COURT FILE NO.: 124/19

DATE: 2022/12/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

AHMAD NAWABI

V. Decker, for the Crown

R. Ellis, for the Defendant

HEARD: December 9, 2022

REASONS FOR JUDGMENT

grace j.

A. Introduction

[1] This matter has been outstanding for a long time. Mr. Nawabi was arrested on May 29, 2018. An Information was sworn the following day. On March 13, 2019, he was committed to trial. His first appearance in this court was on April 9, 2019.

[2] Three trial dates were set and adjourned before a judge-alone trial commenced on April 4, 2022. The trial exceeded the estimated time and was completed on June 24, 2022.[^1] At some point while the trial was ongoing, Mr. Nawabi’s counsel expressed an intention to seek a stay of the proceeding on the basis the defendant’s right to a trial within a reasonable time had been breached.[^2] This application followed.

B. The Background

[3] Following his arrest, Mr. Nawabi was charged with various offences over a range of dates involving the same complainant.

[4] Mr. Nawabi was committed to trial and elected to be tried by a judge and jury. An eleven-count indictment was filed in this court on March 27, 2019. It reflected a presumptive Jordan date of November 29, 2020.

[5] During the first attendance in assignment court on April 9, 2019, a judicial pre-trial was scheduled for June 5, 2019.[^3] Soon after its completion, dates for pre-trial applications (March 9, 2020) and a seven-day judge and jury trial (commencing on May 25, 2020) were set. Subsequently, the former were resolved by agreement between the parties. The latter did not proceed. By then, COVID-19 was upon us. On March 15, 2020, the Chief Justice of the Superior Court of Justice, Geoff Morawetz, issued an omnibus order adjourning all criminal appearances for the period between March 17 and June 1, 2020. Such matters were further adjourned to early July 2020, pursuant to a further order the Chief Justice made on May 5, 2020.

[6] In early July, trials delayed by the pandemic were rescheduled. On July 8, 2020, the commencement date of Mr. Nawabi’s seven-day judge and jury trial was set for February 8, 2021.

[7] After a brief period of relative normalcy, a Notice to the Profession and Public Regarding Court Proceedings was issued by the Chief Justice on November 21, 2020. It announced the renewed suspension of jury trials in all areas of Ontario that were not designated “green” until at least January 4, 2021. Updates followed, including one issued on January 13, 2021. That notice extended the pause on jury trials until at least May 3, 2021. Mr. Nawabi’s rescheduled trial fell within that period. Consequently, for a second time, it could not proceed.

[8] The matter was addressed on February 4, 2021. At that time, jury selection was scheduled for the first day on September 20, with the balance of the trial to proceed over a period of six days commencing on September 23, 2021. The parties’ counsel confirmed they were ready to proceed during their attendance in trial readiness court on September 15, 2021.

[9] The following day, counsel were asked to speak to the matter again. They were informed that due to the pandemic, the London courthouse could then only accommodate one judge and jury trial at a time. Another could only be conducted if the jury was able to participate remotely. Then – and now – the Criminal Code contained no provision allowing that to occur. My endorsement of September 16, 2021 summarized the situation as follows:

Three judge and jury cases were confirmed yesterday for the week commencing Sept. 20/21. Unless the parties were willing to consent to the trial proceeding with the jury observing the trial in the recently renovated area on the main floor of the courthouse by video, the court is not in a position to even consider any jurisdictional issue that may exist.

Consent is not forthcoming from either party. This matter is the second oldest, was scheduled second and was not scheduled to commence, save for jury selection, until September 23, 2021. It must unfortunately and due to the pandemic, give way. The trial date is vacated.

To the Oct. 12/21 [assignment court] @ 9 a.m. [to be spoken to] by [teleconference] to reschedule, again, the trial date (J & J, 0 C4C, 7 days est.).

[10] The Crown asked whether the decision to adjourn could be deferred to see if the case given priority actually proceeded. That did not occur for two reasons. First, other judge and jury cases were scheduled to start on September 27, 2021. Even if the competing case did not move forward, this seven-day trial would have meant delaying a judge and jury trial scheduled to start the following week. Second, Mr. Nawabi’s counsel was rightly concerned about the cost his client would incur if he continued to prepare for a trial that was unlikely to begin. In fact, the case given preference did, in fact, proceed.[^4]

[11] The final trial date was set in the October 12, 2021, assignment court.[^5] The trial was to start on April 4, 2022.

