COURT FILE NO.: 21-101380
DATE: 2022-08-16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
B. Thomas, for the Crown Attorney
-and-
SHAKIB GHARIBZADA
- Applicant
S. Azad, for the Applicant
HEARD: May 25, 2022
RULING ON APPLICATION PURSUANT TO SECTIONS 11(b) & 24 OF THE CHARTER
A.J. GOODMAN, J.
[1] This is an application for a stay of proceedings by virtue of an alleged breach of s. 11(b) and pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (“Charter”).
[2] The applicant, Shakib Gharibzada (“Gharibzada”) argues that his constitutional rights have been infringed due to the inordinate delay as his right to trial within a reasonable time period has been infringed.
Background:
[3] The applicant stands charged on a multi-count Indictment in relation to fraud-related offences and other crimes of dishonesty. The allegations span fraudulent activities that were committed over a two-year period against various businesses across Ontario totalling more than $500,000.
[4] The 51 counts before the court are the product of three major investigations done by three different police agencies. The three investigating officers spearheading this investigation are Detectives Stover and Murray of the Waterloo Regional Police Service and Detective Court of the Toronto Police Service. The applicant was arrested on Detective Stover’s charges on June 12, 2019; Detective Murray’s charges on August 16, 2019, and Detective Court’s charges on September 24, 2019.
[5] After being arrested in June 2019, the applicant was detained following a bail hearing on June 24, 2019. The disclosure was not ready until July 18, 2019.
[6] On August 20, 2019, the applicant had a bail review in which he was detained. He was arrested on the remaining two investigations whilst detained in custody and was now facing three sets of charges.
[7] It took almost a month for the applicant’s current lawyer to be retained. Defence counsel did not have disclosure at this point of time. When disclosure was provided in early November, it became clear that it was voluminous.
[8] The applicant had his third bail review originally scheduled for January 9, 2020. However, at the defence’s request, it was adjourned and a new date was scheduled for January 21, 2020. The defence initiated the first Judicial Pretrial (“JPT”) on the charges for January 7, 2020.
[9] On January 22, 2020, the applicant was released following a bail review. Earlier that day, a JPT was held in the Ontario Court of Justice (“OCJ”) with Borgheson J. At the JPT, the Crown indicated they would rather wait for the bail review decision before making a final determination on whether the two Kitchener Informations (June 12, 2019 and August 16, 2019) were to be joined. The matter was then put to February 18, 2020 and was then adjourned to March 3, 2020, to set up a continuing JPT. On February 23, the Crown decided to combine all three investigations into one prosecution. A joint Information was sworn on April 9, 2020.
[10] On March 3, 2020, the continuing JPT had not been set up, and additional disclosure had just been provided to the defence. The Crown acknowledged the delay as there was no decision made with respect to the out-of-jurisdiction charges that had just arrived in Kitchener.
[11] The matter was then adjourned to March 17, 2020, for the purpose of setting the continuing JPT. However, due to the COVID-19 pandemic, the OCJ was operating at a reduced level. Matters were being adjourned by default for 10 weeks at a time. The matter was then adjourned to May 26, 2020. On May 26, the matter was simply adjourned to August 6, 2020.
[12] On June 8, 2020, defence counsel had requested the assigned Crown attorney get in touch with the Trial Coordinator to schedule a continuing JPT. The Crown agreed to kick start this particular email chain that same day. A request for a continuing JPT was sent on June 16, 2020, and a confirmation was received the same day. The Trial Coordinator offered a date of June 30, 2020. Three weeks were agreed upon by all parties as an appropriate estimate for the length of the Preliminary Inquiry.
[13] To initiate the trial setting process, defence counsel had to fill out a form titled “Ontario Court of Justice Trial/Preliminary Inquiry Scheduling Form” (“Form”). The OCJ had started to reset trials and preliminary inquiries on July 6, 2020. However, trials and preliminary inquiries were not being set in terms of a matter’s age but instead by those that were adjourned due to COVID-19. Moreover, out of custody matters (such as this one) were not being set until September 28, 2020.
[14] By October 15, 2020, the defence conceded the requisite form had not been completed. The form was sent to the Trial Coordinator on October 28, 2020. The applicant’s matter was then adjourned by three weeks to October 29, 2020. A teleconference to set dates for November 5, 2020 was agreed upon. However, the Trial Coordinator had asked all three defence counsel to provide their availability starting in January 2021 through to September 2021. Counsel for the co-accused, Mr. Drexler and Mr. Cole, were available starting January 2021, while applicant’s counsel was available starting March 2021. Accordingly, the Trial Coordinator offered dates starting March 22, 2021. While defence counsel was available for all March dates, the Crown was not.
