COURT FILE NO.: CR-20-0000047-00AP

DATE: 20210419

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

SYED HUSAIN

Appellant

Helen Song, for the Respondent

Andrew Jia, for the Appellant

HEARD: March 8, 2021

Justice S. Nakatsuru

1Too long is too long. Even if it is by a couple of days.

2Mr. Syed Husain represented himself at trial. At the end of the trial, the trial judge dismissed his application to stay the proceedings on the basis that his right to a trial within a reasonable time had been violated. Originally scheduled for a two-day trial, the trial took place on six different court dates spanning over five months in the Ontario Court of Justice. On this appeal, Mr. Husain says the trial judge got her decision wrong. He appeals his convictions for impaired driving and refusing to provide a breath sample.

3R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 targeted complacency in the criminal justice system as an evil that s. 11(b) of the Charter must combat. Complacency must equally be avoided in a trial involving a self-represented accused. However, a layperson trying to navigate the legal system in their defence can pose a challenge to efficiently run trials. The trial judge must ensure that the accused has a fair trial and meaningful access to justice. Sometimes this can take time.

4In this case, the trial judge showed remarkable patience and understanding in her desire to assist Mr. Husain within the appropriate limits permitted by law. Both the trial judge and the Crown were proactive. They both went out of their way to help. At the same time, the trial judge expressed mindfulness for the requirements of s. 11(b) and the need to complete the trial in a timely way. Nothing that I say in this decision should cause anyone to doubt any of this.

5That acknowledged, I find that the trial judge erred in dismissing Mr. Husain’s s. 11(b) claim. Although there was some defence delay, the trial took longer than the 18-month presumptive limit. No exceptional circumstances justified this. A violation of Mr. Husain’s s. 11(b) right occurred.

A. THE FACTUAL OVERVIEW OF THE CHARGES

6On March 29, 2018, at 4:02 a.m., the police responded to a possible impaired driver. The police found Mr. Husain in the driver’s seat with the car idling. When the police approached, the car moved forward a bit and then stopped. P.C. Graham went up to Mr. Husain. The officer smelled alcohol on Mr. Husain’s breath, his speech was slurred, and he had red bloodshot eyes. P.C. Graham had a short interaction with Mr. Husain. He then arrested him for impaired driving. Mr. Husain was taken to the police station for a breathalyzer. He did not provide a breath sample.

B. THE SECTION 11(B) APPLICATION

1. The Trial Judge’s Ruling

7At the end of the trial, Mr. Husain argued that his s. 11(b) right had been violated. In written reasons dated December 20, 2019, the trial judge dismissed this application along with his other Charter motions.

8In this case the total delay from the swearing of the information on April 6, 2018, to December 3, 2019, when the trial judge reserved her decision, was almost 20 months. This was beyond the presumptive ceiling of 18 months for a trial in the Ontario Court of Justice.

9The trial judge found there to be exceptional circumstances that lay outside the Crown’s control in that they were reasonably unforeseen or reasonably unavoidable. She stated the following four exceptional circumstances:

(1) First, Mr. Husain is self-represented, which is not uncommon here at the Ontario Court of Justice. However, this trial has taken considerably longer than other self-represented cases because Mr. Husain had trouble understanding some basic legal concepts even though I have explained them to him, as well he kept filing various motions. The original trial estimate was for two-days, which under most circumstances should have been enough time for three police witnesses, and for Mr. Husain to testify, if he chose to. Instead, this trial took six days to complete;

(2) Second, the Crown recalled P.C. Graham for Mr. Husain’s benefit because the defendant failed to ask him questions relating to his s. 10(b) argument, which was the centre piece of Mr. Husain’s legal challenges;

(3) Third, Mr. Husain wanted to hear from Sgt. Kraft, whose evidence was all video recorded. Sgt. Kraft’s in-court testimony, I find, as expected turned out to be unhelpful to Mr. Husain.

(4) Further, I am satisfied that the Crown made reasonable efforts to respond to Mr. Husain’s request for Constable Graham to be recalled; to expedite the McNeil application; to ensure that Sgt. Kraft to be available to the defence; and to make himself available to continue this trial.

