COURT FILE NO.: CJ 10122
DATE: 2021-10-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Crown/Respondent
B. Schnell, for the Crown
- and -
Hesham Aly
D. Witmer, for Hesham Aly
Defendant/Applicant
HEARD at Kitchener, Ontario: September 27, 2021
The Honourable Justice J. R. Henderson
DECISION ON SECTION 11(b) APPLICATION
INTRODUCTION
[1] The defendant is charged with fraudulent personation contrary to s. 403(1)(c) of the Criminal Code of Canada. In this application the defendant alleges that his right to have this matter tried within a reasonable time as provided in s. 11(b) of the Canadian Charter of Rights and Freedoms has been breached. Accordingly, the defendant requests a stay of the charge pursuant to s. 24(1) of the Charter.
[2] The Crown disputes the defendant’s allegation that his Charter right has been breached, and requests that the application be dismissed.
THE RELEVANT DATES
[3] The defendant was employed by Carizon Family and Community Services until he was dismissed without cause on January 8, 2016. Thereafter, the defendant brought an action against Carizon. That matter was mediated and ultimately settled.
[4] Shortly after the settlement, there were several data breaches at Carizon with respect to Carizon’s client information. The data breaches included both hardcopy and electronic breaches, and involved a perpetrator impersonating one or more of Carizon staff.
[5] After a police investigation that involved DNA analysis, surveillance, a production order, and a search warrant, the defendant was arrested on December 18, 2018. Police seized a laptop and a cell phone from the defendant and arranged for a forensic analysis of same.
[6] The relevant procedural dates are as follows:
December 18, 2018 – Defendant is arrested,
February 19, 2019 – Information charging the defendant is sworn,
March 19, 2019 – First appearance in OCJ,
December 12, 2019 – Crown disclosure is complete,
September 21, 2020 – Judicial pretrial in OCJ,
September 30, 2020 – Defendant delivers notice of election, electing trial by judge and jury in SCJ,
October 30, 2020 – First appearance in SCJ,
December 3, 2020 – Judicial pretrial in SCJ,
February 26, 2021 – Dates are reserved for a pretrial motion on July 22-23, 2021, and for a two-week trial commencing November 8, 2021,
August 31, 2021 – Second judicial pretrial in SCJ.
THE POSITIONS OF THE PARTIES
[7] The defendant submits that the total time delay should be calculated from the date of the defendant’s arrest, December 18, 2018, to the anticipated end of the trial, November 19, 2021, a total of 35 months and 2 days. The defendant submits that there should be no deduction for defence delay.
[8] The defence position therefore is that the net delay exceeds the 30-month presumptive ceiling for reasonable delay as set out in R. v. Jordan, 2016 SCC 27; [2016] 1 S.C.R. 631. If the net delay exceeds the presumptive ceiling, the defence submits that the Crown has not met its onus to show that there are exceptional circumstances that justify this delay.
[9] The Crown submits that the total time delay should be calculated from the date on which the information was sworn, February 19, 2019, to the anticipated end of the trial, a total of 33 months and 1 day.
[10] The Crown further submits that there has been a significant amount of defence delay, including an implicit waiver of delay by the defence. When the defence delay is taken into account, the Crown submits that the net delay is less than the presumptive ceiling. If so, the Crown submits that the defendant has not met its onus of showing that the delay is unreasonable.
[11] In the alternative, the Crown submits that if the net delay exceeds the presumptive ceiling, there are exceptional circumstances caused by the COVID-19 pandemic that justify the delay in this case.
THE LAW
[12] The framework for the analysis of a s.11(b) application was revised and restated in the Jordan case at paras. 46-91. That framework was subsequently summarized in R. v. Coulter, 2016 ONCA 704; 133 O.R. (3d) 433, at paras. 34-40. Pursuant to those decisions, the procedural steps to be followed by a court in a s. 11(b) analysis are as follows:
Calculate the total delay, which is the period from the date of the charge to the anticipated end of the trial.
Subtract any defence delay, including any delay that is waived by the defence, from the total delay, to calculate the net delay.
Compare the net delay to the presumptive ceiling,
If the net delay exceeds the presumptive ceiling, the delay is presumptively unreasonable. The onus is then on the Crown to establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases,
Subtract any delay caused by discrete events from the net delay to calculate the remaining delay.
