



COURT
    OF APPEAL FOR ONTARIO

CITATION: R. v. Pauls, 2020 ONCA 220

DATE: 20200318

DOCKET: C64551

Simmons, Watt and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Aziz Pauls, Jamal Yusuf and
    Jamis Yusuf

Respondents

Philippe Cowle, for the appellant

Michael Lacy and Bryan Badali, for the
    respondent Aziz Pauls

Sonya Shikhman, for the respondent
    Jamal Yusuf

Adam Little, for the respondent Jamis
    Yusuf

Heard: October 22, 2019

On appeal from the judgment of Justice
    William A. Gorewich of the Ontario Court of Justice, dated October 17, 2017.

Simmons J.A.:

A.

introduction

[1]

The main issue on appeal is whether the trial
    judge erred in staying proceedings against the respondents under s. 11(b) of
    the
Canadian

Charter of Rights and Freedoms
.

[2]

In August 2014, the respondents were arrested on
    charges of aggravated assault and unlawful confinement. The alleged victim was
    Johni Dawood. The Crown claimed the respondents confined the heavily intoxicated
    Dawood in a restaurant for over two hours and beat him periodically during that
    time. Dawood suffered two cuts to his head requiring several staples and an
    injury to his nose. The Crown had digital video recorder (DVR) footage of the
    events inside the restaurant. The video had no sound but depicted the
    respondents carrying Dawood into the bar area and putting him in a chair. He
    was subsequently punched, slapped, kicked and hit over the head with a chair.

[3]

In addition to Dawood, the Crown called Mr. Sliwa,
    who had witnessed an initial altercation just outside the restaurant. Both men
    described Jamal Yusuf beating Dawood and Dawood suffering a head wound while
    outside the restaurant. According to Mr. Sliwa, the respondents then carried
    Dawood inside. It was at that point that the Crowns DVR footage began.

[4]

Despite the video evidence, the respondents 
    who were all sober at the time of the events  maintained that Dawood was
    threatening them and that their interactions with him were either consensual or
    in self-defence. Jamal Yusuf testified at trial and called one other witness.
    The other respondents did not call evidence.

[5]

The respondents trial began in the Ontario
    Court of Justice on August 5 and 6, 2015, approximately one year following
    their arrest. It concluded on July 7, 2017 when the trial judge delivered a
    reserved decision finding the respondents not guilty of aggravated assault, but
    guilty of the included offence of assault causing bodily harm and also finding
    the Yusuf respondents guilty of unlawful confinement.
[1]

[6]

Following the guilty verdicts, the respondents
    applied for a stay of proceedings under s. 11(b) of the
Charter
. On
    October 17, 2017 the trial judge granted the application.

[7]

The Crown had initially described this as a
    press and play case (referring to the two-and-a-half-hour video of events
    inside the restaurant) that would take two days to try, with two Crown
    witnesses and up to three defence witnesses. Ultimately, about 6.5 days of evidence
    were heard over 14 court days spanning about 21 months (August 5, 2015 to April
    26, 2017). The trial was adjourned to continuation dates on five occasions. Four
    Crown witnesses testified (two police officers in addition to Dawood and Mr.
    Sliwa), occupying about 4.75 days of evidence; the two defence witnesses gave
    about 1.75 days of evidence.

[8]

In addition to the significant misestimate of
    time, the trial was interrupted by a disclosure issue, interpreter problems,
    late witnesses, health issues and other court commitments. The trial judge
    delivered his reasons within a period of just under 2.5 months (April 26, 2017
    to July 7, 2017).

[9]

Applying the
Jordan
[2]
framework, the trial judge found the presumptive ceiling for delay was 18
    months. For the Yusuf respondents, the total delay from their arrest on August
    1, 2014 to verdict was 35 months and 5 days. After deducting defence delay of 3
    months, the net delay was 32 months and 5 days. While some discrete events had
    occurred, in the trial judges view, they did not impact whether the
    presumptive ceiling was exceeded. Rather, he concluded the primary cause of the
    overall delay was the Crowns grossly inaccurate time estimate and its
    mishandling of a defence request for an additional copy of a blank video from
    an exterior camera, which led to the adjournment of the original trial dates.

[10]

As for Pauls, the total delay from his arrest on
    August 12, 2014 to verdict was 34 months and 25 days. Defence delay caused by
    the unavailability of counsel and by Pauls illness on one of the continuation
    dates totaled 12 months and 7 days, yielding a net delay of 22 months 18 days 
    also well above the presumptive ceiling.

[11]

Having regard to his view of the primary cause
    of the delay, the trial judge stayed the proceedings against all respondents.

[12]

The Crown appeals from the stay and raises four
    issues on appeal:

a.

The trial judge erred in his allocation of the
    delay that flowed from the unavailability of defence counsel.

b.

The trial judge erred in his treatment of
    discrete events.

c.

The trial judge erred in his treatment of
    reserve time.

d.

The trial judge erred in failing to conduct a
    meaningful Morin
[3]
analysis despite the profound impact of pre-Jordan law in this
    case.

[13]

The Crown submits that once defence delay and
    exceptional circumstances are properly accounted for, the delay in this case
    falls below the presumptive ceiling. In the alternative, even if the net delay
    exceeds the presumptive ceiling, the Crown reasonably relied on the pre-
Jordan
state of the law, such that a transitional exception should apply to render the
    delay not unreasonable.

[14]

In addition to disputing the Crowns position on
    the stay, the Yusuf respondents argue that the trial judge made errors in law
    in finding them guilty such that a new trial should be ordered if the stay is
    set aside.

[15]

For the reasons that follow, I would set aside
    the s. 11(b) stay for all respondents. On my calculations, the net delay under
    the
Jordan
framework is 17 months and 29.5 days for the Yusuf
    respondents and 16 months and 4.5 days for Pauls. Given that the net delay for
    all respondents is under the
Jordan
ceiling and because I have found
    defence delay, I conclude that a stay is not warranted.

[16]

I would not give effect to the Yusuf respondents
    alternative arguments. I would therefore allow the appeal, set aside the stay imposed
    by the trial judge for all respondents and remit the matter to the Ontario
    Court of Justice for sentencing.

B.

the
Jordan
Framework

[17]

To put the main issue into context, I will
    briefly review the
Jordan
framework as it applies to this case.

[18]

As is well known,
Jordan
was released on
    July 8, 2016 and dramatically revised the framework for assessing delay on a s.
    11(b) application.

[19]

For cases proceeding in the provincial courts,
Jordan
establishes a ceiling of 18 months beyond which delay is presumed unreasonable.
    However, to assess whether the presumptive ceiling has been exceeded it is
    first necessary to deduct defence delay from the total delay. Defence delay can
    take two forms: i) delay waived by the defence; and ii) delay caused solely by
    the conduct of the defence.

[20]

Where the total delay minus defence delay
    exceeds the presumptive ceiling, the Crown may still show the delay is
    reasonable by establishing exceptional circumstances. Exceptional circumstances
    have two components: i) they are reasonably unforeseen or unavoidable; and ii)
    the Crown cannot reasonably remedy the ensuing delay once exceptional
    circumstances arise.

[21]

In general, exceptional circumstances fall under
    two categories: i) discrete events; and ii) particularly complex cases. Where
    discrete events give rise to unavoidable delay (i.e., delay that the Crown or
    the system could not reasonably have mitigated), that delay must be deducted to
    determine whether the presumptive ceiling has been exceeded.

[22]

Where the remaining delay exceeds the
    presumptive ceiling, the delay may still be reasonable if the case was
    particularly complex. A particularly complex case is one where the nature of
    the evidence or the issues 
require an inordinate
    amount of trial or preparation time such that the delay is justified
:
Jordan
, at para. 77.