10The trial judge found that the evidence would have been completed by the fourth or fifth day of trial, so at least by October 8, 2019. The trial judge concluded this would have been within 18 months of the laying of the information.

2. The Standard of Review

11The trial judge’s characterization and allocation of the various periods of delay, as well as the ultimate decision to impose a judicial stay for unreasonable delay, involves a question of law and is subject to a correctness standard of review: R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 27; R. v. N.N.M. (2006), 2006 CanLII 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.), at para. 6. However, the trial judge’s underlying findings of fact are reviewed on a standard of palpable and overriding error: R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at para. 71, leave to appeal refused, [2010] S.C.C.A. No. 3.

C. DISCUSSION

1. Defence Delay

12The trial judge found no waiver or defence delay.

13No deference need be afforded to her characterization of any period of delay. However, deference must be afforded to her factual findings. For instance, the trial judge declined to make any finding of deliberate or calculated tactics by Mr. Husain aimed at causing delay. Another judge may have concluded differently given the number of inquiries he made about the legal process and his substantive rights. On the other hand, Mr. Husain seemed polite and cooperative. He conducted his questioning and defence without any flagrant disregard for relevance. In the end, the trial judge was in the best position to make this determination. I will defer to this finding.

14That said, I find there is a period of delay that amounted to an implicit waiver or defence delay.

15Mr. Husain testified in his own defence, both on the trial proper and on the Charter issues. He finished his evidence on October 8.When he was asked if he had other witnesses to call, Mr. Husain said he was going to call doctors. He wanted to support his medical justification for why he could not provide a breath sample. However, Mr. Husain had not brought his witnesses on October 8. Moreover, he did not know when they would be available. The trial judge would not set a continuation date without a doctor’s letter setting out their availability. Therefore, the case was adjourned to October 23, to be spoken to so that Mr. Husain could provide such a letter. On October 23, Mr. Husain brought a letter from his doctor advising that a medical diagnosis could be confirmed, but no availability dates were given. Mr. Husain told the trial judge that he was not going to call any more evidence and was good with going to submissions. December 3 was then selected. The submissions were completed on December 3.

16Despite the trial judge finding in her s. 11(b) ruling that there was no defence delay or waiver, on the court appearance of October 8, she expressly stated that the delay caused by the adjournment that day was defence delay and waiver. I do not know why the trial judge had second thoughts on this. Regardless, in my view, while the record does not establish an express waiver, the delay from October 8 to December 3 was either defence delay or implicit waiver. On earlier trial dates, on more than one occasion, the trial judge fully explained and warned Mr. Husain about whether he was going to call medical evidence and what he had to do if he was. Therefore, the need for his doctor’s attendance was not a surprise to him. Mr. Husain’s request that the trial go over for the purpose of calling this medical evidence resulted from his lack of diligence. Both the court and the Crown were ready to proceed. Ultimately, he decided not to call any medical evidence. In these circumstances, the delay from October 8 to December 3 was solely caused by the defence: R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, at para. 70.

17While other periods of delay need further explanation – something which I will do below – I find there to be no other defence delay or waiver.

2. Net Delay

18After subtracting the defence delay, the net delay is 18 months 2 days.

19The trial judge found that the evidence would have been completed at least by October 8, 2019. Deference should be afforded to this finding. The trial judge was best placed to make this determination. Moreover, I find it consistent with the record of proceedings. No palpable or overriding error has been pointed to by the respondent to cast doubt on this determination.

20However, the trial judge erred when she held that the time from charge to completion of the trial was within 18 months given that the information was sworn on April 6, 2018. The trial judge either miscalculated or she misspoke. Regardless, the error is of no real moment on appeal. My role is to make the proper calculations.

3. Exceptional Circumstances

21The net delay exceeded the presumptive ceiling by 2 days. Thus, it is presumptively unreasonable. The onus is on the Crown to establish the presence of exceptional circumstances. The Crown relies upon the exceptional circumstances as found by the trial judge.

