Introduction

[1] The Applicant, Atrooba Mughal is charged with criminal offences related to alleged human trafficking, possession of fentanyl, and possession of a firearm. Ms. Mughal seeks a stay of proceedings based on her right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter of Rights and Freedoms.

[2] On December 10, 2018, police charged Ms. Mughal along with one of her co-accused, Patrick Agpoon. On December 13, 2019, they added Mr. Flemmings. The Crown has since withdrawn the charges against a fourth accused, Ms. Waldriff.

[3] The Applicant’s trial is scheduled to proceed on February 13, 2023 and is expected to last until March 10, 2023. The total delay is 51 months. This exceeds the 30-month ceiling for cases in Superior Court: see R. v. Jordan, 2016 SCC 2, [2016] 1 S.C.R. 631 at para. 5.

[4] A “bird’s eye view” of the case timeline is that Ms. Mughal and the two male co-accused were before the Ontario Court of Justice from the 2018 date of charge until May 25, 2021, when the case moved to the Superior Court of Justice.

[5] The pandemic onset triggered an adjournment of the May 25, 2020 preliminary hearing. All counsel tried to obtain dates to avoid a lengthy adjournment during the first months of the pandemic, but these attempts were unsuccessful. The preliminary hearing was rescheduled to May 31, 2021. On May 19, 2021, Crown counsel on the file notified all counsel that a direct indictment had been sought and obtained, and the preliminary hearing would not be proceeding as a result.

[6] The case moved into the Superior Court of Justice on May 26, 2021. Counsel fixed trial dates to begin on September 19, 2022. A miscommunication among counsel for Mr. Agpoon and the Crown led to Mr. Agpoon bringing a successful application to adjourn the trial to its current trial date: February 13, 2023.

[7] For reasons released on May 10, 2022, I granted a stay of proceedings to the co-accused, Mr. Agpoon and Mr. Flemmings based on a finding of a breach of their s. 11(b) Charter rights.[^1] Ms. Mughal did not participate in that application for reasons of cost, and it appears, some anticipation that if the application succeeded, the Crown would consent to a stay as against her. That did not happen. Accordingly, I heard this subsequent application.

[8] I have considered Ms. Mughal’s circumstances individually and separately from the Agpoon/Flemmings’ s. 11(b) application. This approach follows the jurisprudence: see R. v. Gopie, 2017 ONCA 728, [2017] O.J. No. 4963 at paras. 128-129. It also reflects that the record on this application includes new material and law.

The Issues on the Application

[9] In determining whether the delay has infringed Ms. Mughal’s rights under s. 11(b) of the Charter, I must address the following issues:

A. How much of the 51-month delay was defence delay?

B. How much of the net delay should be reduced on account of the pandemic and what role does the timing of the direct indictment play, if any, in finding exceptional circumstances?

Overview of Findings

[10] I find that Ms. Mughal’s s. 11(b) right to a trial within a reasonable time has been infringed.

[11] In summary, I find that once defence delay and the exceptional circumstances of pandemic delay are subtracted from the total delay of 51-months, that the difference is 34 months and 14 days. This is over the threshold for cases in the Superior Court of Justice.

[12] My reasons for allowing the application follow.

A. Of the 51 months of delay, how much is attributed to defence delay?

[13] Crown counsel seeks to deduct three periods of time for defence delay:

i. JPT Delay: June 20 – July 2, 2019: 13 days.

ii. Preliminary Hearing Scheduling Delay: February 10 – May 25, 2020: 3 months and 16 days.

iii. Superior Court of Justice Trial Date Adjournment by Agpoon: Delay adjourning first Trial Dates: September 19, 2022 – February 13, 2023: 4 months and 26 days.

i. Was the JPT delay between June 20-July 2, 2019 defence delay on the part of Ms. Mughal?

[14] The lead up to the JPT on July 2, 2019 included several months of appearances for matters of bail, disclosure, and a Crown pre-trial.

[15] On June 12, 2019, Crown counsel and counsel for another co-accused (Waldriff, who is no longer charged), suggested June 20, 2019 for a judicial pre-trial. After the matter was held down, in part to obtain dates for Ms. Mughal’s lawyer, Mr. Weisz, all counsel agreed to a date of July 2, 2019.

[16] Crown counsel argues that in relation to Ms. Mughal, on June 12, 2019, the Crown, court, and co-accused Waldriff were available as early as June 20, 2019 for a judicial pre-trial, but Ms. Mughal was not. As a result, counsel selected July 2, 2019.

[17] If the court and the Crown are ready to proceed, but the defence is not, the resulting period will be deducted from the overall period of delay as defence delay: see Jordan at para. 64.

