Court File and Parties

COURT FILE NO.: 15-G5558 DATE: 20190404 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – FORHAD CHOUDHURY

Counsel: Giuseppe Cipriano, Counsel for the Crown Richard Addelman, Counsel, for the Accused

HEARD: March 28, 2019 (Ottawa)

Reasons for Decision

Madam JUSTICE J. PARFETT

[ 1 ] Defence counsel requests a stay of proceedings on the basis that Forhad Choudhury’s rights pursuant to s. 11(b) of the Charter of Rights and Freedoms [1] have been infringed. For the reasons that follow, I do not find there has been a breach of this accused’s right to be tried within a reasonable time.

Overview

[ 2 ] The accused, Farhad Choudhury was charged with trafficking in narcotics, possession of narcotics for the purpose of trafficking and various weapons offences.

[ 3 ] This matter worked its way through the court system without much difficulty until January 2017. On January 20, 2017 a trial date was set for January 22, 2018. On December 12, 2016 at a pre-trial, trial dates were canvassed. The earliest available trial date at that time was January 30, 2017. Defence counsel was not available. In addition, at that time there were trial dates available in virtually every month of 2017. By the time the matter came back on January 20, 2017, the earliest available trial date was December 2017 and defence was not available.

[ 4 ] The matter was brought forward to January 8, 2018 at which time a guilty plea was entered. The matter was adjourned for sentencing on several occasions, ultimately returning to court on June 5, 2018. At that time the guilty plea was struck.

[ 5 ] A new trial date was set for December 10, 2018. However, the trial could not proceed as a crucial Crown witness was ill. The matter was adjourned to a further pre-trial date at which time this date and a trial date of May 31, 2019 was set.

[ 6 ] There is some common ground between counsel with respect to the delay in this matter. Both are agreed that the total delay is approximately 47 months. [2]

[ 7 ] Other facts upon which counsel agree are as follows:

• The delay from June 5, 2018 to December 10, 2018 is a discrete event and must be deducted from the total delay;
• There are periods of delay that was requested by defence and/or where defence waived delay. According to defence those waivers account for 146 days of delay that must be deducted from the total delay; and
• There were earlier dates for this motion and for the current trial date that were available to the court and to Crown, but not to defence.

Legal Principles

[ 8 ] In R. v. Jordan, the seminal case in relation to delay, the Supreme Court of Canada noted that

[t]imely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance. Section 11(b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons “to be tried within a reasonable time”. [3]

[ 9 ] The Supreme Court goes on to observe that

[o]ur system, however, has come to tolerate excessive delays. The circumstances in this appeal are illustrative. Notwithstanding a delay of over four years in bringing a drug case of modest complexity to trial, both the trial judge and the Court of Appeal were of the view that the appellant was tried within a reasonable time. Their analyses are reflective of doctrinal and practical difficulties plaguing the current analytical framework governing s. 11(b). These difficulties have fostered a culture of complacency within the system towards delay. [4]

[ 10 ] The Supreme Court chose therefore, to change the way in which delay is handled by the courts in order to make it easier to determine when delay has become unreasonable and also to encourage all the players in the system to work together to achieve efficiencies.

[ 11 ] The result is the establishment of a ceiling beyond which delay is presumptively unreasonable. For cases that are tried in the Superior Court of Justice that ceiling is 30 months. The period starts when an accused is charged with an offence and ends with the actual or anticipated end of the trial. [5]

[ 12 ] There is a three-step analysis that is to be used:

1. First, calculate the total delay; [6]
2. Second, deduct from the total any delay waived by defence or caused by the conduct of the defence; [7]
3. Third, where the net total exceeds the presumptive ceiling, the onus shifts to the Crown to rebut the presumption of unreasonable delay by demonstrating that there are exceptional circumstances. If the Crown fails to do so, a stay must follow. [8]

Analysis

[ 13 ] As noted earlier the total delay in the present case is just under 47 months. The net delay based on the periods that counsel agree are either defence delay or a discrete event is 36.5 months.

[ 14 ] In this case, there are two periods of time that are critical to the analysis and on which the decision in this case rests. These two time periods account for approximately 16 months of the delay. The time periods in question are first, the delay between the setting of the first trial date in Superior Court – a delay of just under a year and second, the delay between the entering of the plea of guilt and the striking of that plea – a delay of just under 5 months. If both these periods of time are characterised as discrete events, the delay would be deducted from the total delay and would bring the delay under the presumptive ceiling. On the other hand, if these periods of time are characterised as delay that is otherwise not attributable to defence, the net delay would exceed the Jordan limit of 30 months.