22As I read the trial judge’s decision, the trial judge found that the exceptional circumstances she outlined justified the delay of 20 months to complete the trial given that she found there was no defence delay or waiver. Though she did not say so expressly, she treated these exceptional circumstances as if they were discrete events and concluded that the trial would have finished within the 18-month ceiling were it not for them. As noted, she found the trial would have completed by October 8. However, she erred in finding this was within the 18-month ceiling.

23On one view of the decision and the trial record, I need not go any further than this. If the trial judge concluded that the exceptional circumstances only justified the delay to October 8, then s. 11(b) is violated. On my analysis of the proceedings, now taking into account the defence delay that I have found, this likewise brings the justifiable delay only to October 8. The end result is the same. Section 11(b) is violated.

24That said, it remains my task to properly determine whether the exceptional circumstances identified by the trial judge could justify any further periods of delay. In my opinion, the trial judge erred in relying upon those circumstances she pointed to.

25First, the fact that Mr. Husain was a self-represented accused does not per se amount to an exceptional circumstance. From the very beginning, the Crown and the court were aware that Mr. Husain would be representing himself. He had never retained counsel. Thus, this situation was expected and foreseen.

26Any self-represented accused will require the assistance of the court. Issues of procedure and substance will need to be explained. In a drinking and driving prosecution, the judge must be alert to potential Charter issues even if the accused does not raise them. Flexibility must be shown. The trial may reasonably take longer to complete. None of this is reasonably unforeseen. Moreover, many of the challenges caused by a self-represented accused can be avoided by proper preparation and trial management by the Crown. In my opinion, the fact that an accused is self-represented is not an exceptional circumstance either as a discrete event or complexity: R. v. Kozma, 2017 ABQB 723, at para. 49. Nor is it a new exceptional circumstance to be recognized. As a matter of principle, no greater delay should be tolerated merely because an accused decides to represent themselves at trial.

27In addition, Mr. Husain’s having had trouble understanding basic legal concepts or having filed motions were not exceptional circumstances. I agree that such matters could constitute defence delay or an exceptional circumstance if such actions caused any delay. However, they did not in this case. Mr. Husain’s need to have things explained to him or his filing of motions mid-trial, which was permitted by the trial judge, did not cause any delay. Looking at the record, I find these matters did not contribute to any real delay in this case. Thus, the trial judge erred in pointing to these circumstances as causing delay.

28When the entire history of the proceedings is considered, there were reasons for the delay that Mr. Husain bore no responsibility for. Put another way, if the trial took longer than the original two days scheduled, it was not entirely Mr. Husain’s fault. The trial was scheduled for June 20 and 21, 2019. However, the trial judge was only available for June 20 as she took on the case as an assist court and she had other matters scheduled for June 21. Even on June 20,the trial judge could only sit to 3:45 p.m. given her other engagements. Also, on that day, the Crown had trouble getting the video to play. The case was adjourned to July 19after only completing the first Crown witness, P.C. Graham, in chief.

29On July 19,the trial judge also heard another unrelated matter in the middle of Mr. Husain’s trial. This interrupted Mr. Husain’s trial for over an hour and a half of court time. On that court date, the Crown finished just two witnesses, P.C. Graham and P.C. Ladurantaye. When two further court dates of August 22 and 23were secured, the trial judge acknowledged that the trial was taking a long time, not just because Mr. Hussain was self-represented but because of the judge’s schedule. When the trial was adjourned, the Crown had yet to call the breathalyzer technician, P.C. Niziol, his last witness. When adjourned, the Crown advised that he was uncertain whether P.C. Niziol would be available on August 22, as he was in another trial. However, the Crown further advised that this officer would certainly be available on August 23. As well, the Crown provided some information to Mr. Husain about P.C. Niziol that dealt with a McNeil matter regarding the officer. The Crown took the position that he was not going to disclose this information as it was clearly irrelevant.