[18] Counsel for Ms. Mughal did not take issue with this proposition.

[19] I agree with Crown counsel. This period of delay is defence delay. I will deduct 13 days from the overall delay of 51 months.

ii. Was there defence delay created by the dates selected for the preliminary hearing?

[20] At the July 2, 2019 appearance, the Crown offered preliminary hearing dates in February, March, and April of 2020. Neither counsel for Ms. Mughal nor counsel for Mr. Agpoon had issues with the dates in this period. Ms. Mughal’s counsel did not put on the record his earliest available dates or suggest other means of mitigating the delay.

[21] The parties scheduled the preliminary hearing to start on May 25, 2020. Crown counsel submits that a further 3 months and 16 days should be deducted as defence delay. This represents the difference in time between the earliest preliminary hearing dates offered to the defence and the date selected, the period between February 10 – May 25, 2020.

[22] Jordan applies to this period of delay. The Crown offered dates that were not accepted by the defence and thus this amounts to defence delay. I will deduct a further 3 months and 16 days.

[23] Crown counsel in her written submissions also estimated that if defence counsel had been available for the earliest preliminary hearing dates offered, if the preliminary hearing was able to be completed within the 3-week time estimated, and if Ms. Mughal was committed to stand trial, this matter could have proceeded to the intake phase in the Superior Court of Justice prior to the pandemic onset.

[24] I observe on this point, that it is difficult to predict what might have happened had the preliminary hearing gone ahead in mid-February or early March of 2020. For example, it is unclear on the record before me whether committal would have been challenged, whether the time estimated was sufficient, or whether witness unavailability or illness could have triggered further delays. One cannot make confident predictions as to what might have happened based on one constant and multiple variables, such as multiple accused, multiple counsel, civilian and police witnesses, unknown issues at the preliminary inquiry, and the pandemic declaration by the World Health Organization on March 11, 2020: see R. v. Obregon-Castro, 2021 ONSC 1096, 2021 CarswellOnt 1865 at para. 26.

[25] Further, the Crown exercised its discretion to seek a direct indictment, thus we do now know what kind of preliminary hearing this may have been to make predictions about what might have happened if it had taken place earlier. I discuss below the impact of the direct indictment on the timeline.

iii. Was the Agpoon successful application to adjourn the trial date defence delay on the part of Ms. Mughal?

[26] The four-week jury trial on the indictment was scheduled to proceed in the Superior Court of Justice on September 19, 2022. On January 14, 2022, Ms. Mughal’s co-accused, Mr. Agpoon brought an application to adjourn the trial date.

[27] Crown counsel opposed the adjournment. Mr. Farooq spoke to the adjournment application for Ms. Mughal. His submissions were as follows:

A. MR. FAROOQ: Thank you, Your Honour. On behalf of Ms. Mughal, as I understand it, the only material from the court is -- sorry, from the Crown before the court is that of Mr. Steinberg's unsworn affidavit. And as such, there is no evidence before the court with respect to the Crown's position about why this delay, or why this adjournment should or should not be granted. Unless I'm mistaken, the document I got was also unsworn. And my friend has indicated the one he received was an unsworn affidavit. Essentially, the law is pretty clear, and Mr. Steinberg is not here to give any viva voce evidence either. There is no evidence before the court with respect to why this adjournment should not be granted. So the only evidence that the court would have, or does have before it, is that of Mr. Yuen that says, "For personal reasons, I can't change those dates. I want an adjournment". I appreciate the court's concern, and I -- if I can characterize my friend's position, it's simply that at this point the court is to simply consider should an adjournment be granted. With respect to who that delay should be attributed to, I think my friend is saying that position, that determination will be made when the 11(b) is argued. That's how I understand what his [inaudible] are. Ms. Mughal, obviously, wishes to proceed. She is self-represented. I am here to assist her to move this matter along. And our position is simply to [inaudible]. Obviously, any delay that is occasioned, whether it is due to the Crown, and in this particular case the Crown hasn't filed any material before this court, I expect only submissions are going to be made. And I would respectfully submit those submissions should be only tailored to the affidavit of my friend, Mr. Yuen, because there is no evidence brought by Mr. Steinberg before the court. Even though [inaudible], but I think Ms. Mughal would [inaudible] argue that the delay is the Crown's delay ultimately when the matter reaches for the 11(b) motion. I think that's about as much as I can say to that, Your Honour. (Emphasis added)

[28] Ms. Mughal did not seek this adjournment, nor did any of her actions lead to the need for an adjournment. She told the court through counsel that she was ready and wished to proceed. Counsel confirmed that his role was to “assist her to move this matter along.”

