SUPERIOR COURT OF JUSTICE - ONTARIO
BETWEEN:
HER MAJESTY THE QUEEN
Crown
v.
OMAR BADRAN
Defendant
BEFORE: Ricchetti J.
COUNSEL: K. Reitsma and D. Morlog for the Crown
J. Goldlist for Omar Badran, Defendant
M. Little for Hamza Badran
HEARD: January 24, 2020
RULING
RESTRICTION ON PUBLICATION
Pursuant to s. 648(1) of the Criminal Code, no information regarding this ruling shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
OVERVIEW... 3
THE HISTORY OF THE PROCEEDINGS. 3
POSITION OF THE PARTIES. 8
THE LAW... 9
ANALYSIS. 14
a) Omar Badran's diligence/ bona fides to retain trial counsel 14
b) Omar Badran's attempt to create a de facto severance. 16
c) Omar Badran's Ability to Retain Counsel 18
Omar Badran's Financial Circumstances. 18
His Income. 19
His assets. 21
Other Proceedings. 22
Prior Use of Funds. 23
Other sources of Financial Assistance. 23
Legal Aid. 23
Rowbotham and Ability to Represent Himself. 24
Ms. Goldlist 24
d) Adjournment to bring a Stay Application. 25
e) The Public Interest 26
f) Balancing the Conflicting Factors. 26
CONCLUSION.. 29
OVERVIEW
1Omar Badran and Hamza Badran are brothers. On June 8, 2013, Omar Hamza, Hamza Badran and two others were charged with drug importation and trafficking offences. The allegations relate to a controlled delivery shipment of approximately 38 kilograms of cocaine.
2One of the co-accused has pleaded guilty. Another co-accused has died. As a result, Omar Badran and his brother, Hamza Badran, are jointly charged, on a two-count indictment, with importing and possession for the purpose of trafficking.
3The joint jury trial is scheduled to commence February 3, 2020 and is expected to take four weeks.
4Omar Badran has not retained counsel. He filed these applications on January 13, 2020; a stay, severance and adjournment of the trial.
5Omar Badran was represented by Ms. Goldlist on the hearing of these applications on January 24, 2020. Ms. Goldlist proceeded only with Omar Badran's application to adjourn the trial. Ms. Goldlist added, that perhaps Omar Badran may renew the stay application. Ms. Goldlist did not proceed with the severance application.
6On January 27, 2020, I advised the parties that Omar Badran’s adjournment application was dismissed, with reasons to follow. These are those reasons.
THE HISTORY OF THE PROCEEDINGS
7This matter first came before the Superior Court on June 12, 2015.
8On June 26, 2015, before Durno J., both Omar and Hamza Badran's counsel indicated they were anxious to proceed to trial. The Badrans' counsel expressed concerns regarding any further delay and their s. 11(b) rights.
9On August 11, 2015, Durno J. set a trial date of March 29, 2016. The jury trial did not proceed on as scheduled. On March 21, 2016, an agent for Omar Badran's counsel, advised Durno J. that medical issues had arisen to Omar Badran's counsel preventing counsel from proceeding with the trial. Omar Badran sought an adjournment of the trial and waived s. 11(b). Hamza also waived 11(b).
10Omar Badran retained new counsel, Mr. Bayliss.
11The matter came back before Durno J. on June 10, 2016 to set a new trial date. Omar Badran's new counsel was not available for trial until December 2017 (a one-and-a-half-year delay). Hamza Badran's counsel raised delay concerns and the possibility of a s. 11(b) application. The issue of severance came up. The Crown advised it would oppose severance.
12On June 14, 2016, the matter returned before Durno J. New trial dates were discussed. Omar Badran's counsel was not available for trial until 2017. Hamza Badran's counsel was available for trial in July 2016. Hamza Badran's counsel eventually waived s. 11(b) so that the joint trial could proceed. The joint trial date was set for November 14, 2017.
13The jury trial began on November 15, 2017 and continued until November 24, 2017.
14At that time, Omar Badran, represented at trial by Mr. Bayliss, changed his plea to guilty. The court was advised that, after Omar Badran was sentenced, the Crown would withdraw charges against Hamza Badran. On this basis, the trial judge declared a mistrial.
15Omar Badran's sentencing was scheduled for April 27, 2018.
16Shortly after the plea, Omar Badran terminated Mr. Bayliss' retainer. Omar Badran retained Jordana Goldlist to strike his plea.
17On March 5, 2018, Omar Badran's counsel, Ms. Goldlist, brought an application to strike his guilty plea. The application was scheduled for August 8, 2018. On August 8, 2018, the matter did not proceed due to a Badran family funeral.
18Omar Badran's application to strike the plea was rescheduled. The application was heard by Durno J. on November 5, December 18, 2018 and March 26, 2019. On June 7, 2019, Omar Badran's guilty plea was struck by Durno J.
19On June 26, 2019, a pre-trial was held before Durno J. Omar Badran's counsel at the hearing, Ms. Goldlist, indicated she had not been retained for the trial but, if she was retained, she was available for trial in October 2020 (a 15-month delay). Ms. Goldlist suggested that the trial date be set on a "with or without counsel" basis. Hamza Badran's counsel appeared and advised the court that Hamza Badran was discharging him and retaining new counsel. Durno J. expressed concerns regarding a further delay in light of these new developments. Durno J., faced with two accused, neither of whom had retained counsel for trial, could not set a trial date and remained concerned regarding a s. 11(b) delay:
..we can set a trial date and they'd have to get lawyers who are available on those trial dates.
....The Crown, you're saying, "Look set a date, set a date, set date,". I set it in October of 2019, and then Omar's going go, "wait a minutes now. My lawyer, who I haven't retained, isn't available and I have, with the qualifications I've indicated, the right to counsel of choice." Or I go to 2020 and Hamza says "oh, wait, that's no good for me. Then I don't get a trial within a reasonable time".
20Ms. Goldlist advised the court she expected to be retained in advance of the next appearance on July 16, 2019 date:
Mr. Badran's been retaining me sort of in stages as we've proceeded. I expect a significant retainer in advance of the July 16th date that will lock in the trial dates.