30On August 22, the Crown advised that P.C. Niziol was indeed in another court and not available until lunch. In the meantime, other trial issues were discussed and dealt with, including the McNeil issue. The trial judge looked at the document over the lunch recess. After lunch, she gave her ruling. P.C. Niziol started to give his evidence. He finished his evidence in chief and the trial judge excused him till the next day to give Mr. Husain a chance to look at his notes. On August 22, Mr. Husain raised a right to counsel issue for the first time. The trial judge permitted him to recall P.C. Graham, as it turned out that P.C. Niziol was required in another case on the morning of August 23 in a different jurisdiction. The trial judge permitted P.C. Niziol to deal with that matter and had P.C. Graham recalled for the morning of August 23 in order to allow Mr. Husain to ask Charter questions.

31On August 23, P.C. Graham was recalled and questioned. By lunch, the officer was finished. At that point in time, the trial judge directed the Crown to go seek a further day for a continuation. After lunch P.C. Niziol finished. After the afternoon recess, the trial judge asked Mr. Husain for his defence.

32This overview of what took place in the trial up to and including August 23 leads me to conclude that the trial judge erred in her determination of what she said was the first exceptional circumstance. It was not Mr. Husain’s inability to understand basic legal concepts or the filing of motions that substantially contributed to the extra time required. Rather, it was the court’s schedule and the unavailability of Crown witnesses due to other commitments. These were not discrete events. They were not reasonably unforeseen or reasonably unavoidable. For instance, the fact that the breathalyzer technician had other cases where his testimony was required was known to the Crown and could have been reasonably avoided if Mr. Husain’s trial was given some priority.

33In summary, not only was it incorrect to characterize the first factor as an exceptional circumstance, the trial judge also made a palpable and overriding error when she attributed the delay to Mr. Husain’s trouble understanding basic legal concepts and filing motions.

34Second, the trial judge erred in characterizing Mr. Husain’s request to recall P.C. Graham as an exceptional circumstance. Since P.C. Niziol was not going to be available at the time in any event, everyone agreed that the time when he was unavailable on August 23 could be filled with recalling P.C. Graham. Thus, this was not a circumstance that caused delay. Moreover, it was not reasonably unavoidable. P.C. Graham had finished his evidence. The Crown’s case was still being heard. Therefore, leave was required to grant Mr. Husain’s request for P.C. Graham to be recalled. The Crown did not oppose but acceded Mr. Husain’s request. The Crown did not seek any waiver of s. 11(b) from Mr. Husain before agreeing to this litigation event: R. v. Wookey, 2021 ONCA 68, 154 O.R. (3d) 145, at para. 71.

35Third, assessed in a big picture way, it was the events of August 23, 2019 that caused this trial to enter into s. 11(b) jeopardy. This was the pivotal event. On that date, P.C. Niziol finished his evidence and the Crown closed its case. The court took an afternoon recess and returned at 3:30 p.m. At that time, the trial judge asked Mr. Husain if he was calling a defence. Mr. Husain was undecided whether he wished to call the officer-in-charge of the station, Sgt. Kraft. Mr. Husain wished an opportunity to review the video before making a final decision. After some back and forth, the trial judge adjourned the trial to October 8. Mr. Husain was to attend the following week to advise whether he wished to call the officer. On August 30, he attended and advised the court that he wished to call this officer.

36On August 23, when the issue of Sgt. Kraft was being discussed, the trial judge mentioned more than once that the delay occasioned on August 23 was defence delay or delay at the request of the defence. It seems that the trial judge reconsidered this determination later as she found in her reasons that there was no defence delay including this time period. In my view, the time period of August 23, 2019 to October 8, 2019 cannot be considered defence delay. Put simply, when the case was adjourned on August 23, the trial could not have been reasonably completed regardless of whether the defence was permitted to call Sgt. Kraft. Mr. Husain testified in his own defence and on the Charter application. This was reasonably foreseeable. Throughout the trial proceedings, both the trial judge and Crown were alert to this. Indeed, on August 23, 2019, just before lunch and before P.C. Niziol got into the stand in the afternoon to be cross-examined, the trial judge sent the Crown and Mr. Husain to the trial coordinator to get additional trial time. The Crown asked at the time whether an additional full day or a half day was required, and the trial judge responded a full day. Thus, it was clear that even before the Crown closed its case that the trial could not be completed on August 23. The defence was entitled to take legitimate steps to make full answer and defence. The delay after August 23 is therefore not defence delay nor an exceptional circumstance.