[15] The evidence portion of the Preliminary Inquiry was completed on May 11, 2021. Given the large volume of evidence, Rabley J. requested written submissions. The matter was put to June 15, 2021, for counsel to prepare submissions. Rabley J. then adjourned the matter to July 19, 2021, for his decision on committal, despite defence raising a s. 11(b) concern.
[16] The applicant was committed on all counts on July 19, 2021. Following committal, dates for a JPT were canvassed by email with the Trial Coordinator. The defence concedes that comments put by the Crown on the record are accurate. A tentative JPT date was offered for September 3, 2021 – but the defence was only available starting September 27, 2021. During the JPT itself it was decided that this matter would require two pretrial motions, a severance and a s. 11(b) application.
[17] A severance application date was offered for December 22, 2021, which was agreeable to both defence counsel. The Crown was unable to confirm their availability for this tentative date. By the next Assignment Court date, on November 26, 2021, the severance application and s. 11(b) dates were reserved for February 18, 2022, and March 11, 2022, respectively. Trial dates were not set. Both defence and the Crown were informed that there would be a follow up regarding trial dates. The defence sent a follow up email. The Trial Coordinator replied on December 16, 2021, offering the earliest set of dates for five weeks starting January 3, 2023, which were available to the Crown and defence. These dates were confirmed at the next Assignment Court.
[18] The applicant has a judge and jury trial scheduled for five weeks starting on January 3, 2023. If the matter goes ahead as scheduled it will finish on February 3, 2023. The applicant’s trial will conclude 43 months and 23 days after the first Information was sworn in the OCJ.
Positions of the Parties:
[19] The applicant submits that the total delay from arrest and charge to the completion of trial is over 43 months. Even with deductions for defence delay, the applicant submits that the delay contributed significantly to this case falling well beyond the presumptive 30-month ceiling.
[20] The applicant says a maximum of 3½ months could be attributable to the defence. For the remainder of these proceedings, defence counsel has actively attempted to move matters along.
[21] Counsel concedes that the outstanding pretrial motion is limited to the severance application, which does not affect the trial date. Specifically, the applicant submits that the total delay from the date of the first Information: June 12, 2019, to February 3, 2023 is 1333 days (43 months and 23 days). There is some defence delay as this includes the time taken for the applicant to switch from Mr. Tsimiklis to Mr. Azad, and for counsel to secure Legal Aid (August 24, 2019, to September 24, 2019). Also, there is the defence decision to adjourn the third bail review (January 9, 2020, to January 21, 2020). Other defence delay includes the Trial Setting Form was sent on October 28, 2020, and a trial setting conference was set up for November 5, 2020 – 39 days. The defence was only available September 27, 2021, for a SCJ-JPT, but Crown was available on September 3, 2021 – 24 days. The applicant says that the net delay is 40 months and 13 days.
[22] The applicant submits that the first available trial date of January 2023, being over a year away at the time of the Trial Coordinator’s email, can only be qualified as institutional delay. The institutional delay is compounded as the applicant has been in custody since March 2021.
[23] The defence contends that the Crown is likely to argue exceptional circumstances due to COVID-19. The OCJ was operating at reduced capacity on March 16, 2020. However, the applicant submits that exceptional circumstances should end when trials were being rescheduled in the OCJ, which was on July 6, 2020. The timeframe between March 16, 2020, to June 30, 2020 is 3 months and 22 days. When subtracting exceptional circumstances from net delay, the result is 36 months and 22 days.
[24] The Crown agrees with the applicant’s calculations of total delay and net delay, albeit the Crown postulates two timeframes, both of which still exceed the 30 month guideline. While the amount exceeds the Jordan timeframe, the Crown asserts that the remaining delay is not unreasonable given the complexity of this case. The Crown responds that it was always concerned with the progress of the trial and was alive to potential s. 11(b) issues.
[25] The Crown submits that when multiple sets of charges are combined and dealt with in a single trial, the second set of charges may be treated separately for the purposes of s.11(b). When deciding whether to treat the charges separately, the court may consider the seriousness of the new set of charges and whether the jeopardy faced by the accused is altered. Courts may also consider whether the charges result from different transactions.
[26] The Crown says that the second set of charges in this case, which were laid in August 2019, involve a distinct and different set of serious fraud-related allegations. The new set of charges involved different investigators, complainants and incidents in different geographic locations. The applicant faced more severe consequences as a result. While the charges from the investigations were combined in a joint Information sworn on April 9, 2020, the second set of charges should be treated distinctly for the purposes of this Application.
[27] The Crown concedes that on both scenarios proffered, the total delay exceeds the 30-month presumptive ceiling. However, there are exceptional circumstances and the delay is not unreasonable given the pandemic and complexity of this case. The Crown has explained any inordinate delay and has demonstrated exceptional circumstances and reasonableness.
