COURT FILE NO.: 997/15 DATE: 2019 12 04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – HAMZA BADRAN

Counsel: Luc Boucher, for the Crown Respondent Leora R. Shemesh, for the Applicant

HEARD: November 18, 2019

REASONS FOR DECISION ON s 11(b) APPLICATION

J.W. Woollcombe J.

Introduction

1On June 8, 2013, the applicant, Hamza Badran, was charged jointly with three others with four offences: importing cocaine, contrary to s. 6(1) of the Controlled Drugs and Substances Act, possession of cocaine for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act, conspiracy to import cocaine, contrary to s. 465(1)(c) of the Criminal Code and conspiracy to possess cocaine for the purpose of trafficking, contrary to s. 465(1)(c) of the Criminal Code.

2On October 8, 2014, one of the co-accused entered a guilty plea. In the summer of 2019, a second, Mr. Ayoub, died. As a result, while there were three, and then two co-accused, the applicant is now before the court with just one co-accused, his brother Omar Badran. They are jointly charged on a two-count indictment with importing and possession for the purpose of trafficking.

3It is alleged that the applicant imported about 38 kg of cocaine into Canada, the value of which was between $1,354,550 and $4,257,000, depending on how it was sold.

4The applicant’s trial is scheduled to proceed on February 3, 2020 for four weeks. It is expected to be completed on February 28, 2020.

5Mr. Badran applies under s. 24(1) of the Charter for a stay of proceedings based on a violation of s. 11(b) of the Charter.

6For the reasons that follow, the application is dismissed.

The Legal Framework

7The legal framework to be applied to determining whether there has been a violation of an accused’s s. 11(b) right was set out in R. v. Jordan, 2016 SCC 27. The approach was summarized by the Supreme Court of Canada in R. v. Cody, 2017 SCC 31 beginning at para. 20:

20 The new framework established in Jordan for analyzing whether an accused person's right to a trial within a reasonable time has been breached centres on two presumptive ceilings: 18 months for cases tried in provincial courts and 30 months for cases tried in superior courts ( Jordan, at para. 46).

21 The first step under this framework entails "calculating the total delay from the charge to the actual or anticipated end of trial" ( Jordan, at para. 60). In this case, an information was sworn against Mr. Cody on January 12, 2010, and his trial was scheduled to conclude on January 30, 2015. This makes the total delay approximately 60.5 months.

22 After the total delay is calculated, "delay attributable to the defence must be subtracted" ( Jordan, at para. 60). The result, or net delay, must then be compared to the applicable presumptive ceiling. The analysis then "depends upon whether the remaining delay — that is, the delay which was not caused by the defence — is above or below the presumptive ceiling" ( Jordan, at para. 67 (emphasis in original)).

23 If the net delay falls below the ceiling:

... then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish 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.

[Emphasis in original.]

( Jordan, at para. 48)

24 If the net delay exceeds the ceiling:

... then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

( Jordan, at para. 47)

25 Where charges pre-date Jordan and the delay remains presumptively unreasonable after deducting defence delay and accounting for and considering exceptional circumstances, the Crown may nevertheless demonstrate that the transitional exceptional circumstance justifies the delay ( Jordan, at paras. 95-96).

8Issues arise in this case respecting both “defence delay” and “exceptional circumstances”. As a result, I will elaborate on what the appellate authorities say about each of these causes of delay.

9There are two types of “defence delay”:

a. “delay waived by the defence” and

b. “delay that is caused solely by the conduct of the defence” ( Jordan, at para 61; Cody at para. 29).

10Jordan tells us that “exceptional circumstances” lie outside the Crown’s control in the sense that they are: (1) reasonably unforeseen or reasonably unavoidable and (2) the Crown counsel cannot reasonably remedy the delay from the circumstances once they arise. They need not be rare or entirely uncommon. While the list of circumstances that may be “exceptional” is not closed, generally, exceptional circumstances fall into two categories: discrete events and particularly complex cases ( Jordan at paras. 69, 71).

11In Jordan, the court elaborated on what is meant by discrete events at paras. 72-73:

72 Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify. Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition.

73 Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.