[12] On March 27, 2022, the Crown was advised that Mr. Nawabi wished to re-elect the mode of trial. Re-election occurred three days later. Seven days continued to be the estimated length of the trial which commenced on April 4, 2022 as scheduled. It continued on April 5, 6, 7, 8, 11 and 14. The following month in assignment court, two additional days (June 23 and 24, 2022) were scheduled for completion. A major flood originating in the top floor of the courthouse made it impossible to proceed on the first day. The matter proceeded as scheduled on June 24, 2022.[^6] Decision was reserved. In her final endorsement during the trial, the presiding judge noted that a date for a s. 11(b) Charter application was to be addressed in assignment court on July 12, 2022.

[13] For medical reasons, the trial judge was unable to deliver reasons for decision until September 7, 2022.[^7] Mr. Nawabi was convicted of six of the eleven offences with which he had been charged.

[14] Submissions on sentence were heard by the trial judge on December 20, 2022. The sentencing decision is now under reserve.

C. The Position of the Parties

[15] The applicant’s argument on this application takes the following path. First, he says 1,487 days or 48.9 months passed from the time Mr. Nawabi was arrested until the end of trial.[^8]

[16] Second, although he maintained in his factum that there was none, Mr. Nawabi’s counsel conceded in oral argument that there were 14 days of defence delay.

[17] Third, due to the pandemic Mr. Nawabi agrees there were some exceptional circumstances totalling either: (i) 110 days or 3.6 months representing the period from March 17 when operations of the Superior Court of Justice were suspended to July 5, 2020, when they resumed; or (ii) 258 days or 8.5 months representing the period from June 3, 2020 when the first scheduled trial was to end, until February 16, 2021, which was to have been the last day of the second scheduled trial.

[18] Even if the longer period is used, Mr. Nawabi submits that the net delay is 1,229 days or 40.4 months. That is well beyond the presumptive ceiling established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 (“Jordan”).[^9]

[19] Mr. Nawabi argues that the Crown cannot meet the onus it bears to rebut the presumption of unreasonableness because after the initial phase of the pandemic (i) the delay ceased to be reasonably unforeseen or reasonably unavoidable; and (ii) the Crown and court failed to take reasonable steps to mitigate the effects of COVID-19 on long-standing prosecutions. An explanation of the argument appears at para. 36 of his factum:

As per Notices to the Profession issued throughout the pandemic, mitigating efforts were to include expanding operations (such as using off-site venues with space for physical distancing), prioritizing urgent matters that were scheduled during suspensions, and allowing in-person hearings where absolutely necessary.

[20] A failure to take other measures was mentioned too. They included the Crown “pressing for earlier trial dates”,[^10] moving criminal jury trials to other municipalities or regions or utilizing off site locations.[^11]

[21] Consequently, Mr. Nawabi argues that the suspension of jury trials commencing in December 2020 “should not be counted as an exceptional circumstance”.[^12]

[22] Similarly, the defendant maintains that the adjournment of the third trial date in September 2021 is also not caught within the category of exceptional circumstances. The underlying rationale is captured at para. 79 of his factum:

The Applicant submits that had the Court expanded operations, such as moving jury matters to off-site locations, like it [sic] should have been when discussed by Chief Justice Morawetz in March and June, and like other courthouses/Regions were doing, this overbooking would not have been an issue. Further, the Court had been aware of the pending backlogs/delay since the first COVID-19 shutdown in 2020-March.

[23] Mr. Nawabi suggests that it was not until the October 12, 2021 assignment court that the passage of the presumptive Jordan date was of more than passing comment by or concern to the court.[^13] As explained at para. 89 of his factum:

… the Applicant concedes that his matter is not to be treated as an island, and the system cannot revolve around his one case by pushing other cases aside. However, the Applicant’s matter should have been treated more urgently and given priority due to the history.

[24] With respect to the trial, the defendant lays responsibility for its length at the feet of the Crown. Additional disclosure was provided on the fourth day. That necessitated a suspension of the complainant’s testimony, an adjournment, a decision by the defence to bring an application under s. 278.94 of the Criminal Code and the need for two additional days of trial. Although steps were taken by the court and the Crown to free up time, June 23 and 24, 2022, were the new completion dates that were arranged.

