Court File and Parties

Court File No.: CR-18-14916 Date: 2023-03-21 Ontario Superior Court of Justice

Between: His Majesty The King And: Maisum Ansari, Applicant

Counsel: Chris Walsh and Amber Pashuk, for the Public Prosecution Service of Canada Leora Shemesh, for the Applicant

Heard: March 10, 2023 in Person

Reasons for Decision re 11(b) Ruling - Delay in delivery of Reasons

M.L. EDWARDS, RSJ.

Overview

[1] These reasons engage the determination of whether the delay in the delivery of the trial judge’s reasons for conviction in this case violates s.11(b) of the Charter and warrants a stay of proceedings.

[2] This 11(b) application is being heard by me and not the trial judge who convicted Mr. Ansari. The trial judge could not continue with this matter for medical reasons and, as such, pursuant to s. 669.2(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the “Code”), I provided counsel with the choice of either having myself deal with the 11(b) application or an out-of-town judge. Counsel elected to have me hear this matter.

[3] The law as it relates to 11(b), and the timeliness of a judge’s reserve decision is set forth in a recent Supreme Court of Canada decision: R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364. Both counsel agree that their research has revealed no decisions that have applied K.G.K. to a scenario where the defence has sought to invoke 11(b) due to the timeliness of a trial judge’s judgment. The absence of jurisprudence interpreting K.G.K. is likely because trial judges dealing with criminal matters as a matter of course realize that with the liberty interest of an accused at stake, reasons must be provided in a timely fashion – usually to a predetermined date convenient to the court and counsel.

The Facts

[4] Mr. Ansari was found guilty on February 1, 2023 of over 100 charges related to the possession of carfentanil and firearms for the purpose of trafficking. The convictions began with his arrest on September 20, 2017. Police seized 42 kilograms of carfentanil and 33 firearms from the basement of a residence owned by Mr. Ansari. With his arrest in September 2017, one might wonder what has happened since then to result in a conviction in February 2023.

[5] I do not propose to review the chronological history of this matter from the time of his arrest to January 13, 2021. That time period was the subject matter of an earlier 11(b) application brought on behalf of Mr. Ansari. The application was heard by Leibovich J. on December 21, 2020. In his reasons he reviewed the history of this matter and concluded that the total delay to the time of the application was 42 months and 7 days. After deducting 42 days for defence delay and another 8 months for defence waiver the net delay to the anticipated date of trial was approximately 33 months. As the Covid 19 pandemic had intervened a further 5.5 months was deducted resulting in a net delay of 27 months which was under the presumptive guideline set by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

[6] Ironically, on the same day as Leibovich J. released his reasons dismissing Mr. Ansari’s 11(b) application, the Superior Court of Justice announced the suspension of jury trials until May 3, 2021. Mr. Ansari’s jury trial was scheduled to begin in March 2021. With the suspension of jury trials due to the pandemic, Mr. Ansari’s trial would have to be adjourned out of necessity.

[7] Complicating matters was that as of January 13, 2021, the Indictment before the Court jointly charged Mr. Ansari with a Mr. Ali. A severance application brought by Mr. Ansari was heard by Speyer J. on August 20, 2020. The severance application was dismissed on September 1, 2020. With the closure of the courts due to the pandemic, the Crown agreed to sever the counts to avoid what could have been an additional 9 to 12-month delay before a jury trial could begin. With the severance, Mr. Ansari elected to have his trial proceed by judge alone.

[8] The trial began on March 15, 2021. The Crown closed its case on March 26, 2021. Mr. Ansari called no evidence. Counsel provided oral submissions on March 31, 2021 with a target date of May 10, 2021 for judgment. The Crown’s written submissions were filed with the court on April 22, 2021.

[9] The written submissions of the Crown resulted in the defence raising objection to one paragraph of the submissions. Ultimately, Crown counsel and defence counsel were able to resolve the concern raised by the defence and the matter was adjourned to June 30, 2021 to set a date for judgment. The defence written submissions were filed with the court on June 24, 2021. The Crown filed a 3-page reply that caused the defence to raise concerns which ultimately resulted in the matter adjourning to July 14, 2021 for further argument. On July 14, after hearing argument, the matter was then adjourned to July 29, 2021 to fix a new date for judgment. On July 29, 2021, the matter was adjourned to November 12, 2021 for judgment.

[10] The November 12, 2021 date for judgment was vacated as the trial judge was involved in another jury trial and thus the matter was adjourned to January 24, 2022 for judgment. Had it not been for developments after November 12, 2021, the parties should have received the trial judge’s judgement on January 24, 2022. The paragraphs that follow explain why judgement did not happen on January 24, 2022.

[11] On November 10, 2021, Mr. Ali who had been the co accused with Mr. Ansari pled guilty. Mr. Ali’s sentencing was adjourned to a later date. Mr. Ansari became aware of the guilty plea as a result of reading an article in a local newspaper. Mr. Ansari through his counsel sought details of the plea which were provided by the Crown in short order.