37Mr. Husain calling Sgt. Kraft was not an exceptional circumstance. He was entitled to call a defence witness even if it did not significantly advance his case from a tactical point of view. His calling the officer was not void of merit and did not constitute defence delay. My role in the analysis is not to second-guess the defence's decision to pursue actions designed to make full answer and defence: Jordan, at paras. 63-65. That said, if the trial judge was of the view that respecting s. 11(b) meant that Sgt. Kraft was not going to add anything probative beyond the videotape of the booking that was already in evidence, the trial judge could easily have refused to adjourn the matter for that purpose. Finally, the defence request to call Sgt. Kraft did not cause any delay since even if Sgt. Kraft had not been called, the trial could not have been completed on August 23. Mr. Husain had yet to testify and submissions had not yet been made.

38However, the trial judge’s announcement that the delay to October 8, 2019 was defence delay may have had real consequences for the timely completion of the trial. By prematurely and erroneously calling this period defence delay, due attention to the Jordan ceiling was not given. The date provided by the trial coordinator was two days after the presumptive ceiling of October 6. No one, the trial judge or the Crown, said or did anything when the Crown revealed that this was the date provided by the trial coordinator for continuation. This was a significant lost opportunity. The case was getting close to the danger zone. However, the court and the Crown still had over a month to complete the case. The priority that should have been given was not. This lack of urgency may well have resulted from this mischaracterization of any resulting delay as defence delay.

39There is a systemic issue at the Ontario Court of Justice when it comes to trials that cannot conclude within the originally scheduled trial time. The trial cannot normally just continue the next day. Given the need to schedule a high volume of cases in the courthouse and the trial judge’s commitment to other scheduled cases, any continuation of a trial is likely going to be some date into the future. That is the reality. In such circumstances, a close eye must be kept on the Jordan clock. It was not in this case.

40Undoubtedly this trial took longer than originally estimated. This can be an exceptional circumstance in some situations: R. v. Majeed, 2017 ONSC 3554, at paras. 23–27, affirmed 2019 ONCA 422. In my opinion, this is not the case here for a couple of reasons.

41First, where the accused is unrepresented, a greater onus lies on the Crown to make realistic estimates of trial time when setting dates. This includes taking into consideration the likelihood that the trial might take longer than usual, given factors such as potential trial issues that might unexpectedly arise, the fact that an unrepresented accused will not have the experience or training to run a focused and efficient trial, and the need for a trial judge to be more involved in explaining matters to the accused. When the trial estimate is significantly off, both the Crown and court bear greater responsibility. In addition, both the Crown and the court must be more active in not only in ensuring a fair trial for the accused, but also in ensuring that the trial is completed in a timely manner. There is no doubt that Mr. Husain did not make it easier given the manner in which he conducted the trial and how he needed or was given extended explanations by the trial judge. However, equally important was their obligation to ensure that the case stayed on track. Both did a commendable job in trying to do that. However, as the trial went on, greater emphasis should have been placed on this. It was quite apparent that time was being lost for one reason or another.

42Second, the actual trial estimate here was not significantly off base. Two days of trial time was estimated. This was reasonable. When the history of the proceedings is considered in its entirety, the key reason for not completing the trial within that approximate time frame is not the unexpected and unavoidable delay of a trial going longer than it was supposed to, despite a good faith estimation of time. This trial could have been completed if not within the two full trial dates originally scheduled, then certainly within a short period of time afterwards. What is striking is the amount of time lost due to inefficiencies in the conduct of the trial that were the court and the Crown’s responsibility.

43Jordan recognized that trials are not well-oiled machines. If a trial goes longer than reasonably expected, even when parties make good faith estimates of time, then likely the delay was unavoidable and could amount to an exceptional circumstance. When a trial is originally scheduled to conclude under the ceiling and then does not, Jordan advises that the focus should be on whether the Crown made reasonable efforts to respond and conclude the trial under the ceiling: at paras. 73-74.

