Introduction

[1] Hamza Shaikh and Mohammad Hansa are charged with attempted murder, aggravated assault, robbery, extortion, kidnapping and assault with a weapon.

[2] Mr. Shaikh was arrested on April 7, 2016 and Mr. Hansa was arrested on April 10, 2016. Their trial is currently scheduled to start on February 19, 2019, which is approximately 35 months after the dates they were arrested.

[3] Mr. Shaikh and Mr. Hansa bring an application for a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms on the basis that their right to a trial within a reasonable time pursuant to section 11(b) of the Charter has been breached.

Chronology

[4] The charges against Mr. Shaikh and Mr. Hansa arise out of an incident that occurred on March 27, 2016, when the complainant, John Zikos, was severely beaten.

[5] The significant dates and events since the applicants were arrested are as follows:

a. The first judicial pre-trial was originally scheduled for August 10, 2016, but it was adjourned because Mr. Hansa discharged his lawyer.

b. The first judicial pre-trial was then held on October 25, 2016.

c. On October 25, 2016, a 10 day preliminary hearing was scheduled for May 8, 2017. Dates for the preliminary hearing were offered beginning on March 13, 2017, but, with the exception of a single day on March 24, 2017, Mr. Shaikh's counsel was not available until May 8, 2017.

d. Mr. Shaikh was committed to trial at the conclusion of the preliminary hearing on May 17, 2017.

e. Mr. Hansa was committed to trial on June 1, 2017.

f. On June 7, 2017, both applicants appeared in the Superior Court for the first time, at which time a judicial pre-trial was scheduled for June 23, 2017.

g. On June 23, 2017, the pre-trial proceeded, after which the trial was scheduled to start on September 10, 2018 for three weeks. Earlier dates were offered starting on May 14, 2018, but Mr. Shaikh's lawyer was not available for trial until mid-June.

h. A voir dire into the voluntariness of Mr. Hansa's statement to the police was heard on April 5 and 6, 2018. It was originally scheduled for January 2018, but was rescheduled because Mr. Hansa's lawyer had not filed responding materials on time.

i. On September 5, 2018, the applicants successfully brought an application seeking an adjournment of the September 10, 2018 trial date on the basis that the Crown had failed to provide an adequate extraction report from Mr. Shaikh's cell phone.

j. Following the adjournment, the three week trial was rescheduled to start on February 19, 2019.

Jordan framework

[6] In R. v. Jordan, 2016 SCC 27, at paras. 46 and 47, the Supreme Court set a presumptive ceiling of 30 months for cases, such as this one, that are set to go to trial in the Superior Court. If the total delay between the date of the charges and the anticipated date of trial exceeds 30 months, then the delay is presumed to be excessive, and the matter is to be stayed unless there are exceptional circumstances.

[7] In Jordan, the Supreme Court established a framework to be used in calculating whether a delay falls above or below the presumptive ceiling, and what is to be done in either circumstance. The Jordan framework is as follows:

a. The first step is to calculate the total delay from the date when the charges were laid to the anticipated end of trial. (para. 60)

b. The next step is to calculate the delay solely attributable to the defence, and to deduct it from the total delay. There are two types of defence delay:

i. Delay explicitly waived by the defence; and

ii. Delay solely caused by the conduct of the defence. (paras. 61 and 63).

c. Once the defence delay has been deducted, the next step depends on whether the remaining delay falls below or above the 30 month presumptive ceiling.

d. Where the delay exceeds 30 months, the presumptive ceiling applies and the proceeding is to be stayed unless the Crown can establish exceptional circumstances. Exceptional circumstances are matters that fall outside of the Crown's control, and that the Crown cannot reasonably remedy once they arise. (para. 69)

e. Where the delay falls below 30 months, the defence can still demonstrate that the delay was unreasonable if the "case took markedly longer than it should have" and the defence took meaningful steps that demonstrate a sustained effort to expedite the case. (para. 82)

f. Finally, the Jordan framework applies to cases in which charges were laid before Jordan was decided. However, if the delay exceeds the 30 month presumptive ceiling, the Court may find that "transitional exceptional circumstances" apply if the Crown establishes that the parties reasonably relied on the law as it previously existed. In such cases, the Jordan framework is to be applied more flexibly. (para. 103)

[8] In this case, the Crown does not argue that there are exceptional circumstances justifying the delay. However, the Crown argues that there were delays caused by both Mr. Shaikh and Mr. Hansa that bring the delay below the 30 month ceiling. While the issue was not pressed during the argument of the application, in its factum, the Crown relies on the transitional exceptional circumstances as an alternative argument. For their part, the applicants do not argue that, in the event that I find that the delay falls below the 30 month ceiling, the case should nevertheless be stayed because it took markedly longer than it should have.