[12] Subsequent to receiving the Crown disclosure as it related to Mr. Ali’s plea of guilty Mr. Ansari’s counsel advised the Crown on November 23, 2021 that Mr. Ansari would apply to the court to re-open his trial so that he could testify.

[13] A number of attendances were required before the trial judge to deal with the defence request to reopen the trial. Ultimately the trial judge granted the application to reopen on March 21, 2022. A week was set aside (April 25 to 29, 2022) for the evidence to be heard as part of the reopened trial. The evidence was completed on April 29, 2022. Further written submissions were filed with the court. The last round of written submissions came in the form of the defence reply submissions filed on June 27, 2022. Previously when the matter was before the trial judge on June 6, 2022, a date for judgment was fixed for September 30, 2022.

[14] As it turned out September 30, 2022 is a national holiday (National Day for Truth and Reconciliation) and, as such, the court was closed. The matter was therefore brought forward and a new date for judgment was set for October 11, 2022.

[15] Unfortunately, as it turned out, Ms. Shemesh was not available on October 11, 2022 and a new date had to be scheduled for judgment. When the matter was spoken to on October 11, 2022, the trial judge indicated he was ready to deliver his judgment and was anxious to do so but at the request of the defence and to accommodate Ms. Shemesh the matter was being adjourned to November 21, 2022, which was the earliest date the trial judge had available in his schedule.

[16] The matter was brought forward to November 17, 2022 at the request of the trial judge who advised counsel that he had been off the previous few weeks and would not be able to deliver his judgment on November 21, 2022. The matter was adjourned to December 22, 2022 for judgment.

[17] On December 22, 2022, counsel appeared before the trial judge having received notification from the local trial coordinator that the trial judge was involved in other matters that would make it impossible for him to deliver his judgment. At the appearance on December 22, the matter was adjourned to January 13, 2023 for judgment, a date that conflicted with another trial the trial judge was scheduled to hear but which he undertook to interrupt so as to deliver his reasons.

[18] The January 13, 2023 dates ultimately did not transpire due to the trial judge’s commitment to the trial he was then involved in. The matter was adjourned to January 20, 2023. Because of other judicial commitments the January 20 had to be vacated and was replaced with January 27, 2023. On January 27 the trial judge was ill, and the matter went over to February 1, 2023.

[19] On February 1, 2023, the trial judge delivered lengthy oral reasons. Mr. Ansari was convicted on all counts. In her materials filed in this 11(b) application, Ms. Shemesh suggests that the trial judge’s reasons reflect a judgment that “was clearly not an indication of a researched or a time-consuming, thought-provoking analysis of the facts of the case and the adoption of the law”. Ms. Shemesh goes on to suggest that the “verdict that was rendered in this case was nothing more than a jurist reading his bench notes and reading paragraph after paragraph from the crown’s submissions in an attempt to provide a bottom line to a defendant that had ultimately been facing a life sentence”.

[20] As I am not sitting as an appellate judge, the attack on the style and substance of the trial judge’s reasons will form no part of my 11(b) analysis. However, I do take from Ms. Shemesh’s oral and written argument that there is context to be drawn from the oral reasons and the overall delay in this matter given that judgment was scheduled to be rendered on November 12, 2021, a date that predated when Mr. Ali entered his plea.

[21] At the completion of his reasons on February 1, 2023, Ms. Shemesh raised 11(b) with the trial judge. Dialogue ensued between Ms. Shemesh and the trial judge in which Ms. Shemesh made it clear that the basis of her application would flow from what she described as the “inordinately” long time it had taken for the delivery of the trial judge’s reasons.

[22] Further discussion ensued between Ms. Shemesh and the trial judge as it related to the question of any waiver of 11(b) by Mr. Ansari. In her submissions to the trial judge on February 1, 2023, Ms. Shemesh suggested that the clock began to tick for the purposes of 11(b) when the evidence was completed in the “reopened trial” – that date being April 2022. Later in her oral submissions it can be taken that Ms. Shemesh might be seen to agree that the 11(b) clock began to tick when written submissions were filed with the court in June 2022.

The Issue to be Determined

[23] The sole issue this court must determine is whether the delay in the delivery of the trial judge’s reasons rises to the level where this court should grant a stay of the proceedings as a result of the breach of Mr. Ansari’s 11(b) Charter right. While the Application before the Court attacks the integrity of the trial judge and sought his recusal, that issue is not before me for decision.

[24] In the Application as it was originally framed, Mr. Ansari sought to have the trial judge recuse himself from the hearing the stay application. As the trial judge was medically unable to continue with the Application all counsel agreed the recusal motion was moot.

Position of the Parties

[25] While both counsel agree on the applicable test that this court is required to apply, they disagree factually as to what period of time falls within the definition of judicial delay attributable to the delivery of his reasons for conviction. Ms. Shemesh argues that the period of time includes the initial period of judicial deliberation after the completion of the trial to when Mr. Ansari sought to reopen his trial – a period of 5 months, plus the additional 7 months from when the reopened trial had ben completed until the delivery of the trial judge’s reasons on February 1, 2023.

