COURT FILE NO.: 15-3517
DATE: 2018-12-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
J. Levy for the Crown Attorney
-and-
ADEEL SAFDAR
-and-
SHAHEEN SAFDAR
-and-
AATIF SAFDAR
Applicants
N. Hasan and C. Milne for the Applicants
HEARD: October 9 and 25, 2018
RULING ON APPLICATION PURSUANT TO SECTIONS 11(b) & 24 OF THE CHARTER
A.J. GOODMAN, J.
[1] This is an application brought by the applicants for a stay of proceedings by virtue of breach of s. 11(b) and pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (“Charter”).
[2] The applicants, Adeel Safdar (“Adeel”), Shaheen Safdar (Shaheen”) and Aatif Safdar (“Aatif”) argue that their constitutional rights have been infringed due to the inordinate delay in proceeding with this trial.
[3] This application was set for October 9, 2018, following the completion of the evidence and submissions at trial. Unfortunately it was not concluded in the time allotted for argument and required an additional full day. The hearing was adjourned to October 25, 2018.
i. Ontario Court of Justice:
[4] The applicants were arrested and charged on April 16, 2015. The applicants’ first appearance in the Ontario Court of Justice (“OCJ”) occurred on May 8, 2015, at which time, defence counsel advised the court that she was appearing for all three accused and requesting an adjournment to June 5, 2015. Disclosure was provided by the Crown for all three accused.
[5] On June 5, 2015, the applicants appeared in the OCJ for their second appearance. Counsel advised the court that there was “significant disclosure” to be reviewed. An adjournment was requested to July 3, 2015.
[6] On July 3, 2015, the applicants appeared in the OCJ for their third appearance. Mr. Paquette advised the court that, while he would be ready to set a date for a judicial pre-trial, he needed to find counsel for two of his three clients based on a potential conflict. He requested a further adjournment to July 24, 2015.
[7] At the next appearance on July 24, Mr. Paquette, on behalf of all three accused, formally advised the court that he was not going to continue to represent all three accused. After speaking with Crown counsel, the parties deferred the matter while Mr. Paquette continued to look for counsel for Shaheen. It seemed that Aatif would be representing himself.
[8] On August 7, 2015, the applicants appeared for the fifth time in OCJ. Counsel again advised the court that there was a potential conflict and that he was seeking Urdu-speaking counsel for Shaheen. An adjournment was sought to September 4. On the return date, counsel again advised the court that two accused were presently in the process of obtaining other counsel, due to a conflict. He asked for an adjournment to September 25, 2015.
[9] On September 25, the applicants appeared for the seventh time in the OCJ. Mr. Paquette filed a designation on behalf of Mr. Hasan, who ultimately represented Shaheen. Mr. Paquette further advised that Aatif was self-represented. On this occasion, there was additional significant disclosure provided. This disclosure included “will says” from many key prosecution witnesses who later testified at trial. Despite the late disclosure, the parties agreed to schedule a date for an in-court judicial pre-trial.
ii. Scheduling of Preliminary Hearing
[10] At the November 25, 2015, judicial pre-trial, all of the accused elected trial by judge and jury and requested a preliminary hearing. It was agreed that two weeks (ten court days) should be set for the preliminary inquiry.
[11] Mr. Paquette advised that witnesses would be called by the defence at the preliminary hearing and that if more time were required, the defence witnesses could be dealt with by way of discovery without a presiding judge. Mr. Hasan requested that two interpreters be arranged for Shaheen. The earliest dates offered were June 6 to 9, 13 to 17, and 20, 2016.
[12] Mr. Paquette advised the trial coordinator (and later confirmed before the preliminary inquiry judge) that the “discovery” days could be set in June following the hearing dates before a judge. It was further agreed that the defence would provide a Statement of Issues by the end of January, 2016.
[13] On May 17, 2016, Mr. Levy sent a letter to counsel and Aatif regarding the preliminary hearing. The letter was accompanied by some disclosure as well as a list of witnesses the Crown anticipated calling at the preliminary hearing. The Statement of Issues on behalf of all accused was sent late to the Crown, only on May 20. The Statement of Issues indicated that the defence wanted to hear from 37 witnesses at the preliminary hearing and that committal was in issue.
[14] As a result of receiving the Statement of Issues, Mr. Levy sent an email to counsel expressing concern about the amount of time scheduled for the preliminary hearing. He also asked how any part of the preliminary hearing could be dealt with as a “judgeless” discovery if committal was in issue. The defence advised Mr. Levy that committal would not be in issue if the complainant testified in accordance with her police statement, they suggested the balance of the matter could proceed by way of discovery. The Crown expressed a preference to have a judge present for at least part of the preliminary inquiry, especially when the complainant testified. The Ontario Court of Justice Rules stipulate that a judge must be present where the complainant is examined in a sexual assault case.
iii. The Preliminary Inquiry
[15] The preliminary hearing commenced as scheduled on June 6, 2016, before Zivolak J. At the commencement of the preliminary hearing, all three accused re-elected trial by a Superior Court judge sitting without a jury. The first witness for the Crown was the complainant. At the end of the first day of the complainant’s evidence, all three accused conceded committal. The complainant’s evidence-in-chief took three more days.
[16] During the morning of June 14, 2016, Mr. Levy received a message indicating that it was believed that his father had passed away that morning. In the afternoon, Mr. Bentham, a senior assistant Crown attorney confirmed that Mr. Levy’s father had indeed passed away. Mr. Bentham advised that the Crown attorney was arranging for someone else from his office to be present on the next day. The complainant felt greatly uncomfortable about continuing to be cross-examined in Mr. Levy’s absence.
[17] The following day, assistant Crown attorney D’Arcy Wilson attended before the hearing judge to formally request an adjournment. Defence counsel insisted that the cross-examination of the complainant continue even in the absence of Mr. Levy. Mr. Wilson was not yet aware when Mr. Levy would be back, although it turned out Mr. Levy would be unavailable to return before June 23.
[18] Despite the tragic reason for Mr. Levy’s required absence, the defence insisted on continuing with the cross-examination of the complainant without the only prosecutor who had any knowledge of the matter. Mr. Wilson explained to the court, he would “feel very ill-equipped to monitor the cross-examination to make any objections as Mr. Levy would have” seen fit. Mr. Wilson had never been involved in this file and knew nothing about the case. The judge acquiesced to the defence request to continue the hearing over the strenuous objections of the Crown.
[19] The cross-examination of the complainant was completed on June 20, 2016, the last of the scheduled 10 days for the preliminary hearing. Counsel for both Adeel and Shaheen put on the record that delay and their clients’ s. 11(b) rights were already becoming an issue.
[20] The accused were then remanded to June 24 to set dates for continuing the preliminary hearing as a discovery because no further dates had been set when the preliminary hearing dates were arranged.
iv. Continuation of Preliminary Hearing - Discovery
[21] Additional dates in August were obtained for the purpose of discovery. This segment of the preliminary hearing was completed on August 26. The accused were ordered to stand trial and were remanded to the next assignment court. At the time of the order to stand trial, Mr. Levy notified the accused and counsel that he would be adding further charges against Aatif based on the evidence adduced at the preliminary hearing.
v. Pre-trial and Trial Scheduling in the Superior Court
[22] Following committal for trial, the indictment was filed by the Crown in Superior Court on September 19, the first appearance in Superior Court was on September 23, 2016. At that appearance, the Crown was ready to set a date for a judicial pre-trial. Mr. Paquette, speaking on behalf of all three accused, asked for an adjournment to the next assignment court date of October 21 so Aatif could seek counsel. As the indictment contained four new charges against him, Aatif’s jeopardy had changed significantly. While the Crown provided some notice that new charges were forthcoming, the details of those new charges were not known until the September 23rd appearance.
[23] On October 17, Mr. Levy sent an email to counsel and Aatif with suggested dates for the judicial pre-trial. By that point, Aatif had retained Mr. Addario as counsel for the pre-trial. Ultimately the date of November 15 was agreed upon for the pre-trial. Accordingly, all accused were remanded to the assignment court on November 18.
[24] Mr. Levy prepared the Pre-Trial Conference Report (Form 17) and forwarded it to defence counsel for them to review. The Crown’s judicial pre-trial (JPT) form indicated an estimate of 4 to 6 weeks for trial and 6 to 8½ days for anticipated voir dires. It also indicated that the anticipated number of Crown witnesses was 18 to 22. Defence counsel provided no time estimates for the voir dires or for the trial on the form.
[25] The judicial pre-trial was held on November 15. At that time, Mr. Levy suggested that the trial would take 6 weeks and Mr. Paquette thought it was 4 weeks. The pre-trial judge approved 6 weeks for trial.
[26] Immediately following the judicial pre-trial, the trial coordinator provided three potential options for a six-week trial, commencing May 8, September 5 or September 18, 2017. Since defence counsel were not available in May or September 5, the trial was ultimately scheduled for six weeks commencing September 18. However, since it was not yet certain if Mr. Addario would be retained to represent Aatif, trial dates could not formally be set. Subsequently, Mr. Addario advised that he would not be representing Aatif, who ultimately did represent himself at the trial. Accordingly, all accused were remanded to the next assignment court on December 9, 2016, at which time the trial dates were confirmed.
[27] On November 28, 2016, Mr. Levy emailed the trial coordinator, with copies to counsel and Aatif, attempting to firm up trial dates before the December assignment court. Mr. Levy asked if there were available dates earlier than September, 2017. Mr. Levy anticipated that another Crown attorney would be assigned to the case because he was assigned to a murder trial beginning on September 5, 2017. The case was re-assigned to assistant Crown attorney Ms. Reid.
[28] Ms. Reid brought an application pursuant to s. 486.3 to appoint counsel to cross-examine the complainant on behalf of Aatif. Shortly before the hearing date of that application, the Crown was notified that Shaheen had discharged her lawyer and would be representing herself if she did not retain other counsel. Ms. Reid ultimately brought a s. 486.3 application regarding Shaheen as well as an application for the appointment of amicus curiae to assist the court should it be required.
[29] The s. 486.3 counsel and amicus applications were dealt with on April 21, May 2, May 10 and May 16, 2017. On April 21, Shaheen confirmed that she had fired her counsel and would be representing herself. Mr. Hasan was removed from the record. Mr. Paquette explained to the court that because Shaheen had been absent for most of the preliminary hearing, interpreters had not been required. Since interpreters would now be required for the entire trial, it would add to the time required. Mr. Paquette also discussed the complex nature of the case as it related to any counsel who was appointed to cross-examine the complainant pursuant to s. 486.3. Aatif also commented on the complexity of the case as it related to the length and volume of the complainant’s evidence. The applications were adjourned to May 2, 2017.