21On July 16, 2019, Ms. Goldlist (appearing for Omar Badran) advised Durno J. that she had not yet been retained by Omar Badran. Neither Omar Badran nor Hamza Badran were in a position to schedule a trial date. Again, Ms. Goldlist stated, that, if she was retained by Omar Badran, she could accommodate a trial in October 2020.
22On August 7, 2019, the matter came back before Durno J. Hamza Badran's new counsel, L. Shemesh, indicated she was available for a four-week jury trial commencing February 3, 2020. Hamza Badran's counsel indicated she would be bringing an s. 11(b) application for a stay. Ms. Goldlist (appearing for Omar Badran), repeated that, if Omar Badran retained Ms. Goldlist for trial, Ms. Goldlist remained available for a four-week jury trial commencing October 5, 2020 and that the trial "date would be set on a with or without counsel basis." Durno J. scheduled the four-week joint jury trial for February 3, 2020 on a "with or without counsel" basis.
23On September 9, 2019, the matter came back before Durno J. for a status update. Again, Ms. Bavaro (appearing as agent for Ms. Goldlist) confirmed that Omar Badran had not yet retained Ms. Goldlist for trial:
She's not retained for trial, no. To be clear, Your Honour, she's not retained for February 2020 trial dates."
Durno J. repeated that the joint jury trial date was set for February 3, 2020, with or without counsel. Hamza Badran's counsel discussed scheduling the s. 11(b) application. Durno J. made the following statement regarding Omar Badran:
With respect to Omar Badran, it is clear, first of all, that he has yet to retain counsel. I understand that the potential severance issue has been discussed. His intention at this point is to wait, see what happens with the 11(b) application. I'm not aware of anything that I could do to force somebody to bring a severance application sooner. I could put a deadline on it but I think it has to be made clear to Omar Badran that regardless of what happens with the 11(b), there is no guarantee your trial date is getting adjourned. I understand your wish to retain a lawyer who's not available. At this point in time, that's your trial date, with or without a lawyer. And if you have to make other arrangements with respect to counsel, until a judge at this court rules otherwise, that's your trial date. So it would be a serious mistake to wait to the 11(b) and regardless of what the result of that is, then say "well, now I get my adjournment". There is absolutely no guarantee that's going to happen, and the result could be you'll wind up representing yourself.
24Hamza Badran's counsel brought the s. 11(b) application. It was heard on November 18, 2019. The application was dismissed on December 4, 2019. The court found that the net delay to Hamza Badran to be 29.9 months.
25Accordingly, any further delay in Hamza Badran's trial date runs the very serious risk of an s. 11(b) Charter breach and that the charges against Hamza Badran will be stayed.
26On December 11, 2019, Ms. Bavaro (agent for Omar Badran) advised Durno J. that Omar Badran still had not retained counsel for the February 3 trial. Omar Badran advised the court that he wanted to bring a severance and adjournment application and that he intended to retain counsel to do so.
27On December 20, 2019, Omar Badran (appearing personally) advised Durno J. he had still not retained counsel for the severance application but intended to retain Ms. Goldlist for the application and would do so by January 7, 2020. A hearing date for Omar Badran's severance and adjournment application were scheduled for January 24, 2020 to accommodate Ms. Goldlist's schedule.
28On January 8, 2020, the matter returned before Durno J. Omar Badran (appearing personally) indicated that he had not retained Ms. Goldlist but would be representing himself on the applications. Omar Badran had not yet filed any application materials with the court. Durno J. again advised Omar Badran that, if the severance or adjournment, was not granted he would be "on his own at trial."
29On the same day, January 8, 2020 and less than a month before the trial was scheduled to start, Omar Badran denied he had obtained the Crown disclosure from his former counsel. The Crown immediately provided him with a second copy of the disclosure brief.
30On January 13, 2020, Omar Badran filed a 43-page affidavit in support of his applications seeking:
a) a complete stay of his charges and his brother's charges for abuse of process and police misconduct;
b) a severance from Hamza Badran; and
c) "a full and complete adjournment in order to properly retain counsel of my choice (Jordana Goldlist) as I am not prepared, qualified nor in a position to represent myself."
31The Crown filed responding materials.
32Omar Badran's applications were heard on January 24, 2020. Ms. Goldlist appeared for Omar Badran. Hamza Badran's counsel was present. The Crown opposed the applications.
33Ms. Goldlist commenced by stating she had only been retained for that day and had not been retained for the trial. Ms. Goldlist advised the court that Omar Badran's severance application and stay application would not be proceeding that day. Ms. Goldlist advised that Omar Badran was only proceeding with the adjournment application.
34Mr. Badran testified. Submissions were heard. Hamza Badran's counsel took no position.
POSITION OF THE PARTIES
35Ms. Goldlist states that an adjournment is necessary for a fair trial since Omar Badran made reasonable efforts to retain counsel and is not properly qualified to represent himself at the February 3, 2020 trial. And to possibly renew a stay application with materials prepared by counsel.
36The Crown submits that, in the circumstances, the adjournment should be denied. Further, Omar Badran's adjournment application is de facto a severance application as, any adjournment will necessarily result in a severance with Hamza Badran.
THE LAW
37An accused has a Charter protected right to be represented by counsel at trial. This is a jealously guarded right since a failure to be represented by counsel might result in an unfair trial. The right to counsel of one’s choice is a fundamental precept to our criminal justice system. See R. v. Robillard (1986), 1986 CanLII 4687 (ON CA), 28 C.C.C. (3d) 22 (Ont. C.A.).
38However, an accused's right to be represented by counsel at trial, is not without limitations. For example, counsel of choice must be available within a reasonable period of time. See R. v. McCallen, 1999 CanLII 3685 (ON CA), 1999 43 OR (3d) 56 (ON CA):
Nevertheless, the right to retain counsel of choice is not an absolute right; it is obviously limited to those counsel who are competent to undertake the retainer and are willing to act. There are two further limitations on the right that are in issue on this appeal: the first is the requirement that counsel be available to represent the client within a reasonable period of time and the second is the requirement that counsel be free of any disqualifying conflict of interest.