[26] Crown counsel argues that the initial period of judicial deliberation should not be considered as part of the total time the matter was under reserve. In that regard it is argued the trial was only complete and ready for judicial consideration once all the evidence was complete, oral submissions had been made to the court, and, finally, once all written submissions had been submitted by the parties – that date being June 27, 2022.

Position of the Defence

[27] In her argument Ms. Shemesh suggests there are 2 types of delay the court can consider in the context of an 11(b) application. The first can be described as traditional Jordan delay and the second as “judicial reasons delay”. As for the first type of delay, Ms. Shemesh concedes that when the trial was completed in March 2021 the matter had been completed within the Jordan timelines. Ms. Shemesh concedes that when Mr. Ansari sought to reopen the trial until the completion of the reopened trial, that this delay is attributable to Mr. Ansari. No issue was raised as it relates to the original period of delay asserted before Leibovich J.

[28] Underlying the defence argument is an attack on the integrity of the trial judge. As it relates to the period of judicial deliberation after the March 2021 trial, Ms. Shemesh included in the Application record a series of emails between counsel and the trial coordinator’s office that reflect counsel’s concern to obtain a date for the trial judge’s reasons. A review of the endorsement between completion of the trial in March 2021 and September 2021 reflects a number of appearances before the trial judge but no actual date for judgment. It is not until July 27, 2021 that the trial judge endorses the indictment to reflect that he would give judgment on November 12, 2021.

[29] On October 29, 2021, the Application record contains an email from the trial coordinator to counsel advising that the trial judge would not be delivering his reasons on November 12, 2021, as he was in “an ongoing jury trial”. Counsel appeared on November 12, 2021 before the trial judge who endorsed the indictment: “matter adjourned to January 22, 2022 for judgment”.

[30] Unbeknownst to Mr. Ansari, when the matter was before the trial judge on November 12, 2021, was the fact his former co-accused, Mr. Ali, had plead guilty on November 10, 2021. Mr. Ansari became aware of the plea when he read a local newspaper. This then precipitated communications between Ms. Shemesh and Crown counsel that led to Ms. Shemesh filing an application to reopen the case for Mr. Ansari. Various appearances occurred before the trial judge in the early part of 2022 that culminated in the trial judge’s ruling on March 21, 2022 allowing the defence motion to reopen. At the beginning of his ruling, the trial judge noted the following in relation to the November 12, 2021 date when he was to deliver judgment:

The matter was adjourned until November for judgment……And during the time period for which the fall period, that is between September and November, I was in a retrial of a fraud case that had-with a self represented accused-that had been mis tried because of covid back in March 2020. I advised counsel I will not be in a position to take the time to deliver judgment in November, and implicit in that, I think, and I hope, was that I hadn’t finished my judgment.

[31] Ms. Shemesh notes in both her oral and written submissions that by the time the reopening of the trial was argued, the trial had been completed 8 months earlier with written submissions completed 5 months earlier. Ms. Shemesh emphasized throughout her argument that the trial was “concise and simplistic” and questioned why it should have taken the trial judge 5 months to deliver judgment – a judgment that never materialized until well after the reopening of the trial.

[32] Moving to the time period after the evidence and written argument from the reopening was complete, Ms. Shemesh argues that on dates fixed for judgment between June 8, 2021 and February 1, 2022 that the trial judge was never in a position to deliver his judgment. On June 8, 2022, the trial judge adjourned the matter to September 30, 2022 “for judgment”. As it turned out, September 30 was the National Day for Truth and Reconciliation and, for this reason, the matter was brought forward to August 31, 2022 and a new date for judgment was fixed for October 11, 2022.

[33] On October 11, 2022, the date fixed for judgment, Ms. Shemesh was unavailable, but an appearance occurred before the trial judge to fix a new date. The transcript of the proceedings on October 11 reflects the following comments of the trial judge:

“…Ms. Shemesh not able to attend. Obviously, everybody’s anxious to get the ruling, including me, out, that is, but because of scheduling and the need to get a date where this is gong [sic] to work and not have to have to trump this again, November 21st is going to be the date. I would note that this was otherwise up today for ruling and the date was available…so November 21, 2022 for judgment”.

[34] In oral argument, Ms. Shemesh attacked the integrity of the trial judge in terms of his readiness to meet the various deadlines he assigned to himself for the delivery of his judgment. The trial judge indicated on October 11, 2022 that he would have provided his ruling but for the fact Ms. Shemesh was unavailable and wanted to be present for the ruling. His endorsement of that date indicated he wanted to select a new date for judgment that would not be “trumped” by another case and thus selected November 21, 2022. As events turned out, at the next appearance on November 17, 2022 the trial judge stated:

“…I’m not going to deliver judgment on Monday [this would have been November 21]… I’ve been off the last couple of weeks …”I just want to get a return date…”

[35] Ms. Shemesh questions the need for the adjournment on November 17 from the anticipated judgment date of November 21. If the trial judge had been ready to give his judgment on October 11, as he had indicated on that date, Ms. Shemesh argues that the fact the trial judge had “been off for a few weeks” was irrelevant to the anticipated judgment date of November 21. Additionally, as it relates to his ultimate oral ruling of February 1, 2023, Ms. Shemesh contrasts the time it took to deliver judgment on that date – approximately 6 hours – with the trial judge’s comments on November 17, 2022, when he told the parties his judgment would not take “more than hour or two”.

