MCL Nugget: Shaikh ONCA

R v Shaikh, 2019 ONCA 895

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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.

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.

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 Amer’s charges were withdrawn by the Crown.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.

Only Time will Tell: Milani and the 11(b) Clock

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April 20, 1985. EN is asleep in her home during the early morning hours. She awakes to find a masked assailant, armed with a knife, shining a flashlight into her eyes. The assailant attacks, tying her up and raping her. Then he takes $21 from her purse and leaves.  

September 18, 1985. CS hears a noise in her home. She arms herself with a handgun, and encounters an intruder in the hallway. His face is covered; he is armed with a knife. He threatens her. CS flees the house.

September 9, 1986. JB is asleep during the early morning hours. She awakes to the sound of running water. She encounters a masked assailant. The assailant ties her up and rapes her. He gets away.

July 11, 1987. JB encounters a masked intruder in her home for the second time. She is blindfolded and raped. The intruder assures her that he won’t “bind her feet like the last time.” He takes $67 from her purse before leaving.

December 3, 1987. SR and her co-worker, AC, return to SR’s home after midnight. A masked intruder is armed with a handgun. The women are bound, blindfolded, and separated. He rapes SR at gun point. He demands oral sex from AC, and SR tries to escape. He catches SR, ties her up and blindfolds her again, and strangles her. Before leaving, the intruder takes money from both of their purses.

December 22, 1987. Donald Milani is arrested and charged in connection with this string of violent, sexual assault home invasions. The Crown advanced a similar fact application. The preliminary inquiry judge found there was insufficient evidence to warrant a committal to trial, based on similar facts: [2012 ONSC 6892, para 26].

Although the preliminary inquiry judge found that the same person was responsible for the attacks on EN, JB, SR and AC, he was not satisfied that the evidence adequately identified Milani. At the time, DNA technology was not advanced enough to connect Milani to the semen and saliva that was seized at the crime scenes. He was discharged on all counts, except for one. On that count, Milani was acquitted at trial.

Time passed, but science improved. In 2008 and 2009, police resubmitted samples of the semen and saliva seized from the crime scenes to the Centre of Forensic Sciences (CFS). Due to advancements in technology, CFS was able to conclude that the DNA seized from the crime scenes matched that of Donald Milani. The probability of a randomly selected, unrelated individual sharing the same DNA profile of Milani was one in 18.8 billion. The Crown’s evidence was no longer circumstantial. It was overwhelming.

Based on this new evidence, nearly 25 years later, the Crown preferred an indictment against Milani. On August 17, 2010, he was arrested and charged with 19 counts relating to the violent sexual attacks on EN, JB, SR and AC. His trial was scheduled for early 2013. Prior to that trial Milani proceeded to bring an application for a stay of proceedings pursuant to s. 11(b) and s. 7 of the Charter: 

Piercem J, of the Ontario Superior Court, concluded that Milani’s right to be tried within a reasonable time, pursuant to s. 11(b), had indeed been infringed. Consequently, she did not address the s. 7 arguments advanced. A stay was granted: [2012 ONSC 6892].

The Crown disagreed with Piercem J’s finding. The matter proceeded on appeal: 2014 ONCA 536.

At the Court of Appeal, Milani argued that for the purposes of s. 11(b), the “constitutional clock” began to run when he was discharged from the preliminary inquiry in November 1989, and subsequently stopped ticking once the new indictment was preferred in July 2010. Milani was unaware during the intervening time that there was any ongoing investigation into his involvement in the sexual assaults [paras 7, 10].

Milani did not contend that the entire “gap” period between 1989 and 2010 constituted unreasonable delay. He submitted that the period of time between 1987 and 1995 was inherent delay, necessary to permit the advancement of DNA science. However, he argued that the subsequent 15 years of delay was solely attributable to the Crown, arising from such conduct as the police failing to submit items for testing at earlier dates, and the delay associated with obtaining a preferred indictment [para 11].

Although Milani acknowledged no actual prejudice resulted, he argued that prejudice should be inferred, as the delay far exceeded the guideline articulated in R v Morin [[1992] 1 SCR 771].