[28] The Crown submits that the applicant has not met his burden of demonstrating a violation of his rights under s. 11(b) of the Charter even if the net delay is over the 30-month presumptive threshold. The Crown submits that this Court dismiss the Application.
Legal Principles:
[29] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time.
[30] One of the two main purposes of s. 11(b) of the Charter is the protection of an accused's rights to security of the person, liberty and a fair trial. The right to a speedy trial guaranteed by s. 11(b) of the Charter reflects the principle that “[t]imely justice is one of the hallmarks of a free and democratic society”: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 1. Section 11(b) is also designed to protect the interests of society in the expeditious resolution of criminal proceedings.
[31] In the seminal case of Jordan, the Supreme Court of Canada reworked the entire rubric of delay and effectively overruled the previous analysis and procedure in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. In Jordan, the Supreme Court of Canada reformulated its s. 11(b) framework. It noted at para. 38, that the pre-existing framework had become “too unpredictable, too confusing, and too complex,” and had “become a burden on already over-burdened trial courts.” According to the Supreme Court, a pervasive “culture of complacency” fostered delay throughout the system: at para. 4.
[32] In the post-Jordan era, courts are directed to undertake the following steps when considering a s. 11(b) Charter application. The first step is a calculation of the total length of time between the charge and the actual or anticipated end of trial. The next step is to determine whether any of the delay was waived by the defence or caused solely by defence conduct, and to subtract those portions from the total delay: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at para. 35; and R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 113. There are two types of defence delay: delay waived by the defence and delay caused solely by the conduct of the defence. Delay caused solely by the defence includes deliberate and calculated defence tactics aimed at causing delay and circumstances where the court and the Crown are ready to proceed, but the defence is not.
[33] If the net delay then exceeds the ceilings outlined in Jordan (18 months for the provincial court and 30 months for superior court cases), it is presumptively unreasonable.
[34] Where the delay is presumptively unreasonable, the onus shifts to the Crown to demonstrate that the delay is nevertheless reasonable, taking into account any exceptional circumstances. In general, there are two categories of exceptional circumstances — discrete events and particularly complex cases. Exceptional circumstances have two components: “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (emphasis in original): Jordan, at para. 69.
[35] Delay caused by discrete, exceptional circumstances may then be subtracted from the total delay to determine the remaining net delay. However, if the Crown could have reasonably mitigated the delay arising from a discrete event, it may result in only a partial amount of time being subtracted from the net delay.
[36] If the net delay remains above the 30-month ceiling, the court must determine if the case was particularly complex such that it justifies the length and renders the remaining delay reasonable.
[37] If the Crown is not able to rebut the presumption, the charges against the accused will be stayed: Jordan, at para. 47.
[38] If the remaining delay falls below the presumptive ceiling, the onus is on the defence to prove that the delay is nevertheless unreasonable. The defence must demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have. Stays for cases below the ceiling are rare: Jordan, at paras. 48, 82-83.
ANALYSIS:
[39] A breach of s. 11(b) provides for an extraordinary remedy as a result of a person’s constitutional rights. Because of the significance and ramifications to the applicant and the justice system, appellate courts remind trial judges to ensure that a stay of proceedings in criminal matters is to be used only as a last resort: R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at p. 466.
The Merits of the s. 11(b) Application:
[40] As mentioned, the Court of Appeal in Coulter, at paras. 34-40, set out the following steps that the court is required to analyze for s. 11(b) motions:
A. Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial;
B. Subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”;
C. Compare the Net Delay to the presumptive ceiling;
D. If the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases;
E. Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”).
i. Calculating the Total Delay Period:
[41] The relevant time period runs from “the charge to the actual or anticipated end of trial.” This period encompasses the date charges were laid until the actual or anticipated date of the verdict: Gopie, at para. 79.
The Length of the Delay:
[42] The first charge was laid on June 12, 2019 to the anticipated date of completion of trial, (February 3, 2023) is 43 months and 22 days.
[43] The Crown submits that their alternative or second scenario that ought to be adopted has the length of delay from the date of the second set of charges on August 16, 2019 to February 3, 2023, a period of 41½ months.
[44] I am not persuaded by the Crown attorney’s second scenario, which tends to bifurcate the combination of the numerous charges joined in one indictment, in order to sustain its position for the purposes of this application. It is not disputed that the prosecution chose to join all of the informations into one matter for trial.[^1]
[45] I am inclined to follow R. v. Belcourt, 2017 ONSC 3934, wherein Frageau J. based his calculation for delay based on when the first information was laid. See also R. v. Milani, 2014 ONCA 536, 120 O.R. (3d) 641, at paras. 48-49.