[29] The Agpoon adjournment application is an example of proceedings where the co-accused did not present a united front. See by way of contrast, R. v. Albinowski, 2018 ONCA 1084, O.J. No. 6892 at para. 37. In circumstances of a united defence position, an individualized approach to questions of delay may not be required.

[30] The sole reason for the adjournment request was due to unavailability of Mr. Agpoon’s lawyer.

[31] Schabas, J. allowed the adjournment, noting that Ms. Mughal took no position on the application.

[32] Defence delay can arise from steps or tactics that directly cause delay. Examples of defence delay include bringing frivolous applications or not being available to proceed despite the Crown and court being ready to do so: See Jordan, paras. 63-64; Coulter, 2016 ONCA 704 [2016] O.J. 500 at para. 44; Gopie at para. 113.

[33] Defence delay can also arise from explicit or implicit waiver of delay. Waiver must be “clear and unequivocal.” Accused persons must have full knowledge of their rights, and the effect their waiver will have on those rights: Jordan, at para. 61.[^2]

[34] In a judgment released on May 6, 2022, the Supreme Court confirmed that silence or failure to act by an accused relative to delay does not amount to waiver of a constitutional right. Waiver must be “strictly construed”: See R. v. J.F., 2022 SCC 17, 2022 CSC 17, at paras. 43-44.

[35] I conclude that a fair reading of Mr. Farooq’s submissions did not amount to waiver of any delay on behalf of Ms. Mughal.

[36] I find that because Ms. Mughal did not bring or join in the Agpoon adjournment application, nor waive any delay that was created by this adjournment (from September 19, 2022 to February 13, 2023), that this was not defence delay on her part.

B. What amount of the net delay should be reduced on account of the pandemic and what role does the timing of the direct indictment play in the finding of exceptional circumstances?

[37] On this second s. 11(b) application relative to the same prosecution, Crown counsel Ms. Orlando departs from the arguments made on the prior occasion. She does not rely on the privileged nature of the decision to seek a direct indictment, nor does she argue that the Crown’s decision to prefer an indictment mitigated the delay.

[38] Rather, on this application, Ms. Orlando submits that the direct indictment filed just before the preliminary hearing scheduled for May of 2021 caused no delay, because this period ran concurrently with the pandemic and there were no jury trials available for most of this period in any event. Ms. Orlando filed a comprehensive casebook which was valuable in considering the new Crown position in this iteration of the s. 11(b) application.

[39] In the result, Ms. Orlando submits that the entire period from the outset of the pandemic in March of 2020 until the trial date of September of 2022 should all be deducted as an exceptional circumstance. This would bring the total delay below the Jordan threshold.

[40] Mr. Farooq, for Ms. Mughal, submits that the lengthy period between the Crown’s first consideration of a direct indictment to respond to delay in this case, until the actual securing of the direct indictment should not be considered “exceptional circumstances”. This period spans from February of 2020 until May 19, 2021.

[41] Prior to considering these submissions, I begin with a review of the policy and principles concerning exceptional circumstances, the application of those policies to the pandemic in other decisions, and the law on the use of direct indictments to mitigate delay.

Jordan and the “Exceptional Circumstance” Deduction

[42] Where the net delay for proceedings that move to the Superior Court exceeds 30 months, the Crown may rely on unforeseen exceptional circumstances to rebut a presumed breach of the accused’s s. 11(b) rights. If the Crown is not able to do so, the charges will be stayed: Jordan, at para. 47.

[43] Exceptional circumstances fall outside the Crown's control. They are unforeseen, unavoidable events: Jordan, at para. 69; Coulter, at para. 46; R. v. McManus, 2017 ONCA 188, [2017] O.J. No. 1372 at para. 23.

[44] Even when faced with exceptional circumstances, the Crown and the defence are obliged to try and mitigate the impact of those circumstances. This obligation comes from the policy behind the s. 11(b) framework in Jordan, which is “intended to focus the s. 11(b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice with a view to fulfilling s. 11(b)’s important objective”: Jordan at para. 5.