[9] While Mr. Shaikh and Mr. Hansa are scheduled to be tried together, their respective fates on this application are not tied. As held by the Court for Ontario in R. v. Gopie, 2017 ONCA 728, at paras. 128-129, delay caused by one defendant is not attributable to the other defendant. Therefore, while there is some overlap between the circumstances and arguments advanced by the applicants, the differences are significant enough to justify considering the application of the Jordan framework to each applicant separately.

Application of the Jordan framework to Mr. Shaikh

A. Total delay

[10] Charges were laid on April 7, 2016, and the trial is scheduled for three weeks starting on February 19, 2018, which means that it is anticipated to go until March 8, 2019. Therefore, the total delay is 35 months and 1 day, which is 5 months and 1 day beyond the 30 month presumptive ceiling set by Jordan.

B. Defence delay

[11] As indicated above, defence delay is comprised of delay explicitly waived by the defence and delay caused solely by the defence.

1. Delay waived by the defence

[12] In this case, during argument, Mr. Shaikh's lawyer acknowledged that the period between March 13, 2017 and May 8, 2017 was delay caused by the defence as it was caused by his unavailability for the earlier pre-trial dates that were offered. The total delay in question is 1 month and 25 days.

2. Delay caused solely by the defence

[13] There are two periods of time that the Crown argues were delays caused solely by the defence, namely the delay caused by the unavailability of Mr. Shaikh's counsel for the original trial dates offered and the delay caused by the trial adjournment.

i. Delay caused by the unavailability of Mr. Shaikh's lawyer for trial

[14] The Crown argues that the period between May 14, 2018 and September 10, 2018 should be counted as defence delay on Mr. Shaikh's part because a trial date was available on May 14, 2018, and the Crown and Mr. Hansa were also available on that date but Mr. Shaikh's lawyer was not available.

[15] Mr. Shaikh's lawyer concedes that the period from May 14, 2018 to the end of June 2018 should count as defence delay due to his unavailability, but that July and August 2018 should not count as defence delay because he was available during that time period. He also argues that, given that the September 10, 2018 trial date was ultimately adjourned due to disclosure issues on the part of the Crown, even if the May 14, 2018 trial date had been scheduled, it would not have gone ahead because the Crown was not ready to proceed on that date.

[16] With respect to the first argument, the issue is whether delay caused by the defence's unavailability includes circumstances, such as here, where the trial is ultimately scheduled a significant amount of time beyond the date when defence counsel becomes available after a period of unavailability. In addressing this issue, it is helpful to review Jordan and subsequent decisions dealing with the issue of delay caused by defence counsel's unavailability.

[17] In Jordan, the majority identified two examples of circumstances in which delays are to be viewed as caused by the defence, namely situations in which the defence takes tactical steps that are deliberate and calculated to delay the proceedings and situations where delay is caused by the defence's unavailability. With respect to defence counsel's unavailability, at para. 64, the Court held as follows:

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. 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...

[18] In R. v. Williamson, 2016 SCC 28, which was decided at the same time as Jordan, at para. 22, the Supreme Court applied this principle to the facts of that case:

We agree with the Court of Appeal that the period from June 23 to August 4, 2010 is delay caused solely by the defence because it is time where the court was available and ready to proceed but the defence was not, and the delay was not associated with legitimate defence preparation time…

[19] In R. v. Cody, 2017 SCC 31, the Supreme Court confirmed the framework for calculating defence delay, reinforcing, at para. 30, that "where the Court and the Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted".

[20] More recently, in R. v. Mallozzi, 2018 ONCA 312, the Court of Appeal for Ontario addressed the issue of defence delay caused by defence counsel’s unavailability. At para. 3, the Court reviewed the relevant principles as follows:

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.