[30] On May 2, 2017, Shaheen requested a one month adjournment of the application as she was trying to retain a lawyer. Ms. Reid opposed the adjournment because she was concerned about delay and the availability of proposed 486.3 counsel and amicus, both of whom had been holding the trial dates open. Ms. Reid expressed concerns that the trial proceed as scheduled. Ultimately, 15 bound volumes of disclosure were provided to each of the appointed 486.3 counsel.
[31] At the next appearance on May 10, Mr. Sharma was appointed as s. 486.3 counsel for Aatif. After Ms. Reid outlined the reason for the s. 486.3 counsel application for Shaheen, the accused once again asked for at least a one month adjournment to select a lawyer. Ms. Reid opposed the request because of concern that such an adjournment would jeopardize the trial dates. The case was adjourned to May 16, 2017.
[32] At the final appearance on these applications on May 16, Shaheen sought to have Mr. Hasan appointed as s. 486.3 counsel. Mr. Paquette reiterated that the process would become more protracted because of the need for interpreters for Shaheen. Mr. Paquette also noted that the cross-examination of the complainant would be “challenging”.
[33] In July, 2017, the murder trial to which Mr. Levy was assigned resolved, and he was re-assigned to this prosecution. On August 2, Mr. Levy advised counsel and Aatif that he had been re-assigned to this case and that he would not be able to attend court on September 21 and 22 because of the Jewish holy days. In response, Mr. Hasan inquired whether counsel and Aatif would object to not sitting on October 20, as he had other commitments.
[34] On September 5, Mr. Levy provided a list of 16 proposed Crown witnesses to counsel and Aatif.
vi. Superior Court trial
[35] The trial commenced as scheduled on September 18, 2017. In addition to the previous dates that counsel could not attend, Mr. Paquette asked that the Court not sit on October 27. These requests were all granted. The Court was not available on September 29. All parties seemed content with these changes to the trial schedule and all appeared to anticipate that the trial could be completed within the allotted time frame.
[36] The first witness in the trial was the complainant. She was examined in chief for just over six days and was then cross-examined for approximately the same amount of time. On October 6 and 19, the Court only sat for a few hours. Ultimately, the Crown called only nine witnesses at the trial. The Crown’s case was not completed until mid-day on October 25, 2017.
[37] During the course of the trial, it became apparent that the evidence would not be completed during the scheduled period. In October, the Court advised that additional days could be available as early as January 8 -12, 2018 and January 15 -19, 2018. These were the first available dates. There was also some discussion about continuation dates for the last week of March. Despite being only three months way, defence counsel made arrangements to clear their calendars and agreed to those two weeks.
[38] The case was adjourned to continue the weeks of January 8 and 15, 2018. Each week was scheduled for four days only because Mr. Paquette was unavailable on the Friday of each week.
[39] When the case returned in January, Mr. Levy’s cross-examination of Adeel commenced. Due to feeling unwell, Mr. Levy was unable to continue with cross-examination in the afternoon and lunch period on January 8 and 9 respectively. The trial continued for the full day on January 10.
[40] On January 11, 2018, Mr. Paquette advised that his client had been up the entire night with his sick daughter and was not in any shape to continue with cross-examination. The Crown consented to adjourning to the next scheduled date of January 15. There was also discussion of further trial time being required and the Court proposed some additional dates.
[41] Due to his lingering illness, Mr. Levy went to his doctor. Doctor Zuckerman advised Mr. Levy not to return to work and provided a note stating Mr. Levy would be unable to work until January 19.
[42] On January 15, Mr. Norman, the Crown attorney attended court to confirm that Levy was not available due to illness. There was a further discussion of dates for continuation. The Court advised that, in the event that more time was needed, the week of March 26, 2018 would be available. Counsel again cleared their schedules and made themselves available. At the same time, the weeks of June 25 - 29, 2018, July 30 - August 3, 2018, and August 7 - 9, 2018, were also secured as additional dates. In addition, there was a discussion of the possibility of trial dates in November and December, 2018. During these discussions, Mr. Hasan noted his concern about the ensuing delay flowing from the events to date and the amount of time required to complete the trial. Mr. Norman advised that he would make Mr. Levy available for all of the dates suggested.
[43] There was a brief period in mid-February 2018 when the week of April 3, 2018, became available, but the trial coordinator advised soon thereafter that it was no longer being offered. On March 5, the trial coordinator also offered the weeks of April 16 and 23 for trial. The Crown was available but the defence was not. The week of June 11, 2018, was also offered. Defence counsel and Aatif were available, but the Crown attorney was not.
[44] Mr. Levy wrote to the defence on January 29 to advise that he hoped to complete Adeel’s cross-examination on March 26. In fact, it took a little more than one further day and was completed on March 27. After Adeel’s evidence, the defence called three more witnesses and concluded its case on June 28, 2018. An extra day was required to argue the Crown’s Browne v. Dunn application. The Crown was granted leave to recall two witnesses, the complainant and her mother. The Crown had also intended to call one other reply witness. However, notwithstanding the ruling in its favour, the Crown decided not to call any further reply witnesses.
[45] Final submissions occurred over the course of six days in late July and were completed on August 7, 2018. The s. 11(b) application was scheduled for October 9, 2018, and continued for a full day on October 25.
Positions of the Parties:
[46] The applicants submit that the total delay from arrest and charge to the completion of trial is over 43 months.
[47] The applicants submit that the mid-trial delay contributed significantly to this case falling outside of the presumptive 30-month ceiling, albeit it was not exclusively caused by mid-trial delays. When the trial began, it was within the Jordan guidelines but not by a significant margin. Under the original trial plan, without taking into account the time necessary for judgment, the evidence would have been completed in 30 months.
[48] The applicants say a maximum of five months could be attributable to the defence (owing to defence counsel not being available for an earlier trial date, plus a one-month waiver). For the rest of these proceedings, defence counsel have actively attempted to move matters along expeditiously. Indeed, counsel have gone above and beyond to move the trial along in alignment with what the authorities require.
[49] At the preliminary hearing, the Crown sought a mid-preliminary inquiry adjournment for personal reasons. The defence could have acquiesced, knowing that such delay would count against the Crown. Instead, since it was feasible for another Crown to step in and because committal had already been conceded, the defence insisted on proceeding. The defence says this initiative likely saved several months of potential delay.
[50] At trial, defence concessions resulted in considerable streamlining of the Crown’s case. Prior to the Superior Court JPT, the Crown anticipated calling 18 - 22 witnesses at trial. Of the 16 witnesses on the Crown’s witness list delivered just prior to trial (which did not include any of the hospital records custodians), the Crown only needed to call nine. The defence says six of the remaining seven witnesses did not need to be called because of defence concessions relating to continuity and admissibility of photographic evidence, real evidence, and medical records.
[51] The applicants submit that the significance of the defence’s concessions aimed at streamlining the trial cannot be overstated. Much of the Crown’s case consisted of medical records and photographs. The defence consented to admission of all of this evidence (Exhibits 1-8) for the truth of its contents without a custodian. The defence also conceded continuity and admissibility of all items seized from the defendants’ home.
[52] Further, the defence did not request any adjournments despite receiving significant disclosure, nearly 2,000 pages of the complainant’s highly material medical records, during the first and second weeks of trial.
[53] There were no pre-trial applications. Counsel for Adeel conceded voluntariness of his client’s statement, obviating the need for a voir dire and legal argument on the issue.
[54] In sum, during the September-October, 2017 and January 2018 trial period, three days were lost due to defence requests. During that same period, two days were lost because the Court was not available. Meanwhile, nine days of court time were lost due to Crown delay or unavailability.
[55] In their factum, the applicants submit that there are no discrete events justifying unreasonable delay. In oral argument, Mr. Hasan concedes that there were certain discrete events, however he disputes the quantification of time attributable to delay. More than a week of court time was lost during January 2018 as a result of the Crown’s illness. Although illness is in many ways nobody’s fault, it would be deeply unfair for this period of delay to count against the defence.
[56] In its factum, the applicants argue that the inaccurate time estimate for trial is not a discrete event justifying any delay. The Crown suggested at various times in these proceedings that this was simply a matter that took longer than anyone could have expected or anticipated. Mr. Hasan resiled from his initial position. He now submits that this may be considered as an exceptional circumstance. However, the time apportioned to this discrete event should only be the amount of additional days over and above the trial estimates; in other words, 45 days less 30 days of trial estimate, which equals 15 days.
[57] The applicants say the Crown itself estimated six (6) weeks of trial time would be necessary, as reflected in its Form 17. Crucially, the Crown made this estimate when it had no reason to believe that the defence would consent to so much of the Crown’s case going in on consent. Further, Crown delay resulted in the loss of some of the September, October and January court dates. In these months, nine (9) days were lost to Crown delay. This figure is all the more significant when one considers that, after January, only nine (9) additional days were required to complete the evidence and the Browne v. Dunn application.
[58] The applicants submit that their s. 11(b) rights under the Jordan framework have been infringed and that they are entitled to an appropriate remedy.
[59] The Crown agrees with the applicant’s calculations of total delay in this case. But, the Crown submits that while the amounts exceeds the Jordan timeframe, with defence waiver or conduct and exceptional circumstances, the net delay is less than 30 months.
[60] The Crown submits that much of the delay is attributable to the conduct of the defence. Throughout the proceedings, Mr. Levy responded promptly to counsel whenever inquiries or emails were received. The defence was less than diligent in that regard.
[61] The Crown says it provided disclosure in a timely manner. Arranging dates for a judicial pre-trial was delayed because it took seven appearances in OCJ over five months for Shaheen and Aatif to either retain counsel or decide to remain self-represented. Since it was obvious from the outset that the preliminary hearing would take more than one day, it was necessary for a judicial pre-trial to be scheduled. Notwithstanding that Mr. Hasan must have been retained by Shaheen on or prior to September 25, 2015, he did not request disclosure until October 30, 2015. By that point, all three copies of disclosure had been provided to Mr. Paquette.
[62] The Crown says it was always concerned with the progress of the trial and was alive to potential s. 11(b) and Jordan issues. On February 9, 2018, Mr. Levy sent an email to the trial coordinator, with copies to counsel and Aatif, seeking earlier dates. The Crown immediately confirmed his availability for any and all rescheduled weeks.