The Pandemic as an “Exceptional Circumstance”

[45] Numerous rulings have considered the impact of the global pandemic in the context of s. 11(b) Charter applications. The global pandemic, which closed all Ontario courts for weeks starting on March 17, 2020, is a compelling example of an unforeseen, unavoidable, even quintessential, exceptional circumstance: See R. v. Simmons, 2020 ONSC 7209, 2020 CarswellOnt 17424 at para. 60; R. v. Khan, 2021 ONCJ 195, [2021] O.J. No. 1718 at para. 6; R. v. Greenridge, 2021 ONCJ 57, [2021] O.J. No. 468 at para. 23; R. v. Fitzpatrick, 2021 ONSC 647, 2021 CarswellOnt 978 at para. 19; R. v. Obregon-Castro, R. v. Metatawabin, 2021 ONSC 7168, 2021 CarswellOnt 15700 at para. 37; R. v. Henry, 2021 ONSC 3303, 2021 CarswellOnt 6557; R. v. Schardt, 2021 ONSC 3143, 2021 CarswellOnt 8127 at para. 69; R. v. Dumpfrey, 2021 ONSC 7758, 2021 CarswellOnt 17341 at para. 38; R. v. Truong, 2020 ONCJ 613, [2020] O.J. No. 5724, at para. 71; R. v. Chac-Wai, 2022 ONSC 1269, 2022 CarswellOnt 3754 at para. 33; R. v. Hyacinthe, 2022 ONSC 1444, 2022 CarswellOnt 3633; R. v. Cann 2022 ONSC 2699, [2022] O.J. No. 2129 at paras. 45-46; R. v. Hamidi (January 7, 2022), Ontario Court of Justice, (unreported); R. v. T., 2022 ONSC 3484, 2022 CarswellOnt 8082 at para. 3.

[46] In several s. 11(b) applications, judges have attributed the entire period of pandemic delay to the category of “exceptional circumstance” delay. This often includes cases where the pandemic triggered trial date adjournments and no other factors contributed to case delay. In such cases, the courts considered the practical need for managing the backlog created exclusively by the pandemic: See for example, Simmons; Metatawabin; Dumpfrey.

[47] In one such case, a finding of dilatory conduct by the defence in addition to the delay resulting from the unavailability of jury trials during the pandemic led Harris, J. to find that the entire period of delay between March 2020 and March 21, 2022 fell under a “blanket of exceptional delay” attributable to the pandemic: See Hyacinthe at para. 17.

[48] In other cases, Crown counsel have asked the court to summarily dismiss an accused’s s. 11(b) application where the delay is attributable to the exceptional circumstances of the pandemic and it appears the application has no reasonable prospect of succeeding: See for example, R. v. Peltier, 2022 ONSC 1153, 2022 CarswellOnt 2083; R. v. Redufe, 2021 ONSC 5176, [2021] O.J. No. 4134; R. v. McCudden, 2022 ONCJ 138, [2022] O.J. No. 1467.

[49] Such an approach was rejected by Cullin, J. in Peltier in these words:

While I concur that s. 11(b) applications rooted in pandemic-related delay can expect to face strong headwinds before the court, such applications must be reviewed on a case-by-case basis. The mere fact that a delay occurred during the pandemic does not make it sacrosanct and impervious to review; incidents of delay which would be regarded as unreasonable were it not for the pandemic will not be sheltered merely because they occurred in its shadow.

(Peltier, at para. 64)

[50] In R. v. Delves, Camara, J. concluded that a case-specific, contextual analysis is necessary in analyzing questions of delay: R. v. Delves, 2022 ONCJ 141, 2022 CarswellOnt 4030 at para. 39. Code, J. in Obregon-Castro observed that the “s. 11(b) deduction for ‘exceptional circumstances’ is not endlessly elastic.”

[51] In R. v. Kazman, 2020 ONCA 22, 2020 CarswellOnt 270, Doherty, J.A. discussed the importance of being “cautious” in summarily dismissing constitutional applications, and guided trial courts to consider broader considerations beyond the narrow bounds of the case before them:

The trial judge must consider broader administration of justice concerns, including the need to conduct all litigation, including criminal litigation, in a fair, orderly, and efficient manner. It falls to trial judges to decide where the interests of justice lie in each specific case.

Kazman at para. 15.

[52] These “broader administration of justice concerns” as described in the “powerful” reasons of the majority in Jordan, mean that all participants in criminal litigation must cooperate and effectively use limited available resources to complete cases in a reasonable time: See Kazman at para. 16; Jordan at paras. 138-139. Such resources must logically include all aspects of the administration of justice; counsel time, court time, judicial time, and public funds including legal aid funds.