[23]

Where the remaining delay falls below the
    presumptive ceiling, an accused may still show it is unreasonable by
    demonstrating i) the defence took meaningful steps that show a sustained effort
    to expedite the proceedings; and ii) the case took markedly longer than it
    reasonably should have.

[24]

Finally, where remaining delay exceeding the
    presumptive ceiling is not explained by complexity, a transitional exceptional
    circumstance may apply if the charges were laid before
Jordan
was
    released on July 8, 2016.

C.

Chronology

[25]

The following chronology
[4]
describes
    the significant events between arrest and judgment. As I have said, the trial
    was adjourned to continuation dates on five occasions. The original trial dates
    and continuation dates are bolded.

o

August 1, 2014  the Yusuf respondents are arrested

o

August 12, 2014  Pauls is arrested; initial written disclosure
    request is submitted by Jamal Yusufs counsel

o

August 21, 2014  initial Crown disclosure

o

August 28, 2014  a York Regional Police (YRP) technician receives
    the restaurant DVR

o

September 2, 2014  the YRP technician obtains a master password allowing
    access to the DVR; although camera 15 (the exterior camera) appears to be
    recording, it is black; the technician backs up the DVR data and then transfers
    it to DVDs for each camera using the backup data

o

October 16, 2014  additional Crown disclosure

o

November 25, 2014  judicial pre-trial: trial set for August 5 and
    6, 2015 (Pauls counsel was not available June 17 and 18, 2015); the Crown
    advises that the five separate informations will be combined and the three
    respondents will be tried together; defence agent, Mr. Bytensky, comments that
    all necessary preparation has been done and that the defence could proceed
    almost immediately, calling the case a he said, she said type of matter

o

May 15, 2015  letter to Crown from Jamal Yusufs counsel requesting
    a further copy of the exterior camera video recording: Please be advised that DCCTV-CH15
    is pitch black. Please provide a new copy of the CD as it should contain a
    relevant portion of the recording. However, it appears that it was not properly
    copied. If the Crowns copy is also dark and does not contain the recording, I
    will be seeking a release of the original recording for defence testing.

o

June 18, 2015  defence letter following up on the May 15, 2015
    request: I am also writing to inquire about disclosure. Further to my letter,
    dated May 15th, 2015, I continue to await a response with respect to the DVD disclosure
    (DCCTV-Ch 15) that is blank. Please review and advise me at your earliest
    opportunity if the Crowns copy is also blank. If not, please provide me with a
    new copy. If so, I will need to bring an Application seeking release of the
    original exhibit.

o

June 22, 2015  defence counsel follows up in person with the
    assigned Crown regarding the May and June letters

o

July 13, 2015  Crown letter advising its copy of the exterior
    camera video is blank and not recoverable
[5]

o

July 29, 2015  defence letter confirming oral advice in June that
    the defence will require the original exhibit for testing and advising of the
    possibility of a lost evidence application

o

August 4, 2015  defence conference call with proposed video expert
    who had just returned from vacation

o

August 5, 2015
 first day of trial;
    defence requests production of the DVR and an adjournment to permit expert
    examination; Crown disputes the relevance of the exterior camera video; Jamal
    Yusufs counsel claims Mr. Bytensky raised the missing video camera issue at
    the pre-trial; the Crown disagrees and asserts that the blank video issue was
    identified in police notes as part of the original disclosure; production order
    made; defence confirms agreement to a joint trial; Crown witness Mr. Sliwa
    examined in-chief, adjourned to August 6, 2015 (approximately one hour of
    evidence heard)

o

August 6, 2015
 second day of trial;
    joint information filed; unlawful confinement charge withdrawn against Pauls;
    adjourned to January 11, 12 and 14, 2016 to permit expert examination of the DVR
    (Pauls counsel not available August 17, December 7, 8, 9, 15 and 16, 2015;
    Jamal Yusufs counsel not available January 4, 5 and 8, 2016  Crown asserts
    August 17, 18 and 19, 2015 were offered as continuation dates) (no evidence
    heard)

o

January 11, 2016
 third day of trial;
    court begins at 10:28 a.m. to accommodate Pauls counsel; Mr. Sliwa is late
    because of a medical issue; Crown calls two police officers not originally expected
    to testify while waiting for Mr. Sliwa; Mr. Sliwas cross-examination is
    completed; court adjourns at 3:25 p.m. to accommodate Pauls counsel
    (approximately 1/2 day of evidence heard)

o

January 12, 2016
 fourth day of trial;
    court commences at 11:49 a.m. because Dawood is late; Dawoods examination-in-chief
    begins; interpretation issues (dialect) arise; court adjourns following the
    lunch break because of a dispute between defence counsel and the interpreter
    (approximately one hour of evidence heard)

o

January 14, 2016
 fifth day of trial; Dawoods
    examination-in-chief continues; court adjourns at 4:00 p.m. at the request of
    the interpreter and Pauls counsel; adjourned to June 20 and 24, 2016 (Jamis
    Yusufs counsel not available for January dates or early June dates; Crown not
    available for February dates; Pauls counsel not available for April dates;
    Jamal Yusufs counsel not available for May dates); Jamal Yusufs counsel and
    the court express concern that additional time may be required; Jamal Yusufs
    counsel raises severance issue, the Crown responds that a s. 11(b) waiver would
    be required from Pauls; trial judge advises he will go per diem as of the end
    of June (approximately one day of evidence heard)

o

June 20, 2016
 sixth day of trial;
    court commenced at 10:38 a.m. because the interpreter was late; Dawoods examination-in-chief
    continues; interpreter dialect issues interrupt the mornings evidence; Pauls
    counsel delayed due to another matter in the afternoon; previous interpreter
    attends for the afternoon (approximately 1/2 day of evidence heard)

o

June 24, 2016
 seventh day of trial;
    adjourned due to Pauls illness; Yusuf respondents severance request
    dismissed; continuation dates set for September 8 and 9, 2016; Jamis Yusufs
    counsel and court express concern that additional time may be required; Jamal
    Yusufs counsel requests that a third date be set and the trial judge invites
    counsel to do so (no evidence heard)

o

September 8, 2016
 eighth day of trial;
    Dawoods examination-in-chief continues at 10:45 a.m. (counsel and witness
    late); Crown completes examination-in-chief of Mr. Dawood shortly after 3:00
    p.m.; Jamal Yusufs counsel begins cross-examination of Dawood (approximately 3/4
    day of evidence heard
[6]
)

o

September 9, 2016
 ninth day of trial; Jamal
    Yusufs counsel continues cross-examination of Dawood in the morning; the trial
    judge deals with another matter that was double-booked for this date in the
    afternoon; adjourned to February 21 and 22, 2017; Jamal Yusufs counsel
    requests additional dates be set: April 24, 25 and 26, 2017 targeted (approximately
    two hours of evidence heard)

o

September 20, 2016  February and April continuation dates confirmed

o

February 21, 2017
 tenth day of trial;
    cross-examination and re-examination of Dawood is completed; Crowns case
    concludes; Jamal Yusufs examination-in-chief begins (approximately one day of
    evidence heard)

o

February 22, 2017
 eleventh day of
    trial; continued examination of Jamal Yusuf beginning at 10:25 a.m. (Jamis
    Yusufs counsel is late and trial judge has a sentencing); Jamal Yusufs
    counsel requests that the parties canvas earlier dates so the matter can be
    finished prior to April, but the trial judge is not available due to his per
    diem schedule (approximately one day of evidence heard)

o

April 24, 2017
 twelfth day of trial;
    Jamal Yusufs evidence is completed; adjourned to April 25, 2017 due to
    unavailability of final defence witness (less than one hour of evidence heard
[7]
)

o

April 25, 2017
 thirteenth day of
    trial; adjourned to April 26, 2017 due to unavailability of defence witness (no
    evidence heard)

o

April 26, 2017
 fourteenth day of
    trial; evidence of final defence witness (Jamal Yusuf) is completed by 10:30
    a.m.; oral submissions by Pauls counsel indicating Pauls is willing to plead
    guilty to assault causing bodily harm and suggesting a finding of not guilty of
    aggravated assault but guilty of assault causing bodily harm; written
    submissions filed by the Crown and counsel for the Yusuf respondents; adjourned
    to June 2, 2017 to permit clarification of the written submissions if required
    and to July 7, 2017 for judgment; (approximately one hour of evidence heard)

o

June 2, 2017  brief submissions by Jamal Yusufs counsel

o

July 7, 2017  judgment

D.