44In this case, the Crown and the court did not make reasonable efforts to respond and to conclude the trial under the ceiling. It was unreasonable to conclude that the defence was the sole reason for the delay of the trial on August 23. Reasonable efforts were not made to complete the trial before October 6. The record does not indicate whether October 8 was the first available date that could be secured. Indeed, nothing said or done on August 23 suggests that any effort was given to prioritize the case when a continuation date was sought. The Crown could have reasonably remedied the delay by securing an earlier date. Choosing the October 8 date when there was still time and opportunity to conclude the trial within 18 months only ensured that the case fell into constitutional jeopardy.

45In my opinion, there were no discrete events. The respondent does not suggest that this case was complex. The Crown has not discharged its onus to prove exceptional circumstances.

4. Conclusion

46On appeal, the Crown forcefully argued that the administration of justice would be brought into disrepute if Mr. Husain was granted the benefit of a stay as a result of a two-day delay beyond the Jordan ceiling.

47I do not agree. Whether it be two days or two months over the presumptive ceiling, a stay is required.

48In Jordan at para. 83, the majority explained that in setting the presumptive ceiling, they factored in tolerance for institutional delay and the inherent needs and increased complexity of most cases. A significant acceptance for the inevitable delays inherent in the litigation process was accounted for when the 18 and 30-month ceilings were calculated. Moreover, the court provided for reasonable flexibility in the s. 11(b) analysis in making provisions for defence delay and exceptional circumstances. Thus, no greater tolerance or flexibility is required. At first blush it may seem overly rigid and arbitrary to find a s. 11(b) violation when the ceiling is surpassed by just a small amount of time. However, when viewed in its proper context, there is nothing inappropriate about issuing a stay in these circumstances. Simply, it is a matter of staying true to the principle of the s. 11(b) analysis. In Jordan, the court said this at para. 56:

We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling.

49This approach is consistent with the proactive nature of the s. 11(b) analytical framework. As the court in Charley emphasized at paras. 78-79, the presumptive ceilings enhance analytical simplicity and foster constructive incentive in reacting to potential delay problems. The facts of this case are a good example of how this could have made a difference. On August 23, when the proposed October 8continuation was offered, rather than jumping to premature conclusions about whether the delay amounted to defence delay, the Crown and the court should have made further efforts to select a continuation date within the 18-month presumptive ceiling. Given the busy nature of the Ontario Court of Justice, I recognize that securing an earlier date may not have been easy. But s. 11(b) should not be only respected when it is easy to do so.

50The Ontario Court of Appeal used this bright-line approach to the presumptive ceiling in R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609. The court granted the Crown appeal of the trial judge’s stay of proceedings due to unreasonable delay. For two of the respondents, the Ontario Court of Appeal calculated the delay to be 17 months and 29.5 days – just under the presumptive ceiling of 18 months. Despite that, the court did not hesitate to find that a stay was not warranted. This decision was upheld on a further appeal to the Supreme Court of Canada in brief oral reasons: R. v. Yusuf, 2021 SCC 2.

51Returning to where I started, I repeat that the trial judge and the Crown made commendable efforts to ensure Mr. Husain had a fair and meaningful trial. Nevertheless, there were more than a few moments during this trial when the trial judge and the Crown could have taken a firmer hand and a more succinct approach to the conduct of the trial. Especially on August 23. In R. v. Thanabalasingham, 2020 SCC 18, at para. 9, the Supreme Court of Canada reminded us:

As we did in both Jordan and Cody, we again emphasize the special role that trial judges -- who are charged with curtailing unnecessary delay and changing courtroom culture -- must play in this shift (Cody, at para. 37, citing Jordan, at para. 114). For example, where the defence seeks an adjournment, a court may deny it "on the basis that it would result in unacceptably long delay, even where it would be deductible as defence delay" (Cody, at para. 37). In sum, practices that were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter -- a right that inures not just to the benefit of accused persons, but to the benefit of victims and society as a whole as well.

52Mr. Husain’s appeal is granted. The charges are stayed.

53Given my conclusion, it is not necessary to consider Mr. Husain’s remaining grounds of appeal that the trial judge misapprehended the evidence regarding other alleged Charter violations.