



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shaikh, 2019 ONCA 895

DATE: 20191113

DOCKET:
C64925

Watt, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Daniyal Shaikh

Appellant

Ian R. Smith, for the appellant

Katie Doherty, for the respondent

Heard: October 7, 2019

On appeal from the conviction entered on May 17, 2017 by
    Justice Marcella Henschel of the Ontario Court of Justice.

Paciocco J.A.:

OVERVIEW

[1]

Muhammad Daniyal Shaikh appeals his convictions on serious charges
    arising out of a confrontation he had with a man alleged to have sexually
    assaulted Ms. Jawairia Amer, his former common law partner. The Crown proved to
    the satisfaction of a trial judge that on October 4, 2014, Mr. Shaikh
    threatened the man with a handgun and then robbed him by taking his cellphone.
    Accordingly, Mr. Shaikh was convicted of robbery with a firearm, contrary to
Criminal
    Code
, s. 344(1); uttering a death threat contrary to
Criminal Code
,
    s. 264.1; and carrying a concealed weapon, a handgun, contrary to
Criminal
    Code
, s. 90(1). He received a global sentence of five years incarceration,
    less time served. A charge of pointing a firearm at another person contrary to
Criminal
    Code,
s. 87(2), for which Mr. Shaikh was also found guilty, was stayed to avoid
    double jeopardy.

[2]

In the course of the proceedings, Mr. Shaikh brought two
Charter
applications
    pursuant to s. 11(b) to have the charges against him stayed for unreasonable
    delay. The first application was heard by an application judge before the trial.
    The second application was brought before the trial judge, after the trial
    judge rendered her decision on the merits, and while Mr. Shaikh was awaiting
    sentence.

[3]

Mr. Shaikhs only ground of appeal is that both judges erred in denying
    his s. 11(b) applications to stay his prosecution for unreasonable delay.

[4]

For reasons that follow, I would allow Mr. Shaikhs appeal, based on
    errors committed by the application judge. The s. 11(b) application should have
    been granted, and the proceedings stayed. I would set aside Mr. Shaikhs
    convictions and the finding of guilt contrary to s. 87(2) of the
Criminal Code
and stay the proceedings against him.

[5]

It will assist in understanding the material facts and issues in this appeal
    if I provide, at the outset, a brief overview of the legal tests to be used in
    determining whether the delay in prosecuting charges has been unreasonable,
    contrary to s. 11(b). The analytical framework to be applied was established in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, and helpfully synthesized
    in
R. v. Coulter
, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 32, 34-40,
    which I summarize here.

[6]

The initial step in the
Jordan
framework is to calculate the
    total delay, the period from the charge to the actual or anticipated end of
    trial. Then defence delay is identified and calculated. The entire defence
    delay is then subtracted from the total delay to identify the net delay.
    If the net delay exceeds the presumptive ceilings identified in
Jordan
of 18 months for cases going to trial in the provincial court or 30 months for
    cases going to trial in the superior court or in the provincial court after a
    preliminary inquiry, the delay is presumptively unreasonable.

[7]

To rebut that presumption, the Crown must establish exceptional
    circumstances. In general, exceptional circumstances will be established in
    two ways.

[8]

First, the Crown may show that discrete events have occurred due to unforeseeable
    circumstances. If deducting the delay caused by discrete events from the net
    delay produces a remaining delay that is below the relevant presumptive
    ceiling, the delay in prosecuting the charges is presumed to be reasonable.

[9]

Or, the Crown may satisfy the court that the case is particularly
    complex such that the time the case has taken is justified.

[10]

In
    transitional cases, where the charge was laid before
Jordan
was decided on
    July 8, 2016, but where the actual or anticipated end of the trial falls after
    that date, a transitional exceptional circumstance will apply if the Crown
    satisfies the court that the time the case has taken is justified based on the
    parties reasonable reliance on the law as it previously existed:
Jordan
,
    at para. 96.

[11]

The
    issues that must be resolved in this appeal include whether the 18-month or the
    30-month presumptive ceiling should apply where, before a scheduled preliminary
    inquiry is completed, the accused re-elects to be tried in the provincial
    court.

[12]

This
    appeal also raises case specific issues relating to the proper identification
    of the defence delay, whether a period of delay resulting from a Crown
    requested adjournment is a discrete event, and whether the delay in this case is
    justifiable under the transitional exceptional circumstance. It is therefore
    necessary to set out the material facts in some detail.

MATERIAL FACTS

[13]

On
    October 6, 2014, Mr. Shaikh was charged with the offences for which he was
    convicted, as well as other related offences. Ms. Amer, who was present when he
    threatened the victim with a gun, was also charged on the same information.

