Court File and Parties

COURT FILE NO.: CRIMJ(P) 1363/18 DATE: 20190417

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN C. Lynch, for the Crown

• and -

WAQAR ALI L. Daviau, for the defence

HEARD: April 8, 2019 at Brampton

Ruling on 11(b) Charter Application

André J.

[1] Mr. Waqar Ali brings an application pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) for an order declaring that his right to have a trial within a reasonable period has been infringed and that pursuant to s. 24(2) of the Charter, the charges of sexual assault and assault causing bodily harm he currently faces should be stayed.

[2] For the reasons indicated below the application is dismissed.

Background Facts

[3] The Toronto Police Services (TPS) charged Mr. Ali on June 14, 2016, in Toronto, with one count of sexual assault on M.P., pursuant to s. 271 of the Criminal Code, and one count of assault cause bodily harm on M.P., pursuant to s. 267 (b) of the Criminal Code, arising out of an incident that occurred on June 12, 2016.

[4] Mr. Ali was arrested on June 14, 2016 and released on bail on June 15, 2016.

[5] While Crown counsel considered their election, dates were set for either a trial or preliminary inquiry to take place on January 18, 19, 22, 2018. Crown counsel elected to proceed summarily on May 30, 2017.

[6] On September 22, 2017, counsel for Mr. Ali sought an adjournment of the January 2018 trial dates. As a result the court vacated the January 2018 trial dates and new trial dates of August 1, 2, 3 and 7, 2018 were scheduled.

[7] On June 18, 2018, the Peel Regional Police Force (PRPF) arrested and charged Mr. Ali with one count of sexual assault on S.JS., pursuant to s. 271 of the Criminal Code, and one count of theft under $5,000, pursuant to s. 334 (b) of the Criminal Code, arising out of an incident that allegedly occurred on February 27, 2016. Crown counsel proceeded by way of indictment. Mr. Ali was released on bail on June 19, 2018.

[8] On June 28, 2018, a confirmation hearing was held on the initial Toronto charges, and defence counsel confirmed trial readiness for the trial scheduled to commence on August 1, 2018.

[9] On July 16, 2018, Crown counsel laid a new Information, sworn July 10, 2018, joining the Toronto and Peel charges. Defence counsel did not consent to the joinder. Mr. Ali’s Toronto trial date on August 1, 2018, was vacated when Crown counsel withdrew the Toronto Information on July 24, 2018.

[10] On December 13, 2018, following a preliminary hearing, Crown counsel filed an Indictment with three charges, the charge of sexual assault against S.J-S. in the City of Mississauga, the charge of sexual assault, and assault, pursuant to s. 267 (b) of the Criminal Code, on M.P. in the City of Toronto.

[11] Mr. Ali’s trial on the new Indictment with both sets of charges is scheduled to take place in Peel Region on June 3, 2019 through to June 14, 2019.

[12] The total delay period between the date Mr. Ali was originally charged to the anticipated end of his trial in June 2019 is approximately 36 months.

Applicant’s Position

[13] After accounting for defence delay of 5 months and 24 days, a total delay of 30 months and 6 days is over the presumptive ceiling established by R. v. Jordan, 2016 SCC 27, for superior court matters. Nothing in this case warrants a departure from the presumptive ceiling.

[14] In the alternative, even if the delay falls below the presumptive ceiling, the delay is unreasonable. Mr. Ali was ready for his trial set to commence on August 1, 2018. Further, the applicant took meaningful steps that demonstrate a sustained effort to expedite the proceedings and to bring this matter to trial. The case has taken markedly longer than it reasonably should have.

[15] Mr. Ali further asserts that the joinder of the Informations was improper; the two sets of charges were from separate jurisdictions, one proceeding summarily, the other by Indictment, the complainant is different and unrelated with respect to both incidents, which occurred at different times on different dates. The joinder was done without defence consent and was not in the interests of justice.

Crown’s Position

[16] The Crown submits that: (a) The net delay in this case is below the presumptive ceiling established in R. v. Jordan. (b) There was a defence waiver of 6 months and 16 days between January 22, 2018 and August 7, 2018. (c) The change in the first trial date was beyond the Crown’s control and therefore the delay caused by the setting of a new trial date is not attributable to the Crown. (d) Mr. Ali’s s. 11 (b) rights have not been violated in this case.

