FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] Siffedine Bilachi and Nacim Hamouni stand charged with offences related to human trafficking. The allegations are that both men took part in recruiting and benefitting from the sexual exploitation of a young woman in late 2016.

[2] Mr. Bilachi and Mr. Hamouni bring an application pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms alleging their right to a trial within a reasonable time has been breached. As a consequence, both seek a stay of the proceedings.

[3] For the following reasons, the application is dismissed.

The Timeline

[4] The timeline relating to the applicants’ prosecution unfolded as follows:

7 November 2016: Both applicants were arrested pursuant to a warrant as they drove from Toronto to Montreal.

7 December 2016: The applicants made their first appearance in the Ontario Court of Justice. The matter was adjourned to 11 January 2017 for the Crown to provide disclosure.

11 January 2017: Initial disclosure was provided to the defence and the matter was adjourned to 1 February 2017.

1 February 2017: It is unclear what happened on this date as the defence failed to provide a transcript.

13 March 2017: A judicial pre-trial was scheduled for 18 April 2017 and further disclosure was provided.

18 April 2017: The judicial pre-trial was held and the Crown indicated that it needed to “follow up” on further disclosure. The matter was remanded to 15 May 2017.

15 May 2017: Further disclosure was provided, and defence counsel asked for the matter to be adjourned to permit review of the material.

5 June 2017: Counsel indicated that they were waiting for surveillance video. The matter was put over to 12 June 2017 to schedule a second judicial pre-trial.

12 June 2017: More disclosure was provided to the defence and the second judicial pre-trial was scheduled for 12 July 2017 after Mr. Bilachi’s counsel, Mr. McCuaig, declined an earlier date of 28 June 2017 because he was unavailable.

12 July 2017: The second judicial pre-trial was held and a two day preliminary inquiry was set for 7 and 9 March 2018.

7 March 2018: The preliminary inquiry commenced and concluded on 9 March 2017. Both applicants were committed for trial and scheduled to make their first appearance at the Superior Court of Justice on 19 April 2018.

19 April 2018: The matter appeared for the first time at the Superior Court of Justice and a judicial pre-trial was held. A trial date of 8 March 2019 was set.

26 February 2019: The Crown provided voluminous disclosure of data extracted from the mobile phones seized from the applicants.

8 March 2019: On the trial date, the defence sought an adjournment of the trial because of the late disclosure by the Crown. Crown counsel also informed the court that because he was conducting another homicide case that had overrun its scheduled completion date, he was unable able to begin the trial. The presiding judge granted the adjournment, on consent. A new date was sought from the trial co-ordinator’s office.

The first date available to both the court and the Crown was 1 April 2019. Counsel for Mr. Hamouni, Mr. Embrey, was also available. However, counsel for Mr. Bilachi, Mr. McCuaig, was not and could not start the trial any earlier than 2 July 2019 due to various commitments.

THE LEGAL FRAMEWORK IN DELAY CASES

[5] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada fundamentally changed the law relating to s. 11(b) Charter applications set out in its previous R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, decision.

[6] The Court imposed strict timelines for the completion of criminal cases: 30 months for offences tried in the superior court and 18 months for those tried in the provincial court. Any delay beyond these time limits was presumed unreasonable.

[7] Jordan also introduced a new method of calculating delay periods. The time accruing from the date of charge to the end of the trial is “the total delay”. Any delay periods attributable to the defence (“defence caused delay”) must be subtracted from that total leaving a “net delay” figure.

[8] If the “net delay” exceeds 30 months in the superior court, the Crown can only seek to justify the excess by demonstrating the existence of exceptional circumstances: Jordan, at paras. 47, 68-75. For cases commencing prior to Jordan, the Crown may rely on the “transitional period exception”, using the Morin standards to determine whether the delay was unreasonable.

[9] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal for Ontario, set out the following step-by-step approach to determine whether an accused’s s. 11(b) rights had been breached:

(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial

(2) Subtract defence delay from the total delay, which results in the “net delay”

(3) Compare the net delay to the presumptive ceiling

(4) 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. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases

(5) 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

(6) 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

(7) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

DOES GODIN SURVIVE JORDAN?

