OSHAWA COURT FILE NO.: CR-18-14916 DATE: 20210113

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – MAISUM ANSARI Applicant

Counsel: Chris Walsh and Amber Pashuk, for the Public Prosecution Service of Canada Leora Shemesh, for the Applicant

HEARD: December 21, 2020 via Zoom

REASONS FOR DECISION ON S. 11(B) APPLICATION

LEIBOVICH J.

[1] Mr. Ansari is charged, with his co-accused Mr. Ali, with over 100 counts related to the possession of carfentanil and firearms for the purpose of trafficking. Mr. Ansari’s trial before a judge and jury is currently scheduled to commence on March 1, 2021, for four weeks. Mr. Ansari has brought an application, pursuant to section 11(b) of the Charter, to have the charges stayed for unreasonable delay. Mr. Ansari was arrested on September 20, 2017 [1] and there is no dispute that by the time the March trial is heard the length of the delay will be 42 months and seven days. The defence asserts, that even deducting for some defence delay, the case is well above the 30-month Jordan threshold. The defence acknowledges that the global COVID-19 pandemic would normally be considered an exceptional circumstance, but the delay in Mr. Ansari’s case is the result of the Crown’s refusal to sever the two accused. Mr. Ansari is agreeable to having a judge alone trial, which could have occurred in September 2020. It is only the co-accused, Mr. Ali, who continues to insist on a jury trial, which could not happen due to the pandemic.

[2] The Crown asserts that the application should be dismissed, and that once defence delay and delay caused by the unforeseeable global pandemic are properly deducted, the remaining delay in this case is under 24 months. The Crown asserts that Mr. Ansari’s first trial date was adjourned at the request of the defence and that Mr. Ansari waived his 11(b) rights until the new trial date. The Crown asserts that the second trial date was adjourned because of the pandemic and that the decision to try the two accused together was reasonable and judicially endorsed when Mr. Ansari’s severance application was dismissed.

[3] With the consent of the applicant, this motion was heard virtually by Zoom on December 21, 2020.

[4] For the reasons set out below the application is dismissed.

Timeline in Brief

[5] I have set out the dates of the critical events in this case below. I will address the disputes regarding the setting of the preliminary inquiry, the setting of the first trial date, and the adjournment of the first trial date in the next section.

September 20, 2017 Mr. Ansari was arrested.

January 22, 2018 A preliminary inquiry was set for November 5-8, 2018.

Spring 2018 Mr. Ali, the co-accused, was arrested.

November 5-7, 2018 Mr. Ansari’s preliminary inquiry was held. The applicant was committed to stand trial. The Crown also preferred an indictment against Mr. Ali. The two parties were joined in the Superior Court of Justice on one indictment.

January 11, 2019 A three-week jury trial was scheduled for January 13, 2020. Mr. Ali’s pre-trial motions were scheduled for five days, set to commence on November 18, 2019.

November 29, 2019 New counsel for Mr. Ali brought an adjournment application for both the pre-trial motion and trial dates. Di Luca J. granted the adjournment application for the pre-trial motion but dismissed the application for the adjournment of the trial dates. A fourth week was added to the trial to accommodate the pre-trial motions.

December 20, 2019 Both Mr. Ansari and Mr. Ali sought an adjournment of the trial. The Crown objected. The adjournment was granted.

January 23, 2020 Mr. Ali’s pre-trial motion was scheduled for June 8, 2020. The trial was set for September 14, 2020 for six weeks.

March 17, 2020 The Chief Justice suspended in person sittings. They recommenced July 6, 2020.

September 1, 2020 Mr. Ansari’s severance motion was dismissed.

September 8, 2020 Pre-trial motions for Mr. Ali were set for October 13, 2020. The trial was scheduled for March 1, 2021 for four weeks. Mr. Ansari’s 11(b) application was scheduled for December 21, 2020.

October 13, 2020 Mr. Ali’s pre-trial motions were heard.

December 21, 2020 Mr. Ansari’s 11(b) application was heard.