[36] The next return date for judgment was December 22, 2022, a date that was selected by the trial judge. As a result of other matters conflicting with December 22 as a date for judgment, counsel were notified by the Regional Trial Coordinator that the return date for judgment would have to be put over to a mutually agreeable return date in January 2023.

[37] The period between December 22, 2022 and February 1, 2023 is covered in the Application record with transcripts of appearances in this matter as well as appearances in 2 other criminal matters that the trial judge was involved in. Ms. Shemesh argues that comments made by the trial judge to counsel in those other matters as it relates to R. v. Ansari reflect a cavalier attitude to his obligation to deliver judgment in a manner consistent with K.G.K.

[38] Ms. Shemesh points to the following excerpt from the January 10, 2023 transcript of R. v. A.M. (a separate, unrelated matter) as an example of the trial judge’s failure to prioritize the Ansari matter: “…I think I will have to have a teleconference with those lawyers because they are pushing. Now, the person who is charged, as I canvassed this earlier, back in 2019 or ’17, there’s no Jordan issue, has been on a light bail, so its not as if I’m-you know-except for his desire to want to know what’s happening to him, its not as if its going to affect his liberty interests beyond that. Does that make sense?”

[39] It was not disputed in argument that the person the trial judge referred to as being on “light bail” in the A.M. transcript was Mr. Ansari. Ms. Shemesh argues that these comments rebut the trial judge’s judicial integrity and make clear that his delay in delivering his judgement was informed by his belief that Mr. Ansari’s liberty interests were not being affected by any such delay.

Position of the Crown

[40] The Crown takes the position that the delay in the delivery of the trial judge’s reasons is either a period of 7.2 months or 6 months. The Crown argues that any delay in the period prior to the reopening of the trial and the reopening itself was waived by Ms. Shemesh. The difference between the 7.2-month and the 6-month periods relates to that time in October 2022 when Ms. Shemesh was unavailable to attend in Court to receive the trial judge’s reasons.

[41] Dealing specifically with the waiver of 11(b) by the defence, Mr. Walsh refers to the following exchange between Ms. Shemesh and the trial judge when this matter was addressed in court on February 25, 2022:

THE COURT: You have been waiving 11(b), talking about legal delay, for a considerable period of time, right?

MS. SHEMESH: I don’t think we waived 11(b) until we had a particular trial date where...

THE COURT: Right.

MS. SHEMESH: ...we are ready to go...

THE COURT: Let’s say in front of me.

MS. SHEMESH: Oh, yes.

THE COURT: In front of me.

MS. SHEMESH: Yes.

THE COURT: I’m not – I can’t visit back, right?

MS. SHEMESH: Of course.

THE COURT: So, since the trial was – I was told I was going to be fixed with dealing with this trial...

MS. SHEMESH: Yes.

THE COURT: ...11(b) delay has not been an issue?

MS. SHEMESH: It is not an issue.

THE COURT: Now – and it wasn’t on the last day ‘cause it was waived, okay?

MS. SHEMESH: Correct.

THE COURT: So, 11(b) is not going to be an issue.

SHEMESH: It is not.

[42] If the period of delay in the delivery of the trial judge’s reasons was at most the 7.2 months from the completion of the reopened trial to the date of judgement, then the Crown argues this is a period of time lower than the 9 months in K.G.K., which was determined not sufficient to violate 11(b). The Crown also references that the trial in K.G.K. involved sexual offences against a minor stepdaughter. The trial began on January 11, 2016 and was completed on January 21, 2016. The trial judge’s judgement was delivered on October 25, 2016 – a delay of approximately 9 months. By comparison to K.G.K. the Crown argues that Ansari was a much more complicated trial that initially took 7 days to hear followed by a lengthy delay for written submissions. Ansari was further complicated by the period of time dealing with the defence request to reopen coupled with the actual evidence from the reopened trial. As such, by comparison to K.G.K., the Crown argues that 7.2 months for the trial judge to deliver his reasons was perfectly reasonable.

[43] As it relates to the attack on the integrity of the trial judge, specifically the suggestion the trial judge was not in a position to deliver his reasons on October 11, 2022, Mr. Walsh argues there is a very heavy onus on counsel to substantiate such an attack. Mr. Walsh argues there is no evidence the trial judge was not ready to deliver his reasons on October 11, 2022 – a date when Ms. Shemesh was not available.

[44] Finally, as it relates to the various adjournments in December 2022 and January 2023, Mr. Walsh argues that the evidence establishes that those adjournments were necessitated by other judicial commitments and that the trial judge was simply prioritizing those other matters – one of which involved a judge alone sexual assault trial involving minors.

[45] Underlying the totality of Mr. Walsh’s argument is the suggestion that Mr. Ansari has not met his onus of establishing that his right to be tried within a reasonable time under 11(b) was violated and that the trial judge’s delay in delivering his judgement was not markedly longer than it should have been in all of the circumstances.