[53] I agree with the Kazman, Delves and Peltier approach to analyzing delay. Delay that occurs during the pandemic may indeed face “strong headwinds” in arguing for a remedy under s. 11(b). Yet, every situation bears a closer look. The pandemic is not an excuse for dilatory, or casual attention to the obligations on all parties. A case-specific approach means that despite the obvious disruption to the work of the administration of justice, many courts have declined to characterize all “pandemic delay” as exceptional circumstances where there are other features which independently contribute to delaying the prosecution of criminal charges: See, for example R. v. Delaney, 2021 ONCJ 467, 2021 CarswellOnt 12482; R. v. Bui, 2021 ONCJ 379, 2021 CarswellOnt 10299; R. v. Huang, 2021 ONSC 8372, 2021 CarswellOnt 19444; R. v. K.L., 2022 ONCJ 60, 2021 CarswellOnt 20479; R. v. Delves, 2022 ONCJ 141, 2022 CarswellOnt 4030.

[54] This is because although “Hurricane Covid,” as Thomas, J. put it in K.L., may have buffeted the entire administration of justice, people still came to work. The obligations of the Crown and the defence were not on hold, even when some types of proceedings were suspended for reasons of public health. Thomas, J. wrote that cases proceeding during the months of the pandemic nevertheless require the Crown to “show it took all reasonable steps to avoid and address the problem of delay before the delay exceeded the ceiling”, even if those efforts were unsuccessful (Jordan, para. 70).

[55] In Simmons, Nakatsuru, J. also highlighted the ongoing responsibility for the Crown to continue to thoughtfully triage cases and to refrain from sitting “idly on their hands when rescheduling the backlog created by COVID-19”: see Simmons at para. 80.

[56] Jordan explicitly identified several means by which Crown counsel can attempt to mitigate delay before the ceiling is reached and despite exceptional circumstances:

This might include prompt resort to case management processes to seek the assistance of the court or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications or resorting to any other appropriate procedural means. (Emphasis added)

Jordan at para. 70

[57] In the case before me, counsel awaited a preliminary inquiry for approximately 12 months. It did not happen, because the Crown sought and obtained a direct indictment 12 days before the preliminary inquiry was to begin. Further, Crown counsel did not advise defence counsel that he was taking this procedural step until over a year had passed from the lost May 2020 preliminary inquiry dates. This suggests a need to consider the Crown’s responsibilities relative to the timing of taking this procedural step.

[58] I turn next to the role of direct indictments in mitigating delay and the question of whether the delay here in communicating about and then seeking a direct indictment played a role in the overall delay.

Direct Indictments and Delay

[59] A Crown decision to seek consent of the Attorney General to file a direct indictment is an exercise of Crown discretion. That decision is only reviewable by way of an application for abuse of process: R. v. Bulhosen, 2019 ONCA 600, [2019] O.J. No. 3666 at para. 88.

[60] The ability of the Crown to mitigate potentially unconstitutional delay using a preferred indictment is not controversial: Bulhosen at para. 89; R. v. Charlie (1998), 1998 CanLII 4145 (BC CA), 126 C.C.C. (3d) 513 (B.C.C.A.), at para. 32.

[61] In general terms, the exercise of Crown discretion will be subject to review for delays that flow from those decisions. This is part of the Crown responsibilities that include reasonable and responsible decisions on prosecutions, creating plans for complex prosecutions, meeting disclosure obligations promptly and using court time efficiently: See Jordan at paras. 79, 86, and 138, and Thanabalasingham 2020 SCC 18, [2020] S.C.C. No. 18 at par. 5; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 at para. 36.

[62] No party is held to a standard of perfection, but Crown and defence must act reasonably: See Ontario (Labour) v. Nugent, 2019 ONCA 999, 384 C.C.C. (3d) 189 at para. 45; R. v. C.G., 2020 ONCA 357, [2020] O.J. No. 2554 at para. 49; Peltier at para. 58.

[63] When criminal counsel know they will be filing an application, they “cannot just keep it to themselves and then spring it”: R. v. Shen, 2022 ONSC 3274, 2022 CarswellOnt 8219 at para. 23.

[64] Given these expectations, it is logical and obvious that the timing of Crown discretion to seek and obtain a direct indictment will be part of the assessment of whether the Crown has met its obligations to use court time efficiently. It all depends on the individual circumstances of each case: R. v. Dadollahi-Sarab, 2021 ONCA 514, 2021 CarswellOnt 10351 at paras. 60-61; Bulhosen at paras. 92-92.

[65] In the next section, I will consider the details of the proceedings in the lead up to the pandemic health measures, and the scheduling of trial dates in the Superior Court of Justice.

The Timeline of this Prosecution and the Impact of the Pandemic

[66] To recap, the timeline of events after the Ontario Court of Justice preliminary inquiry was adjourned led to all counsel trying unsuccessfully to find dates to complete the preliminary inquiry in 2020. They set new dates starting on May 31, 2021. The Crown preferred a direct indictment on May 19, 2021 and the case went to the Superior Court of Justice where trial dates were scheduled in September of 2022, then adjourned to February 13, 2023.

