Court File and Parties
COURT FILE NO.: CR-21-70000284-0000 DATE: 20221117
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
MUHAMMAD HASSAN AND HAARIS KHAN
Counsel: Morgan Gries, for the Crown Andrew Hrivnak, for Muhammad Hassan Susannah Chung-Alvares, for Haaris Khan
HEARD: October 27-28, 2022
Schabas J.
REASONS FOR JUDGMENT
Overview
[1] Muhammad Hassan and Haaris Khan apply to the court to stay the prosecution against them on the basis that their right to be tried within a reasonable time, protected by s. 11(b) of the Canadian Charter of Rights and Freedoms, has been infringed.
[2] Hassan and Khan were charged on August 12, 2019, with a number of offences relating to possession of firearms under the Criminal Code, R.S.C. 1985, c. C-46. Hassan was also charged with being in possession of cocaine for the purpose of trafficking contrary to the Controlled Drugs and Substances Act, S.C. 1996, c. 19. Their trial is scheduled to commence on January 3, 2023. Assuming the trial concludes as scheduled, on January 20, 2023, over 41 months will have passed since the charges were laid.
[3] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada established presumptive limits of reasonableness to be applied when addressing delay under s. 11(b) of the Charter. For matters that are to be tried in the Superior Court, the presumptive limit is 30 months to the end of the trial. If the case has taken over 30 months, the onus is on the Crown to rebut the presumption of unreasonable delay, failing which the prosecution will be stayed: Jordan, at paras. 46-47.
[4] In order to rebut the presumption of unreasonable delay the Crown must show that periods of delay were caused by (1) defence delay, and/or (2) exceptional circumstances. Periods of time caused by these events are deducted from the total time the matter has taken. If the deductions bring the delay below 30 months the Crown has met its onus of rebutting the presumption of unreasonable delay, although it is still open to an accused person to seek to establish that the remaining delay is unreasonable. In such circumstances, "the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have." The Supreme Court stated, however, that "[w]e expect stays beneath the ceiling to be rare, and limited to clear cases": Jordan, para. 48.
[5] In this case I have concluded the Crown has met its onus and that there should be deductions due to defence delay and exceptional circumstances resulting from the COVID-19 pandemic, which reduces the delay below 30 months.
[6] Second, I am not satisfied that the delay in getting this case to trial is "markedly longer than it reasonably should have" been, or that this is such a rare, clear case that requires the exceptional step of staying the proceedings.
Legal framework – defence delay and exceptional circumstances
[7] Jordan describes defence delay as having two components: (1) waiver, which must be clear and unequivocal; and (2) delay caused "solely or directly" by the conduct of the defence: at para. 66. The latter category may include deliberate tactics to delay a case, but will also apply where the defence has "caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence": Jordan, at para. 64.
[8] The Supreme Court describes exceptional circumstances as events which "lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise": Jordan, at para. 69 (emphasis in original).
[9] The Court also placed a burden on the Crown to show that it "took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling." As the Court continued at para. 70 of Jordan:
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. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay.
[10] Jordan established a new framework for considering delay, responding to the approach which flowed from the Supreme Court's earlier decision in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 SCR 771, that was "unduly complex" and encouraged parties "to quibble over rationalizations for vast periods of delay": Jordan at paras. 36-37. The Court stated at para. 91 of Jordan:
Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case. [Emphasis added]
[11] In this case, as in most applications under s. 11(b), the parties have filed extensive records, including transcripts of virtually every court appearance, emails and other communications between counsel, amounting to several hundred pages. Much of this material may be necessary to establish the background facts and the context in which the application is brought; however, such applications should not, as D.E. Harris J. pointed out recently, require a "deep dive into the microscopic details of a particular period of delay": R. v. Hyacinthe, 2022 ONSC 1444, at para. 4, citing R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 52. Ultimately, this application turns on a small number of discrete factual issues, which I address below.