[25] Alternative calculations were provided by the applicant. Taking the most liberal approach to the phrase exceptional circumstances, the applicant submits the total delay is at least 1,004 days or 33 months and still above the presumptive ceiling.

[26] The Crown advances two reasons for its request that the court dismiss the application. First, the respondent points to the fact an intention to bring an application under s. 11(b) of the Charter was not mentioned until trial was well underway. It is the Crown’s position that no reason to excuse the defendant for standing by has been advanced.

[27] Second, the Crown submits that the actual delay, when properly calculated, was 694 days or 22.8 months, which is well below the presumptive ceiling Jordan establishes. According to the Crown and starting with the day the Information was sworn, the total delay was 1,486 days or 48.8 months.

[28] From that, the Crown deducted 42 days of defence delay. As noted above, a portion (14 days) was conceded by the applicant in oral argument. The balance relates to the period from March 15 to April 12, 2022. The court had availability on the first mentioned date. While not ideal for the Crown, an offer was made to reassign the matter to another lawyer in order to facilitate the scheduling of the commencement of trial. However, Mr. Nawabi’s counsel was not available. That led to the selection of an April 4, 2022, start date which was the one offered next. It was acceptable to the Crown, the defence and the police. Once again, seven days was the estimated length of trial.

[29] The Crown maintains that the entire period from the anticipated end of the first scheduled trial (June 2, 2020) to and including the end of the third scheduled trial (September 30, 2021) should be treated as attributable to exceptional circumstances and deducted from the total delay. Those dates span a total of 485 days or 15.9 months. Pausing here, if the Crown’s submissions were accepted, the delay would stand at 959 days or 31.5 months.

[30] A further adjustment is advocated by the respondent even though it is undisputed that some jury trials were being conducted in and following September 2021. As noted in the transcript from the September 16, 2021 attendance, the upcoming trial was adjourned for a third time because the London courthouse could still only accommodate one jury trial at a time. This, the Crown submits, “is a direct consequence of the Covid backlog”, which simply could not be mitigated. Consequently, the respondent asks that this period of 194 days or 6.4 months also be categorized as exceptional circumstances and deducted for Jordan purposes from the total number of days this matter was outstanding.

[31] Finally, the prosecution submits that the 71 day or 2.3-month delay between the originally anticipated end date of the trial on April 12 until its actual completion on June 24, 2022, should also be treated as exceptional circumstances because the adjournment was necessitated by new and unforeseen disclosure that was provided by the complainant to the Crown during the fourth day of trial. If all of the deductions proposed by the Crown are made, the actual delay totalled 694 days or 22.8 months and was well below the presumptive ceiling.

D. Analysis and Decision

[32] As noted, counsel for the defendant did not express any intention to bring an application of this kind until toward the end of the trial.

[33] Concern with that approach was rightly expressed by the respondent. Writing on behalf of the Court in R. v. J.F., 2022 SCC 17, Wagner C.J. said, at para. 3:

…Given that the Jordan framework offers greater predictability and clarity and encourages all parties to act proactively, it follows, in my view, that an accused must raise the unreasonableness of trial delay in a timely manner. As a general rule, in the context of a single trial, an accused who believes that their right to be tried within a reasonable time has been infringed must act diligently and apply for a remedy before their trial is held. However, an accused may in some circumstances be justified in bringing such an application later…

[34] When asked for an explanation, the defendant’s counsel attributed the delay in bringing this application to the evolution of the case law. Yet, the defendant’s factum refers to only two post-March 2020 cases. R. v. Ali, 2021 ONSC 1230 (S.C.J.) is first in time. The arguments made on behalf of the defendants in that case are very similar to the ones made here. In dismissing the application, Somji J. wrote, in part, at para. 64:

As a final word of caution, it is important to note that the suddenness of the pandemic and the complexity of the criminal justice system cannot be relied upon indefinitely to justify delay over the presumptive ceiling as an exceptional circumstance…As we continue to deal with the effects of the COVID-19, the Crown and the justice system will be expected to demonstrate that they are continually adopting reasonable measures, including embracing new technologies, to mitigate delay so as to ensure the constitutional right of an accused to trial within a reasonable time is respected.

[35] Those reasons were released on February 18, 2021: months before Mr. Nawabi’s trial was scheduled for the final time. Yet, his counsel gave no hint this application would be brought.