[ 15 ] The first period of time involves the setting of the first trial date in Superior Court. On December 12, 2016, there was a pre-trial in the Superior Court at which time a second pre-trial was set for January 20, 2017. At the December pre-trial, the court stated,

We have determined we need another pre-trial and that is set for January 29, 2017 at 12:30pm. Defence counsel…has indicated at pre-trial that he waives section 11(b) rights from today’s date to that next date. We explored what that meant in terms of had he set a trial – and we estimate at maximum a three day judge alone trial – had he set a trial today and the first offer from the court in that event, would have been January 30, 2017, but that was not available in any event, to [defence] and then the trial coordinator confirmed with us that trial dates are virtually available every month in 2017 for a three day judge alone trial. [9]

[ 16 ] On January 20, 2017 the trial date of January 22, 2018 was set. The transcript for that appearance is not available, but the endorsement of the pre-trial judge reads:

Defence confirms that given his unavailability for earlier trial dates in December 2017 as offered by the court and available to the Crown, as well as his request at the December 12, 2016 pre-trial that trial dates not be set, the presently scheduled trial dates do not trigger a s. 11(b) Charter issue. [10]

[ 17 ] Crown’s position with respect to this unusual statement was that even if there was no explicit waiver of s. 11(b), Defence was clearly in no hurry to have a trial and was prepared to accept the delay. Consequently, in Crown’s view this is an example of a clear and unequivocal, albeit implicit, waiver of delay.

[ 18 ] Defence counsel argues that at the December pre-trial, clearly there was a mutual decision not to set trial dates because the court had stated ‘we have determined that we need another pre-trial’ and therefore, the loss of the earlier 2017 trial dates should not be characterised as defence delay. Instead it should be seen as institutional delay. In his view, the statement that the trial date would not ‘trigger a s. 11(b) Charter issue’ was simply an acknowledgment that the total delay was over the 30 month limit. It was not a waiver of s. 11(b) rights.

[ 19 ] I have difficulty with Defence counsel’s position. On January 20, 2017 the court clearly stated that it was defence’s decision not to set trial dates in December when multiple trial dates were available in 2017. Consequently, in my view the loss of trial dates in 2017 must be regarded as defence delay. In addition, I view the statement that the trial date would not ‘trigger’ a delay argument as an implicit waiver of delay.

[ 20 ] This finding brings the net delay to 24 months, well below the Jordan limit. Given my decision with respect to the delay between January 20, 2017 and January 8, 2018, I do not need to deal with the next period. However, in order to complete the analysis, I will do so.

[ 21 ] The next critical period of delay is the period between June 5, 2018 when the guilty plea was struck and December 10, 2018 when the next trial date was set. Defence counsel argues that this date ought to be attributed to the Crown. Crown counsel argues that this delay should be considered a discrete event.

[ 22 ] The circumstances in which the guilty plea was struck are unusual and consequently, deserve some elucidation.

[ 23 ] Crown and Defence had come to an agreement whereby the accused would plead guilty to trafficking, possession for the purpose of trafficking, possession of a weapon for a purpose dangerous to the public peace and possession of a loaded, restricted firearm. The Crown’s case with respect to the drugs was very strong and Defence had always intended to plead guilty to these charges. The sticking point was the firearm.

[ 24 ] The accused rented a room in a house. He had a key to this room and used it on and off. He did not actually reside there, but documents and other items in his name were found in the room by police. The accused took the position that he was aware of the gun in the room, but it was not his gun. Some of the delay in this case was due to the length of time it took Defence counsel to persuade the accused that it was the existence of the accused’s knowledge and control – not ownership – that would result in a conviction for possession of the firearm.

[ 25 ] After the plea of guilt was entered, the matter was adjourned for preparation of a Pre-sentence Report (PSR). There were a couple of adjournments for various reasons and the matter came back to court on June 5, 2018 for sentencing. The probation officer who had prepared the PSR noted that the following:

Although the subject expressed remorse for his drug use and admits to the possession and distribution of drugs, he does not accept responsibility for some of his offence. The subject advised this writer that he never lived at the residence indicated by police and stated that the weapon as well as other things found in this residence were not his. [11]

[ 26 ] Not unnaturally, the court at the sentencing hearing wanted to explore this apparent repudiation of criminal responsibility. There was the following exchange between the court and Defence counsel:

THE COURT: All right. Before we go much further, however, I would like the validity of the guilty pleas to be reviewed.

[DEFENCE COUNSEL]: Yes, yes. And I know what the concern is, Your Honour.

THE COURT: Okay.

[DEFENCE COUNSEL]: I’ve spoken to Mr. Choudhury and it – it revolves around the – the location – or the plea to the firearm. [12]

[ 27 ] There then followed a lengthy explanation from Defence counsel in which he indicated that the plea was based on the fact Mr. Choudhury knew the weapon was in the room and he had an element of control over the weapon, but that the gun was not his to keep or to own.