The Positions of the Parties

[10] There is little dispute that the total delay in this case amounts to just over 32 months. Nor is there disagreement that the period from 28 June 2018 to 12 July 2018 constitutes defence delay because of the lack of defence availability for the second judicial pre-trial set at the Ontario Court of Justice.

[11] The point of contention in this case arises from the reason that the trial date was adjourned from 8 March 2019 to 2 July 2019. As noted, when the adjournment was granted, the Crown sought the earliest date possible for trial and obtained 1 April 2019, to keep the trial within the Jordan deadline. Although Mr. Embrey, was available, Mr. McCuaig, was not. Mr. McCuaig’s other court commitments meant that the trial had to be adjourned to 2 July 2019.

[12] The applicants argue that defence counsel’s lack of availability does not amount to defence delay in circumstances where matters are adjourned due to the Crown’s failure to provide disclosure. They rely on the reasons in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, a pre-Jordan case which holds that the Crown must offer multiple dates to accommodate the defence rather than a single date, and further that the defence could not be expected to hold itself in a state of perpetual availability to accommodate the system.

[13] The defence argue that Godin survives Jordan. However, the Crown submits that the Jordan clock stopped ticking on 1 April 2019, and that any subsequent delay was caused by the defence - in this case Mr. McCuaig’s lack of availability.

Does Godin Still Apply?

[14] The s. 11(b) framework under Morin had conflicting caselaw on the question of defence unavailability.

[15] In R. v. P.A. (2002), 2002 CanLII 53216 (ON CA), 161 O.A.C. 128 (C.A.), the Crown sought an adjournment of a trial that led to the setting of a new date five months later due to defence counsel’s unavailability. However, both the Crown and the court could have accommodated a new trial within three weeks. The majority of the Court of Appeal for Ontario found that any delay beyond the first trial date offered should not be counted against the Crown. The Supreme Court of Canada in a brief two line endorsement upheld the decision for the reasons of the majority.

[16] Six years later the Supreme Court of Canada revisited the issue in Godin. There, the Crown was late in providing disclosure to the defence resulting in the accused’s preliminary inquiry set for September 2006 having to be re-scheduled. The Crown offered a date in December 2006 but the defence was not available. The matter was adjourned to the following February 2007. The trial judge stayed the matter on s. 11(b) grounds. The Court, without referring to P.A., held that even when the Crown obtained the earliest date after successfully being granted an adjournment, the delay clock did not stop if defence counsel was unavailable when the Crown had caused the matter to be adjourned. In the Court’s view, s. 11(b) did not “require defence counsel to hold themselves in a state of perpetual availability”: Godin, at para. 23.

[17] Post-Jordan, there have been few cases on the issue. In R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, the court referred to the principles expressed in Godin but did not express a decisive view as to their continued validity under the new Jordan regime. In the result, the Court of Appeal found that the trial court had incorrectly stayed charges against multiple accused by mischaracterising delay caused by defence unavailability as institutional rather than defence delay.

[18] Cases from the Ontario Court of Justice differ on Godin’s continued existence.

[19] In R. v. Gasana, 2016 ONCJ 724, and R. v. Grewal, 2018 ONCJ 108, 405 C.R.R. (2d) 30, Monahan J. took the view that Jordan had indeed overruled Godin.

[20] The applicants rely upon the countervailing reasons in R. v. Zikhali, 2019 ONCJ 24, where Burstein J., relying on Albinowski, found that the Godin principles were part of the Jordan calculation when a case needed to be re-scheduled. Burstein J. relied upon para. 32 of Albinowski where Roberts J.A. explained the reasoning in Godin as being “grounded firmly in the circumstances of that case -- specifically, the Crown's responsibility for the need to reschedule and the attempts by the defence to expedite the proceedings”.

[21] With respect, I disagree with the reasoning in Zikhali, and for the following reasons find that Godin has implicitly been overruled by Jordan.

[22] First, the clear words from the Supreme Court of Canada are that the clock stops “if the court and the Crown are ready to proceed, but the defence is not”: Jordan, at para. 64; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 30; R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 34, leave to appeal dismissed, 2017 S.C.C.A. No. 392. Significantly, the Supreme Court in Jordan added, at para. 64:

…However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 2003 CanLII 24447 (ON CA), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82). [emphasis added]

[23] The comments made in Jordan appear to make clear that when the defence is unavailable, that period of time cannot be counted in the calculation of total delay.