12The Court also discussed, at para. 75, how delay caused by discrete exceptional events is to be analyzed in the context of a s. 11(b) application:

75 The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e., it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).

13While the Jordan framework applies to cases that were already in the system at the time of its release, the Supreme Court set out two qualifications to it. For cases in which the ceiling is exceeded after defence delay and exceptional circumstances are deducted, a transitional exceptional circumstance may arise where the Crown can satisfy the court that the delay is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual analysis as to what caused the delays. However, if the parties have had time following the release of Jordan to correct their behaviour and the system has had some time to adapt, the trial judge should take this into account ( Jordan para. 96; R. v. Williamson, 2016 SCC 28 at para. 24; R. v. Coulter, 2016 ONCA 704 at paras. 56-57).

Analysis

Total Delay

14The total delay in this matter spans from June 8, 2013, the date on which Mr. Badran was charged, to February 28, 2020 the date on which his trial is anticipated to be completed. This is 6 years, 8 months and 20 days or 2,456 days. This is over the presumptive ceiling.

15The parties do not agree about the periods of time that are to be deducted from the total delay as either defence delay or because of exceptional circumstances. I will address each of four periods of delay that are at issue in turn.

16I begin by observing that the parties are agreed that the time spent in the Ontario Court of Justice should all be counted towards the presumptive ceiling. The matter proceeded in the Ontario Court of Justice from the date the applicant was charged, on June 8, 2013, until May 28, 2015, the date on which he was committed for trial.

17This means that by the time the case came to the Superior Court of Justice, where there was a first appearance on June 12, 2015, the case had already been in the system for over two years. All of this time, of course, was before the Supreme Court of Canada’s decision in Jordan, which fundamentally changed the s. 11(b) landscape and the analysis that must be undertaken now.

Defence Delay and Exceptional Circumstances

18Jordan explains that the first steps in the analysis are to deduct defence delay and, if the total delay still exceeds 30 months, to then deduct delay caused by exceptional circumstances from the overall delay. I will deal with each as they relate to the four areas of disputed delay.

Delay in setting the first trial date (November 9, 2015-March 21, 2016)

19The applicant’s first appearance in the Superior Court was on June 12, 2015. One of the co-accused, Mr. Ayoub, did not have any instructions from his counsel. While counsel for the applicant, Mr. O’Connor, wished to set a pre-trial and said that s. 11(b) was “going to be an issue at some point”, the case was adjourned to the next assignment court so that a pre-trial could be set.

20On June 26, 2015, counsel for the Omar Badran (who appeared as agent for the applicant) indicated that the Badrans were anxious to proceed and that s. 11(b) was in play. A judicial pre-trial date of July 2, 2015 was offered. Because Mr. O’Connor had only provided available dates commencing on July 15th, a pre-trial date of July 20 was agreed to.

21On July 20, the pre-trial did not process because Mr. Ayoub had new counsel. Counsel for the Badrans were ready and willing to conduct a judicial pre-trial. Mr. O’Connor indicated that Mr. Ayoub was delaying the case for the applicant, that he hoped that s. 11(b) did not become an issue, and that if Mr. Ayoub “drags his heels”, it would become a problem. The Crown was ready and willing to proceed. No pre-trial was held and the matter was adjourned to August 11, 2015, peremptory for a pre-trial.

22On August 11, 2015, a judicial pre-trial was conducted and it was agreed that a five-week trial should be set. Counsel were asked when they were available for trial. All counsel were available in November and into December. Durno J. told counsel that he was looking at the week of November 9th but that there were already five federal cases already scheduled. Crown counsel responded:

That could make it pretty difficult for our office then, your honour. I mean, if it’s something that 11(b) is a significant concern for my friends, then I’d look at pushing it on.

23Mr. O’Connor said that while he rarely raised s. 11(b), he would do so in this case, “if it doesn’t get on fairly quickly”. Durno J. asked, “Does April fall in the category of “fairly quickly?””

24Mr. O’Connor did not respond, and Durno J. continued, “Subject to speak [sic] to the trial office, I think we could do April 4th. If that is going to create challenges, let me know”. Mr. O’Connor responded, “That would work for me”. Counsel for both co-accused gave similar responses.