The law is clear that the decision to fix a date for trial is discretionary and that in choosing a date the court must act judicially and balance a number of factors including the availability of an accused's counsel of choice within a reasonable period of time. Many of the same factors come into play in decisions whether to adjourn a trial date in order to permit an accused's counsel of choice to be available. The emphasis is on the reasonableness of the delay involved in accommodating the accused's choice; if the counsel of choice is not available within a reasonable time, then the rights of the accused must give way to other considerations and the accused will be required, if he or she chooses to be represented, to retain another counsel who is available within a reasonable period of time: see R. v. Lai, [1991] O.J. No. 725 (Gen. Div.); R. v. Barette, 1976 CanLII 180 (SCC), [1977] 2 S.C.R. 121, 29 C.C.C. (2d) 189 and R. v. Smith (1989), 1989 CanLII 7222 (ON CA), 52 C.C.C. (3d) 90, 35 O.A.C. 301 (CA).
In determining what is a reasonable period of time, the court will balance many factors including the reason counsel is not available sooner, the previous involvement of the particular counsel in the case, the public interest in having criminal cases disposed of in an expeditious manner, the age and history of the case, the availability of judicial resources and the best use of courtroom facilities, the availability of the complainant and witnesses, the availability and use of Crown counsel and law enforcement officers and the potential impact of the scheduling decisions on the rights of an accused under s. 11 of the Charter guaranteeing a trial within a reasonable period of time: see Smith, supra, at p. 93; Lai, supra.
There is no formula that can be rigidly applied in balancing these different factors and what is reasonable in one case may not be reasonable in another. Rigid rules defeat the very nature of the discretionary decision that is required. However, guidelines are helpful because they provide a framework within which decisions can be made and bring a measure of predictability to scheduling decisions that will assist the various participants in the process. It is the trial courts that are in the best position to assess and balance the circumstances and resources that are available in a particular region and to develop the guidelines that make the most sense for that region. Guidelines should be used as such and should not be applied in an arbitrary or inflexible fashion, particularly when a trial date is being set that will deny an accused person counsel of choice: see R. v. Shute (1982), 1982 CanLII 3725 (NS CA), 66 C.C.C. (2d) 354, 51 N.S.R. (2d) 83 (C.A.).
39When an accused seeks an adjournment for the purpose of being represented by counsel at trial, there are two competing interests which must be balanced: the accused's right to counsel and the public interest. In R. v. Cordeiro-Calouro, 2019 ONCA 1002 the Court of Appeal recently addressed these conflicting interests:
[6] When an accused person requests an adjournment of his trial on the date set for trial so that he can have counsel represent him, the trial judge is faced with two conflicting interests: the accused’s right to counsel, including counsel of choice, and the avoidance of delay. The resulting challenge is aptly expressed by Gillese J.A. in R. v. Hazout, (2005), 2005 CanLII 30050 (ON CA), 199 C.C.C. (3d) 474 (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 412, [2005] S.C.C.A. No. 501, at para. 31:
When an accused person requests an adjournment of his or her trial on the date set for trial, the trial judge is required to balance two rights. The first is the accused's constitutional right to be represented by counsel including, when possible, counsel of choice. This is a fundamental right vigorously guarded by the court. The second is the trial judge's right to control the trial process, a right that includes a wide discretion to grant and refuse adjournments. An appellate court should only interfere with a trial judge's balancing of these rights if the refusal of an adjournment deprives an accused of a fair trial or the appearance of a fair trial. [citations omitted]
(emphasis added)
40There are two other factors to be considered in this balancing: whether an accused has deliberately failed to retain counsel and whether the accused acted with the intention of delaying the court process. See R. v. Smith, 1989 CanLII 7222 (ON CA), [1989] O. J. No. 1818 (C.A.):
Where the accused desires to be defended by counsel, then unless the accused has deliberately failed to retain counsel or has discharged counsel with the intent of delaying the process of the court, the court should afford the accused a reasonable opportunity to retain counsel.
(emphasis added)
41In Hazout, the Court of Appeal upheld the trial judge’s decision to refuse an application to adjourn the trial, citing a number of considerations including the lack of diligence the accused had shown in retaining counsel:
[34] Thus, I am not persuaded that the trial judge’s ruling deprived Marc of a fair trial or the appearance of a fair trial. The trial judge carefully balanced the two rights. He took into consideration a number of factors in refusing to grant the adjournment including Marc’s history of seeking adjournments to retain counsel; the fact that the witnesses were ready to proceed; the numerous opportunities that Marc had been given to obtain counsel; the fact that Marc’s counsel could not appear until August 2002, a time when the sittings of the court had already been set; that Marc’s counsel could not otherwise appear until January or April of the following year, some 6 and 9 months away; and, the fact that Marc had shown a complete lack of diligence in finding counsel.
42In R. v. Johnson, 1973 CanLII 1405 (BC CA), [1973] 3 W.W.R. 513; 11 C.C.C. (2d) 101 (B.C.C.A.) the British Columbia Court of Appeal upheld a refusal to grant an adjournment of trial where that accused had failed to diligently attempt to retain or was dilatory retaining counsel:
“I fully appreciate the problems facing our Courts, so sadly overburdened and understaffed, in their efforts to keep abreast of the continuous flow of cases on their calendars, and the understandable annoyance engendered, as well as the firmness that must be exercised, when adjournments are requested at the last moment. But, at the same time, situations as here do arise from time to time, and where the liberty of the subject is at stake, great care must always be taken to ensure that an accused, who has not offended in any way or been dilatory, and is not merely exercising delaying or obstructing tactics, is not forced into the position of a possibly inadequate defence because of failure to have counsel (whether of his choice or not) when he so desires.” (Emphasis added.)