[ 28 ] The court appeared to accept that explanation and asked Mr. Choudhury directly whether he confirmed what his counsel had said about the gun, which he did. At that point, the court asked the Crown whether they were satisfied with that position. It turned out, they were not.

[ 29 ] There was then a discussion concerning whether the accused’s position indicated only passive acquiescence, which was insufficient to establish possession. [13] Ultimately, the Crown made the following statement:

My concern is the Court has to be satisfied that he didn’t just know the firearm was there. That he possessed the firearm in the sense of [he was] entitled to take it and use it. This was a loaded, restricted firearm. It can only serve one purpose which is protection. There is no other valid purpose for which he could have possessed it – and therefore, it requires an admission that he – he controlled it for that purpose. [14]

[ 30 ] At the end of the day, Defence counsel conceded that the guilty plea had to be struck.

[ 31 ] Crown contends that what occurred on June 5, 2018 was a change in position by the accused that then caused the subsequent delay.

[ 32 ] Crown relies on two cases in which the court held that where Defence changed its position on matters such as evidentiary issues or a plea agreement, the consequent delay was attributed to Defence. In R. v. Serban, [15] the accused had requested the adjournment of the trial on the basis they wished to proceed with an agreed statement of facts, sentence and forfeiture hearing. [16] Crown agreed to the adjournment of the trial. The accused then discharged their counsel and resiled from the agreement. [17]

[ 33 ] The court attributed the delay to Defence and stated,

It was the defence that led the Crown and the court to believe that the proceedings would be dealt with in a different manner. It is unfair for the applicants now to argue that the Crown is responsible because it agreed to the adjournment when the Crown’s agreement to do so was founded on the independent conduct of the defence. The applicants now seek to take advantage of the delay caused by their own change of position. [18]

[ 34 ] Defence argues that in the present case, the accused did not change his position. He wanted to continue with the sentencing hearing. It was always understood that the accused denied owning the gun. Furthermore, Defence stated that Crown’s position with respect to what was required to establish control – an admission that the possession was for the purpose of protection – was wrong in law. Defence relied on the case of R. v. Chambers. [19]

[ 35 ] In that case drugs were found in a bedroom in which women’s clothing and the accused’s purse was also located. It was conceded the drugs were owned by the accused’s boyfriend who also used the room. Defence argued that while there was evidence of knowledge, there was no evidence of control. The Court dismissed that argument stating,

There was evidence that the room in which the drug was found was the respondent’s room and, consequently, she could give or withhold her consent to the drug being in her room. Mr. Code contended, however, that the respondent’s control over the room where the cocaine was found cannot be equated with a measure of control over the drug itself which he said imports the right to the benefit of the drug or its proceeds. We disagree. In our view, the respondent’s right to grant or withhold her consent to the drug being stored in her room gave her the necessary measure of control over the drug essential to constitute “consent” within s. 3(4)(b) of the Code. Mr. Code’s argument, if pressed to its logical conclusion, leads to the startling result that a warehouseman who knowingly stores on his premises drugs for the drug traffickers is not in possession of the drugs in his warehouse, since he has no right to the benefit of the drugs themselves. [20]

[ 36 ] I agree that this case is on point and that the accused’s position in the present case that he did not own the gun and would not have used it, does not change the fact that he knew the gun was in the room and he had a measure of control over the room and its contents. Consequently, the Crown’s position was wrong in law and the delay that followed from the aborted guilty plea should be allocated to the Crown.

[ 37 ] Doing so, however, does not change the net delay, which is below the presumptive ceiling of 30 months. As a result, the applicant’s rights to a trial within a reasonable time have not been breached and the application is dismissed.

Madam Justice J. Parfett Released: April 4, 2019

Footnotes

[1] Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11. [2] See Appendix A for the precise delay calculations. [3] Jordan, at para. 1. [4] Jordan, at para. 4. [5] Jordan, at para. 47; R. v. Manasseri, 2016 ONCA 703, at para. 301. [6] Jordan, at para. 46. [7] Jordan, at paras. 47, 60, 66. [8] Jordan, at paras. 47, 68. [9] Book of transcripts, tab 21. [10] Endorsement on Indictment. Emphasis in the original. [11] Respondent’s record at tab 2, p. 5. [12] Respondent’s record at tab 3 at p. 4. [13] See the case referenced in the discussion: R. v. Williams, [1998] O.J. No. 2246, (C.A.) [14] Respondent’s record at tab 3 at p. 6 [emphasis added]. [15] R. v. Serban, 2017 BCSC 17. [16] At para. 61. [17] At paras. 63 and 68. [18] At para. 70. [19] R. v. Chambers, [1985] O.J. No. 143 (C.A.) [20] At para. 14.