25Counsel for Omar Badran then said that she echoed Mr. O’Connor’s concerns about being anxious to proceed expeditiously. Counsel were offered the week of March 29, 2016 and the trial was set for four to five weeks starting March 29, 2016.

26It is the position of the applicant that there was no waiver by counsel of any of the delay up to the March 29, 2016 trial date. Ms. Shemesh says that Mr. O’Connor wanted to set a trial in November 2015 but that this date was not actually offered. She says that all of the delay to the first trial date falls within the 30-month ceiling.

27The Crown submits that there was an implicit s. 11(b) waiver by Mr. O’Connor from November 9, 2015 until the first trial date.

28While waiver may be express or implied, it must be clear and unequivocal.

29It is clear that the week of November 9, 2015 was discussed as a possible trial date. The Court’s concern was about whether this was something that the Crown could accommodate. Crown counsel indicated that if delay was an issue, the Crown would be prepared to have this case “pushed on”. Mr. O’Connor did not respond to the Crown’s agreement to push the case on by saying that he wanted the trial on November 9th. This was his first opportunity to make clear that he wanted the November 9, 2015 trial date. He did not do so. Rather he said that if the trial was not reached “fairly quickly”, there would be a delay issue. While Durno J. initially asked what Mr. O’Connor meant by “fairly quickly”, he then offered an April 4, 2016 trial date, expressly telling counsel that if that was a problem from the perspective of delay, Mr. O’Connor should say so. This was a second opportunity for Mr. O’Connor to say that he wanted the November 9, 2015 trial date. Again, he did not do so. Instead, he simply advised that the April 4th date “would work for me”.

30Mr. O’Connor had diligently raised s. 11(b) as a concern on multiple earlier dates. I conclude that he knew that there was a possibility of a November 9, 2015 trial and yet did not ask for that date to be set when he had two obvious opportunities to do so. His immediate acceptance of the suggestion of April 4, 2016 for trial, when it was clear that he could have said that date created a s. 11(b) challenge, was, in my view, an implicit waiver of the delay until the trial date.

31Thus, in my view, the delay from November 9, 2015 until March 21, 2016 (the date on which the trial was aborted), a period of 4 months and 12 days is defence delay and to be deducted from the overall delay.

Delay in setting the second trial date (March 21, 2016-November 14, 2017)

32I observe that counsel for the applicant did not bring an application under s. 24(1) to stay the proceedings as a result of an alleged s. 11(b) breach of the Charter before the scheduled trial on March 29, 2016.

33The trial did not proceed on as scheduled. On March 21, 2016, an agent for counsel to Omar Badran advised that counsel was undergoing medical issues, was not able to proceed to trial, was seeking an adjournment of the trial and was waiving s. 11(b). Mr. O’Connor said that while this was “disappointing”, and that he was prepared to set a date, he recognized that doing so might not be the best idea. He said that he would agree to a reasonable adjournment, given that it was a medical issue. The matter was adjourned to April 15 to set a new trial date.

34On April 15, 2016, the agent for counsel for Omar Badran indicated that counsel was not in a position to set a new trial date and that Omar Badran was going to need to retain new counsel to move the matter along. Counsel for the applicant, who also appeared as agent for Mr. Ayoub, said that they were both ready to set a trial date, but that he understood that counsel was ill. He also said that “at some point we have to get the matter moving”. The matter was adjourned to June 10, 2016 to set a trial date.

35On June 10, 2016, Omar Badran had new counsel, Mr. Bayliss, who said that he was not available for trial until December 2017. Mr. O’Connor was concerned by this and said that he was going to bring a s. 11(b) application “at some point”. He specifically asked for the Crown’s position on severance and was told that this request would be passed on to the assigned Crown, but that severance was not something that the Crown would be agreeing to. The matter was adjourned to June 14, 2016 so that all counsel could attend.

36On June 14, 2016, the Crown indicated that it was not willing to agree to severance. Counsel for Omar Badran was not available for trial until June, July and August of 2017. Counsel for the applicant said that he was available in the summer, which he knew was not helpful, and then in November and December 2016. Counsel for Mr. Ayoub was available in September 2016 and onwards. The Crown was available in July, August, September, November and December 2016. There was discussion about whether Omar Badran needed to find new counsel who was available sooner. Counsel for Omar Badran then asked for a break to discuss the timing.