[63] As noted, six weeks was originally allotted for the trial. After deducting the dates on which the court did not sit for various reasons, the first part of the trial between September 18 and October 31, 2017, was actually 25 days. This would normally amount to five weeks of five-day weeks. The Crown’s case was completed on October 25, 2017.
[64] The Crown says that in fact, there was never a time during the trial that the court had to recess because no Crown witnesses were available. The reason for an early recess was because an expert witness was scheduled for the next court date and the Crown did not want to start a witness whose evidence would be interrupted for as much as a week. This appeared to have been acknowledged by the defence by virtue of Mr. Paquette’s comments on October 6, 2017.
[65] The Crown acknowledges that very early on in the proceedings Mr. Paquette mentioned that the need for interpreters and the amount of disclosure could lengthen the trial. Yet, these fundamental issues were never mentioned by either defence counsel or Aatif during the course of estimating the time for trial and obtaining dates.
[66] The Crown adds that it did not know how many, if any, witnesses the defence was going to call. Therefore, it was impossible for the Crown to assess the meaning of “allotted time” in the JPT form except to complete the Crown’s case within the time scheduled for trial. In that regard, after some discussion about the rest of the Crown witnesses, the Crown hoped its case would be completed by October 23, but it was subject to length of cross-examination, which was unknown. In discussion regarding the remaining witnesses, the Crown suggested that the complainant’s mother might be a day or a little longer. Neither defence counsel made any comment in this regard. In fact, her examination-in-chief lasted less than a day and she was cross-examined for close to three days. After deciding that the next witness would not start that day, the trial judge expressed that the Crown was doing his best to have witnesses available.
[67] The Crown submits that the defence has no obligation to advise the Crown or the court if a defence will be presented or if defence witnesses will be called. However, at no time when trial dates were being set did either defence counsel or Aatif advise Mr. Levy that more than six weeks should be scheduled in case defence witnesses were called. At one point, the trial judge suggested that written submissions would be required. Ultimately, a combination of written and oral submissions were made.
[68] The Crown’s case therefore took 21½ days, leaving 8½ days for the defence of the six weeks (30 days) originally allotted. The defence ultimately took 14½ days to complete. There was one day for argument on the Browne v. Dunn issue and final submissions ultimately took six days. The total time for trial, not including the s. 11(b) argument or judgment ended up being 43 days.[^1] The Crown submits that the trial could have been completed by the end of April had counsel opined on the trial estimate.
[69] The Crown argues that a discrete exceptional event includes an unavoidable illness of a lawyer; or instances where a trial goes longer than reasonably expected in spite of best efforts to complete the within the good faith estimate of the parties. Both the Crown and defence expected the trial to last between four to six weeks. This trial estimate was based on the preliminary hearing and the Crown’s witness list. This estimate fell short for numerous reasons including witness testimony taking longer than expected, the consistent slowing down of the proceedings so the interpreters could effectively interpret the testimony, and the fact that it was impossible for the Crown to predict how much time was necessary for the defence to present their cases. These delays were simply unavoidable.
[70] In the event that the amount of time exceeds the ceiling of 30 months, the Crown submits that for a variety of reasons this is a complex case.
[71] The Crown submits that the applicants have not met their burden of demonstrating a violation of their rights under s. 11(b) of the Charter because the net delay is under the 30 month presumptive threshold. In the alternative, if the net delay is over the 30 month presumption threshold, the Crown has explained any inordinate delay and has demonstrated reasonableness.
Legal Principles
[72] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. One of the two main purposes of s. 11(b) of the Charter is the protection of an accused's rights to security of the person, liberty and a fair trial. The right to a speedy trial guaranteed by s. 11(b) of the Charter reflects the principle that “[t]imely justice is one of the hallmarks of a free and democratic society”: R. v. Jordan, 2016 SCC 7, [2016] 1 S.C.R. 631, at para. 1. Section 11(b) is also designed to protect the interests of society in the expeditious resolution of criminal proceedings.
[73] In the seminal case of Jordan, the Supreme Court of Canada reworked the entire rubric of delay and effectively overruled the previous analysis and procedure in R. v. Morin, [1992] 1 S.C.R. 771.
[74] In Jordan, the Supreme Court of Canada reformulated its s. 11(b) framework. It noted at para. 38, that the pre-existing framework had become “too unpredictable, too confusing, and too complex,” and had “become a burden on already over-burdened trial courts.” According to the Supreme Court, a pervasive “culture of complacency” fostered delay throughout the system: at para. 4.
[75] The Supreme Court of Canada set a presumptive ceiling of 30 months for cases proceeding in the superior courts.
[76] In the post-Jordan era, courts are directed to undertake the following steps when considering a s. 11(b) Charter application. The first step is a calculation of the total length of time between the charge and the actual or anticipated end of trial. The next step is to determine whether any of the delay was waived by the defence or caused solely by defence conduct, and to subtract those portions from the total delay: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at para. 35; and R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 113. There are two types of defence delay: delay waived by the defence and delay caused solely by the conduct of the defence. Delay caused solely by the defence includes deliberate and calculated defence tactics aimed at causing delay and circumstances where the court and the Crown are ready to proceed, but the defence is not.
[77] If the net delay then exceeds the ceilings outlined in Jordan (18 months for the provincial court and 30 months for superior court cases), it is presumptively unreasonable.
[78] Where the delay is presumptively unreasonable, the onus shifts to the Crown to demonstrate that the delay is nevertheless reasonable, taking into account any exceptional circumstances. In general, there are two categories of exceptional circumstances — discrete events and particularly complex cases. Exceptional circumstances have two components: “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise”: Jordan, at para. 69.
[79] Delay caused by discrete, exceptional circumstances may then be subtracted from the total delay to determine the remaining net delay. However, if the Crown could have reasonably mitigated the delay arising from a discrete event, it may result in only a partial amount of time being subtracted from the net delay.
[80] If the net delay remains above the 30-month ceiling, the court must determine if the case was particularly complex such that it justifies the length and renders the remaining delay reasonable.
[81] If the Crown is not able to rebut the presumption, the charges against the accused will be stayed: Jordan, at paras. 37-39.
[82] On the other hand, if the remaining delay falls below the presumptive ceiling, the onus is on the defence to prove that the delay is nevertheless unreasonable. To show that delay under the presumptive ceiling is unreasonable, the defence must demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have. Stays for cases below the ceiling are rare: Jordan, at paras. 48, 82-83.
[83] Where charges were laid prior to the release of the Supreme Court’s decision in Jordan, the transitional exceptional circumstance may apply if the Crown satisfies the court that the time taken would be justified under the previous legal framework, upon which the parties reasonably relied: Jordan, at para. 96.
[84] I pause to mention that in this case, the Crown concedes that it relies entirely on the post-Jordan law and related principles.
[85] All of the parties agree that I need not consider any of the transitional provisions in my overall analysis. Therefore, I need not address the framework in Morin, or the related principles expounded in many of the post-Jordan cases, for example, R. v. Williamson 2016 SCC 28, [2016] 1 S.C.R. 741, or R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401.
ANALYSIS
The Appropriate Remedy:
[86] At the outset of his submissions, Mr. Hasan opined that the applicants prefer and entreat to be acquitted of all of the charges, should that be a finding available to them; rather than have the matter stayed pursuant to a successful application under s. 11(b) of the Charter.
[87] Counsel submits that the applicants, the complainant, their respective families, and all of the other numerous, interested parties seek finality and closure after this very long, arduous and hard-fought trial.
[88] Further, Mr. Hasan suggests that the unsuccessful party to this application may likely appeal to the Court of Appeal. If successful on appellate review, a new trial ordered and thus, the time, expense, and resources expended in this trial would be squandered.
[89] To that end, Mr. Hasan proposed that the appropriate remedy in this case would be what I will term as a “hybrid approach”. As this trial is all but complete except for the verdict, it was urged upon me to render my full judgment with reasons on the final return date. Should some or all of the applicants be found not guilty, the judgment ought to stand, acquittals entered, and the s. 11(b) application be rendered moot. If some or all of the accused are found guilty, and upon a successful Jordan ruling in favour of the applicants, then a stay of proceedings would be entered as relief for the breach of their s. 11(b) Charter rights.
[90] During my discussion with counsel, I questioned the authority for this innovative approach. I opined that the jurisprudence pre-and-post Jordan provides that a violation of s. 11(b) results in a stay of proceedings under the auspicious s. 24(1) of the Charter.[^2] I invited counsel to provide any jurisprudence in support of his position regarding the suggested remedy in this case. Mr. Hasan advised that there were none specifically on point.
[91] However, Mr. Hasan invited the Court to consider the proposed remedy by analogy to the principles referenced in Rahey v. R., [1987] 1 S.C.R. 588. At p. 615, Lamer J. (as he then was) stated:
It is, in other words, open to the courts to take preventive measures, based on their inherent power to control their process, prior to an actual violation of s. 11(b). Where, however, on balancing the various factors, the court decides that the accused's right to be tried within a reasonable time has already been contravened, a stay of proceedings will be the appropriate remedy. It is not necessarily the only remedy, for additional remedies may be just and appropriate in the circumstances of the case. The stay is a minimum remedy, to which others may be added, such as, possibly, damages, if it be proved that there was malice on the part of the Crown and resulting prejudice.
Given Glube C.J.T.D.'s dismissal of the charges in this case, I think something should be added as regards acquitting an accused. There will be cases where an accused will be entitled to more than a stay and where the appropriate remedy will be an acquittal. This point has not been raised in this Court nor in any of the courts below and, in my view, as little as possible should be said on the point in this case. However this much might be said. If an accused chooses, as in this case, to challenge the process before the end of the trial under s. 11(b) of the Charter, he or she then elects to put a definitive but premature end to the process instead of a final determination of the issue of guilt or innocence. In such a case, the proper remedy is, in my respectful view, a stay.
[92] I am not persuaded that Lamer J.’s obiter statements about “more than a stay”, “additional remedies” or “the stay is a minimum remedy, to which others may be added, such as, possibly, damages”, provide the basis upon which to exercise my discretion for the specific relief sought here. It is not lost on me that, while there were four distinct judgments in the decision, the majority of the jurists in Rahey held that a stay was the appropriate remedy for a violation of the accused’s rights under s. 11(b).
[93] Mr. Hasan also suggested that the inherent authority for such relief is encompassed in the language of s. 24(1), namely, “to obtain such a remedy as the court considers appropriate and just in the circumstance.” He submits that this language lends support and substantiates the particular form of relief sought in the circumstances of this case: See R. v. Mills, [1986] 1 S.C.R. 863 at p. 948.