[46] When considering the jurisprudence, the total delay is calculated from the date the first information is laid: R. v. Allison, 2022 ONCA 329, at para. 41, citing R. v. Kalanj, (1989), 1989 CanLII 63 (SCC), 1 S.C.R. 1594, 70 C.R. (3d) 260; R. v. Rea, 2018 ONCJ 425, at paras. 14-16; R. v. Delves, 2022 ONCJ 141, at para. 30; R. v. Mengistu, 2022 ONSC 3624, at para. 21; R. v. Brown, 2019 ONSC 6689, at para. 73.
[47] In particular, fraud cases similar to the one at bar also calculate total delay from the date of the first information: R. v. Dhaliwal, 2020 ONCJ 600, at paras. 9-12; R. v. Lim, 2017 ONCJ 769, at para. 50.
[48] In Dhaliwal, the Crown joined multiple informations involving different complainants into a single eight count information. In calculating total delay, Duncan J. determined that re-laying an information to join counts does not “[re-start] the clock”: at para. 12. In Lim, where the Crown joined multiple informations into a 131 count information, total delay was also calculated from the date of the first information.
[49] The case of R. v. Morrish, 2020 ONCJ 225, involved two sets of charges joined into one information and were treated separately for the purposes of calculating total delay. I find that the case is distinguishable in that Rahman J. found that the charges in the second information were more serious and therefore “very much changed” the accused’s jeopardy: at paras. 40-43. The second set of charges also concerned different (historic) transactions with the complainant, and since the accused also preferred a joint trial, Rahman J. reasoned that the accused should not then benefit by having total delay calculated from the earlier information: at para. 40. I find that Morrish can be distinguished because the subsequent informations laid in this case do not contain more serious charges than the first sets of charges. Rather, they are similar fraud related offences and, unlike Morrish, the accused did not prefer a joint trial.
[50] Thus, I find that the total delay in this case is from the date the first charge or sets of charges were laid to the anticipated date of completion of trial, which is 43 months and 22 days.
ii. Defence Waiver:
[51] The applicant concedes - and the Crown agrees that three months are accounted for by the actions of the defence:
i) August 24, 2019 to September 24, 2019 – Applicant switched from Counsel Tsimiklis to Counsel Azad; also time for Azad to secure Legal Aid (30 days)
ii) January 9, 2020 to January 21, 2020 – Defence request for adjournment of third bail review (11 days)
iii) September 28, 2020 to November 5, 2020 – Trial Setting Form delay (39 days)
iv) September 3, 2021 to September 27, 2021 – Delay caused by defence availability for Superior Court Judicial Pre-trial (24 days)
iii. Defence-caused Delay:
[52] It is now well established that every actor in the justice system is responsible for ensuring that criminal proceedings are carried out within a reasonable time. Accused persons are not entitled to remain passive in the face of delay in the hopes of avoiding prosecution as the evidence in the cases against them grows stale over time. Where accused persons benefit from their own delay-causing conduct, such a result “operates to the detriment of the public and the system of justice as a whole”: Jordan, at para. 21.
[53] Accordingly, actions that are not attributable to the state are excluded from the total calculation of delay. Defence unavailability can be considered defence delay if the court and the Crown are ready to proceed, but the defence is not. Where a date is available but refused by defence counsel, this is defence-caused delay: Jordan, at paras. 14, 120-124; R. v. Sookdeo, 2018 ONCJ 575, at para. 18; R. v. Vidinovski, 2018 ONSC 2971, at paras. 21-27; R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at paras. 21-22; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23; R. v. St. Amand 2017 ONCA 913, 358 C.C.C. (3d) 226, at paras. 80, 97-98; and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 30.
[54] Defence caused delay comprises “those situations where the accused’s acts either directly caused the delay… or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial”: R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 at pp. 1227-28. In situations where the Crown and the court are ready to proceed, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay”. Time needed for trial preparation will be classified as inherent delay within the Jordan framework: Williamson, at para. 60. Such determinations are “highly discretionary”: Jordan, at paras. 60-66; Cody at paras. 28-31.
[55] However, in this case, the Crown does not advance any further arguments pertaining to defence-caused delay.
Conclusion: Defence Waiver and Defence Conduct Amounting to Delay:
[56] The Crown and the applicant are not far apart on this calculation. This amount of defence delay or waiver equals 104 days. The total Net Delay is 40 months and eight days and is presumptively unreasonable.
iv. Exceptional Circumstances:
[57] In instances where, after deducting defence-caused delay and waiver, the time period remains above the 30 month ceiling, it falls to the Crown to show that the delay is reasonable because of the presence of exceptional circumstances. Such circumstances “lie outside the Crown’s control” in that “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise.” The circumstances need not be “rare or entirely uncommon.” To rely on such circumstances, the Crown needs to show that it took reasonable steps to avoid and address the problem where possible to have done so. It need not, however, prove that the steps taken were ultimately successful. Nor is the Crown required to “exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement”: Jordan, at paras. 69-71; Cody, at paras. 44-46, 48, 54; and St. Amand, at paras. 81-82.
