Court File and Parties
COURT FILE NO.: CR-24-0000020-00 DATE: 20240709 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – HUSSEIN HARB
Counsel: Katherine Cinerari, for the Crown Charles Shortt, for the Defendant
HEARD: June 27, 2024
Reasons for Decision
REGIONAL SENIOR JUSTICE EDWARDS
Overview
[1] Mr. Harb is charged with six offences under the Criminal Code of Canada (the “Code”). The charges include uttering threats, assault, kidnapping, forcible confinement, robbery, and extortion.
[2] In this application, Mr. Harb alleges a violation of his rights under s. 11b of the Canadian Charter of Rights and Freedoms (the “Charter”) and seeks a stay of proceedings pursuant to s. 24(1) of the Charter.
[3] These Reasons explain why the application fails.
The facts
[4] Mr. Harb was arrested on April 28, 2022. The information was sworn on March 21, 2022.
[5] The Crown and the defence agree that the total delay until the anticipated completion of the trial is 28 months and 22 days for a total of 875 days. The total delay falls below the presumptive Jordan ceiling.
Position of Mr. Harb
[6] As it is conceded that the net delay is below the Jordan ceiling, it is submitted, on behalf of Mr. Harb, that his case has taken markedly longer than it should have, and that he has pursued the matter expeditiously.
[7] It is argued, on behalf of Mr. Harb, that a review of the communications between his counsel and the Crown reveals a pattern which supports his position that the Crown did not generally respond to defence efforts seeking to streamline issues and conduct a fulsome Crown pretrial.
[8] It is argued on behalf of Mr. Harb that the charges before the Court are not overly complex. It is suggested that the events underlying the charges arise out of a continuous incident that it is suggested by defence counsel are similar to what he describes as a standard domestic or assault simiplicitor. The Crown case involves four civilian witnesses, two co-accused (whose matters are no longer before the Court), as well as lengthy statements and surveillance videos. Defence counsel argues that it should have been clear to all involved that this matter would benefit from judicial case management at an early stage as any trial or preliminary inquiry would likely take a great deal of Court time.
[9] It is argued on behalf of Mr. Harb that the reasons for the delay in this matter, putting it so close to the Jordan ceiling, distinguishes Mr. Harb’s case as one where a breach of his s. 11b rights should be established and a stay should be granted.
Position of the Crown
[10] Crown counsel argues that given that the agreed upon delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable: see R. v. Colter, 2016 ONCA 704, at paras. 34-41.
[11] To meet his onus, Crown counsel correctly argues that Mr. Harb must establish that: he took meaningful steps to demonstrate a sustained effort to expedite proceedings and that the case took markedly longer than it reasonably should have: see Jordan at para. 82. Crown counsel argues that Mr. Harb has failed to meet his onus.
[12] As it relates to the various communications between Crown counsel and defence counsel, it is argued that those communications reveal that most of such communications are related to a request for a bail variation as well as to raise criticism with respect to the complainant. Crown counsel disagrees with the defence in his characterization that the communications clearly establish that the Crown failed in its responsibilities to set up a meaningful Crown pretrial.
[13] Crown counsel argues that there were repeated instructions from Crown counsel to defence counsel which required the defence to schedule and conduct a fulsome Crown pretrial in accordance with the Crown pretrial protocol established by the local administrative judge.
[14] A number of email communications were submitted on behalf of Mr. Harb in support of his application which it is argued establish that he was intent on a fulsome and timely Crown pretrial. Crown counsel disagrees with this submission and suggests that the various e-mails establish that what the defence characterizes as Crown pretrials were in fact conducted by his counsel as a means to discuss bail variation as well as to make criticism of the complainant. The Crown pretrials it is argued as revealed in various email communications were not in fact Crown pretrials used to discuss resolution and trial issues.
[15] It is argued by the Crown that there was an approximate eight-month delay to conduct a meaningful Crown pretrial. It is argued that four months of that delay should be deducted from the total net delay of 28 months and 22 days, bringing the total delay to 24 months and 22 days.
[16] Crown counsel also points to the Covid-19 pandemic as another impact on the delay. In that regard, the Crown argues that the ripple effects of the Covid-19 pandemic were felt at the time of the subject offences and continue to impact the Court appearances of Mr. Harb. While no specific deductions are sought by the Crown, as it relates to the Covid-19 pandemic, it is argued that it is nonetheless something this Court must take into account in its determination as to whether Mr. Harb’s case has taken markedly longer than was reasonable.
Analysis
[17] I have reviewed the various e-mail communications that were submitted in evidence in support of Mr. Harb’s application. A review of those various e-mail communications satisfies me that there were a mixture of concerns raised on behalf of Mr. Harb, including concerns with respect to a bail variation; the strength of the complainant’s anticipated evidence; requests for disclosure, and, ultimately, a meaningful Crown pretrial.
[18] I am not satisfied that the various e-mail communications rise to the level where it can be established that during the eight months in question, Mr. Harb unequivocally participated in a Crown pretrial. While the entirety of that eight months period of time should not lie at the feet of Mr. Harb, nonetheless, some portion of that time delay should be reflected in the total delay when this Court considers whether or not Mr. Harb’s case took markedly longer than it reasonably should have.
[19] I am also satisfied that this Court should consider the ripple effect that Covid-19 continues to have throughout the Central East Region as well as elsewhere in the province of Ontario. As in the case of R. v. Hamblett, 2022 ONSC 5726, at paras. 46-49, the Court found that it was not necessary to deduct time given that the matter was below the presumptive ceiling. The Court in Hamblett, nonetheless, indicated that “it would be appropriate to deduct an amount of time in recognition of the “ripple” effect caused by the pandemic’s closing of the court.”
[20] It is also worth observing that in scheduling the trial date in this matter the Court also had to take into account pretrial motions that defence counsel indicated he would be bringing on behalf of Mr. Harb. In that regard, four days of pretrial motions were set aside. As it now turns out, I am advised that only two days will be required for those pretrial motions. Time set aside for pretrial motions is valuable court time that impacts on the overall scheduling of all criminal matters that come before this Court. All too often this Court is advised on the eve of time set aside for pretrial motions that the motions are not proceeding for one reason or another.
[21] The Court is not being critical Mr. Shortt. In fact, it is helpful to know now, in advance, that the Court will only have to set aside two of the four days previously set aside for the pretrial motions. Judicial resources, however, are a precious commodity and, ultimately, the days set aside for pretrial motions have a ripple effect in terms of the availability of trial time and thus the fixing of Jordan complaint trial dates.
[22] I am not satisfied that Mr. Harb has met his onus to establish that his case has take markedly longer than it reasonably should have to reach the anticipated trial date. The presumptive delay in this matter, when accounting for the additional four months delay attributable to the defence as reflected in my comments above, is just under 25 months.
[23] Mr. Harb’s motion seeking a stay pursuant to s. 11b of the Charter is dismissed.
REGIONAL SENIOR JUSTICE EDWARDS Released: July 9, 2024
Reasons for Sentencing - Alex Clarke
COURT FILE NO.: CR-24-0000020-00 DATE: 20240709 ONTARIO SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING – and – ALEX CLARKE Defendant
REASONS FOR SENTENCING Regional Senior Justice Edwards
Released: July 9, 2024