43An excellent summary of the principles on an application, by an accused, to adjourn a trial to retain counsel was summarized by Code J. in R. v. Millard, 2017 ONSC 4548:
[8] A long line of authority has held that the power to grant or refuse an adjournment is discretionary. However, the trial judge must exercise the discretion judicially, that is, in accordance with proper legal principles and after considering and weighing the relevant circumstances of the particular case. See: R. v. Darville (1956), 1956 CanLII 463 (SCC), 116 C.C.C. 113 at 115 (S.C.C.); R. v. Barrette (1976), 1976 CanLII 180 (SCC), 29 C.C.C. (2d) 189 at 193 (S.C.C.); R. v. Manhas (1980), 17 C.R. (3d) 348 (S.C.C.), affirming (1978), 1980 CanLII 172 (SCC), 17 C.R. (3d) 331 (B.C.C.A.); R. v. Olbey (1977), 38 C.C.C.( 2d) 390 at 398 (Ont. C.A.), affirmed on other grounds, (1979), 1979 CanLII 61 (SCC), 50 C.C.C. (2d) 257 (S.C.C.); R. v. J.C.G. (2004), 2004 CanLII 66281 (QC CA), 189 C.C.C. (3d) 1 at paras. 8-9 (Que. C.A.); R. v. White (2010), 2010 ABCA 66, 252 C.C.C. (3d) 248 at paras. 14-15 (Alta. C.A.).
[9] The applicable legal principles and relevant considerations that have emerged from the cases, when dealing specifically with adjournments to retain counsel and prepare for trial, include the following six points:
where the effect of denying an adjournment is to deprive the accused of counsel, this significant consequence is an important consideration. In this regard, representation by counsel is generally essential to trial fairness where the accused is facing long, complex and serious proceedings, as in the present case. See: R. v. Barrette, supra; R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1 at pp. 61-70 (Ont. C.A.);
the gravity of the offence charged, whether there have been any previous adjournments, the consequences of any adjournment for the Crown, for the accused, and for any co-accused, are all relevant considerations. For example, where the accused makes a “bona fide and reasonable” request for an adjournment, for the first time, and where the accused has made “reasonable efforts” to retain counsel, and where it is a serious case, an adjournment should generally be granted. However, where a prior adjournment has already been granted and the accused has been warned that the new trial date is peremptory, “with or without counsel,” a further adjournment is less likely due to “the public interest in the orderly and expeditious administration of justice.” See: R. v. Smith (1989), 1989 CanLII 7222 (ON CA), 52 C.C.C. (3d) 90 at 92-3 (Ont. C.A.); R. v. White, supra at paras. 16-17; R. v. Beals (1993), 1993 CanLII 5636 (NS CA), 126 N.S.R. (2d) 130 at paras. 18 and 27 (N.S.C.A.); R. v. J.C.G., supra at paras. 12 and 26; R. v. Manhas, supra; R. v. Richard and Sassano (1992), 55 O.A.C. 43 at para. 7 (C.A.);
where the accused has had “ample opportunity to obtain counsel to represent him at his trial” and where “his efforts were directed to causing a further delay of his trial,” an adjournment can properly be refused. The same is true where the accused has “deliberately failed to retain counsel or has discharged counsel with the intent of delaying the process of the court” or where the accused “was manipulating the system, or otherwise seeking to delay for tactical advantage” or was not acting “diligently and honestly in exercising his right to counsel.” See: R. v. Manhas, supra at pp. 336 and 346; R. v. Smith, supra at p. 93; R. v. White, supra at para. 26; R. v. Wood (2005), 2005 CanLII 13779 (ON CA), 196 C.C.C. (3d) 155 at para. 7 (Ont. C.A.); R. v. McGibbon (1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334 at p. 346 (Ont. C.A.); R. v. Beals, supra at paras. 24, 29 and 33;
the length of the requested adjournment and its impact on the fair trial rights of the other parties is a relevant consideration. See: R. v. Smith (2001), 2001 CanLII 20968 (ON CA), 161 C.C.C. (3d) 1 at paras. 48-52 (Ont. C.A.). Similarly, the need for an adjournment and whether counsel will have sufficient time to prepare for trial without any further adjournment is a relevant consideration. For example, in R. v. Olbey, supra at p. 398, Martin J.A. (Dubin J.A., as he then was, concurring) held that five days’ notice of the date when a murder trial would proceed gave counsel “ample opportunity to prepare for trial.” Counsel’s request for an adjournment was properly denied in the above circumstances in a murder case that was “not complicated” and where counsel had acted at the preliminary hearing. Standards of trial preparation were somewhat more robust in the era of Olbey’s Case, some 40 years ago. Nevertheless, the point remains that the court must assess the reasonable time required for trial preparation, when asked to adjourn a scheduled trial date for this purpose;
when assessing the bona fides of a request to adjourn, in order to retain counsel and prepare for trial, there are a number of relevant considerations, including the following: the accused’s “personality and skills”; his “degree of familiarity with the criminal justice system”; the context of any unfavourable rulings on pre-trial Motions; the accused’s “means to pay the costs of his or her defence”; and the time that the accused has already had to retain counsel and prepare for trial. For example, in R. v. Spataro (1972), 1972 CanLII 25 (SCC), 7 C.C.C. (2d) 1 (S.C.C.), the accused brought two motions seeking severance and a change of venue which, if successful, would have resulted in an adjournment. Both motions were dismissed by the trial judge. The accused then purported to “discharge” counsel and seek a “postponement” of the trial. The Court found that the request “was not made in good faith but for the purpose of delay.” In R. v. Rowbotham, supra at pp. 63-4, the Court held that the accused “has the right to defend himself and no one has the right to force counsel on him” and that an accused who “has the means to pay the costs of his or her defence but refuses to retain counsel may properly be considered to have chosen to defend himself or herself.” See also: R. v. Vescio (1948), 1948 CanLII 53 (SCC), 92 C.C.C. 161 at pp. 164-5 (S.C.C.); R. v. McGibbon, supra at pp. 345-6; R. v. Beals, supra at paras. 29 and 33; R. v. White, supra at pp. 256-7; R. v. Richard and Sassano, supra at para. 7; R. v. Manhas, supra at p. 336;
finally, in a case where “a joint trial was required,” one co-accused’s need for a further adjournment in order to retain counsel of choice “cannot be exercised to dictate the date of trial so as to inconvenience other parties and prevent issues being dealt with fairly and efficiently.” Rather, that co-accused’s “right to counsel must be balanced against [the other co-accused’s] right to be tried within a reasonable time,” particularly in a case where the other co-accused’s s. 11 (b) Charter right would “have been jeopardized had there been a further adjournment.” Accordingly, in R. v. Richard and Sassano, supra at paras. 5-7, it was held in the above circumstances that the trial could properly proceed with one co-accused unrepresented. Also see: R. v. Chimienti (1980), 1980 CanLII 4500 (ON SC), 17 C.R. (3d) 306 (Ont. H.C.J.), aff’d October 23, 1980 (Ont. C.A.); R. v. Sixto R. and Simon C., January 16, 1990 (Ont. H.C.J.), aff’d June 18, 1990 (Ont. C.A.); R. v. Ross and Leclair (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 at p. 135 (S.C.C.); R. v. Speid (1984), 1983 CanLII 1704 (ON CA), 8 C.C.C. (3d) 18 at p. 20 (Ont. C.A.) R. v. McCallen (1999), 1999 CanLII 3685 (ON CA), 131 C.C.C. (3d) 518 at paras. 31-40 and 45-51 (Ont. C.A.); R. Pomerance, “Counsel of Choice v. Early Trial Dates: a post-Askov Analysis of Competing Constitutional Interests” (1991), 25 M.V.R. (2d) 175.