Analysis

The Practice and Legal Principles Applicable to Reserve Judgments and 11(b)

[46] Much has been written by appellate courts about the adequacy of trial judges’ reasons. Little however has been written about how the delay in the delivery of a trial judge’s reasons may impact on the application of 11(b).

[47] It is important to begin with the law as it relates to when a judge’s reasons are required to be delivered. Section 123(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”) provides for timelines for the delivery of reasons: for judgment it is 6 months and for any other matter it is 3 months. It is important to note that the “chief judge may extend the time in which the decision may be given and if necessary, relieve the judge of his or her duties until the decision is given.”

[48] During the course of argument, Ms. Shemesh referred me to a decision of Doherty J.A. in R. v. Bosley, at para. 36, where he noted: “There are no guidelines referrable to institutional delay for the period between the completion of the evidence and the rendering of the verdict, although s. 123(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, suggests that a six-month delay in giving judgment in a civil case may warrant the intervention of the Chief Justice of the trial court.” Ms. Shemesh by inference argues that those comments of Doherty J.A. could be taken to mean that the timelines of s. 123(5) do not apply to criminal matters. The answer to this argument can be found in s. 95(2) of the CJA which expressly states that s. 123 applies to criminal proceedings except where it is inconsistent with the Code.

[49] The power of the Chief Justice to extend the time for the delivery of judgment is delegated to the Regional Senior Justice in the region where a particular trial judge may be chambered. In this case, as the Regional Senior Justice for the Central East Region, I am required to keep track of reserved judgments and extend the time for the delivery of a judgment in appropriate circumstances.

[50] Prima facie the date from which “judicial delay” begins is the date when a case is completed in Court and the trial judge reserves his or her decision. On occasion that date may not be the date when the case was completed in open court. Often a judge will require written submissions. The completion of a trial for the purposes of establishing judicial delay in the delivery of reasons begins when the evidence is completed, oral submissions have been made to the court, and when all written submissions, if any, are filed with the court.

[51] While the reserve of a criminal matter is subject to the timelines provided in s. 123 of the CJA, the tracking of a criminal reserves is often redundant as 6 months might be seen by some trial judges as the upper end of a timeline to deliver reasons. More often than not, the trial judge will reserve his or her decision to a specific date. The trial judge fully understands that the date fixed for judgment is for all intents and purposes a date “etched in stone”, i.e., it is a date the trial judge knows he or she must have reasons ready to be delivered to the parties in open court.

[52] In addition to the timelines set forth in s. 123(5) judges are expected to adhere to the Ethical Principles for Judges published by the Canadian Judicial Counsel (the “CJC”) and available on the CJC website. As it relates to the delivery of reasons the Ethical Principles provide as follows:

The preparation of judgments is frequently difficult and time consuming. Judges are expected to produce their decisions and reasons for judgment as soon as reasonably possible, having regard to the urgency of the matter and the length or complexity of the case. In this respect, the CJC has resolved those reserved judgments should be delivered within a maximum of six months after hearings, except in special circumstances. Judges must also comply with legal requirements associated with timeliness of judgments applicable in their jurisdiction. While judges strive to be diligent in the performance of their judicial duties, their ability to do so may be affected by various factors, including illness, exceptionally heavy burdens of work or the inadequacy of resources supporting their work.

[53] The Ethical Principles suggest a maximum of 6 months for the delivery of reasons, subject to exceptional circumstances. The governing legislation in Ontario as set forth in s. 123(5) of the CJA also provides for a 6-month deadline. The difference between the Ethical Principles and s. 123(5) is that the CJA provides the Chief Justice, and by definition the RSJ, the discretion to grant extensions where appropriate.

[54] The six month timeline in both the Ethical Principles and s.123(5) is not the equivalent of a constitutional limitation period. Unlike the situation with pre trial delay in Jordan the Supreme Court declined in KGK to set a fixed date for the delivery of reasons post trial. The Ethical Principles and s.123(5) reflect a considered determination of the outside time frame for the delivery of reasons in most criminal cases. They provide a useful guidepost for considering whether the “markedly longer” test is met.

[55] I do not propose to resolve the difference between the Ethical Principles and the CJA. No resolution is necessary as it is apparent to me that judges are expected to get their reasons completed in a timely fashion – especially a criminal matter where the liberty interest of the accused is at stake. In fixing a 6-month deadline, absent exceptional circumstances, the CJC Ethical Principles suggests judges should release their reasons as soon as reasonably possible, considering the urgency of the case and the length and complexity of the trial. I would suggest the same principles may inform the discretion to extend the deadline for the release of a reserved decision provided for under s. 123(5) of the CJA.

[56] As it relates to the application of 11(b) to the delay in the delivery of reasons, the recent Supreme Court of Canada decision in K.G.K. provides clear guidance as to how an accused’s rights under 11(b) can be impacted by the delay in a trial judge reasons.