[94] I appreciate the novel approach to counsel’s argument. However, with respect, even if I had such authority or jurisdiction by virtue of interpreting the language in s. 24(1) as counsel ably suggests; I am disinclined to grant request to exercise my discretion in favour of proposed remedy sought by the applicants.
[95] A breach of s. 11(b) provides for an extraordinary remedy as a result of a person’s constitutional rights. Because of the significance of a stay of proceedings in criminal matters, appellate courts remind trial judges to ensure that such a remedy is used only as a last resort: R. v. O’Connor, [1995] 4 S.C.R. 411, at p. 466. It is a right that is not to be taken lightly. A stay of proceedings has substantial ramifications not only for the applicants, but to the justice system as a whole when the state is found to have breached an accused’s fundamental Charter rights.
[96] The Charter is a dynamic instrument and legal authority that must be interpreted in a purposive manner. However, I accept that the time-honoured jurisprudential remedy for a breach of s. 11(b) Charter rights is a stay of proceedings. Everything ceases. The case is over. No further steps are taken no matter when such a pronouncement is declared. That proposition is replete throughout appellate jurisprudence.
[97] No doubt, the applicants and their counsel understand the significance of bringing this Application. With respect, it is not a matter for the applicants to pick and choose amongst the most favourable remedy or results available to him or her. In my view, that approach tends to diminish the magnitude and significance of s. 24(1) Charter relief. An acquittal is not a constitutional remedy. I must decline the applicants’ request for a “hybrid” remedy.
[98] Before leaving this area, I acknowledge the very valid concerns raised by Mr. Hasan. If this application is successful, I do not dispute that any resulting relief may not address issues of closure or finality for any of the parties, not to mention the applicants’ desire for the full vindication of an acquittal.
[99] However, the second concern proffered by counsel can be addressed. As the parties are aware, all that is pending for the substantive trial are my verdicts and judgment. In the event that this matter is returned back to the Superior Court, a new trial may neither be required nor necessary. My Reasons for judgment will be sealed and placed in a secure file.
The Merits of the s. 11(b) Application:
[100] As mentioned, the Court of Appeal in Coulter, at paras. 34-40, set out the following steps which the court is required to analyze for s. 11(b) motions:
a) Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial;
b) Subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”;
c) Compare the Net Delay to the presumptive ceiling;
d) If the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases;
e) Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”);
f) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable;
g) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
i. Calculating the Total Delay Period
[101] The relevant time period runs from “the charge to the actual or anticipated end of trial.” This period encompasses the date charges were laid until the actual or anticipated date of the verdict: Gopie, at para. 79.
[102] The Court in Jordan expressly left open the question of whether delay in the imposition of sentence will factor into the presumptive ceilings. Such an argument was not advanced in this case and for the sake of this application will not form part of the overall or total delay.
The Length of the Delay:
[103] The total delay in this case from the date the charge was laid (April 15, 2015) to the date of completion of trial (December 3, 2018) is 43½ months.
Discussion of Timeframes: The Calculation of Delay – Procedural History
The following chart summarizes the progress of the case:
| Date | Summary of action to date | Delay |
|---|---|---|
| A. April 15, 2015 to September 25, 2015 | • Arrest and Information sworn to retaining of counsel. Crown ready to set dates for preliminary hearing and judicial pre-trial. Substantial disclosure provided on September 25. | 5.3 months |
| B. September 25, 2015 to November 25, 2015 | • Date set for judicial pre-trial. | 2 months |
| C. November 25, 2015 to June 6, 2016 | • Time between dates for preliminary hearing being set and commencement of preliminary hearing. Earliest dates available in the OCJ. | 6.3 months |
| D. June 6, to June 20, 2016 | • Preliminary hearing before Justice Zivolak. Committal conceded at the end of first day. | 2 weeks |
| E. June 20, 2016 to August 19, 2016 | • Timeframe from the end of the preliminary hearing to beginning of “judgeless” discovery. Defence chose not to set dates for continuing discovery until after the completion of the Preliminary Inquiry. | 2 months |
| F. August 19, to August 26, 2016 | • Discovery | 1 week |
| G. August 26, 2016 to September 23, 2016 | • Order to stand trial at conclusion of discovery (preliminary hearing) to first appearance in Superior Court assignment court. | 1 month |
| H. September 23, 2016 to October 21, 2016 | • First appearance in assignment court. Crown was ready to set judicial pre-trial date. New charges laid against Aatif. Adjourned for Aatif to seek counsel. | 1 month |
| I. October 21, 2016 to November 18, 2016 | • Assignment court – judicial pre-trial scheduled and held November 15, 2016. | 1 month |
| J. November 18, 2016 to December 9, 2016 | • Remand to next assignment court. Defence unable to confirm dates for trial before November 18 assignment court. | 3 weeks |
| K. December 9, 2016, to May 8, 2017 | • Assignment Court appearance to first dates offered for a trial. Crown was available, defence was not. | 5 months |
| L. May 8, 2017 to September 18, 2017 | • Time between first trial dates offered and the commencement of trial. Defence were not available. The applicants concede express waiver of this time period. | 4.3 months |
| M. September 18, 2017 to October 31, 2017 | • Original trial dates- six weeks. A few select days are included where the trial was adjourned due to Crown/defence/Judge requests. (Single days here and there are not considered in the analysis) | 1.5 months |
| N. October 31, 2017 to January 8, 2018 | • Original six week trial ended October 31. Trial not completed in original time estimate. Further dates obtained beginning January 8. | 2.25 months |
| O. January 8 to January 12, 2018 | • Trial continues. Some trial dates ended early due to Mr. Levy’s illness. Adeel requested one day adjournment due to daughter being ill. Mr. Paquette unavailable on another date. | 1 week |
| P. January 15 to January 19, 2018 | • Trial adjourned as Mr. Levy unable to continue due to doctor’s recommendation. | 1 week |
| Q. January 19, 2018 to March 26, 2018 | • Trial continuation dates set for March 26. Four days of trial (March 26-29). | 2.25 months |
| R. March 29, 2018 to April 27, 2018 | • Dates offered by trial coordinator. Crown available, Mr. Hasan and Mr. Paquette not available in April. Crown argues defence delay to end of trial evidence. Next available dates offered and accepted was June 25. | 1 month |
| S. April 27, 2018 to June 25, 2018 | • After March 29, the balance of the trial took 11 days (4 days for completion of defence evidence, one day for Brown v. Dunn argument and 6 days for submissions). • Mr. Levy not available June 11, 2018. |
2 months |
| T. June 25 to June 29, 2018 | • Defence evidence concluded. No reply called by Crown. Browne v. Dunn argument. | 1 week |
| U. June 29, 2018 to July 30, 2018 | • Scheduled dates for final submissions. five days contemplated. Six days actually required. |
1 month |
| V. July 30 to August 31, 2018 | • Final submissions were completed on August 7. Discussion of dates for s. 11(b) application. Mr. Levy was not available for September dates. August 31 was offered. However, inadequate time to serve and file s. 11(b) materials and for Crown response. | 1 month |
| W. August 31, 2018 to October 9, 2018 | • End of trial to the date selected for the Application. 11(b) explicitly waived by defence. | 1.2 months |
| X. October 9, 2018 to December 3, 2018 | • The s. 11(b) application was not completed on October 9, (the one day set for the hearing). Adjourned to October 25. Time from the hearing of the application to the end of trial. (Verdict and judgment and/or decision on the s. 11(b) application). | 2.25 months |
ii. Defence Waiver:
[104] As mentioned, the defence concedes that five (5) months are accounted for by explicit waiver. I have determined the amount of explicit waiver is actually five and a half (5½) months. These two timeframes include:
(L) May 8 to September 18, 2017: 4.3 month defence waiver - Defence rejected first trial dates set available as early as May 8, 2017 in favour of September 18, 2017 trial dates.
(W) August 31 to October 9, 2018: 1.2 month defence waiver - Defence waived period as they could not serve their Application materials at least 30 days prior to the first scheduled hearing date, pursuant to the rules set out in the Criminal Proceedings Rules of the Superior Court of Justice (Ontario).
iii. Defence-caused Delay:
[105] It is now well-established that every actor in the justice system is responsible for ensuring that criminal proceedings are carried out within a reasonable time. Accused persons are not entitled to remain passive in the face of delay in the hopes of avoiding prosecution as the evidence in the cases against them grows stale over time. Where accused persons benefit from their own delay-causing conduct, such a result “operates to the detriment of the public and the system of justice as a whole”: Jordan, at para. 21.
[106] Accordingly, the conduct of the defence must be examined, and any delay attributable to that conduct or inaction subtracted from the total delay. Because the Charter governs state conduct, the conduct of the accused person or defence counsel that delays the trial does not count against the presumptive ceilings: Jordan, at paras. 21, 49, 60; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 1, 32-33.
[107] Defence caused delay comprises “those situations where the accused’s acts either directly caused the delay… or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial.” In situations where the Crown and the court are ready to proceed, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay”.
[108] Time needed for trial preparation will be classified as inherent delay within the Jordan framework: Williamson, at para. 60. Examples of defence-caused delay include frivolous applications and requests, and periods during which the court and Crown are ready to proceed but the defence is not. However, these examples do not amount to an exhaustive list and it “…will of course be open to the trial judges to find that other defence actions or conduct have caused delay.” Such determinations are “highly discretionary”: Jordan, at paras. 60-66; Cody, at paras. 28-31.
[109] The Crown submits that the following dates in the chronology of these proceedings are defence-caused delay.
(A) April 15 to September 25, 2015:
Shaheen and Aatif spent over 5 months attempting to retain counsel. The Crown was ready to set dates for the OCJ JPT and preliminary hearing. Mr. Paquette or his colleague spoke for all accused during this intake period. On the July 3rd appearance, Mr. Paquette indicated that he “would be as ready to set a date for the judicial pretrial” but that other counsel would be sought for the other two accused. On July 24, Mr. Paquette advised that he is still looking for counsel for the other accused. The matter went over to August 7 and again to September 4, ostensibly for the same reasons. While there is some merit to the Crown’s argument, upon further review, I do not agree that Shaheen and Aatif’s search for defence counsel resulted in defence delay. It is clear that an issue of conflict between the accused family members and defence counsel arose that was legitimate preparation and needed to be sorted out. Most importantly, additional significant disclosure had not yet been provided to the defence in July; it was not provided until about September 25. This disclosure included the accused’s video statements and will-say evidence of prosecution witnesses who testified at trial. From an email sent to Mr. Hasan on November 6, 2015, Mr. Levy advised that he would do his best to review the rest of the disclosure. Presumably, this referred to the meaningful disclosure provided to the defence in September. There was some mention of possibly adjourning the November JPT. Frank and fruitful discussions at a JPT cannot occur without the defence having the benefit of full and meaningful disclosure. In my view, there is no delay.