[24] Secondly, the comments made by Roberts J.A., at paras. 32-33, in Albinowski, and upon which the court in Zikhali placed great emphasis, must be read in their entirety:

It is important to recall the circumstances under which Cromwell J. for the Supreme Court made these statements. The determination in Godin, that defence counsel was not responsible for one month and a half of delay because he was not available on the earliest date offered for the rescheduled preliminary inquiry, was grounded firmly in the circumstances of that case -- specifically, the Crown's responsibility for the need to reschedule and the attempts by the defence to expedite the proceedings.

That is not the present case. Here, defence counsel rejected multiple dates offered for the scheduling of the judicial pre-trials and the preliminary inquiry. The reason for their unavailability was clear: they were engaged with previously scheduled professional commitments. Their unavailability was not related to "defence actions legitimately taken to respond to the charges", such as "preparation time" and "defence applications and requests that are not frivolous": Jordan, at para. 65. Thus, as Jordan further directs, at para. 64, their unavailability, when the Crown and court were available, fell squarely within the category of delay that counts against the defence:

As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. [emphasis added]

[25] It seems clear that Roberts J.A. was not endorsing the principles in Godin as overriding the time limits set in Jordan but finding that defence unavailability was “defence caused delay” and therefore had to be deducted from the total delay, as required by Jordan.

[26] Thirdly, it would seem odd that the Supreme Court of Canada in Jordan would impose a strict time limit on the Crown, force it to justify the delay in excess of the time limit, and not mention the fact that the “goalposts” would be moved in the event of an adjournment and defence unavailability. Indeed, it is hard to understand how the Crown could ever justify the excess delay through the mechanisms allowed by the Court - exceptional circumstances or complexity - simply because the case exceeded the Jordan time limit only because the defence was unavailable by reason of their other commitments.

[27] Fourthly, permitting defence counsel’s availability based on their other work commitments to be a factor in the Jordan calculation would lead to undesirable results: the accused who had a “busy” or “fully booked” counsel would have a better s. 11(b) right than an accused whose counsel’s work calendar was more sparse. The s. 11(b) right would, in effect, become that of counsel rather than the accused. It is hard to believe that the Supreme Court of Canada would have intended this result when re-writing the law on delay.

[28] Moreover, even if Godin applied in this case, there could be no “range of dates” on offer: 2 July 2019 was the first date that Mr. McCuaig was available for trial.

[29] Finally, the reasoning in Godin appears to be at odds with the clarity based approach underpinning the presumptive ceilings outlined in Jordan. Indeed, the court in Jordan, at para. 32, pointed out that one of the Morin framework’s flaws was the “endless flexibility” that made it “difficult to determine whether a breach has occurred”.

[30] In Jordan, the Court swept away the Morin framework in its entirety, replacing it with a clearer, easily identifiable time limit. The court placed the onus of ensuring an accused’s right to be tried within a reasonable time on the Crown and the courts by mandating a trial date within a 30 month or 18 month ceiling. Once the system had ensured the accused’s right, as it had in this case, the accused’s rights had been protected. The introduction of pre-Jordan principles such as Godin into the mix significantly undermines the stated aims set out in Jordan.

[31] This change in framework was recognised most recently in R. v. Bulhosen, 2019 ONCA 600, at paras. 96-97, where Strathy C.J.O. wrote:

It bears repeating that Jordan established a new framework for the s. 11(b) analysis. As this court has observed, the Supreme Court “rewrote the law on unreasonable delay ... with the release of its decision in Jordan”: R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 24, leave to appeal to S.C.C. refused, [2017] S.C.C.A. No. 392; see also Coulter, at para. 60.

Other than in transitional cases, which the Crown concedes this is not, pre- Jordan constructs have little utility in the Jordan analysis. [Emphasis added]

[32] In my view, the Godin principles are one of the “pre-Jordan constructs” which no longer apply in the Jordan framework.

Below the Presumptive Ceiling

[33] I would add, however, that in the circumstances of a re-scheduled trial date occasioned by a Crown requested or related adjournment, an accused may still seek to establish that their s. 11(b) right has been breached by arguing delay below the presumptive ceiling.

[34] In order to do so, the defence must show that: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have: Jordan, at para. 82.