Exceptional circumstances: delay resulting from the COVID-19 pandemic
[12] I begin with exceptional circumstances. It is, chronologically, the first issue that the Crown relies on in meeting its onus of reducing delay below 30 months.
[13] On March 15, 2020, when courts began adjourning cases due to the COVID-19 pandemic, this matter was proceeding in the Ontario Court of Justice. A preliminary inquiry scheduled to proceed for five days commencing on April 27, 2020, had to be adjourned. In August 2020, the preliminary inquiry was rescheduled for February 1, 2021. The Crown submits that this period of 280 days, or just over nine months from April 27, 2020 to February 1, 2021, should be deducted from the period of delay as a discrete exceptional circumstance.
[14] The COVID-19 pandemic and suspension of court operations clearly falls within the category of exceptional circumstances described in Jordan: R. v. Simmons, 2020 ONSC 7209, at para. 60; R. v. Obregon-Castro, 2021 ONSC 1096, at para. 38; R. v. Drummond, 2020 ONSC 5495 at para. 76; R. v. Gutierrez, 2020 ONSC 6810 at para. 19. That period began in March 2020 and continued until the Crown and the court could take steps to mitigate the time lost. As Moldaver J. said in Jordan, however, "any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events)": at para. 75.
[15] In Simmons, Nakatsuru J. found that the period from the adjourned trial date to the new trial date should be considered exceptional and be deducted. He rejected the defence position that the period of the discrete event ended in September 2020 when the Superior Court began scheduling new jury trials: at para. 68.
[16] In Obregon-Castro, Code J. deducted the period from the adjourned trial date up to and including the date of the anticipated conclusion of the trial in that case, December 24, 2021, a period of just over 20 months: at para. 42.
[17] Effectively, Nakatsuru and Code JJ. deducted time until the parties were in the same position they were in prior to the onset of the pandemic. Akhtar J. did the same in R. v. Hamblett, 2022 ONSC 5726, deducting the time between the adjourned preliminary inquiry date in May 2020 and the rescheduled hearing which commenced in February 2021. A similar approach was taken in Hyacinthe. In that case the adjourned trial date was May 25, 2020. Nevertheless, D.E. Harris J. deducted "everything that occurred in the two-year period between March 2020 and the trial date of March 21, 2022": at para. 17.
[18] In R. v. Langford, 2022 ONSC 4542, the parties were expecting to set dates for a preliminary inquiry on March 25, 2020, but this had to be postponed due to the pandemic. The parties subsequently were in a position to set preliminary inquiry dates on October 21, 2020, 210 days later. With the addition of 14 days due to administrative changes in how dates were being set during the ongoing pandemic, I concluded that 224 days should be deducted as an exceptional circumstance: at paras. 27-31. As in Simmons and Hamblett, this period of delay ended when the parties were in the same position they were in on the adjourned date.
[19] Despite this weight of authority, defence counsel submit that I should not deduct the entire period between April 27, 2020, and February 1, 2021. Counsel for Hassan submits that only the period from May 1, 2020 (the last day of the scheduled preliminary inquiry) to October 5, 2020 – which was the first date offered by the court – should be deducted, a period of about five months. Counsel for Hassan also asserts that unnecessary judicial pre-trials were held in the summer of 2020, delaying the setting of new dates for a preliminary inquiry by at least one month.
[20] Counsel for Khan goes further, arguing that only three and half months of delay arising from the pandemic should be deducted as she had dates available to conduct the preliminary inquiry commencing August 10, 2020.
[21] I see no reason to depart from the approach I took in Langford, which is consistent with the approach of other judges discussed above.
[22] The length of time it took to set new preliminary inquiry dates was affected by a number of things, and by actions of each of the accused and the Crown. Following the onset of the pandemic and the adjournment of the preliminary inquiry on April 28, 2020, the Crown offered new resolution positions. This led to discussions and at the end of May it appeared that Hassan's charges would be resolved. However, this position was not finalized and on July 9, counsel for Hassan said that new preliminary inquiry dates should be set for him as well.
