts to Expedite Matters - 9 to 10 Months from February 28, 2017 to end of November or December, 2018

[108] The accused say that the Crown never developed and followed a concrete plan to minimize the delay occasioned by the complexity of this case, or considered severing the case and trying the accused separately (see Jordan, paras. 70, 79, and 138). This, they say, should weigh against the Crown in the transition analysis.

[109] The Crown says that it took active "initiatives" to move this matter along, and seeks to attribute some of the delay caused by the accuseds' failure to take the Crown up on its offers to expedite matters.

[110] The matter arrived in the Superior Court in June, 2017. In the first Superior Court Judicial Pre-trial, Durno J. immediately flagged this case as requiring three months of trial. Mr. Muhammed's lawyer indicated that she was not available for trial until June 2018. That Judicial Pre-Trial was adjourned so Durno J. could work on a possible timetable. When the Pre-Trial reconvened on June 27, 2017, the current motions and trial schedule was set largely because these two accuseds' counsel were not available until then.

[111] At the June 27, 2017 Judicial Pre-trial, Durno J., suggested that the trial take place in the criminal sitting in October, 2017. In response, the Crown offered to prioritize this matter so that it could proceed at that time. Still, defence counsel could not proceed earlier with the trial.

[112] The Crown says that it made other offers to expedite matters. In November 3, 2015, the Crown assigned two Crown attorneys to the file. On March 4, 2016, the Crown tried, before the Judicial Pre-trial, to arrange a five day preliminary hearing to hear from the victim with another two days for other witnesses. It is unsuccessful. Later attempts to negotiate dates are unsuccessful as well. Most attempts to arrange dates arise because of retainer issues for one or more of the accuseds' counsel.

[113] I do not alter my assessment of net delay for either Applicant because of the Crown's "initiatives", for two reasons. The "initiatives" appear to have been spur-of-the-moment, and not part of any plan for case management. Second, I have already found that this case is complex and that trying the accused together is a more reasonable way to proceed than trying them separately. The difficulty in arranging dates, whether for the preliminary hearing, the committal hearing, or the trial of all of the accused together, is a necessary and unavoidable result of the facts of this case.

Transition Analysis

[114] As the Court of Appeal said in R. v. Pickard, 2017 ONCA 692 at para. 139, in cases where delay would not have resulted in a stay pre-Jordan, the imposition of a stay post-Jordan will only be in "relatively rare cases". When charges were laid before Jordan, and the net delay falls above the ceiling, the application of the new framework must be applied contextually and flexibly, taking into account whether the parties justifiably relied on the pre-Jordan state of the law, which did not require defence initiative, and which accepted institutional delay as a justification (see also Jurkus, supra, at para 73 to 74).

[115] Under the Morin regime, in very busy jurisdictions such as Brampton, the government and the Crown require time to respond to the Court's reschedule. In such centres, cases of moderate complexity may not attract stays. Crown counsel's behaviour may be limited by systemic issues.

[116] In Gopie, supra, at para. 78, the Court of Appeal said that in order to determine whether transitional circumstances justify a delay above the presumptive ceiling, I must examine the circumstances contextually, including:

(1) Complexity

(2) The period of delay in excess of the Morin guidelines

(3) The Crown's response, if any, to institutional delay

(4) The defence efforts to move the case along

(5) Prejudice to the accused

See also Pikard at para. 71 and R. v. Manasseri, 2016 ONCA 703, at para.

[117] An important aspect of this analysis is the parties' reliance on the previous state of the law. Mr. Muhammed says that the Crown has the onus to show reliance on the previous state of the law, and has not done so. Indeed, Mr. Muhammed invites me to find that the Crown had no regard to the state of the law on this subject.

[118] The Supreme Court, in Cody at para. 69, states that reliance on the previous law can be presumed:

To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released. In this regard, the exceptionality of the "transitional exceptional circumstance" does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties' reasonable reliance on the law as it previously existed (Jordan, at para. 96). The transitional exceptional circumstance should be considered in cases that were in the system before Jordan. The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due "sensitiv[ity] to the manner in which the previous framework was applied" (Jordan, at paras. 96 and 98). Under the Morin framework, prejudice and seriousness of the offence "often played a decisive role in whether delay was unreasonable" (Jordan, at para. 96). Additionally, some jurisdictions are plagued with significant and notorious institutional delays, which were considered under Morin as well (Jordan, at para. 97; Morin, at pp. 799-800). For cases currently in the system, these considerations can inform whether any excess delay may be justified as reasonable (Jordan, at para. 96).