Governing Principles

[17] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time.

[18] The Supreme Court of Canada noted in Jordan that trial delay in the provincial court is presumptively unreasonable when it exceeds 18 months, while trial delay in the superior court is presumptively unreasonable when it exceeds 30 months.

[19] In R. v. Coulter, 2016 ONCA 704, at paras. 34-41, the Court of Appeal for Ontario summarized the key elements in Jordan as they relate to an assessment of delay for the purpose of a s.11(b) analysis:

A. The New Framework Summarized

34. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

35. Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

36. Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

37. If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

38. Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

39. 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 (Jordan, at para. 80).

40. If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

41. The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96).

[20] Regarding defence delay the Court noted at paras. 42 – 44 of Coulter:

B. Key Elements in the New Framework

(1) Defence Delay

42. Defence delay has two components: (1) that arising from defence waiver; and (2) delay caused solely by the conduct of the defence (“defence-cased delay”) (Jordan, paras. 61 and 63).

43. Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights (Jordan, para. 61).

44. Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64).

[21] The Court of Appeal in Jordan further noted, with respect to exceptional circumstances:

45 If the Net delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.

46 Exceptional circumstances lie outside the Crown’s control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be entirely uncommon (Jordan, para. 69).

[22] In Jordan, the Supreme Court noted at paras. 77 and 88 that:

As indicated, exceptional circumstances also cover a second category, namely, cases that are particularly complex. This too requires elaboration. Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified.

The reasonable time requirements of the case will increase proportionally to a case’s complexity.

[23] The Supreme Court expanded on “complexity” in the application of Jordan. In R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, it stated, at para. 64 that:

Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative assessment…Complexity cannot be used to deduct specific periods. … Instead, once … any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time the case has taken and rebut the presumption that the delay was unreasonable.

Discrete Events

[24] As noted in Jordan, at paras. 72 - 76, examples of discrete events which may rebut the presumption of unreasonableness are medical or family emergencies, extradition, and deportation of a witness. Issues regarding defence proceedings are not, in principle, discrete events as contemplated in Jordan: see Jordan, at para. 177. Furthermore, “complications” in obtaining full disclosure from a government agency does not amount to a discrete event that warrant a reduction in the total delay: R. v. King, 2018 NLCA 66, at para. 131.

Analysis

[25] Whether s. 11(b) has been violated depends on an assessment of the total period of delay from which is subtracted periods that are waived, either implicitly or explicitly or periods of defence caused delay.

[26] Defence delay covers “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.” Defence-caused delay does not include “actions legitimately taken” to respond to charges, such as preparation time and legitimate disclosure requests and applications.

Total Delay Period

[27] The parties agree that the total delay period in this case, for the purpose of a s. 11(b) analysis, is approximately 36 months.

Waiver of Time Periods

[28] There are two periods of delay that raise the issue of waiver in this case namely:

1. January 10, 2017 to March 28, 2017.
2. January 18, 2018 to August 1, 2018.

January 10, 2017 to March 28, 2017 Delay Period

[29] On January 10, 2017 Mr. Ali changed counsel as was his right. His new counsel adjourned the matter to the first week of February 2017 because of a need “to review this disclosure from scratch”. As a result of this request the matter was adjourned to January 31, 2017. On January 31, 2017, Mr. Ali’s new counsel adjourned the matter to February 21, 2017 to continue discussions with the assigned Crown and to review the new disclosure. On the latter date, the matter was adjourned on consent to March 28, 2017, for a judicial pretrial. The agent for Mr. Ali’s counsel advised the court that “[s]ome other dates were canvassed but, however, Ms. Daviau was doing a lengthy dangerous offender case and in Hamilton, so her availability is limited.”

[30] In my view, this delay period is attributable to the applicant given that it resulted from the change of counsel, the need for Mr. Ali’s new counsel to review the disclosure, and Ms. Daviau’s limited availability for a judicial pretrial prior to March 28, 2017. The Crown and the court appeared to have been ready to accommodate an earlier judicial pretrial date but the applicant was not. This delay is therefore attributable to him.