44In a post Jordan era, there is a heightened responsibility on all litigant participants, including self-represented accused, to work cooperatively to bring cases to trial in a reasonable time and comply with reasonably scheduled court dates, including trials. The Court of Appeal in R. v. Kazman, 2020 ONCA 22 described the broader administration of justice interests:
[16] The broader administration of justice concerns were placed front and centre in the powerful reasons of the majority in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 137-141. Speaking specifically about the constitutional right to a trial within a reasonable time and the litigation that claims based on that right have spawned, Moldaver J. for the majority stressed that all participants in criminal litigation have a joint obligation to work co-operatively to effectively use limited available resources in order to bring cases to completion within a reasonable time: see also R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 1. No one, including self-represented accused, can be allowed to ignore court orders and deadlines while the constitutional clock runs down and valuable court resources are consumed. After Jordan, trial judges must engage in proactive case management of criminal trials. Litigants must cooperate in those case management efforts. Appellate courts must support those proactive steps by showing strong deference to case management decisions: Jordan, at paras. 138-139.
(emphasis added)
ANALYSIS
45There are several issues to be considered on the conflicting interests:
a) Omar Badran's diligence/ bona fides to retain trial counsel
46Omar Badran states that he only wants Ms. Goldlist as his trial counsel. Despite this, he states he contacted numerous lawyers to determine if they would accept a retainer with Legal Aid or pro bono. Omar Badran contacted the following lawyers from August to November, 2019: Marie Henein, Greenspon or Greenspan, John Rosen, R. Bhatti, R. Norris, F. Mirza, S. Virk and other lawyers that he does not recall.
47Omar Badran does not explain how he could retain counsel on Legal Aid when he had been denied legal aid in June 2019 and had exhausted all appeals by August 2019.
48Omar Badran had not retained counsel for trial on June 26, 2019 (when trial dates were first to be set), and despite numerous subsequent court appearances, he still has not retained counsel for trial to this date, January 24, 2020.
49Omar Badran has known since June 26, 2019 that the earliest Ms. Goldlist could accommodate a 4-week trial was October 2020 and that there were s. 11(b) issues at play as the charges had been laid in 2013.
50Omar Badran knew, on August 7, 2019, that Ms. Goldlist was not available for the scheduled February 3, 2020 trial date ordered on a "with or without counsel" basis. That gave Omar Badran 6 months to find an available counsel. As described by Durno J. in the court appearance, the right to counsel of choice is restricted to counsel "who is available within a reasonable period of time." See McCallen. What is a reasonable period of time is dependent on all of the circumstances in the case. In this case, given the date of the charges, the lengthy delay caused by Omar Badran's plea/withdrawal, and the s. 11(b) issues regarding Hamza Badran, the six months was a reasonable period of time to permit Omar Badran to find and retain counsel for the scheduled trial date.
51I am not persuaded that Omar Badran's efforts to retain other counsel for his trial were bona fide for the following reasons:
a) First, he states he only wants Ms. Goldlist to represent at trial;
b) Secondly, he states he sought to retain counsel on a legal aid basis right up to November 2019 when he knew that he was denied Legal Aid and had exhausted all appeals;
c) Thirdly, selecting the respected well-known criminal defence counsel that he approached, only on a pro bono basis and, in some cases, as late as November 2019, to conduct a four week jury trial in February 2020, gives every indication of "going through the motions";
d) Fourthly, he stated that he did not have Crown disclosure on January 8, 2020. It is impossible to imagine how he could even approach counsel to potentially retain them, on a Legal Aid or pro bono basis, without having Crown disclosure for prospective counsel to review; and
e) Fifthly, he stated he did not know what "peremptory" meant despite having counsel during almost all court attendances in 2019. In any event, the court made it clear to him, on a number of occasions, that his trial was proceeding on February 3, 2020 "with or without counsel." The implicit suggestion that he did not know the trial would go ahead on February 3, 2020 if he didn’t have counsel (i.e. on a peremptory basis), is simply not believable.
52In my view, Omar Badran's alleged attempts to find alternate counsel for the trial were designed with failure in mind, to give the appearance of diligent efforts and to delay the trial so that he could possibly have Ms. Goldlist represent him. Omar Badran did not act diligently or in a bona fide manner to retain available counsel for the scheduled trial date.
b) Omar Badran's attempt to create a de facto severance
53There is no real dispute that, if Omar Badran's adjournment is granted, it will affect a severance with his brother's trial. Interestingly, Omar Badran did not pursue his severance application but instead choose to seek an adjournment to retain counsel. At the same time, his brother Hamza Badran, insists on the trial date to protect his Charter right to a trial within a reasonable time - a right he is entitled to protect.