(E) June 20 to August 19, 2016:
Additional preliminary inquiry dates were required after the first ten days of the inquiry were completed on June 20, 2016. The discovery of witnesses continued on August 19, 22, 23, 24, and 27. The defence did not want to set all preliminary hearing and discovery dates together and at the same time. Defence counsel advised that they would seek further dates if necessary. While the need for additional dates for discovery of witnesses was always possible, it seems to me that when the dates were set, the parties believed there was adequate time for the completion of the preliminary inquiry. Even with committal being conceded on the first day, there were three additional days of examination in chief of the complainant, which Mr. Hasan argued was excessive. I agree with Mr. Hasan that it seemed reasonable that the preliminary inquiry for a domestic violence case with the “judgeless” discovery ought to have been substantially completed within the allotted time. While one could argue that the defence ought to have set these dates at the same time as the original dates for the preliminary hearing, I am mindful of the learned comments of Code J. in R. v. Brissett, 2017 ONSC 401, 373 C.R.R. (2d) 170, at para. 32. Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. That includes the examination of prosecution witnesses at a preliminary inquiry or discovery as the case may be. I am not persuaded that the extended time required in this particular case amounts to defence conduct leading to delay.
(H) September 23 to October 21, 2016: The Crown was ready to set a JPT in the Superior Court. The Crown alleges the defence delay was due to Aatif’s request for a one month adjournment to seek counsel. Following the completion of the preliminary inquiry, there is no dispute that fresh counts were added to the indictment against Aatif. Considering that Aatif was facing additional substantive charges, a one month request for the self-represented accused to seek counsel was not unreasonable. There is no defence conduct leading to delay.
(J) November 18 to December 9, 2016: This is the period after the JPT and before the setting of trial dates. The Crown alleges there was delay because the defence were unable to confirm dates before the December assignment court, as Aatif’s counsel was not yet confirmed. The JPT only occurred three days prior to the assignment court and counsel needed to speak with their clients to assess their next steps in the process. Moreover, given the recent developments with respect to Aatif’s substantive charges, a brief delay in his consulting and confirming counsel (or not) for trial was not unreasonable. There is no defence delay.
[110] (S) April 27 to August 31, 2018: In its factum, the Crown submits that the period from April 27 to August 31, 2018, is defence conduct delay due to defence being unavailable for trial dates offered in April 2018. Had they been available for those two or three weeks, the trial would have been completed by the end of April.
[111] In oral argument, Mr. Levy later expanded that period of time from October 31 2017, (the end of the original six-week trial estimate) to October 9, 2018, the hearing of this Application. There are two heads of delay within this period of time which the Crown submits are defence delay. Firstly, Mr. Levy says this entire period should count as delay because the applicants neither participated nor offered any constructive input into the estimates of the requisite time for trial. Secondly, defence counsel’s unavailability for April, 2018 court dates was also defence delay. This will be further addressed below.
[112] Query: Where the trial has taken longer than planned and counsel have made good faith efforts to properly estimate the length of trial; can the resulting delay be considered defence-caused delay? Or is it an unavoidable discrete circumstance to be subtracted from the overall delay?
[113] While Mr. Levy spent considerable time on this issue, the thrust of his argument framed defence counsels’ lack of participation in the estimation of trial time as a discrete event. While he also addressed this issue under this heading of defence caused delay, in my view, the preponderance of authorities analyse underestimation of time as an exceptional circumstance. I intend to address this issue more fully in the next part of these Reasons.
[114] Regarding the second heading of defence delay in this time period, the Crown says that on February 13, 2018, the trial coordinator offered the week of April 3, 2018, for trial continuation dates. Mr. Hasan did not respond to this request until February 23, 2018, declining the dates. The Crown says this should be considered defence “foot dragging” as the Court cannot be expected to hold dates indefinitely for counsel who do not respond in a timely manner. The dates only became unavailable ten days after they were offered. On March 5, 2018, the week of April 3 was no longer available. The trial coordinator then offered the weeks of April 16 and 23.
[115] While I do not equate the momentarily availability of the week of April 3rd, into my analysis, Mr. Levy says that had defence counsel been available for at least the two weeks offered in April 2018, the trial would have been completed by the end of April and June dates would not have been required. The Crown was ready but neither defence counsel was available for these weeks. The applicants say that because these dates were not ostensibly offered until February 2018, they should not be counted as defence delay.
[116] Again, the Crown says that all delay after April 27 to October 9, 2018 should be attributed entirely to defence caused delay. I accept that some April dates were made available and the defence was not. I also observe that during this time period, the Crown was not available for the week of June 11, but the defence was ready. In this context, I must also consider all of the factors that lead to the delays going forward from early January 2018.
[117] Regarding defence’s unavailability for trial continuation in April, the jurisprudence provides that “defence action may be deemed not legitimate …if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.” Such a finding need not amount to professional or ethical misconduct. Instead, the assessment of legitimacy “takes its meaning from the cultural change demanded in Jordan” which requires that all justice system participants advance an accused’s right to a trial within a reasonable time: Cody, at paras. 30-36.
[118] The ceilings established in Jordan are presumptive statements as to reasonable delays for which the state is responsible. Accordingly, actions that are not attributable to the state are excluded from the total calculation of delay. Defence unavailability can be considered defence delay if the court and the Crown are ready to proceed, but the defence is not. Where a date is available but refused by defence counsel, this is defence-caused delay: Jordan, at paras. 14, 120-124; R. v. Sookdeo, 2018 ONCJ 575 at para. 18; R. v. Vidinovski, 2018 ONSC 2971, at para. 21-27; Williamson, at paras. 21-22; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23; R. v. St. Amand, 2017 ONCA 913, 358 C.C.C. (3d) 226 at 80, 97-98; and Cody at para 30.
[119] To support its position, the Crown points to the Court of Appeal’s decision in R. v. Mallozzi, 2018 ONCA 312, where at para. 3, the court held:
Defence delay is defined in Jordan as including periods of time when the Crown and the court are ready to proceed, but the defence is not: Jordan, at para. 64. See also: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 55. Although actions that are legitimately taken to respond to the charges will fall outside of defence delay, when what prevents the matter from proceeding is simply that the defence is not available when the Crown and the court are, this constitutes defence delay and will be subtracted from the total delay.
[120] On its face, this proposition is relatively straightforward. However, in discussing this and related authorities, Mr. Hasan provides some interesting insights. He argues that the case can be distinguished as it dealt with the availability of counsel at a very early stage in the process, before the trial started. In addressing the appeal, the appellate court referenced the trial verification form on two occasions: at paras. 6 and 9. The delay in Mallozzi occurred at the stage of setting preliminary inquiry dates with both counsel’s availability and unavailability for each of the two accused persons.
[121] In Mallozzi, the Court of Appeal provides strong direction to trial judges. Most, if not all s. 11(b) cases deal with applications brought before trial. I am persuaded that this case is inherently different. This application is brought at the end of trial and there is a full retrospective analysis required. I am persuaded that the Court of Appeal’s decision in Mallozzi must be read and interpreted in that light.
[122] To that end, Mr. Hasan urges this Court to find that the ratio in Godin has not been expressly or implicitly overruled by Jordan, Cody and Mallozzi. Consider Moldaver J.’s comments in Jordan at para 65:
To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.
[123] There is a debate as to whether trial courts have read Jordan and Cody as implicitly overruling the Supreme Court’s previous position in Godin. In Godin, the Supreme Court stated defence counsel are not required to hold themselves in a perpetual state of availability, thus allowing some leeway in scheduling: R. v. Grewal, 2018 ONCJ 108, at para. 16; Sookdeo, at para. 18; St. Armand at para. 10; and Coulter at paras. 73-74.
[124] It is trite to state that Jordan is the law of the land. Under the new framework, is there any latitude regarding counsels’ availability in circumstances where the Crown and the court are ready? Some jurists have determined that defence unavailability for a rescheduled trial date was not defence delay because of the reasons for adjournment. In that vein, I note that the case law emanating from British Columbia tends to differ somewhat from the general, albeit not universal, approach taken in Ontario.
[125] For example, in R. v. Cootes, 2018 BCSC 1486, the court confirmed a lower court’s finding that defence counsel’s unavailability for rescheduled trial dates was not defence delay. The lower court stated it "cannot be said the defence solely or directly caused the delays flowing out of the adjournment." This was because the Crown requested dates knowing defence was unavailable and the Crown could have avoided the adjournment by subpoenaing the witnesses. Plummet J. emphasized that the reasons for rescheduling should also be examined in the context of the “solely caused” requirement from Jordan: Cootes, at paras. 41-44; and R. v. Akumu, 2017 BCSC 896.
[126] In R. v. M.(K.) 2017 ONCJ 8, 3773 C.R.R. (2d) 234, at para. 33, the court likewise found defence counsel’s refusal to reschedule a trial to dates two weeks away was not defence delay because the time given was not reasonable time to prepare: See also R. v. Albinowski, 2017 ONSC 2260, 382 C.R.R. (2d) 195, at para. 9.
[127] This case required recurrently additional dates during the course of trial. Throughout this trial, defence counsel had cleared their schedules for all of the new dates offered by the Court. This includes January, March, June, July, and August 2018. The only exception were the April dates. The April 16 date was only provided with nine weeks’ notice to counsel during the course of trial to justify defence unavailability. Mr. Hasan had a previously scheduled Superior Court matter in Toronto involving serious charges for an in-custody client. In good faith, he could not compromise one client’s interests for another. Mr. Paquette advised that he had pre-arranged medical treatments.
[128] I appreciate that Jordan has created inherent time frames for trial. Defence unavailability will not automatically be counted as defence delay, if the delay was not solely caused by the defence or the delay is legitimately taken to respond to the charges. There must be a balance between counsel remaining static in a state of perpetual availability and such unavailability causing delay: R. v. Wu, 2017 BCSC 2373, at para. 65.
[129] While Mallozzi is strong direction from the Court of Appeal, I distinguish its applicability from this case.
