


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kassam, 2018 ONCA 266

DATE: 20180316

DOCKET: C63288

Feldman, Watt and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Inayat Al-Nashir Kassam

Appellant

Mark Hogan, for the appellant

Andrew Cappell, for the respondent

Heard and released orally: March 15, 2018

On appeal from the conviction entered on December 21,
    2016 by Justice R. Cary Boswell of the Superior Court of Justice, sitting with
    a jury.

REASONS FOR DECISION

[1]

Mr. Inayat Kassam, the appellant, appeals his convictions on two counts
    of fraud, and a count of uttering a forged document. He claims that application
    judges erred in denying his pre-
Jordan
s. 11(b) application, and his
Rowbatham
application for state funded legal representation.

[2]

Dealing first with the s. 11(b) challenge, both counsel on this appeal
    agree that this is a transitional
Jordan
case. Its outcome essentially
    turns on whether the application judges decision complied with the
Morin
regime,
    in place when the s. 11(b) decision was made.

[3]

The total delay from charge until the end of trial was 35 months. After
    removing inherent and neutral delay, the application judge identified under six
    months of institutional delay, and held that, given the seriousness of the
    offences and the degree of prejudice caused by the delay, a stay was not
    appropriate.

[4]

The appellant takes issue with the application judges prejudice
    evaluation. He also disputes the application judges delay calculation.
    Although the appellant has not raised issue with respect to 14 months of the
    delay, his essential complaint is that the remaining 21 months of delay
    exceeded the
Morin
18 month guideline and is unreasonable, given the
    prejudice he has suffered.

[5]

We do not agree. We can find no error with the application judges
    prejudice findings. Moreover, after consideration of the appellants challenges
    to the application judges delay calculations, the period of delay remains far
    under the
Morin
guidelines, making a stay of proceedings inappropriate.

[6]

One of the periods of delay the appellant identifies as unreasonable
    runs from January 27, 2016 when the superior court trial date was set, to June
    16, 2016, when the impugned s. 11(b) application was argued and denied. We do
    not agree that this delay counts against the Crown as institutional delay. It
    is clear from the record that the date of the s. 11(b) application was agreed
    to by the parties to accommodate the appellant, who was studying law in the
    United Kingdom for most of this period, and who required the balance of this
    period to prepare for the s. 11(b) application, upon his return. As he was
    unavailable during this period, cannot attribute this period of delay to the
    Crown.

[7]

Another period of delay the appellant argues for is the eight months and
    12 days of delay between December 12, 2014 and August 24, 2015 that the
    application judge found to be neutral. The appellant argues that the
    application judge concluded improperly that this delay was attributable to the
    appellants re-election to have a preliminary inquiry instead of a provincial
    court trial. He submits that there is no evidence that earlier dates would have
    been available if he had elected a preliminary inquiry from the outset.

[8]

Again, the application judge characterized this period as neutral delay
    on the basis that the appellant was not ready to proceed with the preliminary
    inquiry until August 24, 2015, making it impossible for the case to move
    forward before then. We see no error in that characterization. During the
    relevant period the appellant was initially attempting to retain counsel, and
    then preparing, as a self-represented litigant, for the filing of a Statement
    of Issues and a focus hearing.

[9]

Neither of the impugned periods of delay, which together total 13
    months, count against the Crown as institutional delay. When this 13-month
    period is deducted from the 21 months of total delay complained of, the net
    delay is dramatically under the
Morin
guideline. In this context, given
    the seriousness of the charges and the absence of significant prejudice, the
    application judges decision to reject the s. 11(b) application was inevitable.

[10]

The
Rowbotham
ground of appeal fares no better. A
Rowbotham
application
    for court-ordered, state-funded legal representation can succeed only if the
    applicant demonstrates that he is indigent and has no means to retain counsel
    otherwise. The application judge properly held that the appellant had not
    established this, as he had not filed supporting documentation confirming his
    claims of indigence. Simply put, the record offered by the appellant was
    insufficient to meet the burden he carried on this point. On this basis alone
    the
Rowbotham
appeal must be denied.

[11]

Nor
    has the appellant demonstrated that the application judge erred in finding that
    the appellant had not established that his fair trial right would be materially
    compromised if forced to proceed to trial without counsel. The application
    judge made considered findings about the appellants capability for
    self-representation in light of the complexity of the trial, properly noting
    the duty of the trial judge to assist the appellant, when necessary. The
    appellant has provided no basis for concern that the trial that was conducted
    proved to be unfair.

[12]

The
    appeal is therefore dismissed.

K.
    Feldman J.A.

David
    Watt J.A.

David
    M. Paciocco J.A.