[67] In greater detail, beginning in the early part of the new year of 2020, Ms. Mughal retained new counsel, Mr. Farooq. On February 26, 2020, Mr. Farooq attended a pre-trial conference in the Ontario Court of Justice where he advised Crown counsel that he might have difficulties with the scheduled preliminary inquiry dates due to his other commitments.

[68] Crown counsel told counsel that if the preliminary inquiry had to be adjourned, the Crown would seek a direct indictment to mitigate delay. I find that this showed that Ms. Orlando, who was appearing as Crown counsel on the file at that stage, turned her mind to the Crown’s responsibilities to consider this procedural step to mitigate delay. As noted above, this is a legitimate use of Crown discretion.

[69] An exchange of emails in early March among counsel followed. By March 11, 2020, Mr. Farooq had resolved his scheduling issue to avoid the preferring of a direct indictment, and he confirmed he was able to proceed with the preliminary inquiry in May of 2020.

[70] Several days later these plans were thwarted by the declaration of the pandemic and the closing of the courts.

[71] On March 25, 2020, counsel attended a judicial pre-trial with the assigned case management judge. The parties contemplated starting the preliminary hearing one week later than scheduled to account for the court closure and make up the lost time on a future date.

[72] This plan did not work. On May 5, 2020, the assigned Crown alerted all parties that the courts remained closed due to the pandemic and no preliminary inquiries would be held until after July 6, 2020. Crown counsel suggested that the parties await the posting of the Superior Court of Justice notice to this effect and then consider how to schedule new dates.

[73] On September 8, 2020,which was the first available date for rescheduling matters, Crown counsel communicated with the Trial Coordinator and counsel to discuss rescheduling the preliminary inquiry.

[74] On September 9, 2020, the Trial Coordinator circulated a trial scheduling form to counsel. The Trial Coordinator confirmed that the first available dates for the preliminary inquiry when all counsel were available were May 31, 2021 to June 14, 2021.

[75] On October 19, 2020, the parties confirmed the new dates for the preliminary inquiry. Counsel adjourned the case to be spoken to on December 16, 2020. There were no discussions on the record about a direct indictment at that attendance, nor any other communications during this period that the Crown would be seeking a direct indictment.

[76] In November of 2020, counsel Mr. Yuen replaced Lori Anne Thomas as counsel of record for Mr. Agpoon after Thomas, J. was appointed to the bench.

[77] On December 16, 2020, counsel confirmed the preliminary inquiry dates. The case was adjourned directly to May 31, 2021.

[78] On May 19, 2021, new Crown counsel wrote to the parties to say that the Crown had secured a direct indictment on the matter. This appears to be the first time that the defence were made aware that the preliminary inquiry would not be proceeding. By responding email, defence counsel expressed concerns about the time they had spent preparing for the preliminary inquiry. On May 26, 2021, the case moved from the Ontario Court of Justice to the Superior Court of Justice.

[79] On May 26, 2021, counsel spoke to the matter in the Ontario Court of Justice. On that date, Crown counsel asked the court to vacate the preliminary inquiry dates.

[80] By June of 2021, when the matter was judicially pre-tried in the Superior Court of Justice, the co-accused, Mr. Flemmings was in custody.

[81] Judicial pre-trials in the Superior Court of Justice led to a trial date in September of 2022, the motion for adjournment brought by Mr. Agpoon and the final trial date of February 13, 2023.

[82] Since the onset of the pandemic in March of 2020, jury trials have been limited for periods of time. This reality is reflected in the cases reviewed above, and in the directions and orders from the Chief Justices of the Ontario Court of Justice and Superior Court of Justice that were filed on this application.

[83] A simplified timeline of this period, and notes, follow:

Notes to Timeline

• Prior to Pandemic Onset, On February 26, 2020 Crown counsel advised new counsel for Ms. Mughal that if his schedule required an adjournment of the May-June 2020 Preliminary Inquiry, that the Crown would seek a direct indictment to respond to the delay—March 11, 2020, new counsel for Ms. Mughal confirmed he would proceed on the 2020 dates.

• Post Pandemic Onset, Jury Trials Were Not Available in the Superior Court of Justice as Follows:

o March 17 to September 14, 2020, for a period of 6 months;

o November 21, 2020 to June 21, 2021, except for matters still in progress prior to November 1, 2020 (at the discretion of the court), for a period of 7 months;

o December 20, 2021 to February 28, 2022 except for matters still in progress prior to November 21, 2020 (at the discretion of the court), for a period of 2 months.

