Reasons for Decision on Section 11(b) Application

Court File No.: CR-19-2032
Date: 2025/06/05
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Alex Beseiso

Applicant Counsel: Self-Represented
Amicus Curiae: Robert Carew (written submissions only)
Respondent Counsel: Vanessa Stewart (for the Crown)
Heard: April 23, 2025

Released: June 5, 2025
Judge: Carter

Overview

[1] Mr. Beseiso seeks a stay of proceedings based on an alleged breach of his constitutional right to be tried in a reasonable time—a right protected under s. 11(b) of the Charter of Rights and Freedoms.

[2] The application was originally scheduled to be argued prior to the commencement of the trial. Unfortunately, not all the transcripts had been delivered to the parties. As a result, I concluded that the application would be heard after trial. At the conclusion of the trial, I convicted Mr. Beseiso of one count of extortion and one count of obstruct justice. Given the outstanding s. 11(b) application, I made findings of guilt on both counts but did not enter convictions.

[3] Amicus curiae was unavailable for the s. 11(b) hearing date but provided helpful written submissions and a chart with respect to the various periods of delay. The Amicus argues that of the total time period from the date the information was sworn to the end of the trial of 1,945 days, the court could attribute certain delays to the accused totalling 840 days leaving a balance of 1,105 days or 36.83 months based on 30 days per month.

[4] The Crown submits that a much larger number of days should be attributed as defence delay resulting in a number well below the ceiling of 30 months. In the alternative, it is argued that the delay in the matter is reasonable in all the circumstances. The exceptional nature of the conduct of the Applicant has made the matter procedurally more complex.

Legal Principles

[5] The presumptive ceilings by which an accused must be brought to trial are 18 months for cases in the Ontario Court of Justice and 30 months for cases in the Superior Court of Justice. In cases where the total delay, less delays either waived or exclusively caused by the defence, exceeds the presumptive ceiling, the onus shifts to the Crown to demonstrate that the delay was nevertheless reasonable. Where the delay falls below the ceiling, the defence must demonstrate that the period of time leading to the end of trial was nevertheless unreasonable. Stays of proceedings for delays that fall below the ceilings will be rare and limited to clear cases: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 5, 46-48 and 49.

[6] Defence delay has two components. The first is delay waived by the defence. Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights: Jordan, at para. 61.

[7] The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises those situations where the accused's acts either directly caused the delay or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial. As an example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable: Jordan, at paras. 63-64.

[8] Defence conduct encompasses both substance and procedure—the decision to take a step as well as the manner in which it is conducted may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements, and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 32.

[9] Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay: Jordan, at para. 65.

[10] Delay (minus defence delay) that exceeds the ceiling is presumptively unreasonable. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances: Jordan, at para. 68.

[11] In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. With respect to discrete events, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify. In addition, if the trial goes longer than reasonably expected—even where the parties have made a good faith effort to establish realistic time estimates—then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance: Jordan, at paras. 71 to 73.

[12] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded but any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted: Jordan, at para. 75.

The Intake Period in the Ontario Court of Justice

[13] Within the period July 12, 2019 (date of arrest) to February 7, 2020 (when a preliminary hearing was scheduled) the Crown seeks to attribute a number of days to defence delay. It is the position of the Amicus that although the accused changed lawyers in this period and went on to self-represent, it appears from the Crown submissions that there were outstanding disclosure issues up to February 7, 2020, and so no delay should be attributed to him.

[14] First, the Crown argues that disclosure was available, and it was ready for a CPT to occur at the first appearance. Defence counsel requested a three-week adjournment to review that disclosure. At the next appearance on August 12, 2019, counsel had not in fact picked up the disclosure, so the matter had to be put over two more weeks to August 26, 2019. The Crown submits that delay of 14 days should be apportioned to defence.

[15] Second, it is argued that both Crown and the defence were ready to set a JPT on August 26th but that defence unavailability led to the JPT being scheduled for September 11th. The Crown submits 13 days should be apportioned to the defence.

[16] While delays in picking up disclosure (R. v. Saeed, 2021 ONSC 5084) and defence unavailability (Jordan) can be attributed as defence delay in certain circumstances, I am not prepared to find so here. While an initial disclosure package was provided, there was still outstanding disclosure. According to the JPT notes from September 11th (as discussed on the record by a judge at a subsequent self-represented pretrial), the Crown provided the defence with additional disclosure that same day. It appears a meaningful earlier JPT would not have been possible.

[17] Third, the Crown points to a series of periods of defence-induced delay due to the accused dismissing counsel and retaining new counsel. At three points during this intake period, he sought time to retain counsel:

a. Original counsel was removed from the record September 16, 2019, after counsel conducted a JPT. As a result, the matter was put over for a self-represented judicial pre-trial on October 17, 2019. The Crown submits that period of 32 days should be attributed to defence. During that appearance, 3.5 days were approved by the court for a trial with defence counsel and 5 days were approved by the court for a self-represented trial. The accused had the matter go over for the purpose of retaining counsel.

b. On November 18, 2019, the Crown was ready to set trial dates based on the approved trial times. New counsel appeared on record and requested another JPT. The Crown submits that this 30 day delay is also attributable to defence.

c. Finally, the matter was put over for a November 27, 2019, JPT with a subsequent appearance on December 2, 2019. At that point, there was another application to remove counsel of record. The Crown submits that this 14 day delay is attributable to defence.