[57] In determining when the start date for the assessment of delay begins, the Supreme Court deals in part with what was meant by “anticipated end of the trial” in Jordan. At para. 33 of its reasons in K.G.K., Moldaver J. makes clear that the Jordan ceilings apply from the charge to the end of the evidence and argument, and no further. Adopting these reasons to the facts before this court, the “end of the trial” occurred when oral submissions and written submissions were received by the trial judge. Factually written argument was complete on June 27, 2022 and as such the total delay to February 1, 2023 was 219 days or 7.2 months.

[58] As it relates to the reopening of the trial it is noteworthy that the evidence heard by the trial judge came largely from the Mr. Ansari. He was examined and cross examined over the course of five days. The reopening involved evidence that was substantive and did not involve evidence of a minor nature. With the evidence of Mr. Ansari, supplemented by addition lengthy written argument, it would not be completely unfair to suggest the trial judge had to return to “the drawing board” and start afresh with his reasons.

[59] In its ultimate determination, the Supreme Court held that a 9-month delay in the delivery of the judge’s reasons was not unreasonable for what could be described as a relatively straightforward case of minimal complexity. Moldaver J. at para. 65 set forth the following test:

Where an accused claims that the trial judge’s verdict deliberation time breached their s. 11(b) right to be tried within a reasonable time, they must establish that the deliberations took markedly longer than they reasonably should have in all of the circumstances. This is — appropriately, in my view — a high bar. As indicated, the presumption of judicial integrity operates in this context to create a presumption that the trial judge balanced the need for timeliness, trial fairness considerations, and the practical constraints they faced, and took only as much time as was reasonably necessary in the circumstances to render a just verdict. Only where the trial judge’s verdict deliberation time is found to have taken markedly longer than it reasonably should have will this presumption be displaced. The reason the threshold is so high — “markedly longer” rather than just “longer” or some lesser standard — is because of the “considerable weight” that the presumption of integrity carries (Cojocaru, at para. 20). Stays in this context are significant and, although distinct from stays below the ceiling, they too are likely to be “rare” and limited to “clear cases” (Jordan, at para. 48). It bears repeating, however, that where a trial judge’s verdict deliberation time is found to have taken markedly longer than it reasonably should have in a particular case, this should not be taken as casting doubt on the judge’s overall competence or professionalism.

[60] A review of the decision in K.G.K. makes clear that an accused seeking to invoke 11(b) in relation to an argument based solely on the delay in a trial judge’s reasons has a heavy onus to meet. It is also worth pointing out that counsel cannot sit back and wait until the trial judge’s reasons may have reached the “point of no return” i.e., they are so overdue that 11(b) may result in a stay of proceedings. Counsel should be well versed in the deadlines imposed by s. 123(5) of the CJA. If reasons are overdue and/or dates set for the delivery of reasons are adjourned on numerous occasions, counsel might well consider the following practical suggestions offered by Moldaver J. at paras. 74-76:

Counsel often finds themselves in a difficult pos ition when significant time has passed since the trial judge took the matter under reserve and they have not received any updates on its status. The Crown may be reluctant to probe for information on the status of the case, insofar as it could risk the appearance of inappropriate interference with the judicial process. For their part, the accused may understandably not wish to be seen as applying pressure to the person in whose hands their fate lies.

In Jordan, this Court stressed that all participants in the criminal justice system must work together to minimize delay and safeguard an ac cused person’s s. 11(b) interests. To that end, I see no reason why the parties cannot, in appropriate circumstances and through appropriate channels, communicate with the trial judge. This might entail meeting briefly in court or communicating through another procedure approved by the court. However, this may happen, counsel can and should expect judges to be sufficiently resolute to consider a re- quest for information without consequences to counsel, the accused, or the trial.

Indeed, some jurisdictions may find it useful to set out a standardized procedure through which counsel can inquire as to the status of a verdict. This may involve a practice guideline contemplating a joint communication from the parties to the trial judge themselves, or to the regional senior judge or another appropriate person, after a certain amount of time has passed. Ultimately, instituting these pro cedures could serve to attenuate the anxiety and concern that accompanies the inherent unknowa bility of a verdict date and delay more generally (MacDougall, at para. 19, quoting Rahey, at p. 610, per Lamer J.; see also R. v. Potvin, [1993] 2 S.C.R. 880, at p. 887). Additionally, where the communication is with the court administration or regional senior judge, it may provide information that assists the court in managing judicial workloads. It may also assist in developing the record for s. 11(b) purposes.

[61] Anyone who has practiced in the courts well-knows the rules about communicating with a judge outside of the court room. There are times however, as envisioned by Moldaver J., where counsel need to be proactive in raising delay concerns as it relates to the delivery of reasons. While it is readily conceded that raising those concerns presents itself as a delicate exercise, it is one nonetheless that counsel, as an advocate, may have to confront.

[62] As it relates to the practice of law in Ontario where counsel have a concern about a judge’s potential late delivery of reasons, the following practice might be considered:

a) A letter should be sent to the RSJ of the region where the trial judge is chambered. Where possible the letter should indicate it is being written with the knowledge and permission of all counsel. Where all counsel or parties cannot agree, at the very least the letter should be shown as being copied to all counsel/parties; and

b) The letter should give a concise history of the litigation and when reasons were expected to have been delivered or released.