Applying the Law and Policy to these Facts: What Exceptional Circumstances Existed Here?

First Finding: The Crown Did Not Obtain a Direct Indictment Reasonably Promptly

[84] I find as a fact that by February of 2020, faced with a potential adjournment of the 2020 preliminary inquiry dates, that the Crown considered the procedural step of seeking a direct indictment to mitigate delay, and communicated this possibility to defence counsel. This is aligned with the Crown’s responsibilities in Jordan. Using direct indictments to mitigate delay are well recognized: Bulhosen; Charlie.

[85] The onset of the pandemic in March of 2020 was clearly an exceptional circumstance. The immediate adjournment was triggered by this exceptional circumstance. The Crown cannot be expected to seek and obtain a direct indictment immediately, even though it had already considered it in the context of this prosecution.

[86] The only evidence filed before me on the capacity of the Crown to prefer a direct indictment during this period came from the comparator filed by the defence in the Thornhill prosecution. That prosecution shared some similarities to this case in terms of timing, nature of the charges, and the fact that both were being prosecuted out of the same office. In the Thornhill matter, Crown counsel obtained a direct indictment on June 12, 2020 after their March preliminary inquiry dates were adjourned due to the pandemic. The record before me was silent as to the reasons for the delay in seeking and obtaining the direct indictment in Ms. Mughal’s case.

[87] I find from this evidence that by mid-June, 2020 members of the same Crown office having carriage of this file, successfully sought and obtained a direct indictment in another human-trafficking prosecution.

[88] This, combined with the evidence that Crown counsel had considered using a direct indictment to deal with delay in Ms. Mughal’s case as early as February 26, 2020, leads me to conclude that waiting 14 months from the pandemic onset until to May 19, 2021 obtain a direct indictment, and failing to advise the defence of this decision, failed to meet the Crown’s responsibilities to mitigate the delay created by the exceptional circumstance of the pandemic.

[89] It may be that with the dates put off into the future, this case was put on the notional “back burner.” Perhaps more than one Crown was assigned to this file. Although this was not clarified in the record, it does not appear that Ms. Orlando was responsible for the delay in seeking the direct indictment. It is possible that this file “fell between the cracks” arising from a handover. The transcripts of appearances in the Ontario Court of Justice reveal that multiple Crown counsel spoke to it at different points in time and did not always have full instructions.

[90] How much time is unreasonable in these circumstances? I am not prepared to draw a straight-line comparison between this case and that of Thornhill. I use that case only as an approximate benchmark to find that it was possible for the Crown, particularly with court proceedings on pause, to have considered and sought a direct indictment by July 6, 2020.

[91] By July 6, 2020, 4 months and 10 days had passed since February 26, 2020, when the Crown on the file had considered seeking a direct indictment to address potential delay. It had been 3 months and 19 days since the courts closed on March 17, 2020.

[92] The circumstances here were not like those in R. v. Dadollahi-Sarab, where a parallel motion to quash would have slowed down the prosecution in any event, and effectively “cancelled out” the delay from the preferring of the indictment, or in Bulhosen where time was being used to hold multiple trial management conferences and resolution discussions. In the case before me, the case was awaiting its second preliminary inquiry dates, necessitated by the adjournment due to the pandemic.

[93] After a year spent anticipating a preliminary inquiry to last for several weeks, it is reasonable to assume that defence resources had been used to prepare for the inquiry, police resources may have been required used to communicate with witnesses and the court had blocked off a significant amount of time which may or may not have been able to be used with 12 days notice, for other matters. These are the kinds of inefficiencies to which the majority in Jordan turned its mind in decrying a culture that had evolved to tolerate delay and last-minute decision making. Had the Crown acted with greater alacrity, the case could have made its way to the Superior Court of Justice sooner. There would have been earlier opportunities for case management, and in the windows of opportunity, potentially for trial.

[94] Further, by failing to communicate about its intentions, the Crown deprived Ms. Mughal of instructing counsel with up-to-date knowledge of the procedures, positions, and options that were available to her. This meant that defence counsel could not fulfill its corresponding obligations to move the case along. Had they known about the decision to seek a direct indictment, they could also have used their time advising their clients and considering the steps beyond preparing for a preliminary inquiry.

Second Finding: The Availability of Jury Trials in the Superior Court of Justice Should Also Be Considered an Exceptional Circumstance

[95] Crown counsel submits that the time used to seek and obtain the direct indictment did not cause any delay, because even if it had been obtained, this case could not have come to trial, given the scarcity of jury trials in the Superior Court of Justice, particularly for out of custody cases. In other words, it would have made no difference to the trajectory of this case.

