



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Safdar, 2021 ONCA 207

DATE: 20210401

DOCKET: C66305

Feldman, Gillese and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Adeel Safdar, Shaheen Safdar and Aatif Safdar

Respondents

Tracy Kozlowski, for the appellant

Nader Hasan and Caitlin Milne, for the respondent
    Shaheen Safdar

No one appearing for the respondents Adeel Safdar and
    Aatif Safdar
[1]

Heard: October 5, 2020 by video conference

On appeal from the order of Justice Andrew J. Goodman of
    the Superior Court of Justice, dated December 3, 2018, staying the charges
    against the respondents, with reasons reported at 2018 ONSC 7067.

Feldman J.A.:

[1]

The respondents are two brothers and their mother who were tried for a
    number of serious offences involving the alleged abuse of the wife of one of
    the brothers. At the end of the evidence and argument on the merits of the
    allegations, the respondents brought an application under s. 11(b) of the
Canadian
    Charter of Rights and Freedoms
, for a stay based on unreasonable delay.
    While the trial judge was preparing his decision on the trial, he heard the s.
    11(b) application, reserved his decision, then released that decision, granting
    the stay. In his reasons, he advised that he had also completed his reserved
    decision on the trial proper, which he did not release, but placed under seal
    pending the outcome of any appeal of the stay order.

[2]

The Crown appeals from the stay order, arguing that following the
    release of the Supreme Court of Canadas decision in
R. v. K.G.K.
,
    2020 SCC 7, the trial judge erred in including the period from the end of
    evidence and argument until the release of the stay decision in his calculation
    of the overall delay. The Crown also takes issue with the trial judges
    characterization of various periods of delay and submits that even if the net
    delay falls over the presumptive ceiling, the delay can be justified on the
    basis of complexity or the transitional exceptional circumstance established in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631.

[3]

The respondents accept that the trial judge erred to a limited extent as
    a result of
K.G.K.
but submit that the net delay still exceeds the
    ceiling. The respondents also take issue with the trial judges
    characterization of certain periods of delay and argue that even if the net
    delay falls below the presumptive ceiling, it is nevertheless unreasonable.

[4]

For the following reasons, I would allow the Crowns appeal of the stay
    order based on the
K.G.K.
error, set the stay order aside, and refer
    the matter back to the trial judge to release his decision on the trial.

A.

Background

[5]

The respondents were arrested and charged on April 16, 2015. The stay
    was issued on December 3, 2018, a total of 43.5 months later. I attach as Appendix
    A to these reasons, a detailed chronology of the interim events. I will
    highlight in the reasons the events on which any of the delay issues turn. Because
    the
Jordan
decision from the Supreme Court of Canada was delivered in July
    2016, the parties agreed before the trial judge that the 30-month ceiling imposed
    by that case applied, and that this was not a transitional case.

B.

Decision of the Trial Judge on the s. 11(b) Application

[6]

The respondents argued the s. 11(b) application after the evidence and
    submissions on the trial were complete and the trial judge had taken the
    decision under reserve on August 7, 2018. The argument took place on October 9
    and 25, 2018. On December 3, 2018, the trial judge allowed the application and
    stayed the proceedings, holding that the respondents right to be tried within
    a reasonable time had been infringed.

[7]

The trial judge determined the total delay by looking at the period from
    April 16, 2015 (the date the charges were laid) to December 3, 2018 (the date after
    the trial was completed, on which he delivered his reasons on the s. 11(b)
    application and issued the stay of proceedings). The total delay in this period
    was
43.5 months
.

[8]

The trial judge then considered defence delay, holding that the
    following five and a half months should be deducted from the total delay as defence
    delay:

·

4.3 months
, from May 8, 2017 (first trial dates offered)
    to September 18, 2017 (trial dates accepted). The defence was not available for
    the first trial dates, and conceded some defence delay as a result.

·

1.2 months
, from August 31 to October 9, 2018. The s.
    11(b) application was originally scheduled for August 31, 2018, but because the
    defence did not serve their materials in accordance with the rules, the
    application had to be adjourned.

[9]

The trial judge did not find any other defence delay. He rejected the
    Crowns arguments that various periods reflected defence-caused delay.

[10]

First,
    the trial judge found that the period from April 16, 2015 to September 25, 2015,
    when two of the defendants were attempting to retain counsel, was not delay
    caused by the defence. The trial judge found that this was legitimate defence
    preparation time, and in any event, because important Crown disclosure was not
    provided until September 2015, a judicial pretrial could not have taken place
    until after September 25, 2015.