Law and Analysis

[6] In Regina v. Jordan, 2016 SCC 27, [2016] 1 SCR 631, the Supreme Court of Canada created a new simplified framework from which to assess a claim of unreasonable delay. The first step is to calculate the total delay, being the period of time from the charge to the actual or anticipated end of the trial. Defence delay, which includes either an implied or explicit waiver, is then subtracted from the total delay. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. The next step is to subtract delay caused by discrete events from the net delay which results in the remaining delay for the purposes of determining whether the presumptive ceiling has been reached. If the delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable. The presumptive ceiling for a Superior Court trial is 30 months.

[7] Where the remaining delay falls below the presumptive ceiling, an accused may still show it is unreasonable by demonstrating i) the defence took meaningful steps that show a sustained effort to expedite the proceedings; and ii) the case took markedly longer than it reasonably should have.

[8] The Crown agrees that the period from when the applicant was charged until the end of his scheduled March 2021 trial is 42 months and seven days. The period is in excess of the 30-month presumptive ceiling. This application thus raises three issues:

1. Was there any defence delay, and if so, how much?
2. If the net delay exceeds the presumptive ceiling, can the Crown rebut the presumption that the delay is unreasonable by establishing the presence of exceptional circumstances?
3. If the remaining delay is below the presumptive ceiling, has the applicant nevertheless showed that the delay is unreasonable?

1) Was there any defence delay, and if so, how much?

[9] In R. v. Jordan, the Supreme Court of Canada stated that one example of defence delay is when both the Court and Crown are available to accommodate a hearing, but the defence is not. As stated at para. 64:

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

Also see: R. v. Albinowski, 2018 ONCA 1084, [2018] OJ No 6892, at paras. 33-35.

[10] In this case there are two accused, but in assessing defence delay one must look at the individual accused’s actions that caused delay, not delay caused by the actions of the co-accused. As stated by Gillese J.A., speaking for the majority in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 128:

I do not agree with the Crown that delay by one accused should be attributed to all. Rather, an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused. This conclusion flows from Jordan and the weight of the jurisprudence. Accordingly, I would not attribute delay caused by the actions of a co-accused to Sargeant or Gopie.

[11] In R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, the Court of Appeal re-affirmed that an individualized approach must be considered when looking at defence delay. The Court agreed at para. 53 that there might be certain circumstances where a “communal approach to defence delay is more appropriate such as “multiple-accused cases where several counsel are unavailable for different parts of a particular delay period”.

[12] The Crown submits that there are three periods of defence delay/waiver that should be deducted:

a. 42 days from September 27, 2017 to November 8, 2017, reflecting the delay that resulted from the applicant’s counsel’s being unavailable for earlier preliminary inquiry dates; b. Four months of the period between April 2019 and January 2020, reflecting the period when the Court and Crown were available for trial, but the applicant’s counsel was not; and c. Eight months, representing the entire period that was waived between the January 13, 2020 trial date that was adjourned at the applicant’s request and the September 14, 2020 trial date.

The delay in setting the preliminary inquiry date

[13] Both parties agree that there should be some defence delay deducted in this regard, but they differ in the amount. The applicant’s preliminary inquiry was ultimately scheduled for November 5-8, 2018, before Justice Burstein. On January 12, 2018, the trial coordinator emailed the parties to determine if earlier dates, other than November 5-8, could be secured. It was agreed that four days were required. The court offered a number of other hearing dates for three potential jurists:

• August 1-2, 2018, September 24, 27 and 28, 2018 and October 15 and 24, 2018 before Justice Burstein;
• September 7 and 11, 2018, and October 22 and 29, 2018 before Justice Javed; and
• September 28, 2018, and October 15, 18 and 29, 2018 before Justice MacLean.

[14] Neither the Crown nor the defence were available from October 13-22, 2018, rendering the proposed hearing dates before Justice Javed and Justice MacLean unusable, as their prospective dates could not accommodate a four-day preliminary inquiry. However, the Crown was available for the following available dates before Justice Burstein: August 1 and 2, September 24, 27, and 28, and October 24, 2018, but the defence was not. In her written factum counsel submits that:

It is conceded that the defence delay in relation to the scheduling of the preliminary inquiry dates - amounts to a total of six days – being August 1 and 2, 2018, September 24, 27 and 28, 2018 and October 24, 2018 before Justice Burstein.