[23] Meanwhile, in May 2020, Khan pursued a bail review which was dismissed on May 27. A judicial pretrial took place on June 9 in which a preliminary inquiry involving Khan alone was estimated to take two days, and the matter was put over to July 9, 2020.
[24] On July 9, 2020, the Crown said that a further judicial pretrial would be necessary as Hassan's potential resolution had failed and a new time estimate needed to be provided to address proceeding against both accused. Defence counsel asserted that this was unnecessary as a pre-trial had occurred pre-COVID to discuss a preliminary inquiry involving both accused; however, the Crown insisted on another judicial pre-trial which took place on July 23, 2020 and continued on July 28, 2020.
[25] Following these pre-trial conferences, the February 1, 2021 date was finalized with the trial coordinator by email on August 19, 2020. It was expected to take five days. Although the trial coordinator offered dates for the preliminary inquiry in October, counsel for Hassan was not available. Dates offered in November were rejected because two of the four officers whom the defence wished to hear from were not available. The parties had also discussed whether non-consecutive days could be scheduled, and whether to conduct out-of-court examinations, which showed efforts to move the matter along.
[26] In my view, what happened between April and August 2020 was all due to the pandemic and does not cause me to alter my approach to deducting the time from the date of the original preliminary inquiry in April 2020 to the date when it occurred in February 2021. Following the onset of the pandemic, the parties reconsidered their positions; however, by July 9 it was clear that new dates for a preliminary inquiry should be set. In light of the pandemic and the passage of time, it was not unreasonable for the Crown to seek another judicial pre-trial and to inform the court of the fact that the case was continuing against both defendants. As well, the issue of whether the preliminary inquiry could proceed remotely needed to be addressed. Although the court had dates available earlier than February 1, 2021, those dates were not booked due to the lack of availability of defence counsel and witnesses.
[27] Furthermore, as Nakatsuru J. pointed out in Simmons, at paras. 69-70, the impact of the pandemic has not been limited to simply the suspension of trials for a period of time, but has affected how trials are conducted, scheduling procedures, and created a significant backlog that has had to be addressed while the pandemic lingers. This "domino effect" has been recognized by others, including D.E. Harris J. in Hyacinthe at para. 17; Dunphy J. in R. v. Titus, 2022 ONSC 3484, at paras. 8-9; Akhtar J. in Hamblett, at paras. 46-49; and G.M. Miller J. in R. v. Buabeng, 2022 ONSC 2181 at para. 105, among others. In these circumstances, I am disinclined to get involved in nit-picking over a few days here or there which might or might not have increased delay.
[28] I have considered whether the period of the exceptional circumstance should continue until the end the preliminary inquiry, similar to the approach taken by Code J. in Obregon-Castro which would extend the period by about another two months. The evidence was completed on February, 3, 2021, but as both accused decided to seek bail hearings before the preliminary inquiry judge pursuant to s. 523(2)(b) of the Criminal Code, the accused were not committed for trial until March 31, 2021, following their bail hearings held on March 19 and March 22, 2021 (they were both ordered released). In my view, however, extending the exceptional circumstances period to the end of the preliminary inquiry would be inappropriate and inconsistent with the approach taken in Langford, Simmons and Hamblett, as it would extend the period beyond where it was when the pandemic began.
[29] I conclude, therefore, that the 280 days between April 27, 2020 and February 1, 2021 should be deducted from the overall delay as an "exceptional circumstance" resulting from the COVID-19 pandemic.
Defence delay
[30] The Crown also seeks to deduct large periods of time from the delay following the committal for trial. It submits that there were two periods of delay caused solely and directly by the defence: (1) the delay in holding a pretrial conference when the matter was remanded to Superior Court; and (2) the period between when the court and the Crown were available for trial but the defence were not, and the trial date of January 3, 2023. I address the second point first.