If the remaining delay exceeds the presumptive ceiling, the onus is on the Crown to establish that the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
ANALYSIS
TOTAL DELAY
[13] In the Jordan decision at para. 49, the court wrote, “For cases going to trial in the superior court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of the trial.” [Emphasis added.]
[14] I note that the court in Jordan was not specific about the start date for the calculation of the total delay, but rather used the phrase “from the charge” as the starting point for the calculation.
[15] In my view, the Jordan analysis dovetails with the opening words of s.11 of the Charter which state, “Any person charged with an offence has the right…” Therefore, clearly, any right afforded to an accused person under s.11 of the Charter becomes effective at the time the person is charged.
[16] In the case of R. v. Kalanj, 1989 63 (SCC), [1989] 1 S.C.R. 1594, a decision that preceded the Jordan decision, the Supreme Court of Canada considered the question of when a person was charged with an offence within the meaning of s.11(b). At para. 12 the court concluded that a person is charged with an offence when an information has been sworn which constitutes an initiating step in the court proceedings.
[17] More recently, in 2019, in R. v. Poulin, 2019 SCC 47, at para. 55, the Supreme Court of Canada confirmed the finding in Kalanj that the Charter did not provide protection against pre-charge delay.
[18] Therefore, I find that the starting point for the calculation of the total delay in the present case, for the purposes of a s.11(b) analysis, is the date on which the information was sworn, namely February 19, 2019. Thus, the total delay in this case should be calculated from February 19, 2019 to November 19, 2021, a period of 33 months and 1 day.
DEFENCE DELAY
[19] I find that the Crown disclosure to the defence was completed on December 12, 2019. Therefore, it is irrelevant to consider any suggestion of defence delay prior to that date, and the Crown makes no submission that there has been any defence delay prior to that date.
[20] The Crown’s position is that there are six periods of defence delay between December 12, 2019 and September 21, 2020, totaling 185 days, all of which should be deducted from the total delay for the purpose of calculating net delay.
[21] The Crown’s submission on this point has two parts. First, the Crown submits that there was an implicit waiver of delay by the defence as, for a period of time, the defence chose not to pursue the trial of the charge, but instead focused entirely on engaging in settlement discussions with the Crown with the intention of resolving the charge without a trial. Second, the Crown submits that there are a few specific periods of delay caused solely by the inaction of the defendant and/or by the failure of the defendant to diligently move the matter forward.
[22] Regarding implicit waiver by the defence, at para. 61 of the Jordan decision the court wrote, “Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights.”
[23] In the present case, I find that there was no express waiver of any delay. The issue then is whether the defendant has engaged in any conduct that should be construed as a clear, unequivocal, implicit waiver.
[24] The pursuit of resolution discussions may constitute implicit waiver. Resolution discussions are an important part of the criminal law process and the parties should be encouraged to engage in attempts to resolve the case. I accept that if the Crown and the defendant engage in resolution discussions, they should not do so under the threat that any delay caused by the discussions would be held against the Crown.
[25] In the case of R. v. Chung, 2021 ONCA 188, the Ontario Court of Appeal considered whether the trial judge was correct in finding that the time spent engaged in resolution discussions without scheduling a preliminary hearing should be deducted as defence delay. The court wrote at para. 188, “We see no error in the application judge’s attribution of this period to defence delay. She found that during this period, both appellants were engaging in resolution discussions instead of setting preliminary inquiry dates while those discussions were ongoing.”
[26] Therefore, I find that if a defendant has unequivocally chosen, for a period of time, to adjourn or delay setting dates for a trial or for other procedural steps in favour of engaging in resolution discussions with the Crown, then the delay occasioned by that choice must be deducted from the total delay for the purpose of a s.11(b) analysis.
[27] With those principles in mind, I will next consider the six periods of alleged defence delay, both as possible implicit waiver and as possible inaction by the defence that caused a delay.
[28] Regarding the period from December 12, 2019 to January 27, 2020, I find that this was the period that was immediately after the completion of the Crown disclosure. During this time defence counsel sought instructions and considered his position. In my view this period does not constitute defence delay as the defendant is entitled to receive Crown disclosure and spend a reasonable time reviewing that disclosure and contemplating how he wished to proceed.