[15] The Crown submits that the total delay is 42 days, as the preliminary inquiry could have been completed on September 27, 2018. I agree with the Crown’s submission. You cannot simply count the unavailable dates from the total delay, one must count the effect of not being available on those earlier dates. In this case the effect of not being available earlier is 42 days. I therefore agree that 42 days should be deducted from the total delay.

The delay in setting the first trial date

[16] The Crown submits that the first trial date could have been scheduled earlier but for counsel for the applicant’s schedule. The Crown, in its factum, states:

Although the trial was scheduled to start on January 13, 2020, the Court offered trial dates starting September 16, 2019. The Crown was available for those dates, but neither the applicant’s counsel nor Mr. Ali’s counsel were. For both of them, January 2020 was their next earliest availability. The Crown had been available for pretrial motions as early as April and for the trial as early as August. Counsel for Mr. Ali advised that he might be able to clear his schedule in April, but he was not available in July and August. The applicant’s counsel’s first availability was in August, but she was unenthusiastic about scheduling a jury trial to proceed then.

While it is true that the defence is not expected to hold itself in a state of perpetual availability, neither can it negate a calendar year’s worth of unavailability by offering up one block of dates.

[17] The voluminous material filed on this application does not support the Crown’s submissions. At its highest, the material filed showed that counsel for the applicant was not available for one set of dates offered in September but was been available for an earlier August trial.

[18] Both the Crown and counsel for the applicant were available to conduct an August trial. The Crown’s comments set out above that counsel for the applicant was unenthusiastic about scheduling a jury trial in August are unfair. Counsel for the applicant, in her correspondence, indicated that conducting a jury trial in August was not her first choice. While conducting a jury trial in the heat of the summer may not be many people’s first choice, it is clear from the email correspondence that this time was genuinely offered by counsel, not just once but twice. It is also clear that, at the time, the Crown accepted the August date as a genuine date for trial and asked the trial co-ordinator if this was a possibility. However, Counsel for Mr. Ali was not available for an August trial.

[19] The Crown submits that “It is equally reasonable, in these circumstances, to attribute at least four months between April 1, 2019 and January 13, 2020 to defence delay.” However, while counsel for Mr. Ali could have attempted to make himself available for an April trial, counsel for the applicant and the Crown were not available in April [2], as set out in the following email from Crown counsel to the trial co-ordinator:

I may have been hasty in saying that the Crown is available from April 1st onward. After consulting with Mr. Walsh and reviewing our schedules, it may be too ambitious to contemplate conducting both a week of motions and the trial proper in April. I’m going to suggest that if dates in April are available to all parties and the court, then we conduct the week of pretrial motions during that period, and aim to conduct the trial proper in August (when Ms. Shemesh is available) if that period is available to Mr. Chadi and the court. As Ms. Shemesh mentioned, her client may opt to re-elect for trial by judge alone. If that happens, then a judge-alone trial in August could be scheduled for two weeks rather than the three weeks estimated for a jury trial.

[20] The Oshawa trial coordinator did not offer any dates and did not comment on whether the court was available in August. Rather, the trial coordinator was waiting for available dates from all the parties, as the following email, dated December 27, 2018, indicates:

Okay counsel when you have it all figured out when counsel are available please send me ONE email that I can forward onto regional office. [emphasis in the original]

[21] Counsel for Mr. Ali finally provided his availability in an email dated January 10, 2019, where he stated that he was only available starting the week of November 18, 2019. The next day, on January 11, 2019, at a court appearance, the week of November 18, 2019 was set aside for Mr. Ali’s pre-trial motions and the trial was set for three weeks starting January 13, 2020. At the January 11, 2019 court appearance, the Crown indicated to the court that the court and Crown were available for a three-week trial starting September 16, 2019.

[22] The Crown relies on the Court of Appeal’s comments in R. v. Albinowski at para. 33:

…Here, defence counsel rejected multiple dates offered for the scheduling of the judicial pre-trials and the preliminary inquiry. The reason for their unavailability was clear: they were engaged with previously scheduled professional commitments. Their unavailability was not related to “defence actions legitimately taken to respond to the charges”, such as “preparation time” and “defence applications and requests that are not frivolous”: Jordan, at para. 65.