37After the break, Mr. O’Connor indicated that “blood is thicker than water” and that the applicant preferred that his brother keep his current counsel “and consequently we’re going to have to live with Mr. Bayliss’s schedule”. He said that the applicant was prepared to do that and that “his right to a speedy trial will be trumped by his desire to have the brother – to have the lawyer of his choice for his brother”. The Crown stated that s. 11(b) was being waived by the applicant. The new trial was set for November 14, 2017 with pre-trial motions set for October 30, 2017.

38Counsel are not agreed on how this delay from the March 21, 2016 adjournment of the trial to the November 14, 2017 trial date should be analyzed.

39It is agreed that counsel’s illness, which necessitated the adjournment of the trial, was a discrete event. The effect of the illness was that new counsel needed to be retained by Omar Badran, and that a new date had to be set for the trial. Delay caused by this discrete event does not count in the total period of delay.

40The parties differ as to what period of time should be deducted.

41The applicant says that the delay caused by the discrete event is from the adjournment of the trial on March 21, 2016 until June 14, 2016, when the new trial date was set.

42The applicant acknowledges that Mr. O’Connor waived the delay caused by accommodating Mr. Bayliss’s schedule, but says that this waiver was for the period from when Mr. O’Connor was first available for trial, in November 2016, until the trial date that was set to accommodate Mr. Bayliss on November 14, 2017. Counsel submits that the period from the set-date on June 14, 2016 until Mr. O’Connor’s first available date on November 2016 should be included in the total delay.

43While acknowledging that the Crown and the justice system had an obligation to mitigate the delay from counsel’s illness, the Crown says that the delay caused by this discrete event includes the time up to when it would have been reasonable for a new trial date to be set. The circumstances here were such that on June 14, 2016, the first date on which Mr. O’Connor for the applicant and counsel for Mr. Ayoub were available for a five-week trial was November 14, 2016. Thus, the Crown says that the delay from March 20, 2016 until November 14, 2016 was caused by a discrete exceptional circumstance and should be deducted from the overall delay. The Crown says that the delay from November 14, 2016 until the November 14, 2017 was waived by Mr. O’Connor.

44I do not think the delay caused by counsel’s illness ended with the June 14, 2016 assignment court. In my view, counsel’s illness meant not only that that the first trial dates were lost but, in addition, that there would be delay in scheduling a new, five-week trial for three defence counsel and the Crown. If the adjournment of the trial was unavoidable, so, too, was a delay in re-scheduling a trial: R. v. Shaikh, 2019 ONCA 895 at para. 66.

45While the Crown indicated its availability over July, August, September, November and December, the record is not clear as to which precise date the court could first have accommodated the trial. Not much turns on this, however, because the first time Mr. O’Connor and counsel for Mr. Ayoub were available was in November 2016, four and a half months later. I think this was a reasonable delay to schedule a five-week trial involving three co-accused. As Mr. Bayliss said during submissions on June 14, 2016, “most lawyers in this jurisdiction doing long trials are – are scheduling at least nine months to a year ahead”. In my view, the delay up November 14, 2016 is as a result of a discrete exceptional event and must be deducted from the overall delay.

46I accept the position of both counsel that counsel for the applicant expressly waived the delay caused by the applicant’s decision to wait for his trial until Mr. Bayliss was available for trial on November 14, 2017.

47As a result of my conclusions, the period from March 21, 2016 to November 14, 2016, delay of 7 months and 24 days, is an exceptional circumstance delay caused by a discrete event and must be deducted from the overall delay. The delay from November 14, 2016 until November 14, 2017 was waived by the defence and must be deducted from the overall delay.

Delay because of Omar Badran’s guilty plea and striking of the guilty plea. (November 24, 2017 to June 7, 2018)

48On October 24, 2017, the Crown agreed to sever Mr. Ayoub from the Badrans. While pre-trial motions were scheduled to proceed on October 30, 2017, the indictment makes clear that in fact, there was one two-hour pre-trial motion heard on November 14, 2017. Again, no s. 11(b) stay application was filed by the applicant before the commencement of this trial. The trial began with jury selection on November 15, 2017 and continued before Bielby J., with a jury, until November 24, 2017.