[63] The Supreme Court in Jordan has made it clear that everyone associated with the criminal judicial system has an obligation to ensure that a criminal case proceeds through the judicial system as quickly as is reasonably possible and now within the timelines that have been set in Jordan. The Court in Jordan and again in K.G.K. has stressed that there must be a “culture shift” in terms of how everyone, including trial judges, grapple with the exigencies of making sure a case proceeds through the system in a timely fashion. In that regard, the concluding words of Moldaver J. in Jordan at paras. 116-117 are worth repeating:

Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. As Sharpe J.A. wrote in R. v. Omar, 2007 ONCA 117, 84 O.R. (3d) 493:

The judicial system, like all other public institutions, has limited resources at its disposal, as do the litigants and legal aid. . . . It is in the interest of all constituencies — those accused of crimes, the police, Crown counsel, defence counsel, and judges both at trial and on appeal — to make the most of the limited resources at our disposal. [para. 32]

Sharpe J.A.’s reference to finite resources is an important point. We are aware that resource issues are rarely far below the surface of most s. 11(b) applications. By encouraging all justice system participants to be more proactive, some resource issues will naturally be resolved because parties will be encouraged to eliminate or avoid inefficient practices. At the same time, the new framework implicates the sufficiency of resources by reminding legislators and ministers that unreasonable delay in bringing accused persons to trial is not merely contrary to the public interest: it is constitutionally impermissible and will be treated as such.

[64] The call to action that Jordan requires includes everyone associated with the criminal justice system. The call to action includes trial judges. In the context of the time required to provide reasons for decision trial judges dealing with criminal matters have the guidance we need found in K.G.K., The Ethical Principles for Judges, and s. 123(5) of the CJA. Distilled to its essence, 6 months will generally be considered a benchmark within which reasons should be delivered.

The Legal Principles Applied

[65] Ms. Shemesh argues that the period of delay in the delivery of the trial judge’s reasons includes the entirety of the time from July 2021 to February 1, 2023. I disagree. A trial is complete and under reserve only when all of the evidence has been heard, oral submissions heard, and written submissions filed. The last written submissions were filed with the court on June 27, 2022. As already determined at para. 57 above, the delay in the delivery of the trial judge’s reasons is a period of 7.2 months.

[66] As it relates to the period of delay attributable to the re-opening of the trial, I am of the view that there was an explicit waiver of s.11(b) as reflected in the dialogue quoted at para 41 above. That waiver by Ms. Shemesh on behalf of Mr. Ansari covered the time period up to June 27,2022 when the last written submissions were received by the Court.

[67] While the delay in the reasons is computed from June 27, 2022, the period of delay prior to the re-opening of the trial is a period of time that may help inform the reasonableness of the 7.2 months this matter was under reserve. Put simply the trial judge had the matter under reserve for nearly 5 months before it became apparent that the defence would be seeking to reopen the trial.

[68] Ms. Shemesh argues that the integrity of the trial judge’s assertions beginning on October 11, 2022 – that he was ready to deliver his reasons – lacks in credibility when looking at the record in its entirety. In essence, Ms. Shemesh alleges that the trial judge was dishonest when he told counsel on October 11 that he was ready to deliver his reasons.

[69] An allegation of dishonesty when levelled against the trial judge is a serious matter. There is a very heavy onus on the attacking party to support such an allegation. The Court begins with the basic proposition of judicial integrity. In my view having read the entirety of the record filed, Mr. Ansari has not rebutted the presumption of judicial integrity. The evidence, or absence of evidence, does not establish the trial judge was not in a position to deliver his reasons on October 11, 2022 or any other date between then and February 1, 2023. At its most, the record confirms the trial judge was never in a position to deliver written reasons.

[70] As it relates to the various adjournments after October 11, 2022 until February 1, 2023, in my view many of those adjournments are explained by the trial judge’s involvement in other matters in court including a sexual assault trial involving minors. The record reflects the trial judge endeavoring to prioritize those other matters.

[68] What happened in the 7 months this matter was under reserve reflected the realities that many trial judges face, which Moldaver J. commented on in his reasons in K.G.K. at para. 61 when he states:

Finally, a reasonable amount of verdict deliberation time must account for the practical con straints that trial judges face, both individually and institutionally. Reasonableness under s. 11(b) has always accounted for the reality that “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources” (R. v. Allen (1996), 92 O.A.C. 345, at para. 27). Trial judges know all too well that this is a zero-sum proposition: verdict deliberation time that goes to one case can- not go to another. The appropriate division of time between cases therefore has regard to individual judges’ workloads, different approaches to reasons and reasoning, and the realities of their daily lives (see, e.g., K.J.M., at para. 102). That said, trial judges can and should consider proximity to the Jordan ceiling in determining how to prioritize cases in their workload.

[69] It is clear from K.G.K. and Jordan that trial judges must deliver their reasons within a reasonable period of time. While s. 123(5) of the CJA and The Ethical Principles establish 6 months as a benchmark for a reserved judgement (subject to exceptional circumstances and an extension being granted), the realities of when a judgement will be delivered can also be impacted, as noted by Moldaver J., by a myriad of other things.