[23] It is correct that counsel for the applicant only was available in August 2019 and then starting January 2020 for trial. I agree that in most cases, the offering of a single date where the Crown and the court are available, but defence counsel is not will constitute the beginning of defence-caused delay, but not in all cases: R. v. Simmons, 2020 ONSC 7209, [2020] OJ No. 5183 at para. 29. Contrary to when defence counsel was unavailable for multiple dates to conduct the preliminary inquiry, defence counsel did not reject multiple dates for the scheduling of the trial. The only evidence on other available court dates is found at the January 11, 2019 court appearance, where the Crown informed the Court that there was a three-week available period starting September 16, 2019. No other dates were offered. So, while counsel for the applicant was not available in September, she was available for an earlier date in August. I would not deduct the four-month period from September 16, 2019 to the first trial date from the period of overall delay, and I agree with Thomas J.’s comments in R. v. Robert, 2018 ONSC 545, [2018] OJ No 732 at paras. 91-92:

I do not believe the Court in Jordan meant to capture these eight weeks as an example of defence delay. The defence offered dates that would advance the trial and see it finish inside the 30-month ceiling. The Court could not accommodate these earlier dates. Dates were then cobbled together, dates when the Court defence and Crown were available, to conclude the trial on May 11, 2018.

I confirm my earlier position that this type of delay must be viewed in context. I do not see this as the Court and the Crown being ready to proceed, but the defence is not (see Jordan at para. 64) or the type of delay causing action or inaction discussed at length in Cody.

The adjournment of the first trial date

[24] The first trial date was adjourned at the request of both defence counsel. There is no dispute that counsel for the applicant waived a period of time from the first trial date. Counsel for the applicant submits that the applicant only waived the time until the next available date that could accommodate Mr. Ansari, the Crown and the court’s schedule, which was May 11, 2020. Counsel for Mr. Ali was not available to conduct a trial starting May 11, 2020. The applicant submits that only the 119 days from January 13, 2020 to May 11, 2020 should be deducted for the delay. The Crown states that the defence waived the time period until the next scheduled trial date of September 14, 2020, a period of eight months.

[25] The background to setting the first trial date and the Crown’s attempts to keep that trial date are relevant to what happened on December 20, 2019, when the first trial date was vacated. The original trial date was set on January 11, 2019, when the co-accused, Mr. Ali, had different counsel. The Crown subsequently heard that Mr. Ali wanted to change counsel, but no formal action had been taken. The Crown brought a motion for directions. On August 29, 2019, current counsel for Mr. Ali, Ms. Schofield, was made counsel of record. The court discussed with Ms. Kent, appearing on behalf of Ms. Schofield, the concern regarding the already set pre-trial motion and trial dates. With respect to the trial date the following exchange ensued:

THE COURT: And what about the trial dates in January?

MS. KENT: And that’s the same situation is that even though there are matters right now, we’re willing to move things around and – and – and accommodate this matter because we do understand that there’s co-counsel on the matter – or, sorry, co-accused on the matter and the dates have been set.

THE COURT: Do you have any further submissions? It seems to be clear, although Ms. Schofield may be otherwise involved, counsel her back – on her behalf is really making an undertaking and commitment to this court that Ms. Schofield will be available to represent Mr. Ali for the trial in January and in November, should the pretrial motions proceed.

[26] However, Counsel for Mr. Ali still brought a motion on November 29, 2019 to adjourn the trial. The motion was opposed by the Crown and it was dismissed. A further motion was brought on December 20, 2019. It was at this motion that Ms. Casey, appearing on behalf of counsel for the applicant, advised that the applicant was also requesting the adjournment as counsel for the applicant was unexpectedly involved in another matter that could not be moved. The Crown opposed the adjournment application but, given the situation it was evident that the Court’s hands were effectively tied and the adjournment was granted.

[27] Against this background, Ms. Casey waived the applicant’s 11(b) rights. She stated:

THE COURT: And so I take it from and 11(b) perspective, Mr. Ansari is prepared to waive 11(b)…

MS. CASEY: Yes

THE COURT: … between the scheduled trial date of January… 13th and the next available trial date?

MS CASEY: Correct, Your Honour. And we have received formal instructions from the client and I can explicitly waive 11(b).