54There is no longer a motion for severance advanced by Omar Badran. The Crown has maintained its position for a joint trial and would oppose any severance.
55I make no determination whether a severance application would (or would not have succeeded). Since both counsel touched on this area, let me deal with it.
56If the severance application had proceeded, the onus would have been on Omar Badran. The non-exhaustive list of factors to be considered on a severance application are set out in R. v. Last, 2009 SCC 45. Several of the factors, from the evidence on these applications, that would have been applicable are:
a) No prejudice is alleged by Omar Badran of a joint trial;
b) Ms. Goldlist, at the hearing, pointed to the possibility of a "cut throat" defence. If this were true, then permitting a severance would be contrary to the public interest. As noted recently by the Ontario Court of Appeal in R. v. Zvolensky, 2017 ONCA 273 at para. 29, a joint trial is a significant factor against a severance where there is a cut-throat defence at play;
c) There is a legal and factual nexus between the charges - they are entirely intertwined. Both were allegedly present at the scene with the controlled drugs when arrested by the police;
d) The trial is scheduled for four weeks. If the adjournment is granted, virtually the identical trial would have to be done again with a minimum of almost a year delay. A second trial would require many, if not all, of the same witnesses; and
e) There is the possibility of inconsistent verdicts, especially in this case, where one of the essential elements will be the knowledge of each accused that the shipment of tiles contained controlled drugs.
57I repeat, granting the adjournment Omar Badran seeks would necessarily result in a severance is a factor against granting the adjournment. In my view, Omar Badran seeks to achieve a severance by an easier legal route, by seeking an adjournment on the basis he does not have counsel for trial.
58On August 7, 2019, Omar Badran was told to bring his severance application as soon as possible. Instead, Omar Badran chose to await the result of Hamza Badran's s. 11(b) application. Omar Badran's position made no sense. If Hamza's s. 11(b) application was unsuccessful, Omar Badran's trial would proceed on February 3, 2020. If Hamza's s. 11(b) application was successful, the charges against Hamza Badran would be stayed and Omar Badran's trial would proceed on February 3, 2020. In either case, Omar Badran knew that Ms. Goldlist was not available until October 2020 and that, if his trial proceeded on February 3, 2020, he would be without counsel.
59The delay only makes sense if the purpose of the delay was to bring a last-minute adjournment application before trial, knowing that courts are reluctant to require an accused to proceed to trial unrepresented.
60Omar Badran provides no other explanation, plausible or not, for the inordinate delay in bringing these applications.
61Another factor favouring a dismissal of the adjournment application is that Omar Badran deliberately delayed in bringing a severance application for months. Now, after having reviewed the ruling on Hamza Badran's s. 11(b) application and knowing that Hamza Badran's trial must go ahead on February 3, 2020, Omar Badran seeks an adjournment to achieve the goal of a severance.
62The only logical conclusion is that Omar Badran deliberately delayed bringing his adjournment application to plead that he did not have counsel and needed an adjournment to retain counsel, to manipulate the “system” to obtain a severance.
63I am satisfied that Omar Badran's adjournment application was brought for the purpose of manipulating the system to achieve a severance from his brother, Hamza Badran under the guise of an adjournment application.
c) Omar Badran's Ability to Retain Counsel
64Omar Badran faces another immense hurdle - there is no certainty that, if an adjournment is granted, he will retain counsel and be able to proceed to trial in a reasonable time.
Omar Badran's Financial Circumstances
65I do not accept Omar Badran's alleged financial distress in the record before me. There are simply too many questions regarding his finances and use of his resources to accept his allegations. Nevertheless, if this court were to accept Omar Badran's plea of being financially destitute, an adjournment will achieve nothing but a further delay, similar to the delays evident in Omar Badran's failure or inability to retain counsel in 2019. Let me review the facts which lead me to this conclusion.
His Income
66Omar Badran points to his bail for his current financial distress. Omar Badran's bail conditions were as follows:
After Omar Badran's arrest in 2013, he was released on bail without condition;
On July 19, 2017, Omar Badran was arrested on other charges on which he was released on bail on house arrest or in the company of one of his sureties and GPS ankle bracelet monitoring;
On January 4, 2019 all conditions were removed except his GPS ankle bracelet monitoring; and
On September 12, 2019, the GPS ankle bracelet monitoring was removed.
67Omar Badran has or has been involved in at least 4 businesses subsequent to his arrest:
a) A 2011 construction business (now called Signature Construction) owned solely by Omar Badran. Omar Badran continued to operate this business from 2013 until 2017. He testified he made between $55,000 and $200,000 each year from this business. In addition to doing construction and renovations, this business "also purchased and invested in different properties throughout the GTA in several renovation projects and property flips". He testified his 2013 arrest did not affect this business. However, in 2017 (the year of his subsequent arrest) this business made "just under $100,000." Omar Badran states that he made no income from this business in 2018 despite being on bail. Omar Badran states that he made little or no income in 2019 from this business except for two small contracts in November 2019 for a total revenue of about $3,700 in 2019. He claims that "I have been unable to attain contracts on my own through my construction company as, every time a client googles my name, they are able to view the articles posted of my July 19, 2017 arrest that I have been acquitted of." Omar Badran states he is trying to re-start this business;
b) A basketball tournament business (called United Basketball Athletics) which he owned with his brother and a third party. Omar Badran said that this business was up and running in 2017 but his partner took all the profits for that year since he had been arrested on the second set of charges. He stated that this business now operates on a free of charge basis;
c) A sportswear business (called Badran & Co Sportwear). Omar Badran said that this business was to supply uniforms to the United Basketball Athletics. This business was to operate in the fall of 2017 but never "launched." However, he testified he ordered uniforms in 2018 and his explanation as to why he would do so if this business was not operating was confusing; and
d) An auto business (called Raptor Auto). Mr. Badran managed this business which, he says, is owned by his father. His father has been and is a full-time employee of the GTAA. Omar Badran states he does not earn any income from this business. There was no information as to what happens to the viability of this business. However, as will be seen below, there is good reason to believe that Omar Badran has a greater connection to this business than he has disclosed.