49On November 24, 2017, during the trial, the applicant’s brother Omar Badran pleaded guilty to the offence of possession for the purpose of trafficking. His matter was adjourned to March 27, 2018 for sentencing submissions. The imposition of sentence was scheduled for April 27, 2018.

50In respect of the applicant, Bielby J. declared a mistrial. The Crown and Mr. O’Connor reached an agreement as a result of which, following Omar Badran’s guilty plea and the completion of his matter, the charges against the applicant would be withdrawn. However, the withdrawal of those charges was not going to take place until Omar Badran’s matter was completed with the imposition of sentence. As a result, the applicant’s matter was adjourned to April 27, 2018. Crown counsel indicated on the record, “And I also understood Mr. Hamza Badran will be waiving s. 11(b)”. Bielby J. indicated that this was what he had been told as well and asked Mr. O’Connor if this was correct. Mr. O’Connor replied, “certainly” and the matter was adjourned to April 27, 2018.

51On March 5, 2018, counsel for Omar Badran filed a formal notice of application to strike his guilty plea, returnable on March 27, 2018 (the date that had been set for Omar Badran’s sentencing hearing). The proceedings to strike the guilty plea were then adjourned to August 8, 2018.

52On April 27, 2018, the date to which the applicant had been remanded, he did not attend at court and no one appeared on his behalf. At the Crown’s request, his matter was adjourned to August 8, 2018, the date set for the application to strike the guilty plea.

53On August 8, 2018, the application to strike the guilty plea did not proceed due to a Badran family funeral. Neither Badran was present. While Mr. O’Connor was present in the courtroom, he said nothing. The matter was adjourned to November 5, 2018. It proceeded that day, and continued on December 19, 2018 and March 26, 2019, at which time the evidence and submissions were completed.

54On June 7, 2019 Durno J. struck Omar Badran’s guilty plea, necessitating a new trial being set.

55It is the defence position that while Mr. O’Connor waived s. 11(b) before Bielby J. on November 24, 2017, this waiver was qualitatively different from a usual s. 11(b) waiver because the applicant did not really have any choice. As counsel puts it, the applicant was “stuck” and, if he waived the delay, it was only because he expected that his charges would be withdrawn when his brother’s charges were disposed of. Counsel submits that the applicant really did not have any option but to wait for his brother’s charges to be dealt with.

56As an alternative position, Ms. Shemesh says that if there was a valid waiver of s. 11(b) on November 24, 2017, it was only until April 27, 2018, the date on which the applicant would have expected his charges to be withdrawn after his brother was sentenced. The applicant’s position is that once it became clear that Omar Badran was seeking to strike his guilty plea, the Crown had an obligation to prosecute him. Counsel submits that the Crown should have severed the applicant’s charges and turned its mind to its obligation to prosecute him swiftly. Instead, Ms. Shemesh says that the applicant was left with no attention being paid to his interest in a trial in a reasonable time.

57The Crown submits that the delay from November 14, 2017 until November 24, 2017, the period during which the trial proceeded before the mistrial, is delay that was caused by Omar’s Badran’s guilty plea and the consequent mistrial, a discrete exceptional event. As such, it should be deducted from the total time.

58In respect of the time after the guilty plea, the Crown submits that when Mr. O’Connor waived s. 11(b) on November 24, 2017, that waiver covered the period up until the time that the plea was struck. In the alternative, the Crown says that if the waiver was only until April 27, 2018 when it was expected that the applicant’s charges would be withdrawn, then the application to strike the guilty plea should be understood as a discrete exceptional event which was unforeseen and out of the hands of the Crown. It necessitated a hearing, which the Crown submits took place in a reasonable manner. As a result, on either analysis, the Crown’s position is that all of the post plea delay up until June 7, 2019 should be subtracted from the total delay.