January 18, 2018 to August 1, 2018 Delay Period

[31] On September 22, 2017, Mr. Ali successfully brought an application for the adjournment of his trial/preliminary hearing scheduled for January 18, 19, 2018. The Crown advised the court that “given the circumstances of my friend’s request and given the fact that 11(b) is being waived between the previously scheduled trial date and the new trial dates, the Crown is not opposed to the request.” Mr. Ali’s counsel later advised the court that “we took the first available dates which are August 1, 3, 7, 2018”. On June 28, 2018, the Crown and defence confirmed these trial dates.

[32] On July 16, 2018, the Crown swore a new information with the Toronto and Brampton charges against Mr. Ali. On July 24, 2018, they withdrew the Toronto charges against Mr. Ali and cancelled the August trial dates for this trial. The Crown advised the court that the Crown was now going to be proceeding with the Old City Hall sex assault in Peel and invited the court to withdraw the Toronto charges against Mr. Ali. The Crown also noted that disclosure on the Old City Hall charges was complete.

[33] In my view, the delay period between January 18, 2018 and July 24, 2018 is attributable to the defence. This delay flowed from Mr. Ali’s decision to adjourn his original trial date. As of July 24, 2018, the August trial date was no longer available primarily because of the Crown’s decision to withdraw the Toronto-based charges and instead proceed with a new indictment in Peel encompassing the Toronto and Peel allegations against Mr. Ali.

[34] The delay following August 1, 2018 to the end of the trial in June 2019, is partly attributable to the Crown. There was no pressing reason why the two matters had to be consolidated. The dates of the alleged offences, their locations and the alleged victims were all different. The Crown would have or should have known that combining the two sets of allegations would likely have delayed the trial of the Toronto charges.

Net Delay

[35] In my view net delay in this case is 36 months, less 2 months and 18 days (i.e. January 10, 2017 to March 28, 2017) and less 6 months and 7 days (i.e. January 18, 2018 to July 24, 2018) or 27.25 months approximately.

Where Net Delay is Below the Presumptive Ceiling

[36] To establish that his s. 11(b) rights have been infringed where the net delay is below the presumptive ceiling, the applicant must establish the following:

(1) it took meaningful steps to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have: see R. v. Jordan, 2016 SCC 27, at paras. 48, 82; R. v. Coulter, 2016 ONCA 704, [2016] O.J. No. 5005 (C.A.), at paras. 53, 87.

[37] Mr. Ali’s counsel submits that she took meaningful steps that demonstrate a sustained effort to expedite the proceedings. There is no doubt that counsel moved the matter along even if not fully retained after the first trial date was vacated. For example, she participated in a judicial pretrial before being retained and set the earliest available dates for a preliminary hearing. However, the matter appeared in court on December 14, 2018. Ms. Daviau advised the court that s. 11(b) is a “live issue”. The court then asked the Crown at page 8 of the transcript: “… is the Crown prepared to prioritize this case?” The Crown replied “yes”.

[38] The court then advised the Crown to put the case “on a list that’s already full and the Crowns will decide which ones don’t go…”

[39] The Court was prepared to put the matter on the January trial list; however, Ms. Daviau advised the court that she was involved in a long trial scheduled to commence in early January 2019 and that as a result, her first availability for the trial or to argue the 11(b) would be in April 2019. She later stated that she was not available in May for the trial and that she could start the trial on June 3, 2019.

[40] While I am mindful of the judicial admonition that courts should not presume that defence counsel are perpetually available, Ms. Daviau did not provide information regarding why she was unavailable in May for the trial.

[41] In my view, based on this exchange between Ms. Daviau and the court, I cannot conclude that Mr. Ali took meaningful steps that demonstrated a sustained effort to expedite the proceedings. Neither can I conclude that the case took markedly longer than it reasonably should have. Indeed, but for the unavailability of Mr. Ali’s counsel, the trial in this matter could have been accommodated as early as January 2019.

Conclusion

[42] For the above reasons, the application is dismissed.

André J. Released: April 17, 2019