[58] Compelling case-specific factors remain relevant to assessing the reasonableness of periods of delay both above and below the ceiling: Jordan, at para. 51.
[59] When determining how to allocate delay during trial, courts will distinguish a reasonable period of delay to deal with a discrete event, which may be subtracted from the net delay, from systemic or institutional delay which causes further delay. Delay caused by a shortage of judicial resources is not deductible from total delay. It will be for the trial judge to determine whether a particular event is properly determined to be exceptional: Jordan, at paras. 73-4; Cody, at paras. 46, 48, 58-59, 163-165.
A. Exceptional Circumstances: Discrete Event – COVID-19
[60] The assessment of delay under exceptional circumstances is qualitative in nature. There is no magic formula, and even with guidance from the appeal courts, there is no mathematical precision guiding what amount of time to apportion to this discrete event.
[61] In R. v. Robinson, 2021 ONSC 2445 at para. 102, Akhtar J. recognized the difficulty in calculating the delay caused by the COVID-19 pandemic in addressing s. 11(b) of the Charter:
It is difficult to estimate, in pure numbers, the impact of the pandemic on the total delay in this case. Although it is clear that approximately three months is a more specific time period, it cannot be disputed that there was a "knock on" effect on other cases which also had to be re-scheduled or set for trial after other priority cases. The 2021 trial calendar has become congested to accommodate jury trials that had been set to start in and after March 2020, with new matters continuing to arrive from the Ontario Court of Justice.
[62] The applicant concedes some period of delay caused by the pandemic: March 16, 2020 to July 6, 2020 – (112 days). The Crown agrees with this concession.
[63] Regarding the further period of July 6, 2020 to August 6, 2020 (31 days), the applicant argues that OCJ started resetting trials and preliminary inquiries on July 6, and therefore, any delay caused by COVID-19 ended on that date.
[64] The Crown disagrees for several reasons. First, the applicant cites dated authorities, which did not contemplate the immense impact of a global pandemic on court proceedings. Second, given that the applicant had not yet elected the mode of trial, the potential re-opening of trial courts at the OCJ had no impact whatsoever on the case. A verbal election was not filed until November 19, 2020 for a preliminary inquiry in the OCJ followed by a trial by judge and jury in the Superior Court. On July 6, 2020, the parties were not in a position to set dates for a preliminary inquiry. Third, the applicant’s matter had been presumptively adjourned from May 26, 2020 to August 6, 2020. This was a broad protocol implemented by the pandemic.
[65] The Crown says that the argument that the justice system must mitigate delay caused by COVID-19 by prioritizing certain matters from others is divorced not only from the interests of justice, broadly, but from the reality affecting all persons.
[66] The Crown contends that there is nothing further the prosecution or the justice system could have done to move the matter forward on July 6, 2020 simply because the OCJ announced a re-opening. Therefore, the period between July 6, 2020 and August 6, 2020 should also be deducted as an exceptional circumstance.
[67] Next is the timeframe of August 6, 2020 to September 28, 2020 (53 days):[^2] The transcript for the August 6, 2020 appearance was not included in the applicant’s materials. However, at this stage, no election had yet been filed, trial dates and preliminary inquiry dates were not yet canvassed, and adjournments were still taking place because of COVID-19.
[68] I agree entirely with the Crown’s position that this presumptive adjournment should also be deducted as an exceptional circumstance as it was directly attributable to the impacts of the COVID-19 pandemic. During this particular period of delay, the Crown attempted to mitigate the delay and move the matter forward. The Crown reached out to counsel and to the trial coordinator to schedule a JPT, which was held in June 2020. The assigned Crown attorney made himself available during this time. There is nothing further the Crown could have done to mitigate the delay caused by the pandemic.
[69] As mentioned, the initial period of 112 days is conceded by the parties. I am persuaded that the entire period between July 6, 2020 to September 28, 2020 is an exceptional circumstance due and owing to the OCJ’s scheduling protocols directly attributable to addressing the reality of the pandemic. This period of time amounts to an additional two months and 22 days. When combined, the total amount of delay is just slightly over six months.
[70] Therefore, the resulting delay at this stage of the framework is 34 months.
B. Exceptional Circumstances – Co- Accused
[71] The Crown submits that another exceptional circumstance relates to the fact of delay attributable to the co-accused. The Crown contends the period of October 28, 2021 to November 26, 2021, a period of 29 days, ought to be deducted. Apparently, counsel for the co-accused was unwilling to schedule any trial dates until the severance application was decided. The Crown explains that it had attempted to schedule dates.