[21] The Court went on, at para. 6, to hold that, even if the defence is available on dates earlier than those offered, if the defence is not ready to proceed on dates when both the Court and the defence are ready to proceed, then the resulting delay is counted as defence delay:

The respondent maintains that his trial counsel had dates earlier than those offered by the court and, therefore, though his counsel was not available on the later dates that were offered, he should not be required to absorb this time as defence delay. We disagree. Jordan is clear that defence delay will arise where the Crown and the court are ready to proceed, but the defence is not. Read contextually, and having regard to the trial verification form, the Crown and the court were ready to proceed. Defence counsel was not. The trial judge erred in failing to consider these 87 days as defence delay.

[22] What is clear from Jordan and the post-Jordan decisions reviewed above is that, where the only reason for a delay in proceeding is the unavailability of the defence, the delay will be counted as defence delay. The cases do not look at whether there is a reasonable explanation for the defence counsel's unavailability; rather, the question is whether the only reason for the delay is the defence's unavailability. If the Crown or the court are also unavailable, this does not count as defence delay, and if the defence is unavailable because of a legitimate need for preparation time, this again does not count as defence delay.

[23] The focus therefore has to be on whether the delay was solely caused by the defence's unavailability.

[24] In this case, the transcript from the June 23, 2017 court attendance to set the trial date reflects that the earliest date offered was May 14, 2018, but that Mr. Shaikh's lawyer was unavailable on that date and that he remained unavailable until at least mid-June of 2018. The trial was ultimately scheduled for September 10, 2018. While in Court, Mr. Shaikh's lawyer noted that he would have been available in October and November 2017, and in April, July and August 2018. There is no explanation in the transcript for why the trial was not scheduled on the dates when Mr. Shaikh’s lawyer was available, including July and August 2018.

[25] Mr. Shaikh's lawyer argues that defence delay should not include the time periods when he was available for trial. However, the Court of Appeal's decision in Mallozzi makes clear that defence counsel's availability for earlier dates is not relevant. Defence delay is counted starting from the time when the Crown and the court are both ready to proceed but the defence is not ready to proceed due to defence counsel's scheduling conflict. Therefore, the availability of Mr. Shaikh’s lawyer during the months of October and November 2017 and during the month of April 2018 is irrelevant.

[26] With respect to the months of July and August 2018 when defence counsel did not have a conflict, the issue is more complicated. As indicated above, the transcript from the June 23, 2017 court attendance does not provide any information about the reason why the trial was not scheduled in July or August 2018. However, what is clear from the transcript is that Mr. Shaikh’s lawyer was available during those two months.

[27] There appears to be tension in the case law about whether the period of defence delay due to counsel unavailability is to include the full period of time from when the Crown and the court could have been available to the next available trial date, or whether it only includes the time period when defence counsel is unavailable. In many cases, this distinction does not make a difference, because, once the Court has a date for trial available, there will be ongoing subsequent dates available. However, in a case such as this one, where the next date when the Crown and the court are available once defence counsel becomes available is more significant, this distinction becomes important.

[28] In R. v. Vidinovski, 2018 ONSC 2971 (Sup. Ct.), I was faced with a similar situation. In that case, defence counsel was unavailable for a single trial date offered. The next available date when the Crown and the court were available was 8 ½ months later. In that case, I found, at para. 39, that this full period could not be characterized as defence delay:

As referred to above, not all situations in which the defence is unavailable for dates on which the Court and the Crown are available can fairly be characterized as delays caused solely by the defence. This proposed 8 1/2 month period is a perfect example. The defence was only offered one trial date two weeks after the pre-trial and another date 8 1/2 months later. In finding that this period cannot be counted as defence delay, my focus is not on the issue of whether it was reasonable for defence counsel to be unavailable, but rather on the reasonableness of the dates offered. The choice between a date in the immediate future and a date more than 8 months later does not arise because of counsel unavailability but, rather, because of the unavailability of a hearing date within a reasonable time. This cannot be characterized as delay caused solely by the defence.

[29] As reviewed above, in Jordan, at para. 64, the Supreme Court clearly stated that periods of time when the Crown and the Court are not ready to proceed are not to count as defence delay. In my view, where, as here, there is a significant period of time between when defence counsel becomes available and the next available trial date, that period of time should not all count as defence delay. The reason the trial did not proceed in July and August is not because of the unavailability of Mr. Shaikh’s lawyer, but because the Crown or the court was unavailable. I therefore accept Mr. Shaikh’s argument and find that, in these circumstances, it would not accord with the principles in Jordan to count July and August 2018 as defence delay.