[130] Here, the issue was legitimate defence availability for additional mid-trial dates. Both defence counsel are in high demand and have busy schedules. The Crown and defence dates for availability were interspersed. The delay was already a real concern when the additional dates were being formulated. It cannot be overlooked that defence delay is delay “caused solely by the defence.”
[131] I am unable to conclude that defence unavailability in April for scheduling of additional dates ought to be deducted from overall net delay. The defence made themselves available for all of the other trial continuation dates, often on minimal or abridged notice. Indeed, there was no “foot dragging” by the defendants especially from January 2018 onwards. I find that the defence did neither advance their unavailability as a sword for bringing this Application nor use it as a shield against deductions of defence caused delay. Thus, I am not prepared to attribute the unavailability of counsel for the April continuation dates to delay solely caused by the defence conduct.
Conclusion: Defence Waiver and Defence Conduct Amounting to Delay:
[132] The applicants explicitly waived two time periods. This amount of defence waiver equals five and a half (5½) months.
[133] I have determined that there is no defence conduct amounting to delay. Thus, the total net delay is 38 months. This amount is above the 30 month limit for trial in the Superior Court and is presumptively unreasonable.
iv. Exceptional Circumstances:
[134] In instances where, after deducting defence-caused delay and waiver, the time period remains above the 30 month ceiling, it falls to the Crown to show that the delay is reasonable because of the presence of exceptional circumstances. Such circumstances “lie outside the Crown’s control” in that “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise.” The circumstances need not be “rare or entirely uncommon.” To rely on such circumstances, the Crown needs to show that it took reasonable steps to avoid and address the problem where possible to have done so. It need not, however, prove that the steps taken were ultimately successful. Nor is the Crown required to “exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement”: Jordan, at paras. 69-71; Cody, at paras. 44-46, 48, 54; and St. Amand, at paras. 81-82.
[135] Compelling case-specific factors remain relevant to assessing the reasonableness of periods of delay both above and below the ceiling: Jordan, at para. 51.
[136] When determining how to allocate delay during trial, courts will distinguish a reasonable period of delay to deal with a discrete event, which may be subtracted from the net delay, from systemic or institutional delay which causes further delay. Delay caused by a shortage of judicial resources is not deductible from total delay.
[137] As discussed, discrete events are reasonably unforeseen or avoidable and the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise. It will be for the trial judge, relying on his/her good sense and experience, to determine whether a particular event is properly determined to be exceptional: Jordan, at paras. 73-4; Cody, at paras. 46, 48, 58-59, 163-165; and Brissett.
[138] While in the applicants’ factum, counsel calls the death of Crown counsel’s father “a personal matter” and suggests that if the defence had acquiesced to the Crown request for an adjournment and allowed delay to accrue, this would have been “Crown-caused delay”.
[139] It is true that the unfortunate death of a parent of any justice system participant is appropriately treated as an exceptional circumstance in any s. 11(b) analysis. While Mr. Levy suggests that the death of his father was treated with an absence of courtesy by counsel, this cannot form any basis for my consideration in this application. This matter did not cause any delay of the proceedings whatsoever, thus, it cannot have any bearing in my decision. While it may seem that there was some insensitivity in the manner in which Mr. Levy father’s death was handled, I need not opine further. I cannot accede to the Crown’s request that the conduct of the defence at that stage “be held” against the applicants for this s. 11(b) application.
(a) Discrete Event - Crown Illness
[140] In January, 2018, Mr. Levy suffered from an illness that forced a Crown adjournment request to March. Although the Crown proceeded on January 8, 9, and 10 and was prepared to continue on the 11th, Mr. Levy was unable to continue the following week due to doctor’s orders. The entire week of January 15 was adjourned. Given the multifaceted nature of the case, I agree that it would not have been feasible for another Crown attorney to step in for these dates without proper preparation. Accordingly, five (5) trial days were lost due to an unforeseen illness.
[141] The Supreme Court in Jordan did anticipate that illness of counsel could in some cases constitute a discrete event justifying delay beyond the presumptive ceiling. Jordan, at paras. 81 and 195; R. v. Baron, 2017 ONCA 772, 356 C.C.C. (3d) 212, at para. 50. Discrete, exceptional events such as family or medical emergencies will qualify as exceptional circumstances: Jordan, at para. 75.
[142] In oral argument, Mr. Hasan concedes that the Crown attorney’s unfortunate illness may amount to a discrete event. The question then becomes what amount of time should be assessed for this discrete event. The applicants argue that I should only carve out the five days that were actually lost directly due to Mr. Levy’s illness as a discrete event.
[143] If I were to separate out only the specific dates of Mr. Levy’s illness, this would result in subtracting the period of presumably only a few days. That said, the additional delay caused by the Crown’s illness is a discrete event that includes institutional delay.
[144] Mr. Levy submits that a reasonable period of time from his unforeseen mid trial illness ought to be considered. I agree. Although Mr. Levy’s illness was thankfully short-lived, there was no additional court time available and institutional delay after the week of January 15, 2018, meant the next scheduled trial date was not until March 26, 2018.
[145] I attribute two (2) months of delay to the discrete event arising from Crown counsel’s unexpected illness. This reflects a reasonable period of time between the aborted trial dates in mid-January to the recommencement of trial on March 26, 2018.
(b) Discrete Event - Inadequate trial estimates
[146] As mentioned, Mr. Levy submits that because defence counsel did not participate in estimating the appropriate trial time, their inaction should be considered as defence delay for the entire period exceeding the original trial estimates. In other words, the entire period from the end of the original trial estimate, October 31, 2017, to the date of the hearing of the s. 11(b) application on October 9, 2018, should be counted as an exceptional circumstance (or defence conduct causing delay).
[147] The Crown submits that while there is no authority on point, new law ought to be considered by this Court in accordance with the prevailing Jordan and Cody principles. The Crown says defence now have a positive obligation to opine on the amount of time a trial might reasonably take. This will ensure that defence counsel fully participate in the setting of trial dates in this new era of criminal procedure. Indeed, the Supreme Court has opined that all participants in the criminal justice system are equally important players in the post-Jordan era. These principles are also supported by the introduction of the revised Form 17 which must be completed by defence counsel in full, in accordance with the Rules of Criminal Proceedings in the Superior Court. As a matter of legal principle and public policy, there is an obligation on the defence not to defer exclusively to the Crown in the estimation of reasonable trial time.
[148] When counsel have made good faith efforts to properly estimate the length of the trial, is the delay unavoidable? Is it considered a discrete circumstance, to be subtracted from the overall delay?
[149] Mr. Levy advances a very powerful argument. In support of his position, Crown counsel cited R. v. M.(J.), 2017 ONCJ 4, 344 C.C.C. (3d) 217.
[150] In obiter, Paciocco J. (as he was then) added a footnote wherein it states: “where the defence chooses not to include a realistic estimate for a potential defence case and where such evidence is called leading to the need for further trial time, the time awaiting continuation is defence delay.”
[151] The key wording in this footnote is “where defence chooses not to include a realistic estimate.” While the applicants did not indicate any amount of time on Form 17, I observe from the comments in court on September 18, 2017, that Mr. Paquette had provided a four week estimate of time for the trial at some stage. It is not as the Crown would suggest, namely that the defence was mute or failed to participate in the estimation of trial time. Nonetheless, for a variety of reasons, the trial estimates turned out to be woefully inadequate.
[152] In Jordan, the Supreme Court of Canada addressed time estimates during its discrete events analysis. At para. 73, the court stated that “if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance,”
[153] At para. 74, the court emphasizes that the practical realities of trials mean they may exceed the ceiling even when scheduled to conclude below it. Where this occurs, “the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling.” Therefore, while underestimation of time may be classified as a discrete event, the Crown is still obligated to mitigate the delay resulting from a discrete exceptional circumstance and “any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted”: at para. 75.
[154] Subsequent case law has emphasized the “good faith effort” portion of the Supreme Court’s analysis when categorizing underestimation of time as a discrete event. Crown counsel in this case cite two cases for this position.
[155] In both R. v. Dos Santos 2016 ONCJ 821, and R. v. Majeed, 2017 ONSC 3554, 383 C.R.R. (2d) 249, counsel underestimated how long the trial would take. Both courts found that the parties had made good faith efforts to create a reasonable estimate and therefore categorized the delay as an exceptional circumstance which should be deducted from the overall time. The court in Majeed emphasized the obligation on Crown counsel to take steps to avoid the delay. The judge found that the Crown had acted reasonably by obtaining estimates from all parties, asking for pre-trials to obtain judicial guidance, and by making a reasonable plan for the preliminary inquiry. Nakatsuru J. noted that “improper estimates of time should never simply be a carte blanche excuse” but delay will rightfully be an exceptional circumstance where they have made a good faith effort: Majeed, at para. 27.
[156] Underestimation of time has been classified as defence delay where defence counsel significantly underestimated the time required for motions and applications. In R. v. Crant, 2018 ONSC 1479, at para. 36, Nakatsuru J. found that defence counsel’s failure to prepare and plan their motions was the “sole reason why the case significantly fell off the rails from its original trial estimate… and was the sole reason why the trial could not ultimately be completed in the days set aside for trial”.
[157] A similar approach was taken in R. v. Live Nation Canada Inc., 2016 ONCJ 735, 372 C.R.R. (2d) 210, and R. v. Aecon Construction Group, 2017 NSPC 61. The courts in both cases emphasized that estimation of trial time is not a responsibility borne solely by the Crown. In Live Nation, at para. 24, the judge stated: “defence cannot divest itself of any responsibility for an inaccurate estimate of trial time…the Crown cannot be expected to be completely prescient without some input and cooperation of the defence.” Therefore, where both parties made reasonable efforts to estimate the length of trial, subsequent delay will likely be categorized as a discrete event. This interpretation of Jordan was also confirmed by the Court of Appeal in R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 55, though the primary cause for delay in that case was a change in witnesses, not underestimation of time.
[158] The question is whether instances of unexpected and unavoidable developments in a case include where a trial goes longer than reasonably expected in spite of best efforts to complete the trial in the time estimated, in good faith by the parties. An inadvertent oversight by the Crown might also qualify as a discrete event, as there is no standard of perfection placed upon the Crown, and mistakes happen. So long as the Crown has made reasonable efforts to remedy the error and minimize the resultant delay, the time should be deducted as a discrete event.