[14]

After
    being released on bail, Ms. Amer absconded, leaving the jurisdiction. A bench
    warrant was issued for her arrest. Matters nonetheless proceeded against Mr.
    Shaikh.

[15]

After
    the first pretrial, February 24, 2015, the Crown advised the assignment court
    justice that a further pretrial was required, as the Crown needed to speak to
    [his] boss about a potential resolution. The matter was put over again so that
    the Crown could arrange to have a new information drafted. Mr. Shaikhs counsel
    also required time to prepare and get instructions because new disclosure had
    been received.

[16]

By
    May 1, 2015, Mr. Shaikh had received material disclosure and the second judicial
    pretrial was completed.

[17]

On
    that date, May 1, 2015, a four-day preliminary inquiry was scheduled. Initially
    Mr. Shaikh was offered dates commencing on January 18, 2016, but declined those
    dates because his counsel was not available until March. The next available
    dates of March 7-10, 2016 were set.

[18]

On
    January 4, 2016, eight months after the preliminary inquiry dates were set, the
    Crown sought and obtained an adjournment of the preliminary inquiry. The basis
    for the adjournment was that the complainant had prepaid air fare for a trip
    out of the country that would overlap with the March preliminary inquiry dates.
    The Crown did not attempt to preserve any of the March dates to call other
    witnesses. Mr. Shaikh consented to the adjournment but did not waive his s.
    11(b) rights. The preliminary inquiry was rescheduled for October 4-7, 2016.

[19]

On
    June 27, 2016, Ms. Amer appeared at a bail hearing, having been arrested upon
    her return to the jurisdiction.

[20]

When
    the first date of the scheduled preliminary inquiry arrived, October 4, 2016, Ms.
    Amer appeared without counsel. The Crown withdrew the charges against her. The
    matter could not proceed against Mr. Shaikh because the court could not
    accommodate the case.

[21]

Again,
    on October 5, 2016, the court could not accommodate the scheduled preliminary
    inquiry.

[22]

Once
    again, on the morning of October 6, 2016, the court could not accommodate the
    scheduled preliminary inquiry. It was only on the afternoon of October 6, 2016,
    the third of four days set for the preliminary inquiry, that the court was in
    position to commence. It did not.

[23]

Here
    is what happened on October 6, 2016. Counsel for Mr. Shaikh brought an
    application to get off the record. In his view, Mr. Shaikh was not
    communicating with him and had lost faith in him, and he was unable to get
    instructions. After Mr. Shaikh told the preliminary inquiry judge that he had
    not lost faith in his counsel and wanted to proceed, counsels application to
    get off the record was denied. However, the preliminary inquiry judge put the
    matter over until the next day to permit counsel to prepare to deal with an
    unexpected change in circumstances, specifically, the Crowns withdrawal of charges
    against Ms. Amer, and its expressed intention to call her as a witness at the
    trial. As a result, defence counsel needed time to determine whether to call
    her as a witness at the preliminary inquiry and how to proceed.

[24]

The
    preliminary inquiry judge commented when adjourning the preliminary inquiry, [t]his
    matter is not going to finish tomorrow, given the number of witnesses.

[25]

Before
    the matter was adjourned, the prosecuting Crown explained to the preliminary
    inquiry judge his reasons for withdrawing the charge against Ms. Amer. I will
    recount those reasons later, where they bear upon the issues in this appeal.

[26]

On
    October 7, 2016, the last day of the scheduled preliminary inquiry, Mr.
    Shaikhs counsel advised the preliminary inquiry judge that he and his
    co-counsel had to withdraw for ethical reasons. The preliminary inquiry judge
    accepted this, and Mr. Shaikhs counsel and his co-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.

[27]

On
    November 22, 2016, new counsel appeared for Mr. Shaikh and indicated that Mr.
    Shaikh wished to re-elect to be tried before the provincial court, the Ontario
    Court of Justice.

[28]

On
    November 28, 2016, that re-election occurred with the consent of the Crown. No s.
    11(b) waiver was secured from, or offered by, Mr. Shaikh.

[29]

Two
    days later, on November 30, 2016, trial dates were set for March 27-31, 2017.
    The court had offered February 13-17, 2017, however Mr. Shaikhs new counsel
    declined those dates, as he was unavailable.

[30]

On
    November 30, 2016, Mr. Shaikhs new counsel expressed Mr. Shaikhs intention to
    bring a s. 11(b) application in advance of the trial. He soon did so, and on
    March 3, 2017, an application judge heard the motion. The matter was adjourned
    to the first day set for trial, March 27, 2017. Before that date was reached, however,
    the case was traversed by the court to March 28, 2017, and the first day set
    for trial was lost.

[31]

On
    March 28, 2017, the application judge asked the parties several follow-up
    questions. Noting that the trial could not be reached that day, she notified
    the parties that they would receive her ruling the next morning.