[70] In this case it is apparent that there were intervening events that precluded the trial judge’s ultimate judgement. In general terms, the facts of this case demonstrate the need for trial judges to properly prioritize reasons for judgement and the delivery of those reasons even in the face of intervening trials. Put simply, if a judge knows that his or her reasons are overdue or they have been adjourned on a number of occasions, then the trial judge should consider interrupting another matter that the judge is involved in to deliver those reasons. In some situations, it may be appropriate (with the consent of counsel and the accused and recognizing the implications of s. 650 of the Code) to consider interrupting another matter to file written reasons for the Court’s ultimate determination with the court, with copies to counsel and read into the record. My suggestion in this regard is not an endorsement of such a practice but rather a reflection of Moldaver J.’s admonition from para. 116 of Jordan: that everyone in the justice system needs to be proactive to ensure more timely trials and, by implication, more timely delivery of reasons for judgement.

[71] The Crown in this case argued that the 7.2-month delay in the trial judge’s reasons is lower than the 9 months in K.G.K. and, thus, it should follow that this 11(b) application must fail. This argument, while having some appeal, fails to recognize the comments of Moldaver J. at paras. 81 and 82 of K.G.K., when he discusses the implications K.G.K. having been determined pre-Jordan. Moldaver J. stated as follows:

As I see it, the most important feature of this case is that K.G.K.’s trial and a substantial portion of the trial judge’s verdict deliberation time occurred before the release of this Court’s decision in Jordan. This context matters. Jordan was a call to action which no one in this case could have foreseen. Indeed, until Jordan was released, the parties appear to have conducted themselves in the complacent manner that defined the pre‑Jordan era. There is no hint that K.G.K. expressed any interest — let alone concern — about the pace of the proceedings, including the verdict deliberation time taken by the trial judge prior to the release of Jordan (some five and a half months after he reserved judgment). It is apparent that the release of Jordan caused an attitudinal shift among those involved in K.G.K.’s case: K.G.K. acknowledges that the release of Jordan triggered the filing of his delay motion; the Crown wrote to the Associate Chief Justice to inquire about the status of the verdict; and a date was subsequently set for the rendering of the verdict. Notably in all of this, K.G.K. offers no sufficient explanation for why he waited until the day before the trial judge rendered his verdict, almost four months following the release of Jordan, to file the s. 11(b) application at issue. Most significantly, the trial judge’s pre‑Jordan assessment of the requisite balance between the need for timeliness, trial fairness considerations, and the practical constraints he faced was reasonable at the time. Although the end of evidence and argument occurred close to the 30‑month ceiling, the proximity of a transitional case (like this one) to the Jordan ceilings cannot inform whether the verdict deliberation time taken was reasonable. That said, had Jordan been available to the trial judge when he took K.G.K.’s case under reserve, the case’s proximity to the ceiling would no doubt have been a factor that he would have considered in assessing how much time he reasonably needed to render his verdict. How long he would have taken to deliberate and release his verdict and reasons cannot be known with certainty, though it can be expected that he would have released his verdict and reasons sooner than he did. The impossibility of taking this consideration into account pre‑Jordan should not be held against him.

That said, had this case been heard entirely post-Jordan, I would in all likelihood have decided the s. 11(b) issue differently. As such, I must respectfully disagree with my colleague that the test I have proposed “raises the accused’s burden to a threshold that is both conceptually irrelevant and unreachable” and “could have the unintended consequence of sheltering trial judges’ deliberative delay from [Charter] scrutiny” (Abella J.’s reasons, at para. 94). That is simply not so.

[72] I take from Moldaver J.’s comments above that if the period of delay in the delivery of the trial judge’s reasons had been post-Jordan, the result may have been different; this particularly so given the Supreme Court’s conclusion at para. 77 that the facts of K.G.K. came close, “even perilously close”, to the line. As such, the benchmark of 9 months judicial delay in delivery of reasons is not helpful.

[73] What guides this court in its ultimate determination is the test that K.G.K. sets forth in the deliberation of whether a judge’s late delivery of reasons triggers the violation of 11(b). As noted by Moldaver J. at para. 54 of his reasons, the question to be asked is whether the deliberation time took markedly longer than it reasonably should have in all of the circumstances. As well, as noted at para. 55, the aforesaid test must be approached in light of the presumption of integrity from which judges benefit. The onus is on Mr. Ansari, and in my view, for the reasons articulated, he has not met that onus.

[74] This court is not endorsing 7 months as an appropriate period of delay in the delivery of reasons for judgment for, what I would describe as, a case of moderate complexity that required an initial 7 days of trial time followed by a further 5 days of evidence from the accused. In general terms, one should expect that the delivery of reasons in such a case will be delivered well within the 6 months set forth in the CJA and The Ethical Principles. These reasons simply reflect that, on the record filed by Mr. Ansari he has not met the very high bar for establishing a violation of s.11(b) reflected in K.G.K. Mr. Ansari’s application is, therefore, dismissed.

Released: March 21, 2023 M. L. Edwards, RSJ.