The Crown’s position on appeal was that this case should be classified as a cold case. The Crown argued that the court should not, through the vehicle of a Charter application, micromanage police investigations. The Crown submitted that the time accruing before the indictment was preferred should be considered pre-charge delay, and as such, that because Milani was not “a person charged with an offence” during that time, the s. 11(b) clock was not running [para 13].

The Court of Appeal agreed with the Crown. Van Rensburg JA, writing for the court, concluded that the trial judge erred in relying on the 1983 decision R v Antoine [(1983), 5 CCC (3d) 97] to conclude that the “gap” period in question should be included in the s. 11(b) analysis. The court found that a close examination of the more recent Supreme Court decisions, R v Kalanj [[1989 1 SCR 1594] and R v Potvin [[1993] SCJ No 63], properly supported the conclusion that the period in question is pre-charge delay. Given that s. 11(b) is designed to protect only against the harms that result from post-charge delay – not pre-charge or appellate delay – Milani’s rights pursuant to s. 11(b) were not engaged [para 30].

The Court of Appeal revisited the decision of Re Garton and Whelan [(1984), 47 OR (2d) 672 (HC)], referenced in Antoine and relied upon by Piercem J in her reasons. The court noted three important distinguishing factors present in that case, notably absent in the case at bar:

First, the accused was aware in Garton and Whelan throughout the intervening period in question about the ongoing efforts to have him prosecuted. Milani had no such knowledge. Some knowledge, on the part of the accused, that an active investigation is underway is required before the s. 11(b) clock will run, in the absence of active charges: [paras 38-39].

Second, there was no change in the evidence against the accused in Garton and Whelan. In Milani’s case, strong new evidence inculpating him as the assailant was unearthed as a result of scientific progress: [para 38].

Third, real prejudice would be suffered by the accused in that case should a trial have been heard after the delay, given the fading memories of witnesses. It was conceded by Milani that no real prejudice had incurred, only that there was a possibility of prejudice: [paras 12, 39, 53].

The Court points out that these distinctions make it clear that Garton and Whelan and Antoine can be interpreted in a way that do not support the arguments advanced by Milani. However, the Court actually went further to state that even if those cases stood for broader propositions that would indeed support Milani’s position, any such propositions have been overtaken by newer jurisprudence: [para 40].

The Court then moved to revisiting the Supreme Court’s reasoning in R v Kalanj and R v Potvin. In Kalanj, the court concluded that extending s. 11(b) to the pre-charge period would be unworkable. It was found that Courts are not equipped to fix time limits for investigations, as circumstances vary differently from case to case, and an investigation must, by its very nature, be confidential [para 42].

In R v Potvin, the Supreme Court concluded that appellate delay does not trigger the ticking of the s. 11(b) clock. The Court found that the focus of protection extends to the interests of a person who has been charged, and is subject to the processes of the court. The relevant period of time for an s. 11(b) analysis is when there is a “proceeding on foot.”  Active charges must be outstanding against the person. The anticipation of charges is not enough: [para 46].

Based on the reasons articulated in Kalanj and Potvin, the Court of Appeal endorsed the Crown’s position that the ambit of s. 11(b) does not extend on a societal level to the speedy investigation of crime. The only caveat are instances where unilateral state action may control whether or not charges are withdrawn or re-laid (such as when a formal charge has been withdrawn, and there is an intention of laying a new one). In such instances, it makes sense to consider the entire period of time in the s. 11(b) analysis. If the person is no longer actively charged, they must remain subject to the very real prospect of new charges [para 48-49] [emphasis added].

For these reasons, the Crown's appeal was allowed. The matter was referred back to the trial judge [para 54].

While it is clear from this case that the Court recognizes the importance of allowing law enforcement to conduct investigations in timeframes that are appropriate to each case (particularly in light of scientific improvements), the significance of the 25 year timespan in Milani’s case still remains undetermined. Inevitably, Milani will advance a s. 7 argument at trial, arguing that the significant passage of time has impacted both his right to make full answer and defence, and trial fairness. So while the 11(b) clock was not ticking, s. 7 has not yet been addressed. Ultimately, only time will tell if the case against Milani will proceed to be tried on its merits.

SS