[32]

On
    March 29, 2017, the application judge dismissed the s. 11(b) application, and
    the trial was postponed yet another day until March 30, 2017, when it began.

[33]

In
    her March 29, 2017 reasons, the application judge quantified the total delay
    from the charge (October 6, 2014) to the scheduled beginning of the trial
    (March 27, 2017) to be 2 years, 5 months and 21 days, or 901 days.
[1]
She then noted that since the case was not reached on the first few scheduled
    trial dates, the matter would have to be continued and would not end on March 31,
    2017, as originally anticipated. She determined based on courtroom availability
    and the trial estimate that the case would likely conclude on April 12, 2017.
    She therefore took April 12, 2017 as the end of the trial. The total delay she
    was working with was therefore 919 days, or 30.2 months.
[2]

[34]

Having
    calculated the total delay, she went on to consider the net delay. She accepted
    the parties net delay calculation, which was based on the defence concession
    that there were three periods of defence delay:

·

February 24, 2015 to May 1, 2015, the time that lapsed between
    the first pretrial and the day on which the preliminary inquiry dates were set
    (66 days);

·

January 18, 2016 to March 7, 2016, the period after Mr. Shaikh
    declined preliminary inquiry dates because of the unavailability of his counsel
    until the first date set for preliminary inquiry (49 days); and

·

October 6, 2016 to March 27, 2017, the period of delay after Mr.
    Shaikhs former counsel applied to be removed from the record until the first
    date set for trial (172 days).

[35]

Based
    on the defence delay concessions, the application judge ultimately calculated
    the net delay to be 20 months.

[36]

The
    20-month period the application judge worked with is clearly an approximation.
    Unfortunately, it understates the actual net delay that arises from the application
    judges own figures. In fact, the total defence delay arising from the
    identified periods of defence delay was 287 days. If deducted from the 919 days
    of total delay, the net delay would appear to be closer to 21 months,
    specifically, 632 days, or 20 months, three weeks, and two days, or 20.8
    months.

[37]

During
    the s. 11(b) application, the Crown urged the application judge to deduct from
    the net delay a further period of approximately seven months caused by the
    Crown requested adjournment to accommodate the complainants planned trip. The
    Crown argued that this delay was caused by an exceptional circumstance, a
    discrete unforeseeable event outside of the Crowns control. The application
    judge refused. She noted that the dates had been set ten months down the road
    and no evidence had been presented as to when the airplane ticket was booked,
    what the purpose of the trip was, or if efforts were made to ascertain the
    availability of the complainant. Nor was there evidence of any effort by the
    Crown to expedite the second set of dates.

[38]

Notwithstanding
    Mr. Shaikhs re-election, the application judge applied the 18-month presumptive
    ceiling, finding the 20-month net delay she had identified to be presumptively
    unreasonable. She concluded, however, that the presumption of unreasonable
    delay was rebutted, as this was a transitional exceptional circumstance case.
    Until July 8, 2016, the
R. v. Morin
, [1992] 1 S.C.R. 771

regime
    applied. The application judge accepted the agreement of the parties that the institutional
    and Crown delay under the
Morin
guidelines was 15.5 months. This amount
    of delay exceeded the eight to ten months
Morin
guideline for provincial
    court trials. But she concluded that this was only a guideline and departed
    from it because: the trial was taking place in a busy jurisdiction lacking
    institutional resources; the matter was moderately complex; the Crown withdrew
    charges against Ms. Amer to move the matter along; the trial dates were secured
    promptly; and the charges were serious. She found the prejudice to Mr. Shaikh
    from the delay to be troubling, but decided that overall, the prejudice in this
    matter is not so serious as to warrant a stay.

[39]

The
    application judge then concluded:

When I take all issues into
    account, this matter falls extremely close to the line of what I would consider
    acceptable delay.
Any further delay in this matter, even as much as a month,
    would likely cause me to decide otherwise.
[Emphasis added.]

[40]

On
    March 30, 2017, the case commenced before another judge, the trial judge. Although
    Mr. Shaikhs lawyer was ill and could not attend on April 7, 2017, the matter concluded
    on April 12, 2017 as the application judge had expected. The trial judge
    reserved her decision on the merits. She delivered that decision a little over
    a month later, on May 17, 2017.

[41]

On
    June 30, 2017, while awaiting sentencing, Mr. Shaikh renewed his s. 11(b)
    application. Relying on the application judges comment that even as much as a
    month of additional delay would likely have caused her to reconsider and stay
    the proceedings, Mr. Shaikh argued that the month of deliberation delay before
    conviction mattered and that a stay was now required.

[42]

The
    trial judge dismissed the application on July 20, 2017, finding that
    deliberation delay is not to be included in calculating periods of trial delay
    under
Jordan
.