the trial judges reasons on the s. 11(b)
    applications

[26]

After reviewing the
Jordan
framework and
    the history of the matter, the trial judge noted that the total delay from
    indictment to verdict was 35 months 5 days for the Yusuf respondents and 34
    months 12 days for Pauls. He then reviewed the individual periods of delay. In
    all, he deducted 12 months and 7 days from Pauls overall delay and 3 months
    from the Yusuf respondents overall delay.

a.

Review of individual periods of delay

[27]

The trial judge deducted the periods set out
    below from Pauls overall delay because of the unavailability of Pauls counsel
    (6 months and 22 days). However, he declined to deduct any portion of this
    delay from the Yusuf respondents overall delay as their counsel had available
    dates during the relevant periods:

·

June 17 and 18, 2015 (the first available trial
    dates) to August 5, 2015 (1 month and 18 days);

·

December 7, 2015 (the first reasonably available
    continuation date following the August 6, 2015 adjournment) to January 11, 2015
    (1 month and 4 days);

·

November 21, 2016
[8]
(presumed first available continuation date following the September 9, 2016
    adjournment) to February 21, 2017 (3 months);

·

March 24, 2017
[9]
(presumed first available continuation date following the February 22, 2017
    adjournment) to April 24, 2017 (1 month).

[28]

In addition to the foregoing deductions, the
    trial judge deducted three months from the overall delay of all respondents
    because of the combined unavailability of all counsel, including the Crown,
    between January 14, 2016 and June 20, 2016.

[29]

Finally, the trial judge deducted 2 months and
    15 days from Pauls overall delay arising from the adjournment from June 24,
    2016 to September 8, 2016 necessitated by Pauls illness on June 24, 2016.
    However, he concluded this delay was entirely Pauls responsibility and that no
    deduction from the Yusuf respondents overall delay was warranted.

[30]

The trial judge declined to make any further
    deductions from the respondents overall delay.

[31]

Although the initial adjournment was requested
    by the respondents, the trial judge attributed the resulting delay to the
    Crown. In his view, the delay stemmed directly from the Crowns failure to
    respond promptly to the defence requests for an additional copy of the exterior
    camera DVD. This was not a discrete event beyond the control of the Crown. Further,
    relying on the principle that counsel cannot be expected to be in a constant
    state of availability, he made no deduction because of Pauls counsels inability
    to continue the trial on August 7, 2015. In any event, he found that, even
    absent the adjournment, the case would not have finished on August 6, 2015.

[32]

Although the trial judge accepted that various discrete
    events (i.e., late witnesses, interpreter issues and a medical issue) delayed
    the trial during the first continuation in January 2016, he was not satisfied
    they delayed the trial by more than 1 ½ days. Much evidence remained to be
    called and the case would not have been completed because of the pace of the
    Crowns case. The misestimate of trial time was not a discrete event. The Crown
    knew or ought to have known how it was going to prosecute this case at the
    outset but instead had mischaracterized the matter as a press and play case
    that would require only two days to try.

[33]

Similarly, although the trial judge accepted
    that the late arrival of Pauls counsel and the interpreter problem that
    occurred on June 20, 2016 were discrete events, he did not attribute any
    significance to them in terms of ongoing delays.

[34]

The trial judge found several hours of trial
    time were lost on September 8, 2016 because Mr. Dawood was late. Further, as
    the trial judge gave priority to another case, the matter did not proceed on
    the afternoon of September 9, 2016.

[35]

However, the trial judge rejected the Crowns
    submission that the 5-month 12-day adjournment to February 21, 2017 should be
    deducted because of discrete events. In his view, responsibility for this
    adjournment lay at the feet of the Crown and the court system for two reasons.
    The first reason was the Crowns misestimate of the time required for trial and
    its failure to deal properly with the blank video disclosure request. The
    second reason was the overburdened justice system, as a result of which the
    court was overbooked on September 9, 2016.

[36]

The matter proceeded essentially uninterrupted
    in February 2017. Given the Crowns gross misestimate of the required trial
    time, the trial judge rejected the Crowns submission that the adjournment to
    April was caused by a discrete event.

[37]

Finally, holding that a trial ends when the
    verdict is rendered and not upon completion of the evidence, the trial judge
    rejected the Crowns argument that the reserve period should be excluded from
    the
Jordan
ceiling.

b.

Not a complex case

[38]

Turning to whether complexity created
    exceptional circumstances, the trial judge concluded this was not a complex
    case. The video clarified the events, which occurred in one location over
    several hours. In the circumstances, the presence of three co-accused did not
    make the case complex. Nor did the case present complex legal issues.

c.

No transitional exceptional circumstances

[39]

While acknowledging that the case began prior to
    the release of
Jordan
, the trial judge was not satisfied the Crown
    reasonably relied on the previous state of the law such that the delay was
    justified based on transitional exceptional circumstances. Rather, the Crowns
    inaction in response to the defence requests for additional disclosure relating
    to the blank video and gross misestimate of the time required for trial
    precluded the conclusion that the Crown had prosecuted the matter expeditiously.

E.

analysis of the s. 11(b) issue

(1)

Standard of Review

[40]

The Yusuf respondents challenged the continuing
    applicability of the pre-
Jordan
standard of review in the post-
Jordan
world. However, several post-
Jordan
decisions of this court have held
    the standard of review on a s. 11(b) application is well-established. Deference
    is owed to a trial judges underlying findings of fact. Characterizations of
    periods of delay and the ultimate decision concerning whether there has been
    unreasonable delay are reviewable on a standard of correctness:
R. v. Jurkus
,
2018
    ONCA 489, 363 C.C.C. (3d) 246, at para. 25,
leave to appeal refused,
[2018]
    S.C.C.A. No. 325
;
R. v. Albinowski
, 2018 ONCA
    1084, 371 C.C.C. (3d) 190, at para. 27;
R. v.
    Bulhosen
, 2019 ONCA 600, 377 C.C.C. (3d)
    309, at para. 73
. Given these decisions, I decline the Yusuf
    respondents invitation to revisit the standard of review.

(2)

Did the trial judge err in allocating the delay
    arising from the unavailability of defence counsel? Did the trial judge err in
    his treatment of discrete events?

[41]

I have combined these two issues because the
    Crowns oral submissions relating to them overlapped.