[28] Counsel for the applicant submits that the applicant’s waiver as to the adjournment of the first trial should end on the first ‘available date’ offered by the applicant to re-commence his trial and available to the Crown and the Court: May 11, 2020, even though counsel for the co-accused was not available. Counsel for the applicant relies on R. v. Gopie and R. v. Manaseri, 2016 ONCA 703 and submits that defence delay is an individualized process and delay caused by the co-accused defence counsel’s schedule should not be attributed to Mr. Anasari.

[29] In my view, it is evident that the applicant was waiving his 11(b) rights from the January 13, 2020 trial date to the next trial date. I say this for the following reasons:

1. I agree with counsel for the applicant’s submission that she did everything that she could to secure the earliest new trial dates for the applicant but when the waiver was made, she knew that there was a co-accused and the co-accused’s dates also had to be accommodated. Mr. Ali’s presence on the indictment was not a surprise. It is common knowledge that scheduling is more complicated with more parties involved and that waiving 11(b) meant waiving 11(b) until the next trial date for both accused;
2. Bird J., who granted the adjournment, clearly did not take the waiver as being a waiver only to the first available date for the Crown, the court, and Mr. Ansari, irrespective of Mr. Ali. Bird J. endorsed the indictment on December 20, 2019 and wrote:

   Mr. Ansari now also needs an adjournment as Ms. Shemesh has suddenly and unexpectedly become unavailable for trial. Adj app. granted. Both accused waive 11(b) between January 13th and next trial date. This view was shared by Regional Senior Justice Fuerst at the January 20, 2020 judicial pre-trial: And I’ll just remind all counsel that on December 20th, 2019, when Justice Bird granted the adjournment request she endorsed both accused waive 11(b) from January 13, 2020 as – I’m sorry, both counsel waive 11(b) between January 13th, 2020 and the next trial date, so that 11(b) waiver is very much in place. At this court appearance there was no objection by counsel for the applicant or correction to RSJ Fuerst’s comment.

3. At the December 20, 2019 court appearance, while for different reasons, the defence were acting in unison in their request for an adjournment. All the parties were in fact contemplating a September 2020 trial, as seen in the following exchange:

   MS. SCHOFIELD: But I— I think we have sorted out dates.

   MR. WALSH: So we have…

   MS. SCHOFIELD: July for motions and September for trial if the adjournment is granted.

   MR. WALSH: So we have not sorted those out with the Trial Coordinators. If those dates are available…

   MS. SCHOFIELD: Yes.

   MR. WALSH: … to the court, then that will substantially affect my position. If we’re looking at dates a year from now or more then I would remain opposed. So, while counsel for the applicant is technically correct when she submits that at the time that the applicant waived his 11(b) rights the new trial date was unknown, the applicant cannot be surprised that a trial was set for September, when that was the time that was specifically discussed when the adjournment was granted [3] and the 11(b) waiver given. Counsel for the applicant stated no objection to the prospect of a delay until September, nor to the clear implication that the “we” who had “sorted out dates” included the applicant. Nor did she offer any qualification of the 11(b) waiver in that context.

4. Counsel for the applicant needed the adjournment because of a sudden scheduling conflict. But counsel knew that the first trial date was scheduled a year earlier and offering a limited 11(b) waiver, as counsel now claims it did, would not have been acceptable to the court.

[30] The time from January 13, 2020 to September 14, 2020 shall be deducted from the overall period of delay.

[31] The total delay in this case is 42 months and seven days. I would deduct from this total the 42 days of delay caused by defence unavailability when setting the dates for the preliminary inquiry and the eight months resulting from defence’s waiver of 11(b) from the first trial date to the second trial date. The net delay is 33 months less a week. The net delay is above the 30-month presumptive ceiling.

2) If the net delay exceeds the presumptive ceiling, can the Crown rebut the presumption that the delay unreasonable by establishing the presence of exceptional circumstances?

[32] At the time of the second trial date only one jury trial could be accommodated at the Durham Courthouse because of the COVID-19 pandemic. Another trial, a murder re-trial was heard, and the applicant’s jury trial could not go ahead. The co-accused would not consent to a judge alone trial and, as a result, the trial was adjourned.