ISSUES

[43]

Mr. Shaikh
    appeals both s. 11(b) rulings, arguing that both judges erred in quantifying
    the net delay: the application judge erred by mischaracterizing periods of
    delay and misapplying the transitional exceptional circumstance; and the trial judge
    erred by finding that the deliberation delay is not included in calculating the
    periods of delay under
Jordan
.

[44]

The
    appeal Crown has raised another central issue in response. She urges that since
    Mr. Shaikh initially elected a superior court trial and only re-elected to have
    a provincial court trial after the dates for the preliminary inquiry arrived,
    the appropriate period of presumptively unreasonable delay should be the 30-month
    period that would have applied had the preliminary inquiry been completed.

[45]

The
    analysis will proceed in the following order:

A.

What presumptive period applies, 18 months or 30 months?

B.

Did the application judge err in calculating the period of delay?

C.

Did the application judge err by misapplying the transitional exception?

[46]

For
    reasons that will be explained, these inquiries make it unnecessary to consider
    the correctness of the trial judges s. 11(b) ruling or the issue of
    deliberation delay.

ANALYSIS

A.

What presumptive period applies, 18 months or 30 months?

[47]

Jordan
established two periods for determining whether net delay is presumptively
    unreasonable: 18 months for trials in the provincial courts, and 30 months for
    trials in the superior courts: at para. 32. For more than two years, Mr. Shaikhs
    case proceeded as if it was a superior court matter, until his re-election to trial
    before the provincial court on November 28, 2016. This raises the question of
    whether the 30-month presumptive period applicable in superior court
    proceedings applies, or the 18-month period applicable to provincial
    proceedings.

[48]

If
    the 30-month presumptive delay period is to be applied, Mr. Shaikhs appeal
    would be easily dismissed. The delay would not be presumptively unreasonable
    since the total delay was 30.2 months, and Mr. Shaikh has correctly conceded
    that the 49 days between January 18, 2016 to March 7, 2016 is defence delay (the
    period after Mr. Shaikh declined preliminary inquiry dates because of the
    unavailability of his counsel to the first date set for preliminary inquiry). As
    explained, under the
Jordan
regime, this defence delay is to be deducted
    from the total delay in arriving at the net delay that is to be used in
    determining whether the delay is presumptively unreasonable. Even leaving aside
    other contentious periods, the maximum net delay would therefore be 870 days
    (or 28.6 months), which is less than the 30-month period of delay required to
    trigger the presumption of unreasonable delay. Mr. Shaikh has offered no
    evidence and made no argument that, in his case, a presumptively reasonable
    period of delay should nonetheless be found to contravene s. 11(b).

[49]

However,
    on the authority of
Jordan
, the 30-month presumptive ceiling does not
    apply in this case. The 18-month presumptive ceiling does. The
Jordan
majority
    described how the appropriate ceiling is to be selected, at para. 46:

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].

[50]

Later
    in the decision, at para. 49, the
Jordan
majority repeated this:

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

[51]

Then
    again 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.

[52]

Here,
    the re-election to provincial court did not occur after the preliminary
    inquiry, but before it commenced. Applying the standards expressed in
Jordan
,
    the 18-month period applies.

[53]

I
    appreciate that
Jordan
did not involve a re-election, and so this issue
    was not directly before the court. However,
Jordan
was not about delay
    in a provincial court trial either. In the interests of certainty and
    simplicity, the majority nonetheless established an authoritative framework for
    provincial court trials as well, setting a presumptive period of unreasonable
    delay of 18 months. In the circumstances, I do not feel at liberty to interpret
    the criterion specifically identified by the
Jordan
majority as a
    passing comment when it is manifest that the majority was delineating how its
    presumptive delay framework was to apply.

[54]

I understand
    the attraction of the appeal Crowns submission that, instead, a case-by-case
    approach should be used to determine whether a re-election occurs late enough
    to warrant imposing the 30-month period of presumptive delay. The difference in
    substance between a re-election after a four-day preliminary inquiry, and a
    re-election during the scheduled dates but before the preliminary inquiry is
    completed does seem negligible. However, it would grate against the objective
    of
Jordan
to evaluate which presumptive ceiling applies on an
    after-the-fact, case-by-case basis during s. 11(b) motions. The
Jordan
majority
    was attempting to establish a bright line structure for s. 11(b) cases using a
    framework that accounts for case-specific factors: at para. 5. The
Jordan
majority
    established the regime it did to overcome the previous, highly unpredictable,
    unduly complex, and endlessly flexible approach that does little to prevent
    delay by giving clear guidance in advance:
Jordan
, at paras. 31-37. The
    formula thrice stated in
Jordan
for when the 30-month period applies to
    provincial court trials must therefore be taken at face value and used as the
    bright line measure. Since re-election occurred before and not after the
    preliminary inquiry, this case falls on the wrong side of that bright line for
    the Crown.