[30] Mr. Shaikh also argues that, as it turned out, the Crown would not have been ready to proceed on May 14, 2018, because of disclosure issues related to the extraction report from Mr. Shaikh's phone. I address the impact of this issue on the September 10, 2018 trial date in the section below. However, I do not accept that this has any impact on the delay caused by Mr. Shaikh's unavailability for trial in May 2018. Had the trial been scheduled for that date, the extraction report issues would have come to a head earlier. Even if an adjournment had been required, it likely would have been possible to secure a trial date earlier than the current trial date of February 19, 2019. At the point in time when a trial date is set, there will often be some outstanding issues to resolve leading up to the trial. The key question is whether the court and the Crown were available for trial on May 14, 2018 at the time the trial date was being set. Since they were available, there is no basis for engaging in a speculative exercise to determine what would have happened to the May 14, 2018 trial date if it had been set.

[31] Accordingly, I agree with the Crown that the unavailability of Mr. Shaikh’s lawyer for trial as of May 14, 2018 counts as defence delay. However, I do not accept that the full period from May 14, 2018 to September 10, 2018 is to be counted as defence delay. Rather I accept Mr. Shaikh’s argument that the period of delay should be limited to the period from May 14, 2018 to June 30, 2018, which is a period of 1 month and 16 days.

ii. Delay Caused by the Trial Adjournment

[32] As indicated above, the trial scheduled to start on September 10, 2018, was adjourned to February 19, 2019, at the applicants' request.

[33] The applicants requested the adjournment after the Crown advised the defence that it could not produce a complete extraction report for Mr. Shaikh's cell phone, and that it did not intend to rely on the contents of the cell phone as part of its case.

[34] The Crown argues that the delay caused by the adjournment is attributable to the defence, because the defence should have anticipated the need for the extraction report and brought an application for production of a better report at an earlier date. The applicants argue that the delay attributable to the adjournment is not defence delay because the request was made for a legitimate purpose, after the Crown advised it could not produce a better extraction report.

[35] In Jordan, at paras. 63 and 65, the Supreme Court contrasted the circumstances in which the defence's request for more time is to be characterized as defence delay with those that cannot be characterized as legitimately required to respond to the case:

63 The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence 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" (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

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.

[36] Accordingly, in order to decide whether the delay between September 5, 2018 and February 19, 2019 is defence delay, I must consider whether the request for an adjournment was a legitimate step taken for the purpose of responding to the Crown's case.

[37] In order to decide this issue, it is necessary to go over a fairly detailed review of the events surrounding the disclosure of the extraction report that led to the adjournment request.

[38] When Mr. Shaikh was arrested, the police seized his cell phone. The Crown's disclosure included an extraction report from Mr. Shaikh's cell phone. As of March 2017, defence counsel started raising issues with the Crown about the extraction report. The history of communications between the Crown and the defence about the extraction report includes the following:

a. At the March 9, 2017 judicial pre-trial, Mr. Hansa's lawyer advised the Crown that his copy of the extraction report was unplayable and he requested a fresh copy.

b. In May 2017, in the context of the preliminary hearing, counsel for Mr. Hansa and counsel for Mr. Shaikh raised the issue of whether the extraction report was complete with the Crown.

c. The Report to Trial Judge prepared by the Superior Court pre-trial judge on June 23, 2017, states that one of the outstanding disclosure issues includes what is described as the “cell phone data dump”.

d. On September 23, 2017, December 28, 2017 and January 24, 2018, counsel for Mr. Shaikh sent emails to the Crown, seeking updates on the status of the extraction report.

e. On January 26, 2018, Crown counsel sent an email to Mr. Shaikh's lawyer, in which she said she had not forgotten about "the request about cell phone data".

f. In March 2018, a new Crown attorney took carriage of the matter. On March 23, 2018, Mr. Shaikh's lawyer emailed her, stating that he had been waiting for a complete extraction report for almost a year, and inquiring about the status of the complete report. On April 4, 2018, the Crown wrote back, saying that she was following up on the disclosure issue.