[33] The applicant properly concedes that the COVID-19 pandemic, which has ravaged the world, is a discrete event and an exceptional circumstance. However, the applicant submits that had the Crown consented to sever his charges from the co-accused, he would have re-elected to be tried by a judge alone and his trial would have been completed by now. Counsel submits that, while Mr. Ansari’s application for severance was dismissed, the Crown still had the ability to sever the charges and preserve his 11(b) rights. However, the Crown chose otherwise, as submitted in the applicant’s factum:

It is conceded that the pandemic should fall generally under this prong. However, it is respectfully submitted that the delay caused by the COVID 19 pandemic in this, specific case, should not simply be removed from the net delay. While the pandemic was both unforeseeable and unavoidable, the delay associated with the pandemic in the circumstances of this case - was not. The Crown was provided with specific options to proceed with the Applicant’s trial and to utilize available judicial resources to conclude the Applicant’s trial. The Crown chose not to exercise those options.

It is respectfully submitted that the Crown did not take reasonable steps to mitigate the potential delay caused by the COVID 19 pandemic, despite being fully aware that the Applicant would bring a s. 11(b) application if the September 2020 trial was adjourned. As such, it is further submitted that no portion of the delay caused by the COVID 19 pandemic should be subtracted from the net delay and it should not be considered an exceptional circumstance.

[34] I agree with counsel for the applicant’s general proposition that the Crown must do what it can to mitigate the effects of the COVID-19 pandemic. However, I disagree that it required the Crown to, at this stage, sever the applicant’s case from his co-accused. While Speyer J. specifically did not rule on the applicant’s possible (at that time) 11(b) application, she found that a joint trial was in the interests of justice. The only basis for the severance application was the possible prejudice to Mr. Ansari’s right to be tried within a reasonable time. Mr. Ansari “agrees that apart from this issue, the interests of justice favour a joint trial and he does not assert that his right to a fair trial will be prejudiced in any way by a joint trial”; R. v. Ansari, 2020 ONSC 5070 at para. 21. Speyer J. found that severance was not appropriate and that “the factors that generally favour a joint trial for defendants charged with a joint enterprise are present in this case.”: R. v. Ansari, at para. 22.

[35] Mr. Ansari and Mr. Ali are alleged to have engaged in a common enterprise. Who knew what about the drugs and the guns that were found will be at the heart of the trial. Speyer J. found that having both accused tried together enhances the ability of the trier of fact to ascertain the truth. She stated at para. 22 that:

The full truth about who had knowledge and control over the drugs and guns in this case is much more likely to emerge in joint trial where a single trier of fact will hear and assess all the evidence, including the evidence of either defendant. If the accused are tried separately, it is highly unlikely that either trier of fact will hear the complete story.

[36] There is logic to Speyer J.’s comments given the nature of the case and the Crown’s refusal to sever the accused, at this time, is a reasonable one.

[37] I agree with the thrust of defence counsel’s submissions that the presence of a co-accused does not allow the Crown to run roughshod over the applicant’s right to a trial within a reasonable time. However, it does not require, at this time, the Crown to sever the applicant when a joint trial is clearly in the interests of justice. Furthermore, I agree with the Crown’s comment at paragraph 79 of its factum that “the record is abundantly clear that the Crown took seriously its duty to ensure that the applicant’s right to a timely trial was not compromised by the decision to prosecute the accused together.” This can be seen from the following:

1. Mr. Ali was arrested after the applicant’s preliminary inquiry date was already set. However, this development did not scuttle the applicant’s preliminary or delay it. Instead the Crown used its ability under s. 577 of the Criminal Code to direct an indictment against Mr. Ali;
2. After the Crown heard that Mr. Ali might be changing counsel, instead of waiting for confirmation that did not seem to be forthcoming, the Crown, properly concerned about preserving the pre-trial motion and trial date, proactively brought a motion for directions to determine the lay of the land. The Crown was quite clear at that court appearance that it would oppose any attempt to move those dates; and
3. When Mr. Ali sought later to adjourn the trial date on November 29, 2019, the Crown successfully opposed that motion.

[38] As stated in R. v. Albinowski:

I acknowledge that "[t]here may come a time when the interests of justice are no longer served by proceeding jointly, including where s. 11(b) rights are in jeopardy": Gopie, at para. 171. But that is not this case. None of the respondents were held "hostage" by his co-accused's counsel's unavailability: Gopie, at para. 171; see also R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 7; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 323, leave to appeal refused, [2016] S.C.C.A. No. 513. Rather, the interests of justice favoured proceeding against the respondents jointly: Gopie, at para. 174.