[18] The weight of the authorities supports the view that regardless of why it became necessary for a defendant to change counsel, the delay that the change causes is not to be counted toward the presumptive ceiling. It will either be characterized as defence delay or as delay attributable to a discrete exceptional event. The party who causes an adjournment is responsible for the entire delay until the matter can be re-scheduled, unless the other party is unavailable for an unreasonable length of time: R. v. Browne, 2020 ONSC 5244 at paras. 60 and 61.

[19] The delays the Crown seeks to attribute to the defence were the direct result of the accused choosing to represent himself, then retaining new counsel then choosing to represent himself again. It is defence delay. There is no suggestion the Crown was unavailable to set dates at any point during this period. In fact, the record supports the notion that they were eager to set trial dates. A total of 76 days will be deducted from the total delay.

Adjournment of the Preliminary Hearing

[20] The preliminary hearing was set to commence on November 4, 2020. The day prior the accused indicated by email that he had COVID symptoms. The Crown cancelled its witnesses, and the matter did not proceed that day. The next day the accused again emailed stating he had COVID symptoms and did an online screening and was not allowed to enter the courthouse. The accused was sent ZOOM co-ordinates but did not sign in and could not be reached. The matter was adjourned to the next day at which time the preliminary hearing commenced. Continuation dates were needed, and the preliminary hearing eventually concluded on January 7, 2021.

[21] The Crown argues that some delay should be attributed to the defence for re-electing to Superior Court and conducting a preliminary hearing. I do not accept this argument. The accused had a right to re-elect to a trial in Superior Court. The matter transitioned smoothly, and no additional time was required during the intake period to accommodate this change. No delay resulted.

[22] The Crown further argues that the delay that resulted from the need to obtain continuation dates should fall at the feet of the defence. In my view, this is not defence delay. Rather it is the kind of exceptional circumstance that was contemplated in Jordan (medical emergencies). As a result, a period of 61 days from the final day of the scheduled preliminary hearing to the continuation date will be deducted from the total period of delay.

The Setting of Trial Dates in the Superior Court of Justice

[23] The Crown submits that a further 498 days of delay should be attributable to defence from the last day of the preliminary hearing to a May 16th, 2022, appearance where it was clear the accused would not be attending for his trial in-person or via zoom. It is unclear on what basis the Crown seeks to have this entire period characterized as defence delay. There is insufficient evidence to conclude that the whole process was a sham in the sense that the accused never intended to attend for his trial.

[24] That said, there were some delays caused by the accused during the period of time in which trial dates were obtained and set:

a. January 13 to March 3, 2021: there was an express waiver by the accused of 49 days.

b. March 3 to May 21, 2021: the accused pursued a certiorari application. He did not attend the date set for it, so it was rescheduled. There was no merit to it. It was frivolous and ultimately dismissed. This resulted in a delay of 79 days.

c. May 21 to July 16, 2021 – after the accused failed to attend for the certiorari application, a summon was issued for him to appear on July 16, 2021. The accused acknowledged the new date but failed to attend. He is responsible for the 56 day delay.

d. July 16 to August 24, 2021 – the accused did not appear in the Assignment Court when dates could have been scheduled. A further 39 day delay resulted.

[25] The remainder of the period from August 24, 2021, to September 16, 2021 (setting and attending a JPT) and September 16, 2021, to May 24, 2022 (setting a date and the time to trial) are simply part of the standard intake process in Superior Court. It is of note that earlier trial dates could not be attained as the assigned Crown stated he was not available until May 2022. This period of delay does not fall at the feet of the accused.

[26] As a result, 223 days will be attributed as defence delay during this period.

The Aborted First Trial

[27] As noted previously, the accused did not attend his trial that was scheduled to commence on May 24, 2022. A bench warrant was issued for his arrest and the trial dates were cancelled. He remained at large until his arrest on November 6, 2023.

[28] In their initial submissions both the Crown and Amicus agreed that this period of delay should be attributed to the accused. During oral submissions, Mr. Beseiso submitted that he should not be held responsible for the delay. In support of that submission, he referred to the fact that he was acquitted of a failure to appear charge in Milton. The Court agreed to order the transcript and to have Amicus provide further submissions. Upon receipt of the transcript, Amicus wrote that the failure to appear charge in Milton had no bearing on this case. I agree. This period of 531 days will be attributed to the accused.

Delay to Second Trial

[29] The accused was arrested on November 6, 2023. He remained in custody in Halton awaiting other charges until June 3, 2024, at which time he was released. He turned himself in on the Ottawa charges two days later. I agree with Amicus that the Crown knew the accused was in custody and did nothing to bring him to court on an executed bench warrant. The Crown waited until the expiry of his period of custody in Halton and, even then, did nothing to bring the accused to court.

[30] Generally, whether an accused flees or is unlawfully at large and fails to attend court as required, the delay that ensues is characterized defence delay: see R. v. William, 2025 ONSC 2462, at para. 58. Nevertheless, the Jordan framework imposed a duty on the Crown to mitigate unavoidable delays and act proactively. The Crown did nothing to mitigate further delays. Its actions were the very antithesis of being proactive. There is no basis to attribute any of this period of delay to the accused.

[31] The Amicus and Crown both agree, however, that the period from June 5, 2024, to January 10, 2025, should be considered defence delay. The scheduling of a new trial would not have been necessary had accused appeared at originally scheduled trial on May 24, 2022. A period of 221 days will be deducted.

Conclusion

[32] There was a period of delay of 1,945 days from the date the information was sworn to the end of the trial. Once the delay that was the direct result of the defence and that attributable to exceptional circumstances is considered, the total delay for Jordan purposes is 833 days. That is a delay of approximately 27.5 months—below the 30 month presumptive ceiling. As a result, the application is dismissed.

Released: June 5, 2025

Carter