59I agree that the delay caused by the trial commencing on November 14, 2017 and concluding with the mistrial on November 24, 2017 is delay from a discrete event and is an exceptional circumstance delay that must be deducted from the overall delay.

60In my view, Mr. O’Connor’s waiver on November 24, 2017 should be understood as a waiver until June 7, 2019. While I acknowledge that the extent of the waiver was not clearly expressed on the record, the proceedings as a whole demonstrate that the applicant waived the delay that followed his brother’s guilty plea.

61I reach that view for three reasons.

62First, it is clear that Mr. O’Connor took no steps over the period from November 24, 2017 until June 7, 2019 to move this matter forward to trial. While counsel for the applicant says that this was not his responsibility, and that in any event he had no say about what was going on with the striking of the guilty plea proceedings, it is clear that Mr. O’Connor was well aware of what was happening on the application to strike the plea. Indeed, he was called as a witness on that proceeding. He knew the time that was being taken for it to unfold. He was in court for the adjournment on August 8, 2018. The transcript of November 5 and November 14, 2018 reveals that the Crown was in touch with him and was scheduling him to testify. He testified on December 19, 2018. In my view, had he not waived the delay, and had he been concerned about the speed of the proceedings on the application to strike the guilty plea, there would be some indication from him over this extended period that s. 11(b) was an issue for the applicant. One would have expected a renewed request for severance. At a minimum, Mr. O’Connor would have raised his client’s concerns. He said nothing.

63Second, the transcript of June 7, 2019, after the plea was struck and a new trial was to be set, is instructive. There are two aspects of that transcript that are significant.

64Firstly, it is noteworthy that when Durno J. asked Mr. O’Connor his position on setting a date for trial, his position was that the matter should go to assignment court. He observed that the matter had been going on for a year and a half and that he wanted to sit down with his client. This signifies, in my view, that his client had no interest in a speedy trial. Surely if a trial was what the applicant really wanted, Mr. O’Connor would have been retained by then and would have had instructions to schedule the trial that day.

65Secondly, it is important that it was only after counsel for Omar Badran indicated to Justice Durno that she had no availability for trial until October 12, 2020 that Mr. O’Connor then raised with the court that he intended to bring a s. 11(b) application. Durno J. asked him whether, on all the proceedings he had attended, he had ever asked to have a trial date set. Mr. O’Connor responded:

No. In fact, I – I had already waived between the date that we’ve been here…I have but I – I was on the verge of an 11(b) at the time of this – this trial and if the co-accused can’t set a trial date until October 2020, there is…

66In my view, Mr. O’Connor’s comments as a whole on June 7, 2019, including his reiteration that he had waived the delay, confirm that he had, in fact, intended to waive all of the delay up to that point. His real concern respecting s. 11(b) was about Omar Badran’s counsel seeking to set the trial in late 2020, not the delay that had already occurred.

67Finally, it only makes sense that the applicant was content to waive the delay from the plea and the proceedings related to. It was in the applicant’s interests to have the guilty plea proceedings completed before a trial as the plea was supposed to lead to the withdrawal of his charges. Even after his brother sought to strike the plea, it was in the applicant’s best interests to delay his trial as long as there was a prospect that he would never have to go to trial.

68To be clear, it is hard to imagine how the applicant could ever have made an informed choice not to waive, expressly or implicitly, the delay that flowed from his brother’s plea and the subsequent proceedings. He would never have wanted the severance he now argues should have been granted. Severance would have meant a trial and the attendant risk of a conviction. Waiving the time and waiting was much more preferable as it left open a reasonable chance of his charges being withdrawn.

69In coming to this conclusion, I am mindful of the many appellate cases that remind us that the Crown has an obligation to continually assess whether the decision to proceed jointly with co-accused remains in the best interest of justice. The Crown cannot “close its eyes” if one accused does everything possible to move a case along and is effectively held hostage by another co-accused’s actions or inactions. See, for example: R. v. Vassell, 2016 SCC 26 at para. 7; R. v. Gopie, 2017 ONCA 728 at para. 171.