g. On May 28, 2018, Mr. Shaikh's lawyer again wrote to the Crown, asking if "there is an ETA on an answer regarding the cell phone extraction".

h. On June 19, 2018, Mr. Shaikh's lawyer followed up once more with the Crown about the extraction report and other matters raised in the May 28, 2018 email. The Crown responded later that same day, stating "I had understood that the cellphone extractions had been disclosed. I can see that counsel for the co-accused picked up the cellphone extractions in May 2017. Can you clarify what it is that you have?"

i. On June 27, 2018, Mr. Shaikh's lawyer responded that, while thousands of pages were disclosed, the majority of the pages were blank and "do not load". He explained that defence counsel were trying to figure out if there were additional pages that had not been disclosed. The Crown responded on June 29, 2018, that she was "following up with Tech Crimes to resolve this issue".

j. By August 15, 2018, the Crown had not yet responded. Mr. Shaikh's lawyer wrote to the Crown again requesting an answer, and advising that this had been an outstanding issue since the preliminary inquiry and that it may compromise the trial date. The Crown responded that same day, stating that she was having difficulty understanding the issue, and that the extraction report in her possession appeared to be comprehensive, containing 31,000 pages. Counsel for Mr. Shaikh responded that many of the pages in the report were blank, and that the summary of the report did not match up with the number of messages and videos disclosed, making it unclear whether the extraction report was complete.

k. On August 20, 2018, the Crown wrote to the defence about a number of matters related to the upcoming trial. With respect to the cellphone extraction, she advised that the officer who performed the initial extraction was no longer with the Toronto Police Service, and that someone else was looking into the issue. She also took the position that the issue should not delay the trial because there was no reason to believe that there was exculpatory material on the cell phone, given the nature of the materials already disclosed.

l. On August 22, 2018, Mr. Hansa's counsel responded as follows:

Regarding the disclosure of the data dump, I disagree with your characterization of the disclosure as "unimportant". The disclosure that I have of the phone purportedly contains 31,000+ pages of disclosure. Of that, we are missing almost 20,000 pages of content (19,226 pages by my calculation) or over half of the content from Mr. Shaikh's cell-phone. This includes missing media, WhatsApp and Instant messages in the weeks (or months in the case of the Instant Messages) leading up to and including the dates of the offence itself. The idea that there is "no real concern that there is relevant exculpatory missing" is purely speculative. More importantly, it is not "clearly irrelevant" and must be disclosed. The messages may be exculpatory as it relates to Mr. Hansa, may lead to other 3rd party suspects, or ground a version of events contrary to that provided by the complainant. It may also corroborate Mr. Hansa's evidence and contradict evidence that may be tendered by Mr. Shaikh at trial.

m. Later on August 22, 2018, Crown counsel wrote to defence counsel and advised that the Crown did not intend to rely on any materials obtained from the extraction of Mr. Shaikh's cell phone, and that the phone would be returned to Mr. Shaikh's counsel.

n. Later on August 22, 2018, Mr. Hansa's lawyer responded that this did not resolve the issue, as his client may wish to rely on some of the information on the cell phone.

o. On August 24, 2018, the Crown made available to defence counsel a large Excel spreadsheet containing data from the cellphone. Defence counsel picked it up on August 27, 2018.

p. On August 28, 2018, the Crown wrote to defence counsel, taking the position that an adjournment of the trial was not warranted as the Crown did not intend to rely on the content of the cell phone and the Crown had disclosed everything in its possession relevant to the cell phone. The correspondence included the following paragraphs:

While Mr. Aly made inquiries regarding the completeness of the Extraction Report as a whole, the officer who conducted the examination of the cell phone is no longer with the Toronto Police Service. Tech Crimes would have to conduct a review. Given timing and resources, and that the original examiner is not available for trial, the Crown notified counsel on August 22, 2018 that the Crown will not be relying on the cellphone extraction report at trial.