[159] As previously noted, the Crown’s pre-trial conference report indicated that the Crown had 18 to 22 witnesses. Prior to trial this list was reduced to 16 witnesses, which list was sent to the defence. The Crown further reduced that to nine witness called at the trial.
[160] Applicant’s counsel relied on the trial estimates at the time of the JPT. Until the January 2018 adjournment, counsel did not advise me that s. 11(b) was a live issue. Mr. Hasan submits that it was only a matter of the additional time past the October 2017 dates and crystalizing in January 2018 that raised legitimate s. 11(b) concerns. Counsel reasonably expected that the trial would be completed but for the Crown’s case taking most of the six week initial trial time.
[161] I am persuaded that there was no defence caused delay by virtue of counsel’s alleged inaction or omission in estimating trial time that was not counterbalanced by subsequent defence conduct during this trial.
[162] For the purpose of this analysis, I need not ascribe or assign blameworthy conduct to any side. That being said, both parties spent much time submitting that the actions or conduct of the other caused unnecessary and avoidable delay.
[163] The Crown disagrees with the applicants’ assertions that the trial was shortened because they conceded the admissibility of photographs and continuity of exhibits. Had continuity of exhibits not been conceded, witnesses who found various items during the execution of the search warrant may have had to be called. Further, had Adeel not conceded the voluntariness of his statement, a Crown pre-trial application would have been necessary which would not have increased the length of the trial itself.
[164] The medical records formed an extremely important part of the defence. As Mr. Hasan stated on January 15, 2018, “the hospital records are perhaps the most important evidence in this trial.” The Crown says that it also consented to the defence filing of certain CAS records which were not received by the Crown until shortly before the trial. The Crown consented to the defence filing of Beth Israel Deaconess Hospital Medical Records. It was therefore to the applicants’ benefit to consent to the admissibility of all of the medical records.
[165] Further, the Crown did neither object nor insist to the defence calling two police officers and Dr. Subramanian before calling Adeel. The Crown did not argue that Adeel’s credibility as a witness was impacted by hearing these three defence witnesses testify before him.
[166] The Crown emphasizes that the large majority of the medical records were disclosed to the defence very early on in the proceedings, prior to the preliminary hearing. On January 15, 2018, Mr. Hasan claimed that the defence received literally thousands of pages of hospital records early in the trial. The Crown responds that these records were only received by them very shortly before trial. Until that time, the Crown believed that the medical records provided by the complainant to the police were complete.
[167] The applicants argue that the records show that the complainant “selectively disclosed her medical records to the Crown’s office.” In response, the Crown submits that the applicants’ depiction of the additional medical disclosure is misleading. It is unfair speculation that is not supported by the evidence. The records that were obtained from the hospital contain pages that are also potentially harmful to the complainant’s position. Furthermore, the Crown says that the applicants fail to correctly characterise these records, only stating that they consist of “nearly 2000 pages of highly material medical records.” They neglect to mention that in these are hundreds of pages of blank medical “flow charts.”
[168] For example, in the Rochester General Hospital Records, there were 1423 pages. Many of these were blank “flow sheets”, blood test results and signature sheets. Of these 1423 pages, the Crown says that only 266 could be considered “highly material” medical records. The further records from University of Rochester Strong Memorial Hospital comprised a total of 386 pages, many of which contained very little content or were flow sheets. The Crown says that to characterize them as “highly material” serves to exaggerate the applicants’ position. In any event, the Crown argues only a small portion of these subsequent records were relevant.
[169] However, that argument does not end the analysis. It is clear to me that defence counsel were still required to review and examine all of the records – blank sheets or not – in order to determine their relevance in preparation to cross-examine the complainant and other prosecution witnesses.
[170] The applicants overall position is that the Crown’s response to any delay beyond the trial estimates “has been marked by indifference.”
[171] Prior to the commencement of trial in the Superior Court, both Mr. Levy and Ms. Reid made it clear that Jordan was at the forefront of their priorities and the Crown was actively ensuring the matter was moving along as expeditiously as possible.
[172] I agree that during the initial stages, the Crown made every reasonable effort to mitigate the delay. Likewise, it is evident that during the latter phase of the trial, the Crown shortened its witness list to streamline its case. Furthermore, the Crown did not call reply evidence when entitled to do so after favourable judicial findings of breaches of the rule in Browne v. Dunn. Additionally, while the Crown put defence and the court on notice of its intention to call a reply witness, the Crown ultimately decided to forego this decision in favour of avoiding additional delay an already lengthy trial.
[173] I find that the Crown took great efforts to advance the case along, most significantly during the early stages of the prosecution. That said, I am not entirely convinced that during the trial, the Crown embarked on a reasonable course of action to mitigate the delays when possible.
[174] The applicants’ first complaint is that the Crown expanded the trial by calling evidence and examining Crown witnesses on very insignificant details, including the entire history of the parties. The applicants claim that the scope of Crown witness examinations was unhelpful to the trier of fact, and delayed the flow and progression of the trial.
[175] As my Reasons for judgment remain outstanding, I am reluctant to opine fully on this issue.
[176] That said, and with respect, I tend to agree with the applicants’ viewpoint. The Crown was extremely thorough in the presentation of its case and in the cross-examination of witnesses. Yet, even in the face of the looming deficiency of available trial dates early on in these proceedings, there were occasions where I questioned in my own mind how some of the evidence adduced by the prosecution was material to the live issues. I routinely observed defence counsels’ reaction to the endless questioning of witness by the Crown on issues of minutiae or of questionable relevance. On more than a few occasions, an objection or comment was raised by counsel in that regard. I do not disagree that the amount of excessive, or superfluous testimony at trial tended to elongate these proceedings.
[177] The applicants also suggest that their agreement to admit the medical documentation without the necessity of calling the records custodians was a major concession. True, in that a good segment of the Crown’s case consisted of medical records and photographs. The defence consented to admission of all of this evidence, obviating the need for the Crown to establish admissibility. The defence acknowledged continuity of all exhibits.
[178] Of significance, the defence did not request any adjournments despite the fact that it received significant disclosure of highly material medical records after the commencement of trial. This batch of disclosure was not delivered until the first and second weeks of trial. Much of this disclosure contained hospital records of which substantial portions were made exhibits at trial.
[179] I agree with the applicants that it would have been entirely understandable — and indeed appropriate — for the defence to seek an adjournment after receiving this volume of disclosure. The additional delay occasioned by an adjournment in such circumstances would have counted against the Crown for s. 11(b) purposes: Cody, at para. 52 (declining to count delay resulting from dispute about disclosure against the defence); R .v. D.A., 2018 ONCA 96, 402 C.R.R. (2d) 303, at paras. 21-22, 27 (adjournments should not count against defence because they were caused by late disclosure); R. v. Pyrek, 2017 ONCA 476, 349 C.C.C. (3d) 554, at paras. 17-22; and R. v. Gatt, 2017 ONSC 3563, at para. 101 (“[l]egitimate adjournment requests to review recent and voluminous disclosure, without something more, do not constitute waiver within the meaning of Jordan.”).
[180] I note the case of R. v. Korzh, 2016 ONSC 4745, 362 C.R.R. (2d) 1, at para. 25, where the trial judge held that much of the delay in the trial was due to the Crown’s failure to provide requested disclosure, which not only created direct delays but also contributed to the underestimation of trial time.
[181] I am persuaded that the burden of moving the trial itself along expeditiously fell somewhat disproportionately onto the defence. The defence’s concessions and willingness to forge ahead where they could have been reasonably expected to seek adjournments prevented an already lengthy delay from becoming even longer.
[182] That said, I am fully cognizant of the practical realities of trial. The Crown acted in good faith to estimate the time required for trial. The defence relied on that estimation. The trial went longer than expected for many reasons.
[183] The assessment of delay under exceptional circumstances is qualitative in nature. There is no magic formula, and even with guidance from the appeal courts, there is no mathematical precision guiding what amount of time to apportion to this discrete event.
[184] However, for the following reasons, I am prepared to attribute six (6) months of delay to exceptional circumstances arising from or due to inadequate trial time estimates.
[185] As submitted by Mr. Levy, I have captured the entire time frame for this portion of the analysis, which is from the end of the original scheduled trial date of October 31, 2017, to October 9, 2018, the commencement of this Application. Within this timeframe I have already accounted for explicit defence waiver, and must deduct the period of August 31, 2018 to October 9, 2018. The result is 10 months. As I have already considered the discrete event of Mr. Levy’s illness and have determined that two (2) months ought to be considered as an exceptional circumstance; that period of time must also be deducted. That leaves a remaining period of eight (8) months.
[186] In considering and balancing all of the factors, I have determined that a segment of this delay (especially in the period following March 2018) is due in part to the lack of institutional resources or systemic limitations.[^3] Exercising my discretion, I halve the entire eight (8) month period, with a result of four (4) months of exceptional circumstances due to the unavoidable delay, despite the good faith efforts to estimate reasonable trial time or legitimate conduct to minimize such delay.
[187] Therefore, the total time for delay under the exceptional circumstances framework is six (6) months.
(c) Exceptional Circumstances – Case Complexity
[188] Another exceptional circumstance relates to the complexity of the case. In some cases, the Crown can justify a delay beyond the presumptive ceiling because the case is “particularly complex.” Complexity is a relative term.
[189] Particularly complex cases are those that, because of the nature of the evidence or issues, require an inordinate amount of trial or preparation time such that the ensuing delay is justified. Complexity does not entail stand-alone deductions. Instead, once defence-caused delay and discrete events deductions are made, a qualitative assessment will be undertaken to determine whether the complexity of a case overall justifies additional time above the ceiling. Whether complexity in the evidence or issues that arise in the case justifies the time to complete the trial is “a determination fall(ing) well within the trial judge’s expertise”: Jordan, at para. 79,
[190] The Crown may need to show that they followed a concrete plan to establish that the circumstances were outside its control. However, while the Crown must act reasonably and according to a concrete plan in prosecuting a complex case, the Crown need not be forced to abdicate its responsibility to prosecute meritorious cases in order to achieve expediency. Jordan also does not require the Crown to take any and all steps proposed by the defence to expedite matters: Jordan, at paras. 77-79; Cody, at paras. 64-65; and R. v. Saikaley, 2017 ONCA 374, 135 O.R. (3d) 641, at paras. 36-48 leave to appeal refused, [2017] S.C.C.A. No. 284.
[191] A finding that the overall time to complete trial is justified on the basis that the case is sufficiently complex ends the inquiry. Where the delay is found to be reasonable relative to the complexity of the case there will be no stay: Jordan, at paras. 77-80; Gopie, at paras. 169-175; and R. v. Singh, 2016 BCCA 427, 344 C.C.C. (3d) 516, at paras. 85-94.