[42]

As a starting point, the Crown relies on the
    deductions from overall delay made by the trial judge from each respondent. In addition,
    in oral argument the Crown submitted that the following deductions should be
    made from the net delay calculated by the trial judge:

·

nine months from the net delay attributed to the
    Yusuf respondents arising from co-accused delay:

o

the unavailability of Pauls counsel to commence or continue the
    trial on three dates:

§

June
    17 and 18, 2015 (resulting in 1 month and 18 days delay to August 5, 2015);

§

December
    7 and 8, 2015 (resulting in 1 month and 4 days of delay to January 11, 2016);

§

November 22, 2016 (resulting in 3 months of
    delay to February 21, 2017, 2017); and

o

the adjournment on June 24, 2016 to September 8, 2016 caused by
    Pauls illness (2 months and 14 days of delay);

·

four months from the net delay attributed to all
    respondents arising from the impact of the joint misestimate of trial time by
    all counsel causing the inevitable adjournment of the August 2015 trial dates
    calculated to December 7, 2015, the first continuation date offered which the
    trial judge found was reasonably available to the defence
[10]
;

·

three months from the net delay attributed to
    all respondents arising from the impact of discrete events that interrupted the
    trial in January and June 2016 and which prevented the trial from finishing in
    September 2016 (this three month deduction assumes the Crowns position on
    co-accused delay from November 22, 2016 to February 21, 2017 and the trial
    judges deduction of one month for co-accused delay from March to April 2017
    are accepted, otherwise the claimed deduction from the Yusuf respondents
    overall delay is seven months).

[43]

Finally, the Crown also relies on the position
    advanced in its factum that the trial judge erred in attributing two months and
    seven days of delay to the Crown for the period January 14, 2016 to June 20, 2016
    when the Crown was unavailable only for February dates during that period and
    could have accommodated all other dates offered in January, April, May and
    early June that were unavailable to one or more of the respondents counsel. To
    the extent the trial judge attributed more than one month of the delay to the
    Crown due to its misestimate of trial time, the trial judge erred.

[44]

I will review each of these claims in turn.

(a)

Delay arising from the unavailability of
    co-accuseds counsel

(i)

The Crowns position

[45]

The Crown submits that the trial judge erred in deducting
    delay attributable to the unavailability of counsel only from the delay of the
    respondent whose counsel was unavailable. Where proceeding against multiple
    accused is reasonable and severance is not in the interests of justice, the
    Crown cannot be expected to foresee or mitigate delay caused by the
    unavailability of co-accuseds counsel.

[46]

The Crown acknowledges that in
R. v. Gopie
,
    2017 ONCA 728, 140 O.R. (3d) 171, this court adopted an individualized approach
    to calculating defence delay and did not directly deduct delay caused by
    co-counsels missteps (inadvertent double-booking by one counsel; failure to
    provide available trial dates by another counsel) from Gopies delay as defence
    delay or a discrete event. However, the Crown points out that in
Albinowski
,
    this court held that an individualized approach may not be appropriate where
    accused persons are proceeding through the system as a collective and
    scheduling challenges arise directly and inevitably from their joint
    situation: at para. 37. This approach, says the Crown, is reaffirmed in this
    courts decision in
R. v. Brissett
, 2019 ONCA 11, and is also consistent
    with the British Columbia Court of Appeals decision in
R. v.
Singh
,
2016
    BCCA 427, 344 C.C.C. (3d) 516
.

[47]

The Crown submits that in this case, proceeding
    against the respondents jointly was not only reasonable, but was confirmed as
    the
correct
approach when the trial judge dismissed the Yusuf
    respondents severance application. The delays resulting from any one counsels
    unavailability are the direct result of scheduling challenges arising from the
    joint prosecution and were neither predictable nor within the control of the
    Crown. Thus, such delays should be deducted as defence delay in relation to the
    respondent whose counsel was unavailable and as delay arising from a discrete
    event in relation to the other respondents.

(ii)

The Yusuf respondents position

[48]

The Yusuf respondents argue that the Crowns
    position is inconsistent with both
Albinowski
and
Gopie
. First,
    they say that the Crowns method of calculating defence delay  by starting the
    delay clock as soon as an accused rejects a single available date  was
    expressly rejected in
Albinowski
. Further, they adopt Pauls position
    that there is no evidentiary support for the trial judges finding of one month
    of delay due to the unavailability of Pauls counsel from February 21, 2017 to
    April 26, 2017.

[49]

Moreover, they assert that
Gopie
s
    individualized approach to defence delay is not only a proper reflection of
Jordan
principles, but also was clearly intended to govern delay arising from the
    unavailability of counsel for a co-accused. This court confirmed as much in
R.
    v. Antic
, 2019 ONCA 160, at para. 8. Further, the Yusuf respondents say
Albinowski
should be confined to its facts, which involved the combined unavailability of
    several defence counsel who rejected multiple available dates.

(iii)

Discussion

[50]

I conclude that the
Albinowski
communal
    defence delay approach is appropriate for the following periods of delay
    arising from Pauls counsels unavailability:

i)

the one-month eighteen-day period from June 17
    to August 5, 2015; and

ii)

the one-month five-day period from December 7,
    2015 to January 11, 2016.

[51]

For reasons that I will explain, I find that the
    other periods of delay the Crown attributes to the unavailability co-accused
    counsel can be deducted for other reasons. I therefore consider it unnecessary
    to resolve on this appeal whether they can be deducted based on the unavailability
    of co-accuseds counsel.

[52]

I agree that the
Gopie
individualized
    approach is consistent with the general principles set out in
Jordan
concerning defence delay. Apart from waiver,
Jordan
speaks of defence
    delay as delay caused
solely
or
directly
by the conduct of the
    defence:
Jordan
, at paras. 61-66. Further, although
Jordan
initially involved ten accused, co-accused delay did not factor into the
    calculation of the net delay in that case. However, while it did not apply the
    principle in that case, at para. 77 of
Jordan
the Supreme Court
    indicated that, where it is in the interests of justice to do so, proceeding
    jointly against multiple accused can affect the complexity of a case.

[53]

Nonetheless, in
Albinowski
, this court
    held there may be circumstances where a communal approach to defence delay is
    more appropriate. These include multiple-accused cases where several counsel
    are unavailable for different parts of a particular delay period. For example,
    that was the situation in this case where all counsel, including the Crown,
    were unavailable for some parts of the period between January 14, 2016 and June
    20, 2016. The trial judge allocated three months of the five-month seven-day
    delay jointly to the defence and the remaining delay to the Crown. Although the
    Crown challenges the amount of delay allocated to it, no party has challenged
    the propriety of that approach. Where appropriate, this form of communal
    allocation may avoid microscopic assessments of delay periods, a practice of
    which the Supreme Court disapproved in
Jordan
: at paras. 37, 111.

[54]

The two periods of delay I have identified as
    being governed by the communal approach occurred at a time when the respondents
    were charged on separate informations.
[11]
Thus,
    the Yusuf respondents agreed to trial dates acceptable to Pauls knowing that
    their counsel, the Crown and the court had earlier available dates and, more
    importantly, accepting that their trials should proceed with Pauls. Given these
    circumstances I conclude that, at least for the first two periods I have
    identified, the Yusuf respondents should be treated as proceeding communally
    with Pauls and should share in the delay caused by the unavailability of his
    counsel.

(b)

Delay arising from the joint misestimate of time
    and the impact of discrete events


(i)

Crowns position

[55]

The Crown submits that the trial judge erred in
    laying total responsibility for the misestimate of trial time at the Crowns
    feet and in failing to treat the misestimate as a discrete event. Second, the
    Crown argues the trial judge erred in failing to attribute the delay caused by
    Pauls illness to the Yusuf respondents as a discrete event. Finally, the Crown
    submits the trial judge erred in failing to recognize that adjournments caused
    by the discrete events he recognized, such as interpreter problems, late
    witnesses, medical issues and the illness of Pauls, had consequences beyond the
    specific trial time lost due to the discrete event.