[55]

In
    advocating for a 30-month period of presumptive delay, the appeal Crown relied
    upon the decision in
D.M.S. v. R.
, 2016 NBCA 71, 353 C.C.C. (3d) 396. In
D.M.S.
, on the date set for the preliminary inquiry, the accused waived
    his preliminary inquiry and re-elected to be tried in the provincial court. The
    parties agreed that in these circumstances, the presumptive ceiling was 30
    months. Quigg J.A. accepted this position, commenting, 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.

[56]

With
    respect, the case-by-case approach applied in
D.M.S.
cannot be squared
    with the language or ethic of
Jordan
. This issue does not appear to have
    been fully litigated before the New Brunswick Court of Appeal because of the
    agreement between the parties, and the guidance provided by the
Jordan
decision
    as to when the 30-month presumptive period applies in provincial court trials may
    not have been brought to the courts attention.

[57]

The
    bright line approach that I consider myself compelled to follow does not enable
    the defence to manufacture a s. 11(b) delay by re-electing into a shorter
    presumptive period of delay. Section 561(1) of the
Criminal Code
requires Crown consent before the accused can re-elect to a trial by a provincial
    court judge. Where re-election would create the risk of s. 11(b) problems, the Crown
    has the authority to, and should, refuse consent, absent a s. 11(b) waiver.

[58]

The
    application judge was therefore right to apply an 18-month period of
    presumptively unreasonable delay.

B.

Did the Application Judge Err in Calculating the period of delay?

[59]

The
    appeal Crown agrees that the application judge erred in calculating the period
    of delay, although in the appeal Crowns view, those errors caused the application
    judge to exaggerate the remaining delay. The appeal Crown argues that since the
    remaining delay is shorter than the delay the application judge was working
    with, her ultimate decision remains correct and should not be disturbed. Specifically,
    the appeal Crown claims three errors, two that would benefit the Crown, and the
    other, Mr. Shaikh. I will begin with the alleged errors that would benefit the
    Crown.

[60]

Most
    significantly, the appeal Crown argues in her factum that the delay caused by
    the adjourned preliminary inquiry to accommodate the complainants travel plans
    should have been treated as a discrete event and deducted from the net delay,
    thereby reducing the remaining delay by approximately seven months.
[3]
The appeal Crown was right not to press this submission in oral argument.
    Leaving aside that the Crown had the lawful authority to compel the complainant
    to attend the scheduled court dates and testify notwithstanding his scheduled
    trip, the application judge was correct. The evidentiary record presented by
    the Crown was inadequate to show that the delay could not have been foreseen,
    or that the Crown made efforts to expedite the second dates. Notably, the Crown
    did not seek to preserve any of those dates for other evidence.

[61]

The
    appeal Crown also argues that the application judge erred in not deducting the
    single trial date that was lost when defence counsel became ill on April 7,
    2017. I agree that this one day should have been deducted from the net delay as
    a discrete event, but this is
de minimis
, which may be why the
    application judge did not address it.

[62]

In
    contrast, the error conceded by the appeal Crown that benefits Mr. Shaikh is
    material. Specifically, the application judge erred in calculating the net
    delay by treating as defence delay the 66-day period between February 24, 2015
    to May 1, 2015, the time that lapsed between the first pretrial and the day on
    which the preliminary inquiry dates were set. Defence delay consists of two
    components: periods waived by the accused and periods of delay solely caused by
    the defence:
Jordan
, paras. 61-63. Mr. Shaikh did not waive this period
    of delay, nor was it solely attributable to him.

[63]

In
    fairness to the application judge, this error was triggered by an erroneous
    concession made by defence counsel during the s. 11(b) submissions that this
    period was defence delay. However, the Crown accepts that the application judge
    was wrong to treat this period as defence delay. This error did not arise from
    a factual finding made by the application judge or an inference drawn, but from
    an improper designation of the period of delay by the application judge based
    on uncontentious facts. As counsel for Mr. Shaikh points out, in
R. v.
    Jurkas
, this court held that the designation of periods of delay is a
    matter of law, attracting a standard of correctness: 2018 ONCA 489, 363 C.C.C.
    (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325. An
    application judge errs by accepting incorrect concessions relating to the
    characterization of delay.

[64]

Those
    66 days should not have been considered defence delay, and therefore, should
    not have been subtracted from the total delay when calculating net delay. This
    results in an even longer net delay, above and beyond the presumptive period of
    18 months. Even if we assume that the entire 172-day delay after Mr. Shaikhs
    former counsel applied to be removed from the record could be attributed to the
    defence or treated as delay arising from a discrete event (this period is discussed
    in greater detail below), the net delay would be 697 days
[4]
,
    which is close to 23 months, as opposed to the 20-month period the application
    judge worked with.