[36] R. v. Meawasige was the other post-pandemic case cited by the applicant.[^14] It dealt with the Crown’s effort to mitigate the effects of COVID-19 on the criminal justice system. With respect, the presiding judge did not articulate a new principle. In fact, as L. Thomas J. of the Ontario Court of Justice noted, at para 35, “the suggestion of evidence of mitigation is not new”.

[37] Further, the principal position of the applicant is that nothing happened after July 2020 that fits within the category of exceptional circumstances. He argues that the Crown and court should have adopted appropriate measures to respond to COVID-19 but failed to do so. Mr. Nawabi’s counsel went so far as to suggest that the Chief Justice should not have issued the Notices to Profession he did in late 2020 or early 2021.

[38] Given the position of the applicant here, his counsel was presumably already of that view when advised on September 16, 2021, that Mr. Nawabi’s trial would not proceed the following week. Yet nothing was said about a s. 11(b) Charter application.

[39] The final April 4, 2022 trial date was set during the October 12, 2021 assignment court. The applicant knew that date was well outside of his calculation of the presumptive ceiling set forth in Jordan. Once again, nothing was said. In fact, during assignment court the trial coordinator (Ms. Beattie) asked about the Jordan date. This exchange followed:

The Court: We’re well beyond the presumptive date. It’s – was back in 2020 and this has been adjourned thanks to COVID multiple times.

Defence counsel: That’s correct.

The Court: It’s another of those…

Crown: That’s correct.

The Court: ASAP please.

Defence counsel: Thank you, Your Honour and it’s Mr. Ellis speaking, Ms. Beattie. Just for clarity…I’m not sure if there was some consent agreement. I…love Zoom as opposed to CCTV because it neutralizes the appearance, especially nowadays.

[40] Mr. Nawabi’s counsel did not address the issue of delay. He raised a completely different topic: how the complainant would testify.

[41] The matter was on the docket to be spoken to for various reasons on November 9 and December 22, 2021 and March 30, 2022. Section 11(b) was not mentioned by Mr. Nawabi’s counsel or his agent on any of those occasions. Seasoned and very capable local counsel also would have known the matter could have been brought forward on another day before the trial commenced to request a s. 11(b) pre-trial and then a return date for an application. That was not done.

[42] Mr. Nawabi sat on his hands despite being of the view his February 2021 jury trial should not have been adjourned and that the court and Crown had failed to mitigate the effects of COVID-19. Based on the record compiled by the parties, the applicant did not “act diligently”. Nor did he advance a reasonable explanation for his failure to do so. Had he acted in a timely fashion, this application could have been scheduled and argued before trial.

[43] In the particular circumstances of this case, I would dismiss the application on that basis alone. However, in the event my conclusion is wrong, I turn to the determination of the net delay.

[44] Both parties’ calculations follow the methodology mandated by the authorities: R. v. Coulter, 2016 ONCA 704, at paras. 34 – 40. For the reason advanced by the Crown, the starting point is 1,486 days or 48.8 months.

[45] Defence delay of 14 days is acknowledged by Mr. Nawabi. Pausing here, 1472 days or 48.4 months remains from the laying of the Information until the end of trial.

[46] The second alleged period of 28 days starts on March 15 and ends on April 12, 2022. It is clear that this component has been classified by the Crown in its materials both as defence delay[^15] and as part of the period it characterizes as exceptional circumstances.[^16] It cannot, of course, be counted twice, if it is to be counted at all. I will address this time period later in these reasons.

[47] In any event, any defence delay is minor in the scheme of things. The number of months that remain is far beyond the presumptive 30-month ceiling. In those circumstances, the Crown bears the onus of demonstrating that the delay is reasonable because of the presence of exceptional circumstances.[^17] As Moldaver, Karakatsanis and Brown JJ. explained on behalf of the majority in Jordan, supra, at paras. 69 – 70:

Exceptional circumstances 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. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. 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 delay. [Emphasis in original]

[48] Later, the justices added:

Thus, 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).[^18]

[49] The applicant properly accepts that the COVID-19 pandemic constitutes a discrete exceptional event. That conclusion has been reached by judges throughout the province.[^19]

[50] As mentioned, when initially scheduled, Mr. Nawabi’s seven-day trial was to commence on May 25 and end on June 2, 2020. Those dates fell within the range covered by the orders the Chief Justice made in March and May of that year.