70But, this is just not a case where the applicant wanted to move things along by way of his own trial once his brother plead guilty. He wanted those proceedings to be completed so that his charges would be withdrawn. In these circumstances, the only reasonable choice to make was to waive the delay. While Ms. Shemesh says that the Crown should have severed the applicant, this was not what the applicant, or Mr. O’Connor, could reasonably have wanted at the time. It could not have benefitted the applicant at all to have a trial. Even if Mr. O’Connor’s waiver was not express, I think there was an implicit waiver because he did not want a trial set until his brother’s plea issue was resolved.

71In the alternative, if I am wrong and Mr. O’Connor only waived the delay until the April 27, 2018 sentencing, I think the delay caused by the application to strike the guilty plea is a discrete exceptional event. This application was, to be sure, an unforeseen and unavoidable development that caused the process to go awry. The delay that it caused was exceptional. It could not have been anticipated. While it took fifteen months to complete the application to strike the guilty plea, the transcripts suggest that there was real diligence in moving the application along.

72In conclusion, the loss of time from the mistrial, from November 10 to 24, 2017, is a discrete event and an exceptional circumstance delay of 10 days. The delay from the guilty plea on November 24, 2017 until the striking of the plea on June 7, 2019 of 18 months and 14 days should be deducted from the overall delay as it was waived. In the alternative, it is to be deducted because it is a combination of waived delay and delay from an exceptional discrete event.

Delay in setting the third trial date (June 7, 2019 to February 3, 2020)

73As a result of the ruling striking the plea, a new trial date had to be set for both co-accused.

74As I have indicated, Mr. O’Connor asked that the matter go to assignment court as he wanted to meet with the applicant. He was not retained for the trial at that point. Mr. O’Connor indicated that if he were retained, he would be available on October 15, 2019 for 4 weeks. The Crown was available as of November 4, 2019. Counsel for Omar Badran was not available for a 4-week trial until October 12, 2020. Counsel for the applicant indicated that he intended to bring a s. 11(b) motion. Durno J. asked whether he had ever, in the course of the delay caused by the plea being struck, asked for a trial date. Mr. O’Connor confirmed that he had not, and that he had waived the delay. But he was concerned because Omar Badran’s counsel was not retained and was not available until 2020.

75Ultimately, the matter was adjourned for a week, to June 26, 2019, so that the Crown could consider s. 11(b) and whether to sever the applicant from his brother. It is clear that the first date available to the court and the Crown was a November 12, 2019 trial date.

76On June 26, 2019, Mr. O’Connor advised that the applicant wished to retain new counsel to represent him. Durno J. asked the applicant whether he wished to set a trial date that day, but he preferred to wait until July 16, 2019.

77On July 16, 2019, the Crown asked to set a trial date, but counsel for the applicant, Ms. Shemesh, was newly retained and wished to have a pre-trial before setting the new trial dates. The matter was adjourned to August 7, 2019.

78On August 7, 2019, Ms. Shemesh indicated that she was prepared to set trial dates beginning February 3, 2020 and that she wished to schedule a s. 11(b) application. Durno J. said that trial dates were available as of September 10, 2019. Given counsel for the applicant’s availability, the trial was set for February 3, 2020 for four weeks.

79It is the defence position that there are two periods of defence delay to deduct from the overall delay: first, the delay from June 26 to August 7, 2019 caused by the applicant changing counsel and, second, the delay from September 10, 2019, when a trial date was available until February 3, 2020 when counsel was first available.

80The Crown says that the decision to strike the guilty plea was a discrete exceptional event and that as a result, reasonable time was needed to re-schedule the trial. It is the Crown position that the new trial was set as quickly as was possible. The Crown says that the delay until it was set, from June 7 to August 9, 2019, was a result of the striking of the plea and the change in counsel. The delay from August 9, 2019 until September 10, 2019, was a reasonable period to get the trial back on track. The delay from September 10, 2019 until the February 3, 2020 trial date was defence delay because of counsel’s unavailability.

81In my view, the delay caused by the discrete exceptional circumstance of the guilty plea being struck required all parties, 6 years after the charges were laid, to move with haste to schedule a trial. This case had to be prioritized in these circumstances. And I think it was.