[65]

Mr.
    Shaikh argues that the application judge also erred in accepting as defence
    delay most of the period between October 6, 2016, when Mr. Shaikhs former counsel
    applied to be removed from the record, and March 27, 2017, the first date of
    trial (172 days in total). I do not agree entirely with Mr. Shaikh. Most of
    this period should be characterized as either defence delay or discrete exceptional
    circumstance. For reasons that I will explain, I need not resolve whether the
    balance of this delay is also properly considered defence delay. I will divide the
    172-day period of delay into three distinct periods, which I will approach
    chronologically.

[66]

First,
    Mr. Shaikh concedes that the 55-day delay between October 6, 2016, when Mr.
    Shaikhs former counsel applied to be removed from the record, to November 30,
    2016, when the March trial dates were set after re-election to provincial court,
    is a discrete exceptional circumstance. This period of delay resulted because
    Mr. Shaikhs former counsel applied to get off the record, which was an
    unforeseen development. During that period, Mr. Shaikh was obtaining new
    counsel and providing instructions, and therefore, could not move the case
    along. Mr. Shaikh was correct to make this concession and Crown counsel agreed
    with this characterization.

[67]

The
    second period of delay is the 79-day period between November 30, 2016, when Mr.
    Shaikh re-elected to provincial court, and February 17, 2017, the final day in
    the first set of trial dates offered to Mr.  Shaikh. Mr. Shaikh contends that
    this delay cannot fairly be ascribed solely to him as defence delay. In the
    unusual circumstances of this case, I agree. Ordinarily, delay following
    re-election, will have been caused solely by the defence and will qualify as
    defence delay. However, in the unusual circumstances of this case, not all the
    delay that followed his re-election was triggered by these events. Delay was
    inevitable even if re-election had not occurred because no court was available
    for the first two and one-half days of the scheduled preliminary inquiry. As
    the presiding preliminary inquiry judge recognized, given the number of
    witnesses to be called, the preliminary inquiry could not be completed in the
    remaining time and therefore had to be rescheduled, in any event. It is not
    appropriate to treat a period of delay that would have occurred anyway because
    of institutional delay as defence delay.

[68]

However,
    as the Crown points out, it is impossible to know whether the trial would have
    been scheduled more promptly had Mr. Shaikhs former counsel not been removed
    from the record and had continuation dates been set immediately. Responsibility
    for precise periods of delay within that 79-day period cannot be calculated with
    perfect confidence. Perhaps the uncertainty could be resolved pragmatically by
    splitting responsibility for the delay equally, or it may be that it should be
    resolved by endeavoring to determine what would probably have happened. If the
    proper determination would have a material bearing on the outcome of this
    appeal, I would have to resolve how this 79-day period is to be allocated.
    Since the characterization of this period of delay will have no impact on the
    appeal outcome, I will refrain from determining whether the application judge
    erred in treating this period as defence delay. I will assume, for the purposes
    of this appeal, that her treatment of this delay as defence delay was correct.

[69]

The
    final period of the 172-day delay is straightforward. Had Mr. Shaikhs counsel
    been available for the period from February 13-17, 2017, the trial dates Mr.
    Shaikh was offered, the period of delay between February 17, 2017 and March 27,
    2017 would not have occurred. This period of 38 days is therefore defence
    delay.

[70]

In
    sum, there are 38 days of defence delay and 55 days of exceptional circumstance
    delay caused by a discrete event. As indicated, I will proceed, for the
    purposes of this appeal, on the basis that the application judge was correct in
    treating the remaining 79 days as defence delay without determining the matter.
    The application judge should therefore have quantified the delay, as follows:

Total Delay:
919 Days (October 6, 2014 to April 12,
    2017  Date of Charge to End of Trial)

Defence Delay: 166 Days

·

49 Days (January 18, 2016 to
    March 7, 2016

the period after Mr. Shaikh
    declined preliminary inquiry dates because of the unavailability of his counsel
    to the next date set)

·

79 Days (November 30, 2016 to
    February 17, 2017

the period after Mr.
    Shaikh re-elected to provincial court to the final day of the first set of
    trial dates available)

·

38 Days (February 17, 2017 to
    March 27, 2017  the period after the earlier set of trial dates that Mr.
    Shaikh was offered to the date that defence counsel was available)

Net Delay (Total Delay 
    Defence Delay):
753 Days

Exceptional Circumstance:
56
    Days

·

55 Days (October 6, 2016 to November 30, 2016  when Mr. Shaikhs
    former counsel applied to be removed from the record to the date on which the
    March trial dates were set after re-election to provincial court).