[96] I do not agree. This sweeping conclusion would effectively “shelter” any Crown measures from scrutiny, including a measure that the Courts recognize as being part of the available measures to mitigate delay. This cannot be right. This ignores the policy in Jordan and relies on assumptions as to what “would have” happened had things unfolded differently. Such a conclusion discourages the responsibility of all concerned to be proactive, even in the face of exceptional circumstances. This would be a step back from the exhortations in Jordan to change the cultural mindset around time, mitigation of delay, and cooperative communications during criminal prosecutions.

[97] Yet, it was not business as usual in the Superior Court of Justice during 2020-2022. The evidence filed on this application of court closings and jury black out periods reveal that these health measures posed a real impediment to timely trials. Several of the cases filed by Ms. Orlando on this application include allowances for these difficulties as exceptional circumstances.

[98] At the same time, by June of 2021, Ms. Mughal’s co-accused, Mr. Flemmings was back in custody. Had a direct indictment been obtained in 2020, this case might well have been capable of reaching trial in the period between June 21, 2021 and December 1, 2021. Further, by March of 2022, I am aware from direct experience that out of custody jury cases had resumed. I cannot assume that had the Crown fulfilled its responsibilities and acted sooner by moving the case into the Superior Court of Justice using a direct indictment, that all would have unfolded precisely as it did. It is too far a stretch to conclude that this case would nevertheless have taken until February of 2023 had the Crown fulfilled its obligations reasonably promptly.

[99] Balancing these realities and uncertainties, the Crown has persuaded me that a further deduction for exceptional circumstances is warranted because of those realities. In calculating that deduction, I find it is preferable to work with known impacts, rather than make assumptions about what would have been possible if this case had unfolded differently. I have chosen to use the periods of jury unavailability as periods of exceptional circumstances when jury trials could not have been held in the Superior Court of Justice. No matter what had happened with the direct indictment, these were periods when a jury trial could not have been held.

[100] These periods, and my comments about each are as follows:

A. March 17 to September 14, 2020, for a period of 6 months—I would not deduct this period of blackout because I have already considered the period from March 17-July 6, 2020 as exceptional circumstances, and had a direct indictment been obtained, the period up to September 14, 2020 would have been used for Superior Court of Justice intake, judicial pre-trials, and not reasonably available for jury trials in any event;

B. November 21, 2020 to June 21, 2021, except for matters still in progress prior to November 1, 2020 (at the discretion of the court), for a period of 7 months—I would deduct 7 months as a known black out period.

C. December 20, 2021 to February 28, 2022 except for matters still in progress prior to November 21, 2020 (at the discretion of the court), for a period of 2 months—I would also deduct this period of 2 months as a known black out period.

[101] Accordingly, I accept in part the Crown’s submissions that an additional period during the pandemic should amount to exceptional circumstances by reason of the constraints on the scheduling of jury trials. I deduct a further 9 months on that basis.

Conclusion

[102] To summarize, the overall delay here is 51 months.

[103] I have deducted as defence delay 3 months, 29 days, for a net delay of 47 months, 1 day.

[104] I have deducted three periods for exceptional circumstances. The first is 3 months, 19 days from the pandemic onset when the Crown could not have reasonably sought and obtained a direct indictment, until July 6, 2020. The second and third periods relate to jury black out periods in the Superior Court of Justice, the sum of which is 9 months.

[105] The net delay after deducting the three periods for exceptional circumstances is 34 months, 12 days.

[106] This delay breaches Ms. Mughal’s s. 11(b) right to be tried within a reasonable time.

[107] I allow the Application. The charges against Ms. Mughal are stayed.

Leiper J.

Released: October 3, 2022

[^1]: R. v. Agpoon, 2022 ONSC 2762

[^2]: In R. v. Zahor, 2022 ONCA 449, [2022] O.J. No. 2628 at paras. 63 and 64, the Court splits the two types of defence delay (steps that cause delay and waiver of delay) into two sub-steps in the analysis. Accordingly, I have considered these aspects separately.

R. v. Mughal 2022 ONSC 5421

Case Summary

Introduction

The Issues on the Application

A. Of the 51 months of delay, how much is attributed to defence delay?

i. Was the JPT delay between June 20-July 2, 2019 defence delay on the part of Ms. Mughal?

ii. Was there defence delay created by the dates selected for the preliminary hearing?

iii. Was the Agpoon successful application to adjourn the trial date defence delay on the part of Ms. Mughal?

B. What amount of the net delay should be reduced on account of the pandemic and what role does the timing of the direct indictment play in the finding of exceptional circumstances?

Direct Indictments and Delay

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 1