[51] The second trial date was to commence on February 8 and was to be completed by February 16, 2021. It was scheduled during a special assignment court on July 8, 2020. The applicant suggests that period should not be deducted because the court stood idly by. Mr. Nawabi’s position is set forth in para. 53 of his factum as follows:

Instead of taking mitigating steps, the opposite happens; it is suggested to accept the delay and move on.

[52] With respect, that simply is not so. As a result of the pandemic, criminal jury trials scheduled from mid-March through the week commencing June 15, 2020, were adjourned. No trials were to have commenced the week of June 22, 2020, because that was reserved for the statutorily required annual meeting of the judges of the Southwest Region. Until recently, no trials have been scheduled during the months of July or August.

[53] Furthermore, when the pandemic struck at least one and usually more criminal jury trials had already been scheduled for every sitting week from September through December 2020.

[54] As noted by the Crown, the situation in London during the latter part of 2020 was well and accurately described by Regional Senior Justice Thomas in R. v. Smith, 2021 ONSC 3322. At paras. 20 – 23, my colleague wrote:

In the summer of 2020, Court Services Division (CSD) of the Ministry of the Attorney General (MAG) explored the possibility of off-site jury trials and specifically concentrated on RBC place in downtown London. Tentative plans were drawn, and costs explored.

On August 27, 2020, MAG redirected its efforts and it was announced by the Manager of Court Operations at the London courthouse that jury selection and jury trials would not be proceeding off-site but would instead recommence at the London Courthouse with the following safeguards:

A reduced number of jury panels would be called in at staggered times;

Additional space allocated as a jury assembly area;

A video link would be set up so the jury panel could hear the opening remarks by the presiding judge;

An expanded jury box and/or utilization of the public gallery to allow for distancing; and

A jury deliberation room set up in a vacated space.

Renovations were made to the London Courthouse but because of the necessary safety precautions including distancing, the Courthouse could only accommodate one jury trial at a time. Multiple courtrooms were used to allow for jury selection, deliberation and the trial itself.

Three criminal trials were completed in London, one multi-accused homicide and two sexual assault trials. The first trial commenced on September 8, 2020, the last on November 16, 2020. All accused in the trial matters were in custody. [Emphasis added]

[55] It should be apparent from those excerpts that Mr. Nawabi’s trial would not have gone forward in the fall of 2020, even if it had been scheduled for that time period. Other cases were already in the queue. Some of them involved persons who were in-custody. Mr. Nawabi was not. Matters affecting persons who had been deprived of their freedom while awaiting trial of the charges they faced were given priority. Only three of them were reached. The rest of the criminal trials scheduled for the fall of 2020 also had to be adjourned.

[56] The applicant’s counsel suggested the province should have completed arrangements to rent the local Convention Centre known as RBC Place. Elsewhere, such arguments have landed with a thud.[^20] They do so here as well.

[57] Assuming, without accepting, that the province’s policy decisions are theoretically reviewable by the court, the exercise is impossible without evidence. I know nothing about a myriad of issues including cost, term, security of information systems or people. The court does not engage in speculation. It is simply not appropriate to point a stony, uninformed finger in the direction of the provincial government.

[58] The decision to assign the period from February 8 through 16, 2021 to Mr. Nawabi’s trial was entirely reasonable in the circumstances. At the time set, those dates appeared to be realistic ones for the commencement and completion of this matter. While uncertain, it was hoped court operations in London, Ontario would have returned to something close to what existed pre-pandemic. Sadly, things did not turn out that way.

[59] In much of Ontario things worsened. Consequently, on November 21, 2020, the Chief Justice once again suspended jury selection for new jury trials until at least January 4, 2021, in all areas of Ontario except “Green Zones”.[^21] The defendant acknowledges that London was not in such an area.[^22]

[60] From time to time, further notices were issued by the Chief Justice extending that date throughout Ontario. The second trial dates set for this case fell within the period of the suspension. Consequently, the matter had to be rescheduled again. On February 4, 2021, a commencement date of September 20, 2021, was selected.