·

1 Day (April 7, 2017  when
    defence Counsel was ill)

Remaining Delay (Net Delay 
    Exceptional Circumstance):
697 Days (22.9 months)

[71]

The remaining
    delay in this case was therefore not the 20 months the application judge worked
    with. At the very least, it was 697 days, closer to 23 months. This is a
    material difference. Although I am not bound to follow the application judges
    lead, had she quantified the remaining delay as close to 23 months rather than
    20 months, given her comment that any further delay in this matter, even as
    much as a month, would likely cause [her] to decide otherwise and find a s.
    11(b) breach, she herself would have stayed the proceedings. She therefore
    erred in her analysis.

C.

Did the application judge err by misapplying the transitional exception?

[72]

The
    burden is on the Crown to satisfy the court that a presumptively unreasonable
    delay can be saved based on a transitional exceptional circumstance. The
    application judge erred in finding that the Crown had discharged this burden.

[73]

The
    transitional exception depends on the Crown having complied with the
Morin
framework
    in the pre-
Jordan
period. If the Crown has not, it is not in a position
    to demonstrate that it has relied reasonably with respect to delay on the law
    as it previously existed. The Supreme Court summarized the
Morin
framework in
Jordan
, at para. 30:

The
Morin
framework requires courts to
    balance four factors in determining whether a breach of
s. 11
(
b
) has occurred: (1) the length of
    the delay; (2) defence waiver; (3) the reasons for the delay, including the
    inherent needs of the case, defence delay, Crown delay, institutional delay,
    and other reasons for delay; and (4) prejudice to the accuseds interests in
    liberty, security of the person, and a fair trial. Prejudice can be either
    actual or inferred from the length of the delay. Institutional delay in
    particular is assessed against a set of guidelines developed by this Court
    in
Morin
: eight to ten months in the provincial court, and a
    further six to eight months after committal for trial in the superior court.

[74]

Although
    the application judge did not break down her length of delay calculations,
    she premised her decision on a
Morin
delay of 15.5 months. It is not
    necessary to do a precise calculation of the
Morin
delay to confirm this
    quantification because even using the 15.5 month
Morin
delay, the
    decision cannot stand. The heart of the transitional exception is the
    unfairness in staying proceedings where the delay occurred because of the trial
    Crowns reasonable reliance on the law as it previously existed:
Jordan
,
    at para. 96. The application judge erred by failing to give adequate scrutiny
    to whether the delays that occurred were reasonably incurred.

[75]

I
    also agree with Mr. Shaikh that the application judge gave inadequate or at
    times improper attention to the relevant considerations informing the transitional
    exceptional circumstances analysis, as identified by this court in
R. v.
    Gopie
, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 178, citing
R. v.
    Williamson
, 2016 SCC 28, [2016] 1 S.C.R. 741. Those considerations include:
    "(i) the complexity of the case; (ii) the period of delay in excess of the
Morin
guidelines; (iii) the Crowns response, if any, to any institutional
    delay; (iv) the defence efforts, if any, to move the case along; and (v)
    prejudice to the accused.

[76]

More
    specifically, the application judge did not properly evaluate the complexity of
    the case, failed to consider whether the period of delay in excess of the
Morin
guidelines was reasonably incurred, gave undue credit to the Crown for
    responding to institutional delay, failed to give adequate recognition to the
    defence effort to move the case along, and improperly minimized the prejudice.
    I will explain.

[77]

Complexity
    of the Case
 The application judge gave undue emphasis to the complexity
    of the case, identifying it as a moderately complex matter because the trial
    estimate was four days. While the time a case requires is not immaterial in
    judging its complexity, much more is required. This was a simple credibility
    case. This case did not require an elaborate intake period to accomplish
    disclosure or to await forensic or expert evidence. It did not need significant
    preparation time, nor present scheduling challenges because of the number of
    accused persons. It was a straight-forward matter, and in all the circumstances,
    the complexity of the case should not have been used as a material makeweight
    in favour of the transitional exception.

[78]

Period
    of Delay in Excess of the
Morin
guideline
 On the application
    judges own calculation, the delay in this case was 15.5 months, more than one
    and one-half times as long as the outer edge of the
Morin
guideline of eight
    to ten months. That excess can easily be identified. That period, and more  seven
    months of delay, in fact  was attributable to the Crowns adjournment request
    to facilitate the complainants trip. As the application judge recognized, she was
    presented with no evidence that could justify this delay. This delay therefore
    cannot be said to have been reasonably incurred.

[79]

Then
    when the second set of preliminary inquiry dates did arrive, having been
    scheduled nine months down the line, the court could not accommodate the
    hearing. Two and one-half days were lost. A further adjournment was inevitable
    because of this institutional delay. This additional delay was not reasonably
    incurred either.

[80]

Nor
    was the short adjournment of the trial caused by the loss of two and one-half
    days of trial time reasonably incurred.