[72] Overall, in assessing the entirety of the proceedings, I am not convinced that this 29-day delay impacted or otherwise prevented the scheduling of proceedings or dates for trial. The fact that the s. 11(b) application and severance motion were scheduled by November 26, 2021, albeit no trial dates were available to be provided, did not arise as a direct result of the co-accused’s actions and is not an exceptional circumstance.
C. Case Complexity
[73] The Crown contends the delay that arises in this matter also relates to the complexity of the case. In some cases, the Crown can justify a delay beyond the presumptive ceiling because the case is “particularly complex.”
[74] Complexity is a relative term. Particularly complex cases are those that, because of the nature of the evidence or issues, require an inordinate amount of trial or preparation time such that the ensuing delay is justified. Complexity does not entail stand-alone deductions. Instead, once defence-caused delay and discrete events deductions are made, a qualitative assessment will be undertaken to determine whether the complexity of a case overall justifies additional time above the ceiling. Whether complexity in the evidence or issues that arise in the case justifies the time to complete the trial is “a determination fall[ing] well within the trial judge’s expertise”: Jordan, at para. 79.
[75] Therefore, in order to discharge its burden under this exceptional circumstance, the Crown must demonstrate that the case is particularly complex: Cody, at para. 63, referring to Jordan, at paras. 42, 53.
[76] Unlike the consideration of discrete events, an assessment of particular complexity engages a qualitative analysis: Cody, at para. 64. That is, it demands an inquiry into whether the amount of remaining delay in excess of the presumptive ceiling is justified in light of the particular complexity of the case: Cody, at para. 64.
[77] It is worth stressing that the presumptive ceiling already accounts for the fact that criminal proceedings have become more complex over time. A case may be particularly complex where it requires a great deal of trial time or preparation time “because of the nature of the evidence or the nature of the issues”: Jordan, at para. 77. Voluminous disclosure, a large number of witnesses, significant expert evidence, charges extending over a prolonged period of time, multiple charges, several pre-trial applications, novel or complicated legal issues, numerous significant issues in dispute, multiple co-accused tried together, and an international dimension to the case are all examples of particular complexity: Jordan, at para. 77; R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 79, leave to appeal refused, [2019] S.C.C.A. No. 423 (Bulhosen), and [2019] S.C.C.A. No. 370 (Kompon).
[78] The case complexity branch of the Jordan framework, emphasized that the presumptive ceilings already reflect the increased complexity of criminal cases since Morin, including the emergence of new legal tests and procedures with increasing obligations on the Crown and police. The delay caused by a single isolated step that has features of complexity should not be deducted. Instead, a case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable, in view of the case’s overall complexity: R. v. Huang, 2021 ONSC 8372, at para. 196.
[79] The Crown may need to show that they followed a concrete plan to establish that the circumstances were outside its control. However, while the Crown must act reasonably and according to a concrete plan in prosecuting a complex case, the Crown need not be forced to abdicate its responsibility to prosecute meritorious cases in order to achieve expediency. Jordan also does not require the Crown to take any and all steps proposed by the defence to expedite matters: Jordan, at paras. 77-79; Cody, at paras. 64-65; and R. v. Saikaley, 2017 ONCA 374, 135 O.R. (3d) 641, at paras. 36-48 leave to appeal refused, [2017] S.C.C.A. No. 284.
[80] However, the Supreme Court did not suggest in either Jordan or Cody that bare complexity would justify a delay above the presumptive ceiling. It held that the case must be “particularly complex”: Cody, at para. 63. The vast majority of cases are not “particularly complex”.
[81] The Crown submits that applicant’s counsel described this case as “inherently complex” with a “large volume of evidence”. The applicant responds that the voluminous disclosure is not enough to bring a case into the realm of particular complexity. The Crown says that hallmarks of complexity as it relates to the evidence in the case include:
▪ Voluminous Disclosure - The disclosure involved three separate investigations, dozens of witness statements, and the analyses of multiple electronic devices. Disclosure required careful vetting for issues such as the identity information of victims, and any solicitor-client privileged conversations. The disclosure was thousands of pages.
▪ Length of Preliminary Inquiry and Trial - This case involved scheduling a three-week preliminary inquiry originally with 16-20 Crown witnesses. The trial is currently assigned 25 sitting days.
▪ Applications - The case involves a severance application, a similar fact application, a special motion regarding a claim of solicitor-client privilege, applications to be removed from the record and two bail review applications. Three JPTs were required, as well as many Crown pre-trial discussions.
▪ Time Period Covered by Allegations - The charges cover over 13 months of fraudulent activity.
▪ Comments of Counsel - The applicant described this case as “inherently complex” with a “large volume of evidence”. The charges covered in the 51-count combined Information involve a wide variety of businesses and geographic locations.
▪ Search Warrant and Production Order - Justice of the Peace Legate-Exon commented on the complexity of the allegations. The Justice of the Peace noted that the first investigation alone involved witness statements, admissions, video surveillance, search warrant and production order findings from cell phones, spreadsheet images of credit card data, screen shots of advertisements, GPS information, and more.