[61] Once again, the applicant makes a bald assertion. He argues another pause in the court’s operations was unnecessary. The submission does not resonate. Reasons for decision in R. v. Smith, supra were released on May 5, 2021. At that time, R.S.J. Thomas wrote in part, at paras. 67 - 68:

There has never been a period of time since November 2020 when jury trials could be safely done in London or anywhere in the Southwest Region…

The Superior Court of Ontario [sic] along with the [other] Courts in the Province have worked with the Ministry of the Attorney General to reinvent how the criminal justice system operates in this Province. Massive efforts have been expended to get matters back into courtrooms safely. We have not come to a place yet where we can attack the massive backlogs created, but that is not the result of complacency. As Justice Nakatsuru put it … “A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was.”[^23]

[62] In those circumstances, the adjournment of the second scheduled trial date in February 2021 was inevitable. Mitigation was not possible. In fact, a Notice to Profession and Public regarding court proceedings issued by the Chief Justice months later said this about jury trials:

The Court will not resume jury trials in June. The Court may be in a position to resume jury selection and jury trials in July, August or September, subject to the public health situation provincially and regionally and regional direction by the Regional Senior Justice.[^24]

[63] In the case of the Southwest Region, the commencement of jury trials was delayed until July 5, 2021, “at the earliest”.[^25] By that time, Mr. Nawabi’s trial was already scheduled to be completed during the period from September 20 to 30, 2021.

[64] Based on what I have written so far, I have no hesitation in concluding that the entire period from June 2, 2020 (being the last day of the first scheduled trial) until September 30, 2021 (the anticipated ending date of the third scheduled trial) fits within the category of exceptional circumstances. That period (485 days) is to be deducted for the purposes of calculating the net delay: R. v. Buabeng, [2022] O.J. No. 1732 (S.C.J.), at para. 105. Pausing here, the subtotal is 987 days or 32.4 months.[^26]

[65] That brings me to the September 2021 trial date. By then, some of the surrounding circumstances had changed. The suspension of jury trials had ended. Locally, significant physical and technological improvements had been made to the jury assembly area. A check in desk and two new jury retiring rooms had been constructed. As local administrative judge, I saw demonstrations of the video equipment from the vantage point of the jury assembly area and courtroom. I had no trial fairness concerns. The facility was – and still is – impressive.

[66] However, some things remained the same. Vaccination, masking and social distancing requirements remained. Consequently, in September 2021, London continued to have the capacity to accommodate only one criminal jury trial at a time. Another could have been conducted only if jurors were allowed to participate by video while continuing to be physically situate in the jury assembly area, many floors below the trial courtroom.

[67] As stated earlier, the Criminal Code does not currently contain a provision that allows a jury to participate remotely. It was therefore understandable that the Crown and defence would not consent to a trial that was conducted in that fashion. Consent does not remedy a lack of jurisdiction.

[68] That was the situation that existed when this matter was addressed during trial readiness on September 15, 2021 and on the following day. Unquestionably, the parties were ready to proceed as scheduled with jury selection on September 20, 2021 and with the balance of the trial starting on September 23, 2021. However, as reflected in the record, only one of the three criminal jury cases scheduled for that week could proceed.

[69] One of them was R. v. Borshell. As stated in my endorsement of September 16, 2021, this matter had to give way because it had been outstanding for less time and had been scheduled after that one. The Crown acknowledged that Borshell should proceed first “based on severity and timing in the system and choice of trial and the number of adjournments.”

[70] However, the Crown asked that the court consider deferring a decision in case Borshell did not proceed. That alternative was not workable from the court’s perspective because of the anticipated length of the trial involving Mr. Nawabi and the fact other cases were scheduled to start the following week. Further, as noted earlier, defence counsel was fairly concerned that Mr. Nawabi would unnecessarily incur costs of preparing for a trial that was unlikely to proceed. To be clear, the defendant’s counsel was aware but not supportive of the Crown’s proposed “wait and see” approach.

[71] For reasons I do not understand, the applicant suggests the Crown could have done more. How? The adjournments in May 2020 and February 2021 occurred because of decisions of the Chief Justice, not the Crown.

[72] Similarly, the decision to adjourn the third scheduled trial lies with the court. The Crown did not request it. The Crown hoped it would not become necessary.