[119] In this case, the proceedings demonstrate a clear reliance by all parties on the previous state of the law.

[120] Morin suggested a guideline of acceptable institutional delay of 14 to 18 months, with eight to 10 in the OCJ, and six to eight additional months in the SCJ. This case, from the laying of the information to its end, is estimated to take 45 to 46 months. This is a long time. The length of time to the trial, however, is not the test. I must determine the institutional delay and the actions of all of the parties, and determine whether the delay is reasonable and whether there is prejudice to the accused.

[121] Complexity: I have already held that this case is a complex case.

[122] Period of Delay in Excess of Morin Time Lines: Under this branch of the test, I must consider the inherent time requirements of the case. In Jurkus, the Court of Appeal held that the normal "intake process" for a case of moderate complexity, involving three accused and significant disclosure issues, was five months, and that 20 months for substantial completion of disclosure was not unusual, especially since no one complained about it. In that case, Mr. Jurkus was the operational manager of a correctional facility and the other accuseds were guards. The charge was for failing to provide the necessaries of life to an inmate who was beaten to death by his cell mate while both were in the cell, over the course of an hour, the noise of which could be heard on floors below the cell.

[123] In this case, the intake process for the two applicants (charge in February, 2015, booking, bail, and arranging first joint judicial pre-trial on December 10, 2015) is 11 months. These 11 months are not pure "intake time". Other things were going on which complicate the analysis of delay. For instance, at the same time as the intake was going on, disclosure was being made. While it is not entirely clear (no one having filed an Affidavit), it appears that Disclosure was provided in two large phases over approximately eight months from the date of charge: one in April, and the other on August 31, 2015. As I have indicated, above, subject to a lingering issue about the OTI for the wiretap/communication intercepts, disclosure was complete and the parties had the opportunity to review disclosure by October 15, 2015. The fact that disclosure was complete but for the OTI's in eight months, in a case involving investigation in three jurisdictions, between three police forces, is remarkably quick.

[124] Another factor operating at the time was the applicants' failure to have retained, instructed counsel to agree to dates. For example, Mr. Muhammed, from shortly after arrest until his Rowbotham application was resolved on May 9, 2016, did not have counsel. He argues that he was ready, willing and able to proceed between March 2915 and March 2016. Since the Court was not, Mr. Muhammed argues that this is institutional delay. I disagree. He was not ready, willing and able to proceed. Until the issue of funding his defence was determined, he was without counsel.

[125] Mr. Sadat's counsel's retainer was often uncertain. Notwithstanding that Mr. Struthers acted for Mr. Sadat from the outset, on May 26, 2015, counsel said he was not sure he was retained. His agent advised on July 22, 2015 that he was retained, but a different agent advised the Court on August 13, 2015 that he was not retained. Mr. Struthers continued to act, however.

[126] If the Crown is subject to one criticism, it is that it did not proceed on one indictment, but four, and did not seek to join them until August 13, 2015, approximately six months and one week (or two weeks, depending on the accused) after the date of charge. Mr. Muhammed's counsel specifically raised the possibility of a joint indictment at the July 22, 2015 pre-trial in the OCJ, with which the Crown agreed.

[127] It is logical that had the indictment been a joint indictment from the beginning, the dates between counsel could have been coordinated that much earlier. Unfortunately, neither accused filed an affidavit or provided other evidence with respect to counsel's availability or readiness before the dates actually set. I cannot find, in this case, that the failure to proceed on a joint indictment from the beginning delayed matters.

[128] Actions of the accused: In this case no accused waived any specific rights or delay. I have already addressed defence delay. I also accept that Defence has no onus under the old regime to move the case along.

[129] Actions of the Crown: The defence argues that the Crown is the author of most of the delay in this matter. It elected to proceed on a joint indictment, six months after the first indictments. Once the Crown proceeded on a joint indictment that brought delay because of difficulty in arranging schedules for pre-trials, the preliminary hearing, committal hearing and trial.