▪ Multiple Accused & Counsel - The need to accommodate the calendars of multiple defence counsel adds to the complexity of a case. While the applicant’s matters are the only ones scheduled for trial, for most of the proceedings, this matter had involved three different accused with defence counsel.
▪ Multiple Police Services and Officers - This case has, at one point or another, involved York Regional Police, Peel Regional Police, the Toronto Police Service, the Niagara Regional Police Service, the Waterloo Regional Police and the Ontario Provincial Police.
▪ Multiplicity of Issues - The list of triable issues in this case is extensive. The following issues are expected to be contested at trial: jurisdiction, identity, mens rea, party status, and similar fact, and dozens of witness statements.
[82] With respect, I am not persuaded by the Crown’s submissions. For example, the argument regarding multiplicity of issues as noted above (jurisdiction, identity, mens rea, party status, witness statements and similar fact) occurs routinely in many cases. A lengthy preliminary inquiry may be another indicator of complexity. However, multiple accused facing trial is no longer an issue and the trial time may now be overestimated given the resolution of accused or charges. Further, crimes alleged over a lengthy period of time or in multiple jurisdictions does not, per se, necessarily entail complexity.
[83] Does this case fall into this narrow exception, particularly when contrasted with other cases in which the courts have found particular complexity?
[84] The Court of Appeal’s decision in R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, demonstrates this high bar.
[85] Picard was a circumstantial case of first degree murder, which focused on the forensic analysis of data from 53 cellphones, including text messages and reams of data about GPS locations and call records. It encompassed six months of investigation, involving two police services, 30,000 pages of disclosure, 2,800 photographs, dozens of video-recorded witness statements, 6,800 pages of cellphone records, 25,000 text messages with content, 103,000 lines in Excel of subscriber records from the accused’s phone, 78 witnesses interviewed, 60 judicial authorizations, and eight separate areas of expert evidence. Further, Picard was a jury trial. The Crown had anticipated that it would require 43 witnesses at trial. However, the Court of Appeal agreed that it did not rise to the level of “particular complexity”: at para. 69.
[86] In R. v. Papasotiriou-Lanteigne, 2018 ONSC 1449, a first degree murder case, net delay exceeded the presumptive ceiling, but was justified due to the complexity of the case. The nature of the defence itself and the nature of the actions taken by the defence added complexity to an otherwise typical murder case. The investigation involved DNA analysis, the painstaking gathering of evidence such as emails, the use of cellphone tower "pinging" evidence, the examination of financial transactions, interviews of dozens of witnesses, and an international extradition. Defence conduct added significantly to the complexity by bringing needless and frivolous allegations and applications throughout the proceedings.
[87] In R. v. Millard, 2017 ONSC 4030, a matter involving two accused jointly charged with first degree murder, the case involved voluminous and complex evidence involving 217 civilian witnesses and 260 police officers; unusually complex reliance on forensic analysis of cell phones, tablets and computers based on seizure of 59 of these devices, 17 pre-trial motions, a trial scheduled for four months and unusually long preparation time.
[88] In Saikaley, the accused was convicted of over 40 counts involving drug and weapons offences, conspiracy, proceeds of crime, and association with a criminal organization. There was a net delay of 35.5 months. The case involved a lengthy and complex investigation, including live surveillance, DNR warrants, production orders and wiretap authorizations and the Crown had a concrete plan to move the very complex case forward: at para. 48.
[89] Bulhosen was a case involving conspiracy to traffic in cocaine, money laundering, and committing offences in association with a criminal organization. The net delay was 35 months. There was voluminous disclosure – 250,000 documents stored in 220 gigabytes of data, plus approximately 1.5 terabytes of data that represented the contents of 100 seized electronic devices. Further, there was approximately 100,000 audio intercepts, 400 of which the Crown intended to use at trial. At trial, the Crown intended to call 220 witnesses including 22 expert witnesses. It involved multiple accused. The Court held that the case was particularly complex and therefore the delay was reasonable taking into account the Crown’s reasonable plan to manage the complexity of the case.
[90] In R. v. Bullen, 2017 ONSC 6204, 399 C.R.R. (2d) 338, a cocaine trafficking case involved more than 15 years of work by law enforcement, including over 100,000 intercepts, and hundreds of hours of surveillance of conduct in both Quebec and Ontario involving both French and English communications. Charges were brought against eight individuals. The court held that the case was exceptionally complex and the delay was justifiable.