[11]

Second,
    the trial judge rejected the Crowns argument that the period from June 20 to
    August 19, 2016, when additional dates were required for the preliminary
    inquiry, should count against the defence. The preliminary inquiry dates were
    set on November 25, 2015 for two weeks in June 2016, with the agreement that if
    more time was needed, it could be treated as a discovery without a judge.
    Committal was conceded at the end of the first day. Additional dates were set
    on June 24, 2016 for August 19, 22, 23, and 26, 2016, when the preliminary
    inquiry was completed, and the defendants were committed to stand trial. The
    trial judge found that when the dates were set in November 2015, the parties
    believed there was adequate time for the preliminary inquiry, and the
    additional dates were legitimately required by the defence to respond to the
    charges.

[12]

Third,
    the trial judge rejected the Crowns submission that the period from April 27 to
    August 31, 2018 (or alternatively, to October 9, 2018), required for the
    continuation of the trial, should be attributed to the defence because the
    defence was unavailable for continuation dates offered by the court in April
    2018. The trial had been set for six weeks beginning September 18, 2017 but did
    not conclude as scheduled. Further dates were then set for January and March
    2018. Due to the illness of Crown counsel in January, more dates had to be
    obtained. Defence counsel was not available for April dates that were offered
    by the court in February 2018. The dates accepted by all counsel were in June,
    July and August 2018 (although the Crown was unavailable for some of the June
    dates offered).

[13]

The
    trial judge observed that the matter frequently required continuation dates,
    and that throughout the trial, defence counsel had cleared their schedules for
    all of the new dates offered, the only exception being the April dates,
    which were offered with little notice. One defence counsel declined these dates
    because of a previously scheduled matter involving serious charges in the
    Superior Court, while another had pre-arranged medical treatments. The trial
    judge found, relying on
R. v. Godin
, 2009 SCC 26, [2009] 1 S.C.R. 3, and
    the fact that the issue here involved continuation dates, that the defence had
    been sufficiently flexible and available and therefore this period was not
    defence delay.

[14]

Finally,
    the trial judge declined to treat the entire period from the originally
    scheduled end of the trial in October 2017 to the day the s. 11(b) application
    commenced as defence delay. The Crown had argued that this period should be
    attributed to the defence because the defence had failed to meaningfully
    participate in establishing a trial time estimate, causing the trial to run
    longer than the Crown had anticipated. The trial judge held that the
    underestimate of the time required for trial was not defence delay, but rather
    an exceptional circumstance, and he went on to consider it as such.

[15]

The
    trial judge attributed two periods of the delay to exceptional circumstances.
    The first exceptional circumstance he found arose from the underestimation of
    the time required for trial. The trial judge held that the burden of moving the
    trial along expeditiously had fallen mainly on the defence, noting that the
    Crown had called evidence that seemed unnecessary. However, he recognized that
    the Crown acted in good faith in estimating the time required for trial, and
    that the trial went longer than expected for many reasons. He attributed
four
    months
of the delay from October 31, 2017 to August 31, 2018 to this
    exceptional circumstance. Because some of the delay was attributable to a lack
    of institutional resources, he declined to deduct the whole period.

[16]

The
    second exceptional circumstance arose from the illness of Crown counsel in
    January 2018. The trial judge attributed
two months
of delay to the
    Crowns illness. This was intended to reflect a reasonable period of time
    between the unused trial dates in mid-January to the recommencement of the
    trial in March.

[17]

To
    summarize, the trial judge found a total delay of
43.5 months
.
    From this, he deducted 5.5 months of defence delay and 6 months of delay caused
    by exceptional circumstances, leaving a net delay of
32 months
.

[18]

As
    a result, the net delay  32 months  was over the
Jordan
ceiling. The
    trial judge rejected the Crowns argument that the delay was justified based on
    the complexity of the case. The trial judge held that a case had to be
    particularly complex to qualify, and that the exception was a narrow one. He
    compared this case to a number of other cases that had been found to be exceptionally
    complex, and determined that by comparison, this was only a moderately complex
    case.
[2]
He also held that the Crowns plan to minimize delay arising from the
    complexity of the case was insufficient as the trial progressed. It was mainly
    due to the efforts of the defence that the complexity of the matter had been
    reduced.

C.

Issues on the Appeal

[19]

While
    this is a Crown appeal from the stay order, both sides raise issues with
    respect to the correctness of the trial judges characterization of a number of
    the delay periods. As a result, there are five issues on the appeal:

1.