[81]

Yet
    the application judge did not consider any of this when conducting the holistic
    examination that the transitional exception requires.

[82]

The
    application judge did consider appropriately that counsel, including Crown
    counsel, were able to secure trial dates relatively swiftly; however, even this
    117-day delay (3.8 months) from November 30, 2016 to March 27, 2017 was unduly
    minimized. The period of delay is much closer to four months than the just
    over three months into the future described by the application judge.

[83]

Crowns
    Response to Institutional Delay
 No other evidence was led of any steps
    taken by the Crown to ameliorate the delay, although the application judge
    credited the Crown with addressing delay by withdrawing charges against Ms.
    Amer. With respect, this is an incomplete characterization of the trial Crowns
    reasons, which were the following:

[G]iven that she was not in a
    position to proceed, I could have asked for an adjournment; that was, that was
    not an option given the length and history of the matter. Second possibility
    was to apply to sever Ms. Amers matter. I reviewed the case, given the
    strength of the case the fact that she played a minor role, if she played any
    role at all, other than being present at the time. I determined that that was
    not in the interest of justice, nor was it in the publics interest to do that.
    That left me in a third option of simply not proceeding with Ms. Amer if I
    determined that the prospect of conviction against her was pretty weak. And,
    and so it was in I that determined it was in the interest of justice to simply
    withdraw against Ms. Amer and proceed against Mr. Shaikh, who was facing more
    serious charges.

[84]

As
    can be seen, the trial Crown did recognize that an adjournment was not an
    option because of delay, but he explained that he withdrew the charges because
    he concluded that he had a weak case against Ms. Amer. Since Ms. Amer may not
    have played any role in the offences, it was contrary to the interest of
    justice and the public interest to maintain her prosecution. In the
    circumstances, it was not appropriate to treat this decision as a delay
    reducing measure.

[85]

Defence
    Efforts to Move the Case Along
 There is no indication of defence efforts
    to move the case along prior to when Mr. Shaikhs former counsel applied to be
    removed from the record on October 6, 2016. However, after his first counsel was
    released from the record, Mr. Shaikh expressed concern about the delay and
    asked if his trial would occur on the next date if he re-elected and
    represented himself. On November 22, 2016, his new defence counsel, speaking of
    the serious s. 11(b) issue that had developed, advised the court that Mr.
    Shaikh would re-elect to have a provincial court trial, and he did so formally on
    November 28, 2016. There is no doubt that the re-election shortened the
    proceedings. This should have been considered by the application judge but was
    not.

[86]

Prejudice
 The application judge recognized that the prejudice to the accused was
    troubling. And it was. Mr. Shaikh was either under custody or house arrest for
    the first year, and then under curfew pending trial. He provided uncontradicted
    evidence of the strain this matter put on his family, his psychological
    wellbeing, and his ability to work.

[87]

In
    all the circumstances, the transitional exception should not have been applied.
    This delay was presumptively unreasonable; not by a narrow margin but exceeding
    the
Jordan
guidelines by nearly five months. Even the
Morin
guidelines
    were exceeded substantially. There was no meaningful demonstration that the
    Crown had been mindful of its s. 11(b) obligations even as they existed prior
    to
Jordan
, and the prejudice was troubling. The seriousness of the
    charges and the finality of a stay cannot fairly outweigh these considerations.

[88]

The
    application judge called this a close case even when using a 20-month net delay
    calculation and she gave every indication that she would have stayed the
    charges had she properly quantified the period of delay. That was the outcome
    she should have ordered.

CONCLUSION

[89]

I
    would allow the appeal, set aside the convictions, and stay the charges against
    Mr. Shaikh. It is therefore unnecessary to consider whether deliberation delay
    is included in the
Jordan
period, or to examine the trial judges s. 11(b)
    decision.

Released: D.W. November 13, 2019

David M. Paciocco
    J.A.

I agree. David Watt
    J.A.

I agree. P. Lauwers
    J.A.





[1]
It appears the application judge made a counting error. The number of days
    between October 6, 2014 to March 27, 2017 is 903 days.
When
    calculating this, and other periods of delay between two dates, I do not
    include the first or last day of the period. The first day is not considered
    delay and the last day should not be counted either because it is the date on
    which proceedings resume.



[2]

I have converted days to months by dividing by 30.417, which
    is approximately 365/12. I have also rounded month figures to one decimal
    point.



[3]

The preliminary inquiry was initially scheduled to begin on
    March 7, 2016, but it was rescheduled to October 4, 2016 to accommodate the
    complainants trip. This is a 211-day or 6.9-month delay.



[4]

Total delay of 919 days subtracted by the 49 days conceded by
    the defence, the one day that counsel was ill, and 172 days, is 697 days.