Both counsel obviously still have the Extraction Report that was disclosed, and the Crown has additionally disclosed an Excel Spreadsheet containing data under lying the report. The Crown has not compared the spreadsheet with the data extraction report and is neither confirming that the report is complete nor agreeing that the report is incomplete. All material from the Extraction Report in the Crown's possession has been disclosed.

q. Later on August 28, 2018, counsel for Mr. Shaikh responded that, as there was no new information about the extraction report, the defence would have to retain its own expert to conduct another extraction, and that an adjournment of the September 5, 2018 trial date would be required.

r. On September 5, 2018, the parties appeared before Justice Allen to address the defence's request for an adjournment. Justice Allen granted the adjournment, stating that she was doing so to give “the defence the opportunity of full defence and answer”. In her ruling, she found that the adjournment was justified because of the blank pages in the extraction report, the spreadsheet did not necessarily provide an answer to the blank pages, and the defence should have an opportunity to determine whether the cell phone contains exculpatory evidence.

s. Following the adjournment, the new trial date of February 19, 2019 was set. The parties had been offered a trial date of September 17, 2018, but the defence took the position that this did not give them sufficient time to retain an expert to perform the fresh cell phone extraction.

[39] On the application, the defence also included evidence that, following the adjournment, they had retained an expert to perform the phone extraction, and that the results differed from those of the report produced by the Crown.

[40] As referred to above, in Jordan, at para. 65, the Supreme Court made clear that not all steps taken by the defence that may have the effect of lengthening the time to trial are to be characterized as defence delay. Rather, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay”.

[41] The Crown suggests that the delay attributable to the trial adjournment was caused by the defence in this case because the defence ought to have brought an application for disclosure earlier, which would have obviated the need for an adjournment. In advancing this argument, the Crown relies on a number of cases in which the courts have faulted the defence for the timing of disclosure applications: for example, R. v. Faulkner, 2018 ONCA 174 (C.A.), at para. 156; and R. v. Jalili, 2018 ONSC 6408 (Sup. Ct.), at paras. 150 to 155. The Crown also relies on the Supreme Court’s direction in Jordan, at para. 138, and in Cody, at para. 33, to the effect that defence counsel have an obligation to actively advance their clients’ cases and to use court time efficiently.

[42] I cannot accept the Crown's argument. Up until mid-August 2018, the Crown had indicated that it was attempting to address the issues with the extraction reports. It was only two weeks before trial that the Crown advised that it did not have the ability to determine the accuracy of the extraction report, that it did not intend to rely on evidence from the cell phone and that the phone was available for the defence to retain its own expert.

[43] The record is clear that defence counsel diligently pursued the issue starting in March 2017, which was over a year before the trial was scheduled to start. They were met with reassurances that the Crown was looking into the issue. Given that the Crown only advised the defence that it was not in a position to address the issue in August 2018, the delay cannot be characterized as defence delay.

[44] At the time Justice Allen granted the adjournment, she did so on the basis of a finding that the defence had a legitimate interest in ascertaining the full contents of Mr. Shaikh's cell phone. Based on my review of the circumstances leading to the adjournment and Justice Allen’s reasons for granting the adjournment, the delay caused by the defence’s request to adjourn the trial cannot be counted as defence delay. The defence legitimately required additional time to prepare for trial by obtaining their own extraction report, and any delay in seeking to do so was caused by the Crown’s ongoing representations that it was addressing the issue.

[45] Accordingly, I do not accept the Crown's position that the period between September 5, 2018 and February 19, 2019 should be counted as defence delay.

3. Total defence delay

[46] The defence delay is therefore comprised of delay caused by the unavailability of Mr. Shaikh's lawyer for the earlier preliminary inquiry dates (1 month and 24 days) and for the earlier trial dates (1 months and 14 days). In total, this amounts to a defence delay of 3 months and 8 days.

C. Net delay

[47] The net delay is as follows:

a. Total delay: 35 months and 1 day

b. Defence delay: 3 months and 8 days

c. Net delay: 31 months and 23 days

[48] Accordingly, the delay in Mr. Shaikh's case falls above the presumptive ceiling in Jordan.

[49] As mentioned above, the Crown did not argue that special circumstances apply in this case. In addition, while the Crown made reference to the transitional provisions in its factum, the point was not argued at the hearing of the application. In any event, I find that the transitional provisions would not change the result in this case. Given that Jordan was decided in July 2016 and charges in this case were laid in April 2016, it is hard to see how the Crown and the defence could be seen as having reasonably relied on the pre-Jordan framework for assessing delay.