Delay in the date for trial
[31] On May 29, 2021, following a judicial pre-trial in the Superior Court held on May 20, 2021, the Crown emailed defence counsel requesting their availability for a three-week jury trial. Counsel for Khan indicated that she was available beginning June 20, 2022, and counsel for Hassan provided dates commencing in July 2022, over a year away. The earliest date the court indicated it had available at that time was January 3, 2023, some 19 months away, and some 41 months after the charges were laid. This trial date was confirmed in court on June 14, 2021, at which time the defendants advised that they were contemplating bringing an application to stay the proceedings under s. 11(b) of the Charter.
[32] The following day, on June 15, 2021, the Crown advised defence counsel that she believed earlier dates might become available for trial and inquired whether the parties would consider streamlining the trial into two weeks "to take advantage of earlier dates." Later that day, the Crown advised that a three-week block of time had become available for the trial beginning September 20, 2021, advising that all the officers were available and that it "would allow for a trial before the Jordan date." Counsel for Khan replied that she was not available for these dates and that her availability remained the same as that outlined in previous correspondence, i.e. beginning on June 20, 2022. There is no record of a response from counsel for Hassan; however, her earliest availability for trial was listed as beginning July 4, 2022, in both email correspondence and in the Trial Confirmation Form.
[33] Another judicial pre-trial was held on June 16, 2021, which then resulted in the scheduling of this application, heard on October 27 and 28, 2022. The emails between counsel suggest that even those two days were difficult to schedule, fifteen months ahead, having regard to the availability of defence counsel.
[34] On July 5, 2021, the Crown's proposals to streamline the trial and to hold it in September, 2021, which was not available to the defence, were put on the record without comment or objection by counsel for Hassan who was present on that date for both accused.
[35] On December 9, 2021, the Crown advised that April 11–29, 2022, might become available and canvased defence counsel for their availability. The Crown followed up on December 15, 2021. On December 16, counsel for Khan said that "[i]f those dates are potentially available for [counsel for Hassan], I will get instructions and see if I can find counsel to conduct the trial on those dates as I myself am not available."
[36] On December 21, 2021, the Crown confirmed the availability of the April 2022 dates and asked defence counsel to confirm if they could be used. Counsel for Hassan said that they were available, but on January 4, 2022, counsel for Khan said that her client wanted to proceed with her as counsel, so the April dates fell through.
[37] On February 24, 2022, counsel for Khan emailed the Crown to advise that a six-week trial she was involved in set for May-June 2022 had been vacated and asked the Crown and counsel for Hassan if they could canvass earlier dates, "provided both of you are available." However, the May-June dates were part of a separate court calendar reserved for longer trials and unavailable for this matter. Nevertheless, the Crown made further inquiries for an earlier date but reported back to defence counsel on March 10, 2022 that no earlier dates were available.
[38] On or about July 19, 2022, the Crown became aware of another case resolving such that the period of October 3–21, 2022, became available. However, although counsel for Khan said she could "move some things around to accommodate a 3-week trial…if it works for everyone else", counsel for Hassan stated that "my office is not available for any of those fall dates."
[39] As I noted above, in Jordan the Supreme Court stated that the defence will be found to have "caused the delay if the court and the Crown are ready to proceed, but the defence is not." The Crown submits that this was the case with each set of proposed trial dates beginning with September 20, 2021, and therefore the delay from that date to the upcoming trial date of January 3, 2023 - a period of 470 days - should be deducted as delay attributable to the defendants.
[40] On this application, the applicants submitted that the dates in September 2021 involved a very "tight turnaround", providing just over three months to obtain preliminary inquiry transcripts and prepare Charter motions that are expected to be brought at the outset of trial. At that time, however, concern about not having enough time to prepare was never raised and, in my view, is an unsupported after-the-fact justification for not having the trial in September 2021. Nor was this concern raised when the dates in April and September 2022 were suggested, although they would have provided similar periods to prepare. Further, the defence has argued that this is not a complex case.
