COURT FILE NO.: CR-21-0061-00
DATE: 2022-12-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
A. Hardiejowski, for the Federal Crown
- and -
ZARA KESHK
S. Ahsan, for the Accused
Accused
HEARD: September 21, 2022, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Criminal 11b Application
Overview
[1] Ms. Keshk was arrested on November 12, 2018, after the execution of a warrant authorizing the search of her home resulted in the discovery of illegal drugs. She was charged with three counts contrary to s. 5(2) of the Controlled Drugs and Substances Act – possession for the purpose of trafficking of cocaine, fentanyl, and oxycodone.
[2] The trial is scheduled to conclude on April 21, 2023, almost 4 ½ years after her arrest.
[3] The accused brings this application to stay these charges on the grounds that her Charter right to be tried within a reasonable time has been breached.
Key Chronology
[4] The record reveals the following chronology:
November 12, 2018 Ms. Keshk arrested
March 11, 2019 450 pages of disclosure, no ITO
April 8, 2019 still waiting for ITO
April 30, 2019 still waiting for ITO
July 9, 2019 date for JPT set
July 18, 2019 Burton J.: next date issues PT continuation – “There are certain to-do lists I expect to be completed by that time, including the information to obtain will have been disclosed, reviewed. You’ll have decided whether or not you need to bring any charter applications… Will discuss filing deadlines for the charter application if there’s going to be one…”
August 1, 2019 Crown disclose redacted ITO to search 220 Finlayson
September 25, 2019 confirmation date set for December 16 and January 13 and 14th for motions
December 16, 2019 Re-election to SCJ announced
December 30, 2019 statement of issues finally received, motion dates to proceed as Prelim Hearing. Crown Counsel, referring to pretrial notes:” Garofoli motion. If successful and evidence excluded, no trial.”
Jan 13-14, 2020 Prelim Hearing commenced – to continue April 16, 17
March 13, 2020 Covid suspension order
May 25, 2020 no counsel appear
August 4, 2020 Defence counsel not appearing
October 13, 2020 no one appearing, put over to October 27
October 27, 2020 to November 17 for JPT
November 17, 2020 only accused appears
November 24, 2020 discussion re preliminary judge passing away and getting this matter back on track…
January 14, 2021 Prelim to continue September 9,10
March 29, 2021 new counsel for accused
April 14, 2021 counsel pretrial – requested confirmation that no further unredactions of ITO – agreed not to continue prelim hearing
April 28, 2021 new counsel on record and consent to committal
May 13, 2021 Indictment
May 31, 2021 SCJ assignment court – jpt set for June 25
June 29, 2021 Crown undertaking – no new unredacted ITO
June 26, 2021 Assignment Court – September 21, 2021 set for 1 day s. 8 application to exclude evidence obtained pursuant to warrant
August 20, 2021 Defence files s. 8 application material based on disclosed ITO
September 10, 2021 Crown files responding material for s. 8 application and new unredacted ITO released
September 17, 2021 Newton J adjourns application
Newton J. : Counsel appear via video conference to discuss an application that was to proceed before me on September 21, 2021. Mr. Ertel advises that, as a result of recent Crown filings, application cannot proceed. Crown does not oppose adjournment. Whether delay is attributable to defence or Crown is a matter for another day. This matter to go to Assignment Court, September 27 2021 to set new date.
September 27, 2021 Pretrial scheduled for October 25, 2021
October 25, 2021 Defence “Step 2” application filed. Crown requires 10 days to respond. Adjourned to assignment court to set date for one day hearing. Hearing scheduled for February 2, 2022.
February 2, 2022 Case Conference to determine process to be followed on “step 2” application
April 14, 2022 Newton J.: ITO as redacted following judicial review and judicial summary of redactions
April 25, 2022 Adjourned to May 25, 2022 for further defence submissions on judicial summary
May 25, 2022 Adjourned to June 27. 2022 to set date for 11b application, Charter application and 5 day trial
September 21, 2022 11b application
January 3, 2023 Charter motion
April 17 -21, 2023 Trial
Law
[5] In R. v. Jordan[^1] the Supreme Court of Canada created a simplified framework to assess a claim of unreasonable delay. The first step is to calculate the total delay from the charge to the actual or anticipated end of trial. The second step is to subtract any defence delay from the total delay. If the net delay exceeds the presumptive ceiling of 30 months for trial in the Superior Courts, then the delay is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. Delay caused by exceptional circumstances is then deducted. If the delay still exceeds the presumptive ceiling, I am to consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
Position of the Parties
[6] The positions of the parties are set out under each Jordan step.
Total Delay
[7] As noted, Ms. Keshk was arrested on November 12, 2018. The trial is scheduled to conclude April 21, 2023. The total delay is 1622 days or 53 months, 10 days.
Defence Delay
Delay due to Disclosure
[8] The defence argues that since disclosure was not completed until September 10, 2021, with the production of the second redacted ITO, there can be no defence delay until then. The Crown argues that disclosure need not be complete before setting dates relying upon R. v. Dia ‘Eddin Hanan[^2] and R. v. Allison[^3]. The Crown also submits that the sufficiency of the ITO was not in issue.
[9] In this case, I conclude that the disclosure of the ITO was important to the decisions to be made in this case. At the issues pretrial on July 10, 2019, the disclosure of the ITO was an important issue for the pretrial judge, and it was her expectation that that the ITO would be produced in advance of the next pretrial. The ITO was delivered in August 2019 and the next endorsement is to set dates for motions. Indeed, the December 30, 2019, endorsement suggests that the motion scheduled then was the same motion that new counsel intended to bring before me in September 2021 – that there were no grounds to search Ms. Keshk’s home.