[29] Regarding the period from January 28, 2020 to March 26, 2020, I find that the parties appeared in OCJ on three occasions, and on all three occasions defence counsel indicated that the lawyers were working on a resolution or that the matter was heading toward a resolution. Thus, on all three occasions the matter was adjourned for the purpose of settlement discussions. This constitutes an implicit waiver by the defendant of any delay. Therefore, 59 days will be deducted from the total delay for this period.
[30] The next period is March 27, 2020 to May 20, 2020, which is the period during which the defendant requested that the Crown obtain and provide a redacted copy of the ITO that was filed in support of the request for a search warrant. At the request of the defendant, the Crown embarked upon this process and provided the redacted ITO to the defendant on May 20, 2020. I find that this period of time does not constitute defence delay as the defendant is entitled to request a redacted copy of the ITO, and in fact the defendant used the redacted copy of the ITO in this case in a subsequent s. 8 application.
[31] The next period is May 21, 2020 to July 6, 2020. The Crown made the redacted copy of the ITO available to the defendant on May 21, 2020, but the defendant did not pick it up from the Crown’s office until July 6, 2020. In my view, this constitutes defence delay of 47 days.
[32] Next, between July 7, 2020 and August 13, 2020, the Crown submits that there was no action taken by the defendant, and the Crown still believed that it was the defendant’s intention to pursue settlement, rather than a trial. I find that this period does not constitute defence delay. The defendant received the redacted copy of the ITO on July 6, 2020 and was entitled to a period of time to consider the ITO and how he wished to proceed. This is part of the usual process and is not defence delay.
[33] The next period commences on August 13, 2020, at which time defence counsel indicated to the Crown that there may be a possible change in his instructions, and that the defendant may wish to proceed to trial. Up until that point the defendant had not indicated that he wished to proceed to trial. During this period, defence counsel twice appeared before the court requesting adjournments in order to obtain proper instructions from the defendant. This continued until the pretrial of September 21, 2020, at which time defence counsel indicated that the defendant’s intention was to proceed to trial. In my view, this change in tactics by the defence, and the delay necessitated to obtain instructions, amount to defence delay of 39 days.
[34] In summary, regarding defence delay I find that the three periods of defence delay total 145 days, or the equivalent of 4 months and 25 days. Deducting this amount from the total delay, I find that the net delay from the date of the swearing of the information to the anticipated end of the trial is 28 months and 6 days.
HAS THE ONUS BEEN MET?
[35] For these reasons, I find that the net delay is below the presumptive ceiling of 30 months. Therefore, the onus is on the defendant to establish that the delay is unreasonable. In the present case there is no evidence that would suggest that the delay is unreasonable, and defence counsel did not make submissions to that effect. Therefore, the application must be dismissed.
EXCEPTIONAL CIRCUMSTANCES
[36] Given my findings that the net delay is below the presumptive ceiling and that the defendant has not met his onus, it is not necessary for me to consider whether there are any exceptional circumstances in this case.
[37] That being said, given the submissions that were presented to this court, I wish to state that in my view the COVID-19 pandemic and its effect on the administration of justice in Ontario constitutes exceptional circumstances. A health crisis like the one caused by COVID-19 has not been felt in Ontario in more than 100 years. Clearly such a pervasive pandemic is exceptional, and clearly that pandemic has caused a delay in the administration of justice regarding all charges.
[38] In the present case, because of the COVID-19 pandemic, I would have deducted from the net delay the 20-week period during which all cases in Ontario were presumptively adjourned between March 26, 2020 and August 13, 2020, with adjustments to avoid duplicate deductions. Moreover, given that the defendant elected trial by the judge and jury, I would have also deducted the time during which all jury trials were suspended by order of the Chief Justice from November 21, 2020 to May 3, 2021.
[39] Given my findings in this case, my comments about exceptional circumstances are not binding, but I felt it was important to acknowledge that those circumstances do exist in the present case.
CONCLUSION
[40] For all of the reasons set out herein, I find that the defendant has not met his onus. The application is dismissed.
J. R. Henderson J.
Released: October 12, 2021
COURT FILE NO.: CJ 10122
DATE: 2021-10-12
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Crown/Respondent
– and –
Hesham Aly
Defendant/Applicant
DECISION ON SECTION 11(b) APPLICATION
J.R. Henderson J.
Released: October 12, 2021