[41] In order to avoid having the full period of 470 days deducted, the applicants rely on the approach taken by the Court of Appeal in R. v. Hanan, 2022 ONCA 229, 412 C.C.C. (3d) 233, at para. 56. In that case, the Court rejected the "'categorical approach' proposed by the Crown that all of the delay following the rejection of a date offered by the court must be characterized as defence delay", and that the court must consider the circumstances in each case. This approach reflected the concern that the defence should not be saddled with all of the delay over a lengthy period where the court and the Crown were also unavailable.
[42] In Hanan, a trial date within the Jordan timelines had to be adjourned at the last minute because of the unexpected refusal of the surviving victim to testify and the Crown's late disclosure of cell phone data. The accused nevertheless offered to re-elect his mode of trial to avoid losing the trial dates, but the Crown refused to consent. Although new dates seven months later were available for the six-week trial, the defence was not available, and the trial was re-scheduled for a year later than the adjourned date. The Court of Appeal upheld the trial judge's decision to only attribute six weeks of delay to the defence as it was, in those circumstances, "a fair allocation and entirely appropriate, considering that it was the trial adjournment that resulted in the need for new dates, and the court had no other dates available" until the dates ultimately fixed: Hanan at para. 59.
[43] In reaching this conclusion, the court contrasted the situation in Hanan with cases in which all delay was attributed to the defence, such as R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, and R. v. Baron, 2017 ONCA 772, 356 C.C.C. (3d) 212. However, in those cases the defence had requested adjournments at the last minute and so "there was no question that the defence caused the event that precipitated the need for new dates" and therefore the delay was "solely or directly" caused by the defence: Hanan, at para. 57.
[44] In R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23, the Supreme Court commented that defence counsel are not required by s. 11(b) of the Charter to "hold themselves in a state of perpetual availability", and that the clock does not stop "as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled." As the Court of Appeal pointed out in R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. 1084, however, the comments in Godin were "grounded firmly in the circumstances of that case" in which the Crown was responsible for the need to reschedule the case in the face of efforts by the defence to expedite the proceedings: Albinowski, at para. 32.
[45] In Albinowski, as in this case, defence counsel rejected multiple dates offered because they had "previously scheduled professional commitments." As the Court of Appeal continued at para. 33:
Their unavailability was not related to 'defence actions legitimately taken to respond to the charges', such as 'preparation time' and 'defence applications and requests that are not frivolous': Jordan, at para. 65. Thus, as Jordan further directs, at para. 64, their unavailability, when the Crown and court were available, fell squarely within the category of delay that counts against the defence:
As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.
[46] Further, as was also pointed out in Albinowski, at para. 34, when the shoe was on the other foot in R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 113, the Crown was blamed for delay when Crown counsel was unavailable on any of the dates offered in a five-month period.
[47] This case is like Albinowski and unlike Hanan. The Crown was not responsible for a last-minute adjournment, but simply sought the earliest possible dates to keep the trial within the Jordan framework. The defence was not pressing for early dates; indeed, the only dates provided by both defence counsel in July 2021 were for almost a year later and well outside the 30-month presumptive Jordan date. When the defence rejected the earlier September 2021 dates, the Crown continued to propose other dates in April 2022 and September 2022 which, although more than 30 months after the charges were laid, would have been within the Jordan time frame having regard to the earlier delay resulting from the COVID-19 pandemic. Yet none of those dates worked for either one, or both, defence counsel due to "previously scheduled professional commitments."