[10] Therefore, I agree that because of this late disclosure there is not defence delay. However, the submission that the period of time extends to the date of the second redacted ITO is not accepted.
[11] As will be discussed, two discrete events, COVID-19 and the death of the preliminary hearing judge, need to be assessed.
Defence Delay
August 6, 2021 to September 21, 2021
[12] At the July 26, 2021 assignment court the dates for argument on the warrant were selected. Dates were offered to the defence and rejected and, rather than August 6, 2021, the hearing was set for September 21, 2021. Defence delay is 46 days or 1 month 15 days.
November 15, 2021 to February 2, 2022
[13] This is the time period when counsel for Ms. Keshk was unavailable for the Step 2 Garofoli application. Dates were offered on November 12 and November 26, 2021 and while Ms. Keshk’s counsel was available, the Crown was not. The next date offered was February 2, 2022. Counsel for Ms. Keshk submits that defence delay should be reduced to four weeks during this period since the application would not have been needed but for the Crown’s breach of undertaking with respect to the ITO and the fact that the court had limited availability between November 2021 and February 2022.
[14] Contrast this submission with the Crown’s submission that the entire period from September 2021 to June 22, 2022 when the trial date was set, should be defence delay because the defence took no steps to set a trial date but persisted with the Garofoli application in light of the fresh unredacted ITO.
[15] I do not accept the Crown’s submission. But for the breach of the Crown’s undertaking not to file a fresh unredacted ITO the application would not have been adjourned and the Garofoli application would not have been required. I accept the submission that the delay attributable to the defence should be four weeks or 28 days for this period.
April 25, 2022 to June 27, 2022
[16] On April 25, 2022, the defence sought to make further submission on the judicial summary arising from the first Garofoli application and, therefore, the trial and applications dates were not set until June 27, 2022. Those additional submissions served no purpose, and the trial dates should have been set on April 25, 2022. Defence delay is 63 days or 2 months, 2 days.
March 13, 2023 to April 17, 2023
[17] The defence accepts this period as defence delay. The delay is 36 days or one month, five days.
Total Defence Delay
[18] Total defence delay is 173 days or five months, 23 days.
Net Delay after deducting Defence Delay
[19] Net delay after deducting defence delay is 1449 days or 48 months, nine days.
Exceptional Circumstances
(a) Discrete events
[20] As the net delay exceeds the presumptive ceiling of 30 months the Crown may seek to adduce evidence of delay occasioned by discrete exceptional events.
[21] The Crown alleges two discrete events that delayed the proceeding: COVID-19 (declaration suspending Court operations commencing March 16, 2020) and the death of the preliminary hearing judge. The Defence argues that, because adequate disclosure was not made until September 10, 2021, with production of the second unredacted ITO, these discrete events did not contribute to any delay.
[22] The preliminary hearing commenced in January 2021 and was to continue and conclude April 17, 2021. COVID-19 intervened and a review of the transcripts reveal many court appearances when counsel for the accused or counsel for the Crown or both did not show. The Crown argues that the COVID-19 period should run from the closure order until the new date set for completion of the preliminary hearing, September 10, 2022.
[23] I note that the continuation of the pretrial was not required because the accused consented to committal on April 20, 2022.
[24] There is no doubt that COVID-19 and the death of the judge who conducted the first stage of the preliminary hearing were significant factors in causing delay. It was not until Justice Bode took steps to “get this matter back on track” that the effects of these two discrete events began to be addressed. What then should the commencement date be – the date of the COVID-19 closure order or the date of the anticipated end of the preliminary hearing? What should be the end date of these discrete events – the consent committal or the anticipated date of the new preliminary hearing as suggested by the Crown?
[25] COVID-19 did not affect this proceeding until the scheduled preliminary hearing continuation could not procced – April 16, 2020. That is the date for commencement of the exceptional circumstances.
[26] To extend the delay to an event which did not occur because it was unnecessary is to take an artificial approach to a practical problem. Once committal was consented to this matter could proceed in Superior Court and it did. The end date for the exceptional circumstances is the date of committal, April 28, 2021. The delay due to these discrete events is therefore from April 16, 2020 to April 28, 2021, 378 days or 12 months, 13 days.
(b) Complexity
[27] As the delay exceeds the presumptive ceiling, I am to consider whether the case was particularly complex such that any delay is justified.
[28] The Crown has not alleged complexity. Ms. Keshk is the sole accused on a three count indictment. Drugs were found in her home. This case is not complex.
Total Delay less Defence Delay less Delay due to Exceptional Circumstances
[29] Total delay (1622 days) less defence delay (173 days) less delay due to exceptional circumstances (378 days) yields a total delay of 1071 days or 35 months, 21 days.
Disposition
[30] The delay of 35 months, 21 days is presumptively unreasonable. The accused’s right to a trial within a reasonable time has been infringed. The application is granted and the charges are stayed.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: December 9, 2022
COURT FILE NO.: CR-21-0061-00
DATE: 2022-12-09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Crown
- and –
ZARA KESHK
Accused
CRIMINAL 11b APPLICATION
Newton J.
Released: December 9, 2022
/cjj
[^1]: 2016 SCC 27. (“Jordan”). [^2]: 2022 ONCA 229. [^3]: 2022 ONCA 329.