[35] In the circumstances of this case, Mr. McCuaig, on behalf of the applicants expressly disavowed reliance on this branch of Jordan. However, he further argued that notwithstanding his primary reliance on Godin, the delay in this case fell at the feet of the Crown because the trial should have commenced on 8 March 2019. Despite Mr. McCuaig’s submission that he was not arguing unreasonable delay below the presumptive ceiling, this argument sounds very much like the same thing.

[36] In any event, I reject the argument. As I have explained, the Crown and the court provided a date within the 30 month ceiling. In seeking to establish unreasonable delay below that ceiling, the defence have not shown that they took meaningful steps to expedite the matter.

[37] In this case, the adjournment was caused by the late disclosure of extracted cell phone data. There were technical issues relating to the extractions. The Crown notified the defence of these issues. Defence counsel were aware of the potential disclosure prior to the preliminary inquiry. The matter was raised during the Superior Court of Justice judicial pre-trial held on 19 April 2018 where the Crown again notified defence of the difficulties in fully retrieving the data. On 14 January 2019 defence counsel were advised that summaries of the cell phone records were available for collection at the Crown’s office. However, that disclosure was not collected. Finally, full disclosure was provided on 26 February 2019, one week before the trial.

[38] I accept that disclosure obligations rest with the Crown. However, in the s. 11(b) context, the actions of the defence must be scrutinised when deciding whether delay below the presumptive ceiling was unreasonable.

[39] Just as the Crown is responsible for disclosure, the defence bears an obligation to diligently pursue disclosure that they know exists: R. v. Bramwell (1996), 1996 CanLII 352 (BC CA), 106 C.C.C. (3d) 365 (B.C.C.A.), aff'd 1996 CanLII 156 (SCC), [1996] 3 S.C.R. 1126; R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244. As I have already noted, the defence were aware of the data that was in the process of being extracted from the seized cell phones more than a year in advance of the trial. However, there was no evidence before me as to any steps taken by the defence to obtain that disclosure. The cell phones were seized by police upon arrest and the defence must have known of the potential significance of the information contained therein. As stated in Dixon, at para. 55:

It must be remembered that defence counsel is not entitled to assume at any point that all relevant information has been disclosed to the defence. Just as the Crown's disclosure obligations are ongoing, and persist throughout the trial process, so too does defence counsel's obligation to be duly diligent in pursuing disclosure. To do nothing in the face of knowledge that relevant information has not been disclosed will, at a minimum, often justify a finding of lack of due diligence, and may, in certain circumstances, support an inference that counsel made a strategic decision not to pursue disclosure.

[40] In my view, once the applicants knew of the potential extractions and certainly after the Crown had notified the defence of the summaries of the cell phone data, the defence were obliged to take steps to ensure that they received full disclosure of the data in a timely fashion before trial. They did not do so in this case.

CONCLUSION

Calculation in this Case

[41] For the foregoing reasons, I find that the delay between 1 April 2019 and 2 July 2019 was defence caused delay due to Mr. McCuaig’s unavailability.

[42] Deducting that three month period of time from the total delay to the anticipated end of trial would amount to 29 months and 6 days. I deduct a further 14 days to account for Mr. McCuaig’s lack of availability to attend a judicial pre-trial on 28 June 2017 causing it to be re-scheduled to 12 July 2017.

[43] These deductions for defence caused delay bring the net delay to 28 months and 14 days, a period below the presumptive ceiling.

[44] For these reasons, the application to stay the proceedings is dismissed.

S.A.Q. Akhtar J.

Released: 4 September 2019

COURT FILE NO.: CR-18-10000196-0000

DATE: 20090904

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SIFFEDINE BILACHI AND NACIM HAMOUNI

RULING ON APPLICATION TO STAY PROCEEDINGS PURSUANT TO S. 11(B) OF THE CHARTER

S.A.Q. Akhtar J.

R. v. Bilachi, 2019 ONSC 5149

Case Summary

FACTUAL BACKGROUND AND OVERVIEW

Introduction

The Timeline

THE LEGAL FRAMEWORK IN DELAY CASES

DOES GODIN SURVIVE JORDAN?

The Positions of the Parties

Does Godin Still Apply?

Below the Presumptive Ceiling

CONCLUSION

Calculation in this Case

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 2

Legislation 1