[48] I do not ignore, nor am I unsympathetic to, the accused's right to have counsel of his or her choice. However, asserting counsel of choice when that counsel is unavailable - as Khan did in this case when rejecting the April 2022 dates - can have consequences for the accused. As the Court of Appeal stated recently in R. v. Grant, 2022 ONCA 337, 413 C.C.C. (3d) 491, at para. 50, "while counsel may not be required to hold themselves in a perpetual state of availability, a court is entitled to take into account … the reasonableness of the length of time a holder of the s. 11(b) right wishes to delay the start of a trial in order to have counsel of his choice."
[49] In Grant, the Court of Appeal upheld the trial judge's decision to attribute the entire period of delay caused by the unavailability of counsel to the defence, following the approach taken to the detriment of the Crown in Picard.
[50] In this case, the court and the Crown were available to proceed on September 20, 2021, and defence counsel were not. I find that this was due to other professional commitments, and not due to inability to prepare for trial. Jordan requires all counsel to work cooperatively in order to attempt to have trials conducted as quickly as possible. The Crown proposed the September 2021 date and made two other proposals to have the trial heard earlier than January 3, 2023, which were also not accepted by the defence. In these circumstances and following the Court of Appeal's approach in Albinowski and Grant, I conclude that the 470 days of delay between September 20, 2021 and January 3, 2023 should be treated as being "solely or directly" due to the defence and be deducted from the total period of delay.
Delay from April 21, 2021 to May 19, 2021
[51] Hassan and Khan were committed for trial by Rutherford J. in the Ontario Court of Justice on March 31, 2021. They were remanded to appear in the Superior Court on May 3, 2021. On April 13, 2021, the Crown with carriage of the matter wrote to defence counsel to begin the process of setting a judicial pre-trial, suggesting dates as early as April 21, 2021. Counsel for Hassan, however, indicated she was not available until May 19. Counsel for Khan then confirmed her availability based on dates proposed by counsel for Hassan. The judicial pre-trial was then scheduled and held before Molloy J. on May 20, 2021, at which time an estimate of three weeks for a judge and jury trial was agreed upon by all parties.
[52] The Crown argues that the delay in holding a judicial pre-trial, from April 21, 2021 to May 19, 2021, should be deducted as being "solely or directly" due to the defence. Indeed, Jordan is clear that delay caused by the unavailability of the defence when the court and the Crown are available is attributable to the defendants and should be deducted from the total delay. The Crown submits that this is exactly what happened in April and May 2021.
[53] I agree that the scheduling of the initial judicial pre-trial was delayed due to the unavailability of the defence; however, I am reluctant to place that delay at the feet of the defence, and certainly not the full 29 days sought by the Crown. Scheduling of judicial pre-trials and other trial management appointments involves some give and take among counsel, recognizing that they can and should be scheduled and conducted promptly. As I noted earlier in these Reasons, courts should avoid reviewing, with the benefit of hindsight, "the microscopic details of a particular period of delay." Here, the delay was relatively brief and was not raised as an issue at the time by the Crown. Furthermore, this occurred in the context of the pandemic and its aftermath, including the "ripple effect" of continued pressure on everyone's schedules as all participants in the justice system worked to make up for lost time.
[54] In light of my findings on the other periods of delay, it is not necessary for me to determine this issue; however, in the context of this case I would be inclined not to treat it as defence delay.
The co-accused issue
[55] Counsel for Khan has raised the concern that her client's trial was delayed by the decision of the Crown to proceed against both accused together on one Indictment. She refers to several cases which make the point that unreasonable delay must be assessed on an individual basis to avoid attributing to one accused "the delay caused by the actions or inactions of a co-accused": R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at paras. 128 and 136. As Watt J.A. stated in R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 323:
Where the proceedings are a joint trial, delay caused by a co-accused cannot be ignored in assessing whether an individual accused's right to tried within a reasonable time has been reached: Vassell, [R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625] at para. 4. Where the Crown, as here, chooses to prosecute both accused jointly, it must remain vigilant that its decision to proceed jointly does not compromise the s. 11(b) rights of an individual accused: Vassell, at para. 5. The Crown is disentitled to close its eyes to the circumstances of an accused who has done everything possible to move a case along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates: Vassell, at para. 7. Sometimes, the Crown may have to sever accused jointly tried to vindicate the s. 11(b) interests of one burdened down by another for whom trial within a reasonable time seems anathema: Vassell, at para. 10.