[39] In my view, the September 14, 2020 trial was adjourned because of the pandemic. The delay caused by the pandemic is an exceptional circumstance: R. v. Gutierrez, 2020 ONSC 6810; R. v. Simmons, 2020 ONSC 7209; R. v. Drummond, 2020 ONSC 5495. The COVID-19 pandemic continues to batter the globe. The virus has gone through different peaks and valleys. The Superior Court of Justice closed its physical doors for a few months to enable safety measures to be put in place. The judiciary and bar saw a transformation to virtual hearings and trials, where appropriate. At the time of the September 14, 2020 trial date, jury trials were being conducted in Ontario, but only on a limited basis. The Oshawa Courthouse, at that time, could only conduct one jury trial at a time. Currently, Ontario is in another lockdown and, while trials are being conducted, jury trials are not. Hopefully, this will change in the near future. All of this to say, the pandemic is clearly an exceptional circumstance.

[40] I would deduct the five and a half months from the September 14, 2020 trial date to March 1, 2021 trial date. The net delay is approximately 27 months and one week.

3) If the remaining delay is below the presumptive ceiling, has the applicant nevertheless showed that the delay is unreasonable?

[41] The applicant has not argued that if the net delay is below the presumptive ceiling it is still unreasonable, therefore I need not spend much time in this regard. Given the nature of the case, the net delay was clearly reasonable. I do wish to comment that this case has not exhibited any indicia of the culture of complacency that was of concern to the Supreme Court of Canada in R. v. Jordan. In this case, the Crown, the applicant, and the court worked hard to keep this case moving forward and but for the defence request to adjourn the first trial and the pandemic it would have been concluded under the 30-month presumptive ceiling. This was quite the accomplishment given, among other things, that:

a. The charges were laid, not after the cumulation of a police investigation, but as a result of a 911 call by the upstairs tenant about a carbon monoxide alarm. The police investigation commenced after the discovery of the drugs and guns; b. Mr. Ali was only located after five months and 14 different judicial orders later, in Edmonton; c. Mr. Ali changed counsel; and d. In September 2019, counsel for the applicant asked to be removed from the record because of retainer issues. However, at the urging of Bird J., the application was adjourned in order to allow the applicant to rectify the retainer issues, which he did.

[42] I also wish to clarify that the fact that counsel for the applicant asked for an adjournment of the first trial does not, in my view, indicate that she was not doing her part to have the matter move forward. The adjournment request was an unexpected and unfortunate occurrence. A review of the material filed shows that counsel for the applicant corresponded promptly with the Crown in finding and setting the first trial date and provided multiple dates for the setting of the second trial date. Mr. Ansari’s severance application and 11(b) application were also brought and heard in a timely manner.

Conclusion

[43] The total delay in this case is 42 months and seven days. I would deduct from this total the 42 days of delay caused by defence unavailability when setting the dates for the preliminary inquiry and the eight months resulting from defence’s waiver of 11(b) from the first trial date to the second trial date. The net delay is approximately 33 months less one week which is over the 30-month presumptive ceiling. However, as explained above, I would deduct the delay of five and a half months caused by the pandemic. The net delay is 27 months and one week, which is under the 30-month presumptive ceiling set by the Supreme Court of Canada in R. v. Jordan and is a reasonable amount of time.

[44] The application is dismissed.

Justice H. Leibovich

Released: January 13, 2021

Footnotes

[1] Mr. Ansari was originally charged alone, with numerous firearm offences, and was released. A large quantity of what was believed to be a controlled substance was also located. Those substances were then tested, and on October 12, 2017, Mr. Ansari was re-arrested on the drug charges and held for a bail hearing. He was then released. For the purposes of the 11(b) analysis, there is no dispute that the clock started ticking on September 20, 2017.

[2] The Crown was prepared to argue Mr. Ali’s pre-trial motion in April but not the trial.

[3] I am mindful that it ultimately took a little while to sort out the new trial date and subsequent to the December 20, 2019 court appearance there were concerns about counsel for Mr. Ali’s availability; see paras. 49-52 of the applicant’s factum.