[56]

At para. 73 of
Jordan
, the Supreme Court
    of Canada observed that trials are not well-oiled machines. Accordingly, even
    where parties have made a good faith effort to establish realistic time
    estimates, if the trial goes longer than expected, it is likely the delay was
    unavoidable and may therefore amount to an exceptional circumstance.

[57]

The Crown submits that is exactly what happened
    in this case. The case was pre-tried and the two-day time estimate was set at
    the pre-trial. Everyone had the same information: they knew there was a video
    of events inside the restaurant; they knew the Crown would play the video and
    that the duration of the video was two and a half hours; they knew the Crown
    would have to ask the complainant some questions about the video; and they knew
    there was a second Crown witness who had seen the initial altercation outside
    the restaurant. All counsel were aware three defence counsel would be
    cross-examining. All counsel were aware that some, all or none of the
    respondents might testify. While it was not known that the complainant would
    require an interpreter until shortly before the trial, no one could have
    predicted the interpreter issues that ultimately arose. And the issue of how
    many questions the Crown would have to ask the complainant was a matter of
    common variability that impacts the length of almost every trial.

[58]

The Crown concedes it could have mitigated the
    initial delay caused by the August 2015 adjournment by responding more promptly
    to defence correspondence. However, the Crown also points out that (as
    acknowledged by the trial judge) the trial would not have finished on August 6,
    2015 in any event because of the misestimate. In the circumstances, the Crown
    concedes responsibility for 12 days of delay from August 5, 2015 to August 17,
    2015 (the first continuation date offered) but submits the remaining delay  to
    either December 7, 2015 (if its argument concerning co-accused delay is
    accepted) or January 11, 2016  should be deducted from the
Jordan
ceiling as the result of a discrete event, namely, a joint good faith estimate
    of trial time.

[59]

Similarly, while the Crown acknowledges
    responsibility for one month of delay for the period January 14 to June 20,
    2016 due to its unavailability in the month of February, it submits the trial
    judge erred in attributing slightly more than an additional month of delay to
    the to it based on the misestimate.

[60]

Finally, the Crown submits that the trial judge
    erred by allocating responsibility to it for any further delays in the trial caused
    by misestimation, when any such misestimates were the product of good faith
    errors by all counsel and the court so as to amount to discrete events.

[61]

As for the impact of discrete events, the Crown
    submits that the trial judge erred in failing to attribute the delay from June
    24, 2016 to September 8, 2016 (2 months and 14 days) caused by Pauls illness
    to the Yusuf respondents as a discrete event. This was an unanticipated event
    the Crown could not be expected to mitigate.

[62]

In addition, the trial judge failed to recognize
    that absent the discrete events he did acknowledge, the trial would have
    finished by the end of September 2016. In this regard, the Crown relies on the
    1.5 days of discrete events identified by the trial judge during the first
    continuation (January 11, 12 and 14 2016) and the additional 1.5 days of
    discrete events identified by the trial judge during the second continuation
    (June 20 and 24, 2016). Had the trial continued during those three days, the
    trial judge undoubtedly would not have given precedence to the other case on
    September 9, 2016. The trial time consumed in February and April 2017 was at
    most three days. Absent the discrete events, the trial would have finished by
    the end of September. Any period between September 2016 and April 2017 not
    attributed to co-accused delay should be subtracted from the
Jordan
ceiling as discrete event delay.

(c)

Respondents Position

[63]

The respondents say the trial judge made no
    error in laying responsibility for the misestimate of trial time solely at the
    feet of the Crown. It was the Crown who described this matter as a press and
    play case and estimated it could be completed within two days. As the trial
    judge found, the defence reasonably relied on the Crowns description of how it
    intended to prosecute the case. It was the Crowns job to consider how it
    intended to proceed before attending the pre-trial  or at least well in
    advance of trial  so that an appropriate amount of trial time could be set. It
    was also the Crowns job  as part of the time-estimation process  to
    determine in advance whether any of its witnesses would require an interpreter.

[64]

The Crown misestimated the trial time not only
    at the time of the pre-trial, but also when continuation dates were set. The
    Crowns misestimate in June 2016 was particularly egregious. Prior to the
    September 2016 dates being set, the Crown claimed it would complete its
    examination in-chief of the complainant before the courts morning break. In
    fact, the Crown did not complete that examination until approximately 3:00
    p.m., making it impossible for the respondents to complete even their
    cross-examination of the complainant in September 2016.

[65]

The respondents dispute the Crowns claim of a
    discrete event on June 20, 2014 and submit that, because of the interpretation
    problems previously experienced, the Crown should have arranged for the one
    satisfactory interpreter to continue to attend.

[66]

In addition to the misestimation, the
    respondents assert the trial judge was correct to consider the Crowns
    tardiness in responding to the defence requests for an additional copy of the
    black video as a complicating factor that dramatically increased the trial
    time. Had the parties been able to put the first scheduled dates for trial to
    appropriate use, that would have reduced not only the overall delay, but also
    the time required for continuations.

[67]

Finally, the respondents submit the trial judge
    was correct in giving minimal weight to the impact of individual discrete
    events. As the trial judge repeatedly recognized, while various discrete events
    occurred and caused specific delays in the trial, because of the initial
    misestimate, the case was not going to finish in any event on the scheduled
    continuation dates on which those events occurred.

(d)

Discussion

[68]

I agree with the Crown that the trial judge
    erred in laying responsibility for much of the delay following the original
    trial dates at the feet of the Crown, but I approach the nature of the trial
    judges errors differently.

[69]

Concerning the period from August 5, 2015 to
    December 7, 2015,  I conclude that the trial judge erred in attributing
    responsibility to the Crown for the adjournment of the original trial dates
    (August 5 and 6, 2016) based on the Crowns tardiness in responding to the
    blank video disclosure requests. Although the Crown may have been able to
    respond to the requests more promptly, the difficulty with laying
    responsibility on the Crown is that the defence request was unnecessary and
    inappropriate from the outset.

[70]

As set out in the chronology, the Crowns
    disclosure to the defence included a YRP technicians notes. The notes indicate
    that on September 2, 2014 the technician obtained a master password from the
    DVR manufacturer that enabled him to access the restaurants DVR. The
    technicians notes outline the recording locations for cameras 11 to 13, but in
    relation to camera 15 state: CAM 15 = BLACK. In his next notation, the
    technician observes all other channels do not appear to be recording. The next
    notation states he began USB backup of cameras 10 to 13 and 15. Once backup was
    complete he verified [USB] files on PC with the manufacturers player and
    then secured USB data to DVD.

[71]

In the face of these notes, there was no basis
    for defence counsel to assert to the Crown that it appeared that the CD had
    not copied properly. Rather than asking for an additional copy of the
    recording, the defence should have immediately applied for, and requested the
    Crowns consent to, the production order it eventually requested at trial.

[72]

I acknowledge that the Crown did not seek to
    relitigate on appeal the trial judges ruling granting the adjournment of the
    original trial dates and conceded responsibility for the delay until August 17,
    2015, the first available continuation date. However, the propriety of the adjournment
    is not the issue. The issue is characterizing the reason for the delay arising
    from the adjournment. As I see it, it is the defence that is responsible for
    the adjournment of the original trial dates. As I have said, rather than make unnecessary
     requests of the Crown, upon reviewing the disclosure the defence should have
    applied immediately for a production order if it wished to have the DVR tested.
    Particularly in an era of scarce resources, the defence should not be entitled
    to pass off responsibility for delay to the Crown by making unnecessary and
    inappropriate disclosure requests and then complaining that the Crown did not
    attend to them promptly. I would allocate responsibility for the five-month and
    seven-day delay between August 5, 2015 and January 11, 2016 to the respondents as
    defence delay and therefore deduct it from the overall delay of all
    respondents.