Application of the Jordan Framework to Mr. Hansa

A. Total delay

[50] Charges against Mr. Hansa were laid on April 10, 2016, and the trial is scheduled for three weeks, starting on February 19, 2018, which means that it is anticipated to go until March 8, 2019. Therefore, the total delay is 34 months and 29 days, which is 4 months and 29 day beyond the 30 month presumptive ceiling set by Jordan.

B. Defence delay

1. Delay waived by the defence

[51] In Mr. Hansa's case, there is no period of delay waived by the defence.

2. Delay caused solely by the defence

[52] There are two periods of time that the Crown argues should count as defence delay. First, the Crown argues that the period of August 10, 2016 to October 25, 2016 should be counted as defence delay because of an adjournment of the first pre-trial caused by Mr. Hansa's change in counsel. Second, the Crown argues that the delay caused by the trial adjournment should also count as defence delay against Mr. Hansa.

i. Delay caused by first judicial pre-trial adjournment

[53] The first judicial pre-trial in the Ontario Court of Justice was originally scheduled for August 10, 2016. However, before the pre-trial, Mr. Hansa discharged his lawyer and the pre-trial was cancelled. Mr. Hansa retained new counsel by September 8, 2016, and a new pre-trial date was set for October 25, 2016. On this basis, the Crown argues that the period between August 10, 2016 and October 25, 2016 should count as defence delay because it was caused by Mr. Hansa's decision to change counsel.

[54] Mr. Hansa argues that this time period should not be counted as defence delay because the Crown had not yet met its disclosure obligations on August 10, 2016, and the Crown was therefore not ready for the pre-trial.

[55] In my view the defence's argument has no merit. Outstanding disclosure issues do not mean that the parties are not ready for a judicial pre-trial. In fact, pre-trials are often used as an opportunity to address such issues.

[56] Accordingly, I agree with the Crown that the adjournment of the first pre-trial caused by Mr. Hansa's change of counsel is to be counted as defence delay. This is a period of 1 month and 15 days.

ii. Delay caused by the trial adjournment

[57] The Crown argues that the delay caused by the trial adjournment should also count as defence delay on Mr. Hansa's part.

[58] As reviewed above, I have rejected the argument that the delay caused by the trial adjournment can be counted as defence delay.

[59] The same reasoning applies to Mr. Hansa.

3. Total defence delay

[60] The defence delay in Mr. Hansa’s case is comprised of the delay caused by his change in counsel which caused a delay of 1 month and 15 days.

C. Net delay

[61] The net delay is as follows:

a. Total delay: 34 months and 29 days

b. Defence delay: 1 month and 15 days

c. Net delay: 33 months and 14 days

[62] Accordingly, the delay in Mr. Hansa's case falls above the presumptive ceiling in Jordan.

[63] As found with respect to Mr. Shaikh, exceptional circumstances and the transitional provisions do not apply in this case.

Conclusion

[64] As the delay for both applicants falls above the 30 month presumptive ceiling, I find that their 11(b) Charter rights have been violated and the application to stay the charges is therefore granted.

FAVREAU J.

RELEASED: January 21, 2019

CORRECTION NOTICE

Corrected decision: the text of the original judgment was corrected on January 24, 2019, and the description of the correction is appended:

The spelling of the name of counsel for the accused Mohammad Hansa, Trevin David, has been corrected.

COURT FILE NO.: CR-17-0000433-0000

DATE: 20190121

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N :

HER MAJESTY THE QUEEN

– and –

HAMZA SHAIKH AND MOHAMMAD HANSA

REASONS FOR RULING ON 11(B) CHARTER APPLICATION

FAVREAU J.

RELEASED: January 21, 2019

R. v. Shaikh, 2019 ONSC 560

Case Summary

Introduction

Chronology

Jordan framework

Application of the Jordan framework to Mr. Shaikh

A. Total delay

B. Defence delay

1. Delay waived by the defence

2. Delay caused solely by the defence

i. Delay caused by the unavailability of Mr. Shaikh's lawyer for trial

ii. Delay Caused by the Trial Adjournment

3. Total defence delay

C. Net delay

Application of the Jordan Framework to Mr. Hansa

A. Total delay

B. Defence delay

1. Delay waived by the defence

2. Delay caused solely by the defence

i. Delay caused by first judicial pre-trial adjournment

ii. Delay caused by the trial adjournment

3. Total defence delay

C. Net delay

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 1

Legislation 2