[73] The applicant’s argument that the third adjournment does not fit within the category of exceptional circumstances because it was a product of “chronic institutional delay” is really aimed at the court.[^27]

[74] Criticism aimed at the Chief Justice was well addressed in R. v. Smith, supra. At paras. 63 – 64, R.S.J. Thomas wrote:

…There was no absence of information from government, the medical profession and the media regarding the infectious nature of this virus. Exigencies demanded that the Court take swift and direct action to safeguard the health of all justice system participants, including groups of the public summonsed to attend courthouses for jury selection.

To suggest that this was a unilateral decision without proper foundation is unsupportable…

[75] I agree. That brings me to the final adjournment. Once again, the applicant’s submission is wide of the mark.

[76] The search for a way to conduct jury trials in London, Ontario, did not die with the rejection of RBC Place as a temporary location. Almost immediately attention pivoted to the courthouse. Until COVID-19, there had been no plan to turn space in the northwest corner of the ground floor of the courthouse into a jury assembly/jury deliberation area.

[77] In response to the pandemic, that space was identified. There was consultation between the Court Services Division and the judiciary. Plans were drawn, reviewed, modified and ultimately approved. Construction proceeded. I am not in a position to second-guess policy or operational decisions on the record before me. I can say this. This courthouse was opened in 1974. It is like an old battleship. Worn and tired. There is only so much that can be done.

[78] The courthouse was quickly adapted to the extent possible. Was the solution perfect? Of course not. As mentioned, restrictions were still in place in September 2021. Social distancing was still required. An in-person criminal jury trial could still only be conducted in one courtroom.

[79] However, simply saying the court did not do enough, does not carry the day. It is an unsupported assertion that does not withstand scrutiny.

[80] It is beyond doubt that the justice system faced unprecedented challenges. There were twists and turns as the situation was ever changing. Concerted effort was made and was ongoing. In that regard, I note that effective October 19, 2021, the London courthouse became able to accommodate a second in-person criminal jury trial for the first time since the crisis occasioned by COVID-19 began. Unfortunately, completion of that work was not in time to preserve the September 2021 trial dates.

[81] As mentioned, resetting of the trial date for the final time occurred on October 12, 2021. An April 4, 2022, commencement date was agreed to. The trial coordinator had offered an earlier date in March. The Crown expressed a willingness to reassign this case and proceed with the trial starting on the proposed date of March 7, 2022. Mr. Nawabi’s counsel was unavailable.

[82] In my view, the period from September 30, 2021 (the anticipated end of the third scheduled trial) through April 12, 2022 (the anticipated end of the fourth scheduled trial), also fits within the category of exceptional circumstances. I agree with the comments of D.E. Harris, J. in R. v. Hyacinthe, [2022] O.J. No. 1327 (S.C.J.), at para. 17:

…Cognizance must be taken of the reality that only a select few of the multitude of backlogged jury trials could fit into the few spaces in the court docket that were available…There was a significant domino effect which affected this case and the vast majority of jury trials. The entire waiting period caused by COVID in my view constitutes exceptional delay. [Citation omitted]

[83] As a result of the number and length of the suspension of court operations, the number of jury trials that had not been reached grew. Those cases were scheduled as aggressively as possible. As evidenced by the comments made by the applicant’s lawyer during the October 12, 2021, assignment court, scheduling difficulties faced all of those regularly involved in the justice system. In my view, a further reduction of 194 days is required, leaving 793 days or 26.1 months.

[84] By the time it began, the matter had become one involving a judge-alone. The seven-day trial estimate was maintained despite re-election. However, more time was required. The continuation could not be accommodated until the third full week of June 2022. Late disclosure by the complainant is the agreed upon reason. As noted, the applicant maintains the Crown bears responsibility. It disagrees.

[85] The trial judge addressed the issue. Having been at the center of the events as they unfolded, she was in the best position to do so. In part, she said:

All right. And I…want it on the record too, that while it may be 11(b) challenged, the…estimate that was given was provided…and again, things occurred that were completely unanticipated – but, in the circumstances, they are exceptional circumstances…[^28]

[86] That is not surprising. As Fairburn J.A. (as she then was) wrote:

…Trials are not “well-oiled machines” and things can quickly go awry in a way that leads to delay…An example…is when a trial goes longer than “reasonably expected”, even where the parties have in good faith attempted to establish realistic timelines. In these circumstances, it is “likely the delay was unavoidable” and will constitute an exceptional circumstance… [Citations omitted][^29]

[87] A further reduction from April 12 (the anticipated end of trial) to June 24, 2022 (the agreed upon actual completion date) is appropriate. After deducting another 71 days, the net delay in this matter is 722 days or 23.7 months.

