R v Shaikh, 2019 ONCA 895

This case deals with the complicated issue of unreasonable delay in the context of an 11(b) application and exhibits the importance of obtaining a waiver of 11(b). It also exposes some of the pressures on the legal system with the lack of courtroom space and the necessity of taking measures to expedite proceedings.

FACTS

On October 6, 2014, the appellant and his former common law partner, Ms. Amer, were charged with uttering death threats, carrying a concealed handgun and pointing a firearm. They were both released on bail and Ms. Amer absconded by leaving the jurisdiction.

Several attempts to have a preliminary inquiry were made but were impeded for various reasons. On the first date of the preliminary hearing, October 4, 2016, Ms. Amer’s charges were withdrawn by the Crown. The preliminary inquiry could not proceed as the court could not accommodate the matter at that time.

On October 6, 2016, the Appellant’s counsel brought an application to get off the record for lack of communication and breakdown in the lawyer-client relationship. The application was denied and the preliminary inquiry judge put the matter over to the next day to deal with unexpected changes, specifically the Crown’s withdrawal of charges against Ms. Amer and the expressed intention to call her as a witness at the trial.

On October 7, 2016, the appellant’s counsel informed the court that he and his co-counsel needed to withdraw for ethical reasons. This was accepted by the preliminary inquiry judge and the counsel were removed from the record. The matter was remanded to November 1, 2016 and then to November 22, 2016 for new counsel to be retained.

On November 22, 2016, new counsel appeared for the appellant and indicated that the appellant wished to re-elect to be tried before the Ontario Court of Justice. On November 28, 2016, the re-election was consented to by the Crown. However, no waiver of 11(b) was obtained by the Crown or offered by the appellant.

On November 30, 2016, the appellant’s counsel expressed intent to bring a section 11(b) application in advance of the trial. On March 3, 2017, an application judge heard the 11(b) motion and the matter was adjourned to the first date set for trial which was March 27, 2017. In her March 29, 2017 reasons, the application judge quantified the total delay from the charge on October 6, 2014 to the scheduled beginning of the trial (March 27, 2017) to be 2 years, 5 months and 21 days. She also noted that since the matter would have to be continued and would not end on March 31st, 2017 as originally anticipated. Based on courtroom availability, the realistic conclusion was determined to be April 12, 2017. In that case, the total delay would be 919 days or 30.2 months.

The net delay was considered secondly which included three periods of ‘defence delay’ between February 24, 2015 and May 2, 2015 (66 days); January 18, 2016 to March 7, 2016 (49 days) and October 6, 2016 to March 27, 2017 (172 days). With the defence delay concessions, the net delay was calculated to be 287 days. The Crown asked the court to treat 7 months of the delay which was caused by the complainant’s travel plans as a discrete event. This was refused as the dates had been set for 10 months down the road and no evidence was presented as to when the airplane tickets were booked, the purpose of the trip or Crown efforts to ascertain the availability of the complainant.

Notwithstanding the appellant’s re-election, the judge applied the 18-month presumptive ceiling and thus the 20-month net delay was identified as presumptively unreasonable. The presumption was rebutted as this was a transitional exceptional circumstance case, this was a busy jurisdiction lacking institutional resources, the matter was moderately complex, the charges were serious and the Crown withdrew charges on the co-accused to expedite matters.

The matter concluded on April 12, 2017 as predicted and the decision was delivered on May 17, 2017. He was convicted of the charges of making a death threat and carrying a concealed weapon but the charge of pointing a firearm was withdrawn.

The appellant renewed his 11(b) application arguing that the time taken to reach a decision should be included in the delay. This was dismissed by the trial judge on July 20, 2017 finding that deliberation delay is not included in calculating periods of delay under Jordan.

ISSUES

The appellant appealed on both 11(b) rulings, arguing that the net delay was mischaracterized and miscalculated. Further, he argued that the deliberation period should be included in calculating delay.

The Crown argued that the appellant initially elected to have a preliminary inquiry and then re-elected to proceed in the ONCJ, thus, the presumptive ceiling which should apply is 30 months.

WHICH PRESUMPTIVE CEILING APPLIES?

At para 46 of Jordan, there court states:

At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry). [Emphasis added].

And then at para 49:

We note the 30-month ceiling would also apply to cases going to trial in the provincial court after a preliminary inquiry.

And in footnote three of the majority decision:

While most proceedings with a preliminary inquiry are eventually tried in the superior court, this is not always the case. For example, a case may go to trial in the provincial court after a preliminary inquiry if the province in which the trial takes place offers this as an option (such as Quebec), or if the accused re-elects a trial in the provincial court following a preliminary inquiry. In either case, the 30-month ceiling would apply.

In the matter at hand, the re-election did not occur after a preliminary inquiry but instead before it had commenced. The court made note of the case of D.M.S. v R, 2016 NBCA 71 where on the date of the preliminary inquiry, the accused waived the hearing and re-elected to be heard in provincial court. The parties agreed the ceiling was 30 months and Quigg J.A. accepted the position at para 17:

In my view, when an accused makes an election and requires the Provincial Court to schedule a preliminary inquiry, barring exceptional circumstances such as a very early re-election to be tried by a Provincial Court judge, the case should be treated as one that included a preliminary inquiry even if the preliminary inquiry is eventually waived.

The court noted that this decision was based primarily on the parties’ joint agreement to proceed with the 30-month ceiling. There was no such agreement here and thus the court found the appropriate ceiling was 18 months.

WAS THE DELAY PROPERLY CALCULATED BY THE APPLICATION JUDGE?

The court determined that the period between February 24, 2015 to May 1, 2015 was misclassified as defence delay. Jordan established at paras 61 to 63 that such delay has two components: periods waived by the accused and periods of delay solely caused by the defence. Upon review, this period was not waived and was not attributable solely to the accused.

The period of delay resulting from the appellant’s counsel’s application to get off the record was treated as a discrete exceptional circumstance. In reclassifying the delay, the court found that at the very least, the delay amounted to 697 days or nearly 23 months.

DID THE APPLICATION JUDGE ERR BY MISAPPLYING THE TRANSITIONAL EXCEPTION?

The court noted that the transitional exception is dependent upon whether the Crown relied on the Morin framework which was pre-Jordan. If the Crown has not, it cannot state that it relied reasonably with respect to delay on the law as it previously existed. The court found that the transitional exception should not have been applied. The delay was presumptively unreasonable by a significant margin that exceeded the Jordan guidelines and that the Morin guidelines, which suggested 8 to 10 months for cases in the OCJ, were exceeded substantially. The court found there was no meaningful demonstration that the Crown had been mindful of its 11(b) obligations, even as they existed prior to Jordan and that the seriousness of the charges and the finality of a stay cannot fairly outweigh those considerations.

CONCLUSION

The appeal was allowed, the convictions set aside and the charges were stayed against the appellant.