68Essentially, Omar Badran testified he has had virtually no income from these businesses for the past few years. Accepting for the purpose of this application that Omar Badran's evidence is accurate, there is no reason to conclude or believe that he will earn income from these businesses, to support himself, his seven children, and have sufficient funds to retain counsel.
69When asked by the Crown about income for 2020, all Omar Badran said was that he was hoping to re-start the construction business but offered no details or why he had not been able to generate income in 2019 when his bail conditions had been reduced and eventually deleted in their entirety. If the internet articles are the problems for his construction business, as Omar Badran suggests, this impediment will not change in 2020.
70Omar Badran states that he has been unemployed since July 2019 except for the two aforementioned small construction jobs which were terminated shortly after the jobs started.
71Omar Badran has 7 children. He receives Child Tax Credit of approximately $1,900 per month and Ontario Works of approximately $1,100 per month. His total income per month is approximately $3,000.
72Omar Badran claims he is in financial distress and unable to pay for a lawyer to represent him. What remains unanswered is, if I accept his evidence as to his financial distress, Omar Badran will no income to permit him to retain counsel for a four week trial.
His assets
73Omar Badran owned a property at 6477 Old Homestead Road, Georgina. It is unclear if this was a home or a cottage. In June of 2018, he sold the home for $1,030,000. What Omar Badran did with the balance, after paying the outstanding mortgage, is unclear. Omar Badran's affidavit states:
The balance of approximately $450,000 dollars was then transferred to a property owned by my father 14 Wisteria Lane Haldimand Ontario. A lien was placed on my father property that I was responsible for, that I was unable to pay due to my bail conditions.
74In addition, out of the proceeds of sale of the Old Homestead Road property, Omar Badran paid, the landlord of the Raptor Auto business, rental arrears of approximately $32,000 despite Omar Badran having no interest in this business.
75There is yet another connection between Omar Badran and the Raptor Auto business. By paying the rental arrears, it allowed him to move parts worth "well over $400,000" to a storage unit but he eventually could not pay the storage fees (an undisclosed amount), resulting in the landlord selling the parts at auction. There is no evidence as to the proceeds or what happened to any surplus, if any. This raises questions about Omar Badran's real interest in Raptor Auto and whether his connection with the Raptor Auto business was fully disclosed.
76Let me now turn to the father's 14 Wisteria Lane, Haldimand property into which $450,000 was transferred from the sale of Omar Badran's Old Homestead home. Omar Badran states that his father defaulted on the Haldimand property mortgage and it became the subject to mortgage sale proceedings. The Notice of Power of Sale does not include any reference to Omar Badran's interest in this Haldimand property or the "lien." Omar Badran goes on to state that there are second and third mortgages on this property in the amount of $1,220,000 and a fourth mortgage of $150,000 outstanding. Omar Badran opines that the value of the Haldimand property is only $900,000. More importantly, Omar Badran states that he is responsible for $1,370,000 of these outstanding amounts.
77Omar Badran's evidence is that he sold his Old Homestead property, disposed of the proceeds and he remains liable for substantial amount of money. Omar Badran states he has no other assets. As a result, Omar Badran's indebtedness creates an serious impediment that, even a lengthy delay, will not result in Omar Badran's financial ability to retain counsel.
Other Proceedings
78Omar Badran is a party in a family law proceeding with his wife. They have four children. It is unclear whether Omar Badran has any court ordered support obligations to his wife and/or children.
79Omar Badran has been denied Legal Aid for this family law proceeding.
80Omar Badran states he has "struggled to pay for my counsel in my family court case and continue to struggle in order to maintain counsel" for the family law proceeding. I take this to mean that he does have counsel for the family law proceeding that he is paying.
Prior Use of Funds
81Omar Badran testified that he has paid $450,000 for the legal fees of himself and his brother to date. He states he provided Hamza's counsel $100,000 for the 2015 preliminary and $100,000 for the 2017 trial.
82Clearly, Omar Badran did not prioritize his monies to deal with his charges. Paying his brother's legal fees may be laudable. However, Omar Badran cannot allege he now cannot afford to retain counsel or that one should be provided by Legal Aid or the government, when he did not prioritize his funds for his defence when such funds were available.
Other sources of Financial Assistance
83Omar Badran states that his family is no longer able to financially assist him to retain counsel.
84However, there was a significant inconsistency in Omar Badran's evidence. Omar Badran testified that, when he was contacting lawyers in 2019, he was going to try to borrow money from family or friends to help retain counsel. However, when asked about borrowing such money in 2020, he testified that he could no longer do so. There was no explanation why other than there is no more money from family or friends.
Legal Aid
85In June 2019, Omar Badran applied for Legal Aid. He was denied Legal Aid.
86In July 2019, Omar Badran appealed. His appeal was denied.
87In August 2019, Omar Badran requested a financial reconsideration but was denied.
88The Legal Aid file is not in evidence. There is no evidence regarding Omar Badran's financial disclosure to Legal Aid or the basis for Legal Aid's denial.
Rowbotham and Ability to Represent Himself
89There is no Rowbotham application before me. Omar Badran testified that he did not know what a "Rowbotham" was.
90Omar Badran has appeared in court on numerous occasions, in almost all occasions since discharging his prior counsel in early June 2019, he was represented by Ms. Goldlist and on some occasions, an agent for Ms. Goldlist.
91I find it difficult to accept that Omar Badran does and did not know he could apply to the courts to appoint counsel for him, especially, since some of the court appearances with counsel occurred after Legal Aid had been denied and all appeals exhausted.
92Given the circumstances, I do not accept this evidence.