[88] Since that period is less than the presumptive ceiling, the defendant bears the onus of showing the delay is unreasonable: Jordan, supra, at para. 48. The applicant did not attempt to satisfy this burden because his argument rested on the submission that the net delay exceeded 30 months.

E. Conclusion

[89] For the reasons given, I have concluded the application should be dismissed for two reasons. First, the failure to pursue the issue in a timely fashion is not adequately explained or justified. Second, after a modest deduction for defence delay and a significant reduction for exceptional circumstances due to COVID, Mr. Nawabi’s trial was completed within a reasonable time. His s. 11(b) Charter right was respected and not breached.

Grace J.

Released: December 22, 2022

COURT FILE NO.: 124/19

DATE: 2022/12/22

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

AHMAD NAWABI

REASONS FOR JUDGMENT

Grace J.

Released: December 22, 2022

[^1]: Both parties have used that date although, according to the trial judge’s endorsement on the indictment, the trial was not completed until June 28, 2022. The four-day difference does not alter the analysis.

[^2]: That right is guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”)

[^3]: Ordinarily a judicial pre-trial would have been scheduled earlier and the matter ordered to return in the next month’s assignment court. I do not know why that did not happen in this case. Neither party made an issue of it.

[^4]: That case was R. v. Borshell, London court file no. 385/18 and was tried for a period of five (5) consecutive days before Aston J. starting on September 20, 2021.

[^5]: A March 7, 2022, starting date had been proposed by the Court. While not available to the lawyer who was then assigned, the Crown offered to reassign the case. Mr. Nawabi’s lawyer was not available then but indicated he would canvass the date with the defendant and added “perhaps we could bring it forward and reuse that time if it’s available.” There was no later request to revisit the trial date once rescheduled for the final time.

[^6]: While not mentioned by the parties, according to the indictment, the trial was completed on June 28, 2022.

[^7]: July 21, 2022 had been the intended date.

[^8]: I note that the applicant’s calculation uses June 24, 2022 as the last day of trial. As noted above, June 28, 2022 is the correct date.

[^9]: That number should be reduced by 14 days considering the concession concerning defence delay mentioned earlier.

[^10]: At para. 66 of the applicant’s factum.

[^11]: At para. 67 of the applicant’s factum.

[^12]: This excerpt is taken from para. 70 of the applicant’s factum.

[^13]: See paras. 52, 69 and 86 of the defendant’s factum.

[^14]: Unreported, Ontario Court of Justice file no. 4817 998 21-75000685, released April 25, 2022

[^15]: See para. 25 ii. of the Crown’s factum.

[^16]: See para. 57 of the Crown’s factum.

[^17]: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 47.

[^18]: This excerpt is drawn from para. 75.

[^19]: The Crown included three examples in its book of authorities being R. v. Simmons, 2020 ONSC 7209 (S.C.J.); R. v. Khattra, 2020 ONSC 7894 (S.C.J.) and R. v. Buabeng, [2022] O.J. No. 1732 (S.C.J.) and referred to other authorities at para. 20 of its factum.

[^20]: See, for example, R. v. Shen, 2022 ONSC 3274 (S.C.J.); R. v. Smith, 2021 ONSC 3322 (S.C.J.)

[^21]: See Notice to the Profession and Public Regarding Court Proceedings dated November 21, 2020.

[^22]: See paras. 61 and 62 of the defendant’s factum.

[^23]: The quotation is drawn from R. v. Simmons, 2020 ONSC 7209 (S.C.J.), at para. 70.

[^24]: That notice was issued on May 12, 2021. The message was largely repeated in a June 18, 2021 update issued by the Chief Justice.

[^25]: The Notice to the Profession and Public Regarding Court Proceedings had been updated several times before including on December 14 and 22, 2020, January 13 and March 17, 2021.

[^26]: 1,472 as set forth above, less 485 days.

[^27]: See para. 87 of the applicant’s factum.

[^28]: Proceedings, 11(b) Application, Transcript of the May 10, 2022, attendance, at pp. 117, line 27 – 118, line 6.

[^29]: R. v. Jurkus, 2018 ONCA 489, at para. 55.