[192] Although the applicants argue that the voluminous disclosure and multiple accused are not enough to bring a case into the realm of particular complexity, the Crown submits that these are only two factors to consider. As mentioned, Jordan sets out multiple factors which add to case complexity as it relates to the evidence in the case. The Crown says that hallmarks of complex cases as it relates to the evidence in the case include:
▪ Voluminous disclosure - This case saw hundreds of pages of medical records, CAS records, 67 exhibits, expert evidence, lengthy witness statements, search warrant items, etc.
▪ A large number of witnesses - This case heard from 16 highly material witnesses.
▪ A large number of charges - This case involves 14 charges.
▪ A large number of significant issues in dispute - The Crown and defence are diametrically opposed with regards to 66 separate instances of alleged abuse over the span of nine month period, between January 4, 2014, and September 30, 2014. Additionally, background information relating to the relationship between the accused persons and the complainant lengthened the relevant time frame of evidence.
▪ Where the Crown has proceeded jointly against multiple co-accused – As indicated by defence counsel, this case involved a “common defence”. As there were three parties involved in the alleged abuse of the complainant, it was appropriate that all three be charged and tried together.
▪ Significant requirements for expert evidence - This case heard from three expert witnesses, two of which required lengthy voir dires.
[193] The Supreme Court did not suggest in either Jordan or Cody that bare complexity would justify a delay above the presumptive ceiling. It held that the case must be “particularly complex”: Cody, at para. 63. It is true that the vast majority of cases are not “particularly complex.”
[194] In Cody, the Supreme Court was asked to revisit its decision in Jordan, including the “particularly complex” exception. Cody involved net delay of 36.5 months and the Crown argued that its complexity justified exceeding the presumptive ceiling. Far from expanding the ambit of the exception, the Court reaffirmed its truly exceptional nature. It made clear that the mere fact that a case involves voluminous disclosure is not enough to bring a case into the realm of “particular complexity”.
[195] Indeed, the Supreme Court in Jordan and in Cody emphasized that the new presumptive ceilings in Jordan “already reflect 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’.” In Jordan, the Supreme Court wrote that “[a] typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance”: Jordan, at para 78. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. While voluminous disclosure is a hallmark of particularly complex cases, its presence is not automatically demonstrative of complexity. The question is whether the case is sufficiently complex “such that the delay is justified”: Jordan, at para. 77.
[196] Does this case fall into this narrow exception, particularly when contrasted with other cases in which the courts have found particular complexity?
[197] The applicants cite several cases. The Court of Appeal’s decision in Picard, demonstrates this high bar. Picard was a circumstantial case of first degree murder, which focused on the forensic analysis of data from 53 cellphones, including text messages and reams of data about GPS locations and call records. It encompassed six months of investigation, involving two police services, 30,000 pages of disclosure, 2,800 photographs, dozens of video-recorded witness statements, 6,800 pages of cellphone records, 25,000 text messages with content, 103,000 lines in Excel of subscriber records from the accused’s phone, 78 witnesses interviewed, 60 judicial authorizations, and eight separate areas of expert evidence. Further, Picard was a jury trial. The Crown had anticipated that it would require 43 witnesses at trial. However, even this level of complexity, the Court of Appeal agreed that it did not rise to the level of “particular complexity”: at para. 69.
[198] In R. v. Papasotiriou-Lanteigne, 2018 ONSC 1449, another first degree murder case, net delay exceeded the presumptive ceiling, but was justified due to the complexity of the case. The nature of the defence itself and the nature of the actions taken by the defence added complexity to an otherwise typical murder case. The investigation involved DNA analysis, the painstaking gathering of evidence such as emails, the use of cellphone tower "pinging" evidence, the examination of financial transactions, interviews of dozens of witnesses, and an international extradition. Defence conduct added significantly to the complexity by bringing needless and frivolous allegations and applications throughout the proceedings.
[199] In R. v. Millard, 2017 ONSC 4030, a matter involving two accused jointly charged with first degree murder, the case involved voluminous and complex evidence involving 217 civilian witnesses and 260 police officers; unusually complex reliance on forensic analysis of cell phones, tablets and computers based on seizure of 59 of these devices, 17 pre-trial motions, a trial scheduled for three to four months and unusually long preparation time.
[200] In Saikaley, the accused was convicted of over 40 counts involving drug and weapons offences, conspiracy, proceeds of crime, and association with a criminal organization. There was a net delay of 35.5 months. The case involved a lengthy and complex investigation, including live surveillance, DNR warrants, production orders and wiretap authorizations and the Crown had a concrete plan to move the very complex case forward: at para. 48.
[201] R. v. Bulhosen, 2016 ONSC 7284, was a case involving conspiracy to traffic in cocaine, money laundering, and committing offences in association with a criminal organization. The net delay was 35 months. There was voluminous disclosure – 250,000 documents stored in 220 gigabytes of data, plus approximately 1.5 terabytes of data that represented the contents of 100 seized electronic devices. Further, there was approximately 100,000 audio intercepts, 400 of which the Crown intended to use at trial. At trial, the Crown intended to call 220 witnesses including 22 expert witnesses. It involved multiple accused. The Court held that the case was particularly complex and therefore the delay was reasonable taking into account the Crown’s reasonable plan to manage the complexity of the case.
[202] In R. v. Bullen, 2017 ONSC 6204, 399 C.R.R. (2d) 338, a cocaine trafficking case involved more than 15 years of work by law enforcement, including over 100,000 intercepts, and hundreds of hours of surveillance of conduct in both Quebec and Ontario involving both French and English communications. Charges were brought against eight individuals. The court held that the case was exceptionally complex and the delay was justifiable.
[203] Majeed was a complicated fraud case involving a net delay of 39 months, 19 days. It involved multiple accused, 90 police interviews, 60 judicial authorizations, and tens of thousands of pages of disclosure. The court held that the particular complexity justified delay. The trial judge took into account that the Crown had made efforts to manage the complexity by assisting the defendants in accessing and understanding complicated disclosure, breaking up the prosecution into groups, and reducing the number of accused by offering agreements for cooperation.
[204] I agree with the applicants that the aforementioned cases are on a different order of magnitude when it comes to complexity.
[205] In a complex prosecution, the Crown is expected to develop and follow a concrete plan to minimize delay caused by complexity: R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, at para. 2. In certain cases, the Crown’s decision to proceed jointly against co-accused is justified as an exceptional circumstance adding to the complexity of a proceeding, so long as proceeding jointly is in the interests of justice.
[206] However, the Crown must be “alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused’s s. 11(b) right.” Where the Crown shows that it has reasonably mitigated the delays associated with such a case, multiple accused persons is a factor which increases the complexity of a prosecution and justifies a lengthier time to the end of trial. So long as it is in the interests of justice to proceed jointly, such delays are taken into account under the exceptional circumstances analysis: Jordan, at paras. 77-79; R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at paras. 6-7; Cody, at para. 30; and Gopie, at paras. 123-142,167-171, 174.
[207] I accept that the Crown made great efforts to get this matter through the preliminary hearing to the Superior Court for trial, including significant steps taken towards the end of the evidence phase. However, even if I were satisfied that the level of complexity arises in this joint prosecution, the Crown’s plan to minimize any delay due to complexity during various stages of this trial tended to wane. As mentioned, it was the defence that reduced much of the complexity involved in this trial by making a number of significant concessions, which had the effect of appreciably reducing the number of witnesses for trial and the admissibility of medical evidence.
[208] Even after accounting for some moderate complexity, the joinder of three accused, interpreters, medical evidence, and voluminous disclosure; in my opinion this case does not appear to qualify as a particularly complex case.
CONCLUSION
[209] Having regard to the overall s. 11(b) and Jordan analysis, I conclude that there was a total delay of 43½ months. With the deductions for explicit defence waiver of five and a half (5½) months and my determination that there was no conduct of the defence amounting to a delay, this leaves a net delay of 38 months.
[210] When I factor in the exceptional circumstances of the discrete events of Mr. Levy’s illness during the trial, with the underestimation of trial time by counsel, albeit arrived at on a good faith basis; a further six (6) months is deducted from the net delay equation. The remaining delay is 32 months.
[211] There is no doubt that this trial involves very disturbing facts giving rise to extremely serious allegations of prolonged domestic assaults and abuse. Indeed, this case is far from what can be described as a “typical domestic violence” case; with the profusion of alarming and dire incidents, its moderate complexity, divergent facts, and voluminous disclosure. Nonetheless, for all of the aforementioned reasons, I am not persuaded that this case is “particularly complex” as it has been interpreted and explained by numerous courts and leading appellate jurisprudence.
[212] In other words, it does not rise to the level of complexity that would justify a delay beyond the presumptive 30 month ceiling as the Supreme Court of Canada contemplated in Jordan.
[213] The Crown attorney concedes, with full agreement of applicants’ counsel that the “Jordan” transitional provisions do not apply in this case.
[214] The remaining delay of 32 months exceeds the Jordan guidelines for trial in the Superior Court and is presumptively unreasonable.
[215] On my full assessment of all of the relevant considerations and legal principles, I am not satisfied that the Crown has discharged its onus and established that the passage of time is nonetheless reasonable.
[216] Therefore, the application is granted. The applicants’ rights pursuant to s. 11(b) of the Charter to be tried without reasonable delay have been breached and they are entitled to a remedy.
[217] In accordance with s. 24(1) of the Charter, I impose a stay of proceedings. My Reasons for judgment in respect of the substantive trial, [Citation: 2018 ONSC 7066] shall be sealed, pending a further order of this Court.
A.J. GOODMAN J.
Released: December 3, 2018
COURT FILE NO.: 15-3517
DATE: 2018-12-03
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
-and-
ADEEL SAFDAR
-and-
SHAHEEN SAFDAR
-and-
AATIF SAFDAR
Applicants
RULING ON APPLICATION PURSUANT TO SECTIONS 11(b) & 24(1) OF THE CHARTER
A. J. Goodman J.
DATED: December 3, 2018
[^1]: Actually it is 45 days as the Crown neglected to factor in trial sitting days on January 11 and 15, 2018.
[^2]: On rare occasions, often in conjunction with other Charter breaches, various courts have awarded damages and other declaratory relief.
[^3]: Given that only 11 more days were required, it may be argued that had the Crown been available in June, the trial could have been completed by the end of June.