[73]

The next period of delay is between January 14,
    2016 and June 20, 2016 (five months and seven days). Taking account of the
    combined unavailability of all counsel, the trial judge attributed three months
    of delay to the defence and deducted it from the overall delay. The Crown
    argues that the trial judge attributed an extra one month and seven days of
    delay to it because of the misestimation and disclosure issues. Although the
    trial judge did refer to those matters, he concluded this section by saying:

However, given the state of the lawyers
    schedules, including that of the Crown, I apportion as evenly as I am able an
    average of unavailable and available days and conclude that a period of three
    months be subtracted from the total timeframe, rather than the 5 months 5 days
    the Crown seeks.

[74]

In so doing, in my view, the trial judge took a
    proper approach to apportionment of delay caused by the unavailability of
    counsel, including the Crown, and I would not interfere with this aspect of his
    assessment.

[75]

I would add however, that the trial judge ought
    to have given greater consideration to the impact of the interruptions of the
    trial that occurred on January 11, 12 and 14, 2016 to the overall delay due to
    discrete events (late witnesses, medical issues and interpreter problems).

[76]

The trial judge concluded that up to one and a
    half days of trial time had been lost because of those events. What he did not
    consider was that, had those interruptions not occurred, and had the trial
    proceeded on the originally scheduled trial dates, five days of trial would
    have been completed by January 14, 2016.

[77]

Without getting into the minutiae of the debate
    between the Crown and the defence concerning the precise computation of
    discrete events in January and June 2016, absent the initial adjournment and
    the subsequent discrete events, there can be no doubt the evidence would have
    finished by September 2016 at the latest (i.e., seven trial days were available
    to the end of June, nine to the end of September: August 5 and 6, 2015; January
    11, 12 and 14, 2016; June 20 and 24, 2016; and September 8 and 9, 2016).

[78]

How then to allocate the delay between September
    2016 and April 2017? The reality is that the discrete events did occur. The
    further reality is that until the September 9, 2016 adjournment, the parties
    did not set sufficient future continuation dates to give themselves a chance to
    finish. The final reality is that even with the discrete events, without the
    initial defence delay, the evidence would have finished by the end of February
    2017.

[79]

Although I would allocate initial responsibility
    for the misestimate of the trial time solely to the Crown, in my view, all
    counsel and the court must accept responsibility for the misestimate once
    Dawood began to testify (January 2016). By that point, it was clear how the
    Crown was proceeding. When Dawoods examination-in-chief had not been completed
    as of the end of the January trial dates, all parties and the court should have
    taken a hard look at the original trial estimate and recognized that more than
    two days would be required to complete the trial. The same comment applies with
    even more force to the June 24, 2016 adjournment. Dawoods evidence in-chief was
    still not completed, moreover, the trial had been beset by problems.

[80]

The Crown argues that all delay subsequent to
    June 24, 2016 should be treated as being the result of discrete events including
    joint good faith misestimation or co-accused delay. I do not accept that Jamal Yusufs
    counsel suggested in June 2016 that a third continuation date should be set
    aside. No explanation has been provided concerning why that did not occur. In
    my view, the Crown must bear some responsibility for failing to ensure that
    additional continuation dates were set sooner than the September adjournment,
    when five continuation dates were set or targeted.

[81]

In the end, I would allocate joint
    responsibility to all parties for the delay from September 9, 2016 to February
    21, 2017. However, I would attribute sole responsibility to the respondents for
    the delay from February 24, 2017 to April 24, 2017. Absent the initial
    adjournment of the trial, even with all the other problems, the April 2017
    continuation simply would not have been necessary.

(3)

Delay Allocation

[82]

Based on the foregoing discussion, I would
    deduct the following periods of delay from the overall delay of the
    respondents:

·

June 17/18 to August 5, 2015 (first trial dates
    offered to first day of trial)  1 month and 18 days: defence delay for Pauls
    due to his counsels unavailability; delay arising from a discrete event
    (co-accused delay) for the Yusuf respondents;

·

August 6, 2015 to January 11, 2016 (second day
    of trial to first continuation date)  5 months and 6 days; defence delay,
    failed to make a timely request for a production order for the DVR (Pauls
    counsel also unavailable for next trial dates offered, August 17, 2015,
    December 7 and 8, 2015);

·

January 11 to 14, 2016  1.5 days due to
    discrete events, as found by the trial judge (interpreter and health related
    issues during second continuation dates);

·

January 14 to June 20, 2016  3 months allocated
    to defence delay by the trial judge, an allocation based on the combined
    unavailability of all counsel (total delay 5 months and 5 days);

·

June 20, 2016  one half day due to discrete
    events, including interpreter issues and the late arrival of Pauls counsel;

·

June 24 to September 8, 2016  2 months and 14
    days, defence delay for Pauls arising from his illness; delay arising from a
    discrete event for Yusuf respondents;

·

September 8, 2016  one quarter of a day,
    discrete events arising from late arrival of counsel and a witness;

·

September 9, 2016 to February 21 and 22, 2017 
    two months and 21 days, for the Yusuf respondents (failure of trial to finish
    because of discrete events and defence delay including: joint misestimation of
    time; interpreter issues; co-accuseds illness; and failure to make timely
    application for a production order  50-50 allocation of the total 5 months and
    12 days of delay); 4 months and 6 days for Pauls (3 months of defence delay due
    to unavailability of Pauls counsel plus 50-50 allocation of the remaining
    delay (2 months and 12 days));

·

February 22, to April 24, 2017  two months and
    two days (failure of the trial to finish because of defence delay);

·

April 24, 25, and 26, 2017  two and one quarter
    days (discrete event arising from unavailability of defence witness).

[83]

On my calculations, the
Jordan
framework deductions
    for the Yusuf respondents total 17 months and 5.5 days yielding net delay of 17
    months and 29.5 days while the deductions for Pauls are 18 months and 20.5 days
    yielding 16 months and 4.5 days of net delay. As the net delay for all
    respondents is below the
Jordan
ceiling and as I have found defence
    delay, I conclude a stay is not warranted.

[84]

Given these conclusions, it is unnecessary that
    I address the Crowns arguments concerning reserve time and the
Morin
analysis.

F.

Analysis of the Yusuf respondents arguments
    concerning the findings of guilt

[85]

In addition to arguing that the stay imposed by
    the trial judge should be upheld, the Yusuf respondents raised several
    arguments challenging the propriety of the findings of guilt made against them.
    In particular, they argue that Pauls was the person who injured Dawood and that
    the force they used was minimal, aimed at protecting Dawood from Pauls or
    taking reasonable steps, in self-defence or with consent, to restrain Dawood.
    They say that the trial judge misapprehended the evidence and made legal errors
    that tainted his analysis of the offences. I will address their arguments in
    turn.

(1)

Alleged Misapprehensions of the Evidence

[86]

The Yusuf respondents submit that the trial
    judge misapprehended the evidence in two ways.

[87]

First, they argue that the trial judge
    erroneously rejected Jamal Yusufs evidence that the photographs of Dawoods injuries
    were enlarged and relied improperly on this finding in assessing Jamal Yusufs
    credibility.

[88]

Second, they say that, in assessing Jamal Yusufs
    credibility, the trial judge improperly relied on a police officers evidence
    concerning a statement allegedly made by Jamal Yusuf when the statement had no
    probative value.