82The Crown and Court were prepared to set the third trial date on June 7, 2019, immediately after Omar Badran’s guilty plea was struck. Mr. O’Connor was not, and was not, in fact, even retained for the trial. A trial could not be set because of the applicant. Nineteen days later, Mr. O’Connor was removed as counsel. The Crown and Court were again ready to set a trial. The applicant did not want to do so. He then retained Ms. Shemesh. When she attended court on July 16, 2019, she was not prepared to set a trial. Once she was ready to do so, she was offered one five weeks later.

83In my opinion, the Crown and Court showed the required willingness to make this case a priority and to provide the applicant with as quick a trial date as was reasonably possible. In these circumstances, I view the delay from June 7, 2019 until September 10, 2019 as attributable to the consequences of the discrete event of striking the plea. This delay of 3 months and 3 days must be deducted from the total delay. The delay from then until the trial date of February 3, 2020 is defence delay.

Net Delay

84On the basis of the forgoing analysis, I deduct from the overall delay the following periods of defence delay:

• November 9, 2015 until March 21, 2016: 4 months and 12 days defence delay (133 days);
• November 14, 2016 until November 14, 2017: 12 months waived by the defence (365 days);
• November 24, 2017 until the striking of the plea on June 7, 2019: 18 months and 14 days waived by the defence (560 days);
• September 10, 2019 – February 3, 2020: 4 months and 24 days defence delay (146 days)

85This is a total of 1,204 days of defence delay.

86The net delay is 1,252 days, calculated by deducting from the 2,456 days total delay the 1,204 days of defence delay. This is just over 41 months and over the 30-month ceiling.

Resulting Delay

87Net delay over the presumptive ceiling of 30 months for cases in the Superior Court is presumptively unreasonable. To rebut the presumption that the total delay, which exceeds the 30-month ceiling, is unreasonable, the Crown bears the onus of establishing that the delay was reasonable because of exceptional circumstances. These may be because of “discrete events” that occurred due to unforeseen circumstances or because the case was particularly complex: Jordan at paras. 75-80; R. v. Manasseri, 2016 ONCA 703 at paras. 306-301; R. v. Gopie, 2017 ONCA 728 at paras. 117; R. v. Bullhosen, 2019 ONCA 600 at para. 46.

88The delay I have already concluded results from discrete events is:

• March 21 to November 14, 2016: 7 months and 24 days delay from counsel for Omar Badran’s illness and the need to retain new counsel and re-schedule the trial (238 days);
• November 14-24, 2017: 10 days lost trial time delay from the mistrial;
• June 7 to September 10, 2019 – 3 months and 3 days delay from the striking of the guilty plea and need to re-schedule a trial after the applicant changed counsel (95 days).

89The total delay from discrete exceptional circumstances is 343 days. This must be deducted from the 1,252 days of net delay, leaving 909 days of resulting delay. This is 29.9 months, and just under the presumptive ceiling.

Delay below the presumptive ceiling

90The defence bears the onus of showing that that delay below the presumptive ceiling is unreasonable. This means establishing that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it should have.

91I accept that there were times when Mr. O’Connor, on behalf of the applicant, took meaningful steps to expedite the process. I have referred to a number of occasions when Mr. O’Connor made clear to Durno J. that his client felt like he was being delayed because of Mr. Ayoub or his brother.

92At the same time, there are a number of steps taken by the applicant that demonstrate that he was not making a sustained effort to expedite the process. These include:

• On June 14, 2016 consenting to a trial on November 14, 2017, with pre-trial motions on October 30, 2017 when a trial could have been scheduled in November 2016, a year later;
• Waiving s. 11(b) after Omar Badran’s guilty plea and neither raising s. 11(b) nor asking for severance and a trial date throughout for the time the application to strike the guilty plea was being heard and decided;
• On June 7, 2019, not having retained counsel or being ready to have a trial set in the event that Omar Badran’s plea was struck;
• Retaining counsel in July 2019 who was not available for a trial until February 2020.

93I do not view the applicant’s conduct as demonstrative of a person taking meaningful and sustained steps for an expeditious trial. In these circumstances, the defence has not shown that the delay was unreasonable and I need not address whether the case took markedly longer than it should have.

Conclusion

94The application is dismissed.

Woollcombe J.