93Let me briefly deal with Ms. Goldlist's submission that Omar Badran does not have the ability to represent himself at the upcoming trial. While I cannot and do not decide this issue, there are several concerns regarding this submission:
a) There is no evidence as to the complexity of the legal issues at trial;
b) Ms. Goldlist did not assist Omar Badran to prepare these applications. Omar Badran's application materials before me suggests that Omar Badran has a fundamental understanding of his legal rights as the application materials contain details, organized facts, exhibits, references to the Charter, clear submissions on issues such as alleged police and prosecutorial misconduct, an exhibit brief, and a transcript brief; and
c) From the record and his testimony before me, Omar Badran appears to be an intelligent, articulate person.
Ms. Goldlist
94Omar Badran wants to be represented at trial by Ms. Goldlist:
I do not want any other lawyer defending me other then [sic] Jordana Goldlist considering what I went through with David Bayliss, the plea and striking of the plea. Due to the significant balance David Bayliss still owes me I no longer trust putting my freedom or money in any other lawyer's possession other then [sic] Jordan Goldlist.
95Ms. Goldlist made it clear to the court that she has never agreed to represent Omar Badran at Legal Aid rates or pro bono. There was no suggestion she would do so now.
96Ms. Goldlist has represented Omar Badran in court on numerous occasions in 2019.
97Ms. Goldlist was retained to argue these applications just days before they were to be heard.
98Omar Badran does NOT assert that Ms. Goldlist will be retained if the adjournment is granted.
99Ms. Goldlist does NOT confirm that she will accept the retainer or that she remains available in October 2020 for trial.
100There is simply no assurance this trial will proceed in a timely manner with Omar Badran represented by counsel at a future trial date.
d) Adjournment to bring a Stay Application
101Omar Badran alleges police and prosecutorial misconduct in support of his application for a stay.
102The Crown was unprepared to deal with this last-minute additional application since Omar Badran had only advised the court at the end of 2019, he was bringing a severance and adjournment application. There was no prior mention of a stay application alleging police and prosecutorial misconduct. The Crown was not aware of this application until Omar Badran filed his materials.
103While I make no comment or determination of the stay application, I consider the following:
a) While some allegations are recent, most of the alleged misconduct goes back years. Yet, Omar Badran provides no explanation why he would have waited to the eve of trial to bring such an application, particularly when he has been represented by several counsel for the past 6 and 1/2 years; and
b) He did not raise the stay application at a pre-trial conference, despite the fact there have been numerous pre-trials, and he has not complied with the procedural requirements of the Criminal Rules.
104These facts are strongly suggestive that this application was brought to support Omar Badran's application for an adjournment of the trial.
105In these circumstances, I do not consider an adjournment for this possible future stay application as a factor in favour of the adjournment..
e) The Public Interest
106If I deny Omar Badran's adjournment, he may (or even will likely) be deprived of counsel for the February 3, 2020 trial. The public interest in the administration of justice includes the accused being represented at trial by counsel, not only to properly protect his interests, but also to ensure a fair trial through proper trial procedure and admissible evidence to arrive at a just verdict.
107However, the public also has an interest to the orderly administration of justice without delay and without the unnecessary waste of publicly funded resources.
f) Balancing the Conflicting Factors
108The following factors strongly favour a dismissal of the adjournment application:
a) The public has an interest in having criminal cases disposed of in an expeditious manner. In this case, the charges were laid in June 2013, 6 and 1/2 years ago. A delayed trial impacts witness' memories and the availability of witnesses after such a long period of time;
b) There is the impact on judicial resources and other proceedings in Brampton which have been delayed because judicial resources, courtroom facilities, prosecutorial resources and enforcement officers have been scheduled for this matter to proceed on February 3, 2020; and
c) Judicial and other courthouse resources have already been set aside for the February 3, 2020 trial;
d) Granting the adjournment will severe Omar Badran's charge from Hamza Badran's charge and will result in two almost identical trials;
e) The charges are serious. Omar Badran and Hamza Badran are alleged to have imported 38 kilograms of cocaine;
f) Omar Badran he has known for 6 months that this trial date was with or without counsel and he brings this application less than three weeks before trial;
g) Omar Badran has had ample opportunity to retain counsel for trial. He has failed to do so. I am satisfied he was not diligent in retaining counsel for trial who was available for the scheduled trial date and this adjournment was to achieve a severance. am satisfied his efforts to retain counsel were perfunctory and not bona fide but were designed to seek an adjournment and severance from Hamza Badran's charges. Omar Badran's adjournment application fails to recognize his obligation to retain available counsel when given a reasonable time to do so. Omar Badran's adjournment application was also a deliberate attempt to obtain a severance from Hamza Badran's trial without meeting the requirements of a severance
h) Omar Badran claims he cannot retain counsel but has not made full disclosure of his financial affairs on these applications. However, even if one accepts Omar Badran's alleged current financial distress, there is no reasonable prospect that he would have funds to retain counsel within a reasonable period of time;
i) The length of the adjournment is unknown since Omar Badran has not retained counsel for trial. It is unknown if he will or can retain Ms. Goldlist or another counsel. It is unknown when the court can schedule a four-week trial;
j) Given the delay in bringing a stay application, it is not a factor in favour of granting the adjournment, particularly since the application was brought and then not proceeded with on January 24, 2020;
k) There is no evidence for me to conclude that Omar Badran cannot represent himself at trial.
CONCLUSION
109In considering all the factors described above and balancing Omar Badran’s rights to counsel and the public interest, Omar Badran's adjournment application is dismissed.
Ricchetti J.
Date: January 30, 2020
COURT FILE NO.: CRIMJ(F) 997-15
DATE: 2020 01 30
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and -
OMAR BADRAN, Defendant
Counsel: K. Reitsma and D. Morlog for the Crown J. Goldlist for Omar Badran, Defendant M. Little for Hamza Badran
RULING
RESTRICTION ON PUBLICATION
Pursuant to s. 648(1) of the Criminal Code, no information regarding this ruling shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict
Ricchetti J.
Released: January 30, 2020