[89]

I would not accept these submissions. The trial
    judge rejected Jamal Yusufs evidence concerning the size of Dawoods injuries based
    on his examination of the photographs of the injuries. Even if the trial judge
    made some error in this finding, he did not link this finding to his overall
    assessment of Jamal Yusufs credibility, nor was his finding as to the size of
    the injuries material in any other way to his analysis of the offences.

[90]

Further, the police officer testified that Jamal
    Yusuf made a statement to the effect that he believed Dawood was involved in
    break and enters at the restaurant. During cross-examination Jamal Yusuf said,
    [i]f I told him that I would be lying. The Yusuf respondents contend the
    statement was inadmissible because the officer did not have accurate notes of
    it. However, the Yusuf appellants conceded voluntariness of the statement at
    trial. The absence of a verbatim record of a statement does not necessarily
    render it inadmissible:
R. v. Backhouse
(2005), 194 C.C.C. (3d) 1, at
    paras. 117-119 (Ont. C.A.); see also
R. v. Narwal
, 2009 BCCA 410, 248
    C.C.C. (3d) 62, at para. 39. In any event, the trial judge referred to this
    statement only when reciting the evidence. As I read his reasons, the statement
    played no role in his subsequent assessment of Jamal Yusufs credibility or analysis
    of the offences. Even assuming the trial judge erred in admitting the statement,
    any such error was not material.

(2)

Mens Rea
for
    Unlawful Confinement

[91]

The Yusuf respondents argue that the trial judge
    erred in failing to specifically address the
mens rea
requirement for
    unlawful confinement. They point out that the trial judge rejected Dawoods
    claim that Jamal Yusuf confined Dawood to extract a confession from him for
    stealing money. Absent this motivation, they say the trial judge erred in
    failing to address whether the Yusuf respondents actions which the trial judge
    relied on as constituting the
actus reus
of the offence were carried out
    with a lawful purpose or intention.

[92]

I would not accept these submissions. The Yusuf
    respondents concede that unlawful confinement is a general intent offence. Although
    the trial judge rejected Dawoods evidence about Jamal Yusuf attempting to
    extract a confession from him, the trial judge was satisfied that some form of
    dispute existed between Jamal Yusuf and Dawood. He also found that the actions
    of the respondents in regularly pushing Dawood back onto the chair when he
    attempted to get up and leave  prevented Dawood from leaving. For reasons that
    I will explain, I do not accept the Yusuf respondents other arguments that
    could lead to any doubt about the lawfulness of these actions. Read fairly, the
    trial judges reasons reflect a conclusion that the Yusuf respondents actions,
    which had the effect of confining Dawood against his will, were intentional and
    could not be justified by any defence.

(3)

Dawoods Injury Suffered Outside the Restaurant and
    alleged
W.(D.)
[12]
errors

[93]

It was undisputed at trial that Dawood suffered
    a head injury (one of the two cuts to his head) during an initial incident
    outside the restaurant that was not captured
on video
. What
    happened during the incident was very much in dispute at trial.

[94]

The Yusuf respondents submit that the trial
    judge erred in finding that Jamal Yusuf inflicted Dawoods initial head injury,
    and further erred in finding Jamal Yusuf guilty as a principal and Jamis Yusuf
    as a party to assault causing bodily harm based on that finding. In addition, they
    assert that, in making the finding that Jamal Yusuf caused this specific
    injury, the trial judge ignored reliability issues concerning Dawoods evidence
    and wrongly treated Dawoods evidence and Jamal Yusufs evidence concerning
    what happened outside the restaurant as a credibility contest.

[95]

I would not accept these submissions. As a
    starting point, I reject the Yusuf respondents argument that the trial judge
    found, at para. 97 of his reasons, that Jamal Yusuf inflicted the injury that
    occurred outside the restaurant and relied on this finding as a basis for the
    assault causing bodily harm findings of guilt as against the Yusuf respondents.

[96]

I acknowledge that at para. 97 of his reasons
    the trial judge accepted Dawoods evidence that Jamal Yusuf struck Dawood in
    the face outside the restaurant. However, the trial judge went on to say:
    [Dawood] was not able to tell the court if he suffered any injury because he
    lost consciousness. The trial judge had earlier made a similar observation at
    para. 20 of his reasons.

[97]

Reading the trial judges reasons as a whole, I
    conclude the trial judge was unable to determine the mechanism of the head injury
    that occurred outside the restaurant. He made no specific finding in that
    regard. Further, I see nothing in the trial judges reasons to support a
    conclusion that he relied on Dawoods injury suffered outside the restaurant to
    support the findings of guilt for assault causing bodily harm. For example, at
    para. 114 of his reasons, the trial judge said, I do not have to find that
    Jamis did anything to Mr. Dawood while outside the restaurant. Nowhere did the
    trial judge make a finding that the injuries outside the restaurant supported
    the findings of guilt for assault causing bodily harm. In any event, on my
    review of the reasons, the reliability of Dawoods evidence was front and
    centre in the trial judges mind. At para. 98 of his reasons, the trial judge
    stated explicitly that [i]n assessing Mr. Dawoods credibility, the issue of
    his reliability must be factored in any such assessment. I see no indication
    of the trial judge treating the credibility issue as a contest. Further, for
    reasons that I will explain more fully below, I reject the Yusuf respondents
    position that the trial judge made any other
W.(D.)
error.

(4)

Dawoods Injuries Suffered Inside the Restaurant
    and Liability of the Yusuf Respondents

[98]

The Yusuf respondents submit that the trial
    judge found that Pauls caused the injuries to Dawoods head and nose suffered
    inside the restaurant. Further, they say that the trial judges findings that
    they kicked, slapped, punched and pushed Dawood could not support findings of
    guilt for assault causing bodily harm unless they intended to aid or abet Pauls
    in committing the specific acts that caused Dawoods injuries (hitting him over
    the head with a chair and striking him in the face) or shared an intention in
    common with Pauls to commit some offence.

[99]

The Yusuf respondents point to the trial judges
    finding at para. 114 of his reasons that Dawoods injuries could have been much
    worse but for their intervention. They say this finding demonstrates they
    lacked the intention to aid or abet Pauls acts that caused injuries to Dawood.
    Further, they rely on the trial judges rejection of Dawoods claim of a plan
    on Jamal Yusufs part to extract a confession from Dawood to say the Crown failed
    to prove a common intention to commit an offence that would support the
    findings of guilt for assault causing bodily harm.

[100]

I would not accept these submissions. At para. 114 of his reasons,
    the trial judge rejected the submission that the Yusuf respondents overall actions
    were aimed at impeding Pauls from assaulting Dawood. His specific finding
    concerning the Yusuf respondents intervention was that it occurred from time
    to time. This happened, for example when Jamis Yusuf took a lit blow torch
    away from Pauls. However, the trial judge went on to find that such
    intervention did not detract from the joint efforts of the three [respondents]
    in the assault on Mr. Dawood, which continued for a considerable period of
    time, with each of the [respondents] participating at various times. The trial
    judge also found Dawoods injury suffered outside the restaurant was exacerbated
    by the assaults he endured inside the restaurant.