[56] The individualized approach is attenuated, however, in circumstances where the co-accused proceed "as a collective" in which the scheduling challenges arise from the "joint situation" of the accused: Albinowski at para. 37. As observed in R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 53, a communal approach may be more appropriate where "counsel are unavailable for different parts of a particular delay period."
[57] In this case, there was much that linked the two accused as they moved through the criminal justice process together. They were arrested at approximately the same time after having been seen together fleeing the police. Their cases proceeded together in the Ontario Court of Justice. They both sought bail reviews before the judge who heard the preliminary inquiry, which delayed their committal for trial and the setting of trial dates in the Superior Court. Khan acquiesced to the delay in setting the May 19, 2021 judicial pre-trial, and there is no evidence that either accused responded to the Crown's suggestion of exploring ways to streamline and shorten the trial. Neither party moved to sever the Indictment. On this application, counsel for Khan adopted the submissions made on behalf of Hassan.
[58] In my view, as well, the Crown cannot be faulted for not severing the Counts as the two matters arise from the same facts and separate trials would take up much more court time when it is at a premium.
[59] Regardless of whether one takes an individualized or collective approach, neither counsel was available for the trial dates offered in September 2021. The dates offered in April 2022 were rejected by Khan as he wished to keep his chosen counsel. The only trial dates offered on which counsel for Khan said that she would make herself available were for those in October 2022, less than three months prior to the long-fixed January 3, 2023 trial date, and even then Khan's counsel said she could make herself available "if it works for everyone else", recognizing that the two matters should move together.
[60] In this case, both counsel had limited availability. Neither accused was dragged along unreasonably by the actions or inactions, or availability or unavailability, of the other.
Conclusion on the period of delay
[61] The total number of days from the charge to the expected completion of the trial is 1,257 days. Applying my conclusions above, I deduct 280 days for the discrete event arising from the COVID-19 pandemic, and 470 days between September 20, 2021 and January 3, 2023 which I have attributed to defence delay. This results in a net delay of 507 days, or approximately 17 months. The Crown has therefore rebutted the presumption of unreasonable delay.
Delay below 30 months
[62] The defence argues that the net delay in this case is unreasonable. I disagree. A period of 17 months for a case of this kind, involving two accused who have had a preliminary inquiry in the Ontario Court of Justice to be followed by a trial by judge and jury in the Superior Court, is well within the range of reasonableness. It is far below the period of 30 months which the Supreme Court said in Jordan is presumptively unreasonable. This is not one of those "rare" and "clear cases" in which delay below 30 months is unreasonable, nor can it be said that the case took "markedly longer than it reasonably should have." Indeed, prior to the COVID-19 pandemic the case was moving along well in the Ontario Court of Justice and might well have been completed in 17 or 18 months, early in 2021, subject only to accommodating the busy schedules of the defence counsel.
[63] Additionally, I am not satisfied that the defence "took meaningful steps that demonstrate a sustained effort to expedite the proceedings." While there is some evidence of counsel being available on earlier dates for the preliminary inquiry, which is a period covered by the exceptional circumstance of the pandemic, there is otherwise little evidence demonstrating "meaningful and sustained steps" by the defence to have the matter tried more quickly.
Conclusion
[64] The application to stay the proceedings is dismissed.
Paul B. Schabas J.
Released: November 17, 2022
COURT FILE NO.: CR-21-70000284-0000
DATE: 20221117
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MUHAMMAD HASSAN AND HAARIS KHAN
REASONS FOR JUDGMENT
Schabas J.
Released: November 17, 2022