[130] For reasons already stated, I do not accept the defence argument. There is nothing put before the Court that suggests that the Crown delayed matters. The facts in this case and the interests of justice support, overwhelmingly, that the accuseds be tried together. The disclosure was done in a timely way. Mr. Muhammed's quest for legal aid caused delay. He may have sabotaged its success by lying on his application. However, the process was still required by the requirements for his Rowbotham Application. There is nothing in the record that the Crown delayed matters.

[131] Limits on institutional resources, legal aid: In this case, there was difficulty in Mr. Muhammed obtaining Legal Aid. It took approximately five months for Legal Aid to make its final determination that it would not provide funding to Mr. Muhammed. He was then required to make a Rowbotham Application.

[132] Other reasons for delay: The delay in this case arise mainly because of Mr. Muhammed's inability to obtain legal aid and firmly retained counsel, Mr. Sadat's failure to have retained counsel (although to a lesser extent), Mr. Sadat's change in counsel, Mr. Sadat's change in his position on committal, and the difficulty in counsel finding common dates for the preliminary, committal hearing, and trial. I have dealt already with all but the difficulty in finding common dates. The difficulty in finding dates arises from the accuseds’ right to have counsel, the seriousness of the charges, the complexity of the proceedings, and the need to proceed on all Peel charges against all accused people, in the same proceeding. To the extent that delay arose from the difficulty in finding dates, it was not a significant delay in light of the publics' and the applicants' interest in having the charges proceed together.

[133] Prejudice to the Accused: The onus is on the applicants to establish prejudice arising from the delay.

[134] There is no prejudice to the accused, independent of that caused by the laying of the charges.

[135] Mr. Muhammed, in para. 167 of his Factum and oral submissions, made submissions with respect to his period of incarceration, his bail conditions, the strictness of their terms, and bail variations he has obtained.

[136] None of this is in an Affidavit. Mr. Muhammed, therefore, is left with presumed prejudice arising from the 46 months between the Information and the expended end of the trial, and the submission that the Morin analysis applies only to the time period before Jordan was released. He says that the Crown had a year to adapt to Jordan, and that "it completely failed to do so".

[137] Mr. Sadat submits in para. 66 et seq. of his factum and in his submissions, that he suffered prejudice because he has been in custody since his initial arrest. This delay has deprived him of his liberty. Further, it has undermined his ability to make full answer and defence since witnesses’ memories and the reliability of their memories (including his own, should he elect to testify) will have declined thereby affecting his ability to effectively cross-examine them.

[138] Mr. Sadat, too, file no affidavit. When I asked Mr. Sadat about evidence of prejudice (aside from any prejudice arising from his pre-trial incarceration), I was told that I should read Ricchetti J.'s decision denying Mr. Sadat interim release. He did not produce Ricchetti J.'s bail review decision. My search of releases SCJ decision produced no such decision.

[139] Mr. Muhammed's prejudice, if any, for which there is an evidentiary basis, arises not from any delay, but from the fact of the charges, the fact that at least three others were involved in the kidnapping, detention and assaulting of Mr. Ghafoori, and the fact that the evidence in the case will come from three different jurisdictions.

[140] Mr. Sadat's prejudice, if any, for which there is an evidentiary basis, also does not arise not from delay. Mr. Sadat has not produced the reasons at the initial bail hearing nor Ricchetti J.'s reasons for denying interim release. I am left to infer that he was incarcerated because of the Peel charges. I have no knowledge as to whether he was also incarcerated because of the York Region or Toronto charges, or whether those charges weighed on Ricchetti J.'s decision to deny bail review.

[141] Apparently, the Justice of the Peace in the Toronto charges set bail, before the Peel charges were laid. The Crown appealed, and then a Judge increased Mr. Sadat's release terms (see: R. v. Muhammed, 2014 ONSC 5398). Why Mr. Sadat was denied bail in Peel is unclear. Is it because of the Peel charges, alone? Was the decision affected by the York charges? Was there a violation of the release terms under the Toronto charges? Mr. Sadat provided no information in this respect.

[142] Viewing the case globally, the charges and circumstances supporting them are very serious and complex. The public has an interest in seeing these charges tried. The only fair and efficient way for the public and the Applicants of trying the Peel charges is to have them tried in one proceeding.

[143] The Applications are dismissed.

Trimble J.

Released: July 19, 2018