[101]

In Ontario, the intent required for assault causing bodily harm is
    the intent to commit a simple assault where it is objectively foreseeable that
    the assault would subject the victim to the risk of bodily harm:
R. v.
    Palombi
, 2007 ONCA 486, 222 C.C.C. (3d) 528, at paras. 38-39;
R. v.
    Nurse
(1993), 83 C.C.C. (3d) 546 (Ont. C.A.). Liability as an aider or
    abettor arises where an act or omission assists in the commission of an offence
    and the act or omission was committed for the purpose of assisting the
    perpetrator in the commission of the offence:
R. v. Vu
, 2012 SCC 40,
    [2012] 2 S.C.R. 411, at para. 58. Concerning the included offence of assault
    causing bodily harm, the trial judge accepted a submission that a finding of
    unlawful confinement would lead to party liability. He also concluded that the
    respondents were each parties and acted with each other and actually committed
    offences against Mr. Dawood.

[102]

On the trial judges findings, all of the respondents assisted each
    other in committing the offence of assault causing bodily harm. Each persisted,
    in the presence of each other, in assaulting the already injured Dawood,
    including by administering punches and kicks, over a significant period of time.
    Bodily harm ensued. The trial judge found that the Yusuf respondents were also
    guilty of unlawful confinement in that they intentionally prevented Dawood from
    leaving. Further, he found the respondents acted with each other. Although his
    reasons might have been clearer, nothing more was required.

(5)

Failure to apply the second and third prongs of
W.(D.)

[103]

Although the trial judge referred to
W.(D.)
twice in his
    reasons, he did not recite it. The Yusuf respondents point to this omission and
    the trial judges conclusion, at para. 101 of his reasons, that, in the face of
    the conflicting evidence from Dawood and Jamal Yusuf, It would be dangerous 
    to find with any certainty that [threats] were uttered by Mr. Dawood, even
    though a probability exists, to argue that the trial judge erred by failing to
    apply the second prong of
W.(D.)
. They rely as well on the trial judges
    observation that Jamal Yusuf had a self-interest in testifying that Dawood
    made threats and the failure of the trial judge to refer to reasonable doubt
    when he rejected, at para. 117 of his reasons, Jamal Yusufs explanation for
    slapping Dawood to support this argument. They also say that nowhere in his
    reasons did the trial judge apply the third prong of
W.(D.)
.

[104]

I would not accept these submissions. As I have said, the trial
    judge referred to
W.(D.)
twice in his reasons. He is presumed to know
    the law; he was not required to recite it. Moreover, near the conclusion of his
    reasons, the trial judge quoted Cory J.s explanation of reasonable doubt in
R.
    v. Lifchus
, [1997] 3 S.C.R. 320. I have no doubt that the trial judge was
    mindful of the principles he recited.

[105]

Further, I reject the suggestion that the trial judge failed to
    apply
W.(D.)
. Based largely on the video, the trial judge accepted
    Dawoods evidence that he was intoxicated to a significant degree during the
    events. The trial judge did not reject the respondents position that Dawood threatened,
    insulted, gestured at, and even moved towards the respondents. However, even
    proceeding on the assumption that Dawood did those things, given Dawoods
    condition, he was satisfied that Dawood posed no threat to the safety or
    well-being of any of the respondents. He rejected much of the defence and the
    Yusuf respondents overall position for that reason. Although he rejected some
    of both Mr. Sliwas and Dawoods evidence and expressed concerns over Dawoods
    reliability, with the benefit of the video, he was satisfied of the respondents
    guilt beyond a reasonable doubt. I see no
W.(D.)
error having regard to
    the totality of the reasons.

(6)

Self-defence, Consent, and Unreasonable Verdict

[106]

As noted by the Crown, the Yusuf respondents challenge every aspect
    of the trial judges self-defence analysis. They also contend that Dawood was a
    willing participant in the events that unfolded in the restaurant and that the
    guilty verdicts were unreasonable. I would not accept these submissions.

[107]

I acknowledge that, at one point in his reasons, the trial judge
    misstated the burden of proof in relation to self-defence. Nonetheless, reading
    his reasons as a whole, I am satisfied he found no air of reality to the claim
    of self-defence. The trial judge rejected the Yusuf respondents position that their
    actions were aimed at protecting Dawood from Pauls and instead concluded that the
    three respondents acted together in a prolonged assault on Dawood. He also found
    untenable the respondents claim that Dawood, in his condition as depicted on
    the video, posed any realistic threat to any of the respondents. As such the
    trial judge was satisfied self-defence had no air of reality. I see no error in
    this conclusion.

[108]

Further, in the face of Dawoods condition as found by the trial
    judge and the repeated and prolonged assaults against him as found by the trial
    judge, together with his findings concerning Dawoods injuries, there was no
    basis for a defence of consent, nor can the guilty verdicts be found
    unreasonable.

G.

disposition

[109]

Based on the foregoing reasons, I would allow the Crowns appeal,
    set aside the stay imposed by the trial judge for all respondents and remit the
    matter to the Ontario Court of Justice for sentencing.

R
eleased
: D.W
March 18, 2020

Janet
    Simmons J.A.

I
    agree. David Watt J.A.

I
    agree. B.W. Miller J.A.





[1]
The Crown withdrew the unlawful confinement charge against Pauls.



[2]

R. v. Jordan
, 2016 SCC 27, 1 S.C.R. 631.



[3]

R. v. Morin
, [1992] 1 S.C.R. 771.



[4]
The chronology was prepared using the trial judges reasons on the
    s. 11 (b) application and attached appendices (Crown and defence chronology
    charts), the transcripts of various appearances, certain trial coordinator
    sheets filed at the s. 11(b) hearing as contained in the Yusuf respondents
    appeal book and the copies of the informations in the appeal record. Inexplicably,
    neither the original appeal record nor the Yusuf respondents appeal book
    contained the s. 11(b) application record or all other documents placed before
    the trial judge during the application hearing. Following the appeal hearing we
    directed the Crown to file the application record and the additional documents
    filed.



[5]
No such letter has been filed with this court. However, it is
    referred to in the trial judges reasons on the s. 11(b) application. In
    addition, Jamal Yusufs counsel referred to the Crowns letter saying the video
    was not recoverable in her submissions on August 5, 2015. However, it does not
    appear from the transcript that she had a copy of the letter in hand when she
    made that submission.



[6]

Very few times are noted on the transcript from September 8,
    2016. However, the length of the transcript compared to other transcripts
    supports the conclusion that less than a full day of evidence was heard.



[7]
No times are indicated on the transcript, but cross-examination
    consumed about one page of transcript and re-examination about six pages.



[8]
It is not clear from the record what trial date(s) may have been
    offered and rejected by Pauls counsel. However, Pauls does not dispute the
    three-month deduction from his overall delay as a result of the unavailability
    of his counsel during the adjournment from September 9, 2016 to February 21,
    2017.



[9]
It is not clear from the record what if any dates were offered and
    rejected by Pauls counsel. Pauls disputes this one-month deduction from his
    overall delay.



[10]
The Crown also maintained the position it took on the s. 11(b)
    application that the first continuation dates offered were August 17, 18 and
    19, 2015 and that the trial could have continued on those dates but for Pauls
    counsels unavailability. The respondents assert that August 17, 2015 was the
    only date offered and in any event rely on the trial judges finding that
    counsel are not expected to be in a continuous state of availability for the
    purpose of s. 11(b) calculations. I consider it unnecessary to resolve the
    dispute over what dates were offered for the purposes of disposing of the
    appeal. As I will also explain below, in relation to this argument, the Crown
    conceded it was responsible for the delay from August 6, 2015 to August 17, 18
    and 19, 2015.



[11]
Filing the joint information and rearraigning the respondents was
    the first order of business on August 6, 2015, the second day of trial.
    However, it was apparent to all before the day started that the matter would be
    adjourned and counsel had already attended the trial coordinators office to
    obtain the January 2016 adjournment dates.



[12]

R. v. W.(D)
, [1991] 1 S.C.R. 742.