[91] R. v. Majeed, 2017 ONSC 3554 was a complicated fraud case involving a net delay of 39 months, 19 days. It involved multiple accused, 90 police interviews, 60 judicial authorizations, and tens of thousands of pages of disclosure. The court held that the particular complexity justified delay. The trial judge took into account that the Crown had made efforts to manage the complexity by assisting the defendants in accessing and understanding complicated disclosure, breaking up the prosecution into groups, and reducing the number of accused by offering agreements for cooperation.
[92] In Cody, the Supreme Court was asked to revisit its decision in Jordan, including the “particularly complex” exception. Cody involved net delay of 36½ months and the Crown argued that its complexity justified exceeding the presumptive ceiling. Far from expanding the ambit of the exception, the Court reaffirmed its truly exceptional nature. It made clear that the mere fact that a case involves voluminous disclosure is not enough to bring a case into the realm of “particular complexity”.
[93] In my view, the aforementioned cases are on a different order of magnitude when it comes to complexity.
[94] Recall that the Supreme Court in Jordan and in Cody emphasized that the new presumptive ceilings in Jordan “already reflect the increased complexity of criminal cases since Morin.
[95] In a complex prosecution, the Crown is expected to develop and follow a concrete plan to minimize delay caused by complexity: R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, at para. 2. The justice system should attempt to mitigate delay which are the product of exceptional circumstances. If this means cases must be prioritized – then so be it.
[96] However, the Crown must be “alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused’s s. 11(b) right.” Where the Crown shows that it has reasonably mitigated the delays associated with such a case, multiple accused persons is a factor which increases the complexity of a prosecution and justifies a lengthier time to the end of trial. So long as it is in the interests of justice to proceed jointly, such delays are taken into account under the exceptional circumstances analysis: Jordan, at paras. 77-79; R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at paras. 6-7; Cody, at para. 30; and Gopie, at paras. 123-142,167-171, 174.
[97] I am persuaded that this case may have “acquired” some complexity. I say this on the basis from trial management difficulties following the decision to amalgamate three prosecutions from three disparate jurisdictions. Much like a case can simplify as it proceeds, a case can also acquire complexity over time. However, this was all orchestrated by the Crown.
[98] Viewed qualitatively, the prosecution did not start out necessarily as a particularly complex case, but became so. There were co-accused who are no longer facing trial. The joining of three distinct prosecutions with numerous (over 50) and somewhat duplicative charges from three different jurisdictions into one omnibus prosecution was a decision made by the Crown. While voluminous disclosure is a hallmark of particularly complex cases, its presence is not automatically demonstrative of complexity. The question is whether the case is sufficiently complex “such that the delay is justified”: Jordan, at para. 77.
[99] Arguably, there is significant disclosure. However, that, in of itself, is not determinative of this question. I agree with Mr. Azad’s arguments that it is the Crown who initiated or combined the multi-jurisdictional offences into one prosecution and overstated the nature of the various applications, thus created any complexity for the purposes of the s. 11(b) application.
[100] In my view, after accounting for some degree of moderate complexity, with the history of the proceedings, the joinder of charges from three distinct jurisdictions, alongside the voluminous disclosure in this case, it does not rise to the level of a “particularly complex” case as referenced by the jurisprudence.
CONCLUSION:
[101] Having regard to the overall s. 11(b) and Jordan analysis, there was a total delay of just over 43 months.
[102] With the deductions for explicit defence waiver with no conduct of the defence amounting to a delay, this leaves a Net Delay of 40 months and eight days.
[103] When I factor in the exceptional circumstances of the discrete events of the COVID-19 pandemic, a further six months is deducted from the Net Delay equation.
[104] This trial involves serious allegations of fraud perpetrated on numerous individuals and businesses over a prolonged period of time. Indeed, this case is far from what can be described as a “typical fraud” case. Nonetheless, for all of the aforementioned reasons, I am unable to conclude that this case is “particularly complex” as it has been interpreted by the leading appellate jurisprudence. In other words, it does not rise to the level of complexity that would justify a delay beyond the presumptive 30-month ceiling. The remaining delay of 34 months exceeds the Jordan guidelines for trial in the Superior Court and is presumptively unreasonable.
[105] Therefore, the Application is granted. The applicant’s rights pursuant to s. 11(b) of the Charter to be tried without reasonable delay have been breached and he is entitled to a remedy. In accordance with s. 24(1) of the Charter, I impose a stay of proceedings.
A.J. GOODMAN J.
Released: August 16, 2022
COURT FILE NO.: 21-101380
DATE: 2022-08-16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
-and-
SHAKIB GHARIBZADA
RULING ON APPLICATION PURSUANT TO SECTIONS 11(b) & 24(1) OF THE CHARTER
A. J. Goodman J.
DATED: August 16, 2022
[^1]: In any event, the Crown concedes that on either scenario, the 30 month presumption is exceeded, absent exceptional circumstances.
[^2]: The Crown reduced its calculations for the period of August 6, 2020 to October 15, 2020.