In light of the Supreme Court of Canada decision in
K.G.K.
, released
    after the stay decision of the trial judge, did the judge err in law by
    counting the time between the completion of the evidence and argument and the
    reservation of his decision on the trial, August 7, 2018, and the date the stay
    decision was delivered, December 3, 2018 as part of the 30-month
Jordan
ceiling?;

2.

Did the trial judge err in law in his characterization of any of the
    periods of delay?;

3.

Did the trial judge err by failing to find that any delay above the 30-month
    ceiling should be attributable to the complexity of the case?;

4.

Alternatively, can any delay above the 30-month ceiling be justified on
    the basis that this case should have been treated as a transitional case?; and

5.

If the total delay now falls below the presumptive
Jordan
ceiling, have the respondents met the onus of showing that the delay was
    nevertheless unreasonable?

D.

Analysis

[20]

As
    I will explain, I would allow the Crowns appeal on the first ground, namely,
    that the trial judge erred in law by including in the 30-month ceiling part of
    the period from the end of evidence and argument on the trial and the decision
    on the stay application. In my view, the trial judge did not err in his
    characterization of the remaining periods of delay. The parties largely
    challenge the trial judges factual findings, which are entitled to
    considerable deference on appeal. After the delay calculation is corrected to
    reflect the trial judges error in light of
K.G.K.
, the net delay
    falls below the 30-month ceiling. Accordingly, it is unnecessary to consider
    the Crowns arguments in respect of complexity and the transitional exceptional
    circumstance. Finally, in my view, the respondents have not met their onus of
    showing that this is one of those clear cases in which a stay is required for
    delay falling below the ceiling.

(1)

Did the trial judge err in law in light of the Supreme Courts decision
    in
K.G.K.
?

[21]

Following
    the trial judges release of the stay decision, in March 2020, the Supreme
    Court released its decision in
K.G.K.
That case addressed three
    issues: (1) does s. 11(b) apply to verdict deliberation time; (2) if so, is
    verdict deliberation time included within the
Jordan
presumptive
    ceilings; (3) if not, how should verdict deliberation time be assessed in the
    s. 11(b) context. Moldaver J., writing for the majority, held that while verdict
    deliberation time is subject to s. 11(b) scrutiny, the
Jordan
presumptive
    ceilings extend only to the end of evidence and argument and do not include
    verdict deliberation time. The accuseds right to be tried within a reasonable
    time will have been infringed by verdict deliberation delay where the accused
    proves that the verdict deliberation time was markedly longer than it
    reasonably should have been in all the circumstances:
K.G.K.
, at para.
    54.

[22]

Because
    the trial judge did not have the benefit of the
K.G.K.
decision, he
    counted much of the time following the close of the evidence and the submissions
    of counsel on the merits of the charges, including the argument of the s. 11(b)
    application and the deliberation time for both the delivery of the decision on
    the application and the preparation of the reasons for decision on the trial
    proper, under the
Jordan
framework. Relying on
R. v. Gopie
,
    2017 ONCA 728, 140 O.R. (3d) 171, at para. 79, he stated that the relevant
    period runs to the actual or anticipated date of the verdict. That was an error
    in law.

[23]

The
    parties do not agree, however, on the effect of the error on the trial judges
    calculation. In short, they disagree on when the
Jordan
clock should
    stop, pursuant to
K.G.K.
The Crown says that the
Jordan
clock
    stops on the final day of submissions on the trial, while the respondents argue
    that the clock stops on the final day of submissions on the s. 11(b)
    application.

[24]

The
    affected time period is August 7, 2018 (the last day of argument on the merits
    of the charges) to December 3, 2018 (the date the charges were stayed). The trial
    judge already deducted the period from August 31, a date offered for argument
    of the s. 11(b) application, to October 9 (1.2 months) because this delay was
    waived by the defence. As a result, the Crown submits that,
prima facie
,
    the periods from August 7 to August 31, and from October 9 to December 3,
    totalling 11 weeks or 2.75 months, should also be deducted from the trial judges
    total of 32 months, reducing the total to 29.25 months and bringing it below
    the
Jordan
ceiling.

[25]

The
    respondents position is that the time required for legitimate
Charter
applications such as s. 11(b) applications should count towards the
Jordan
presumptive ceiling. Accordingly, only the five weeks that constitute verdict deliberation
    time from October 25 (the last day of argument on the s. 11(b) application) to
    December 3 (the date of the decision) should be deducted. That would result in
    a total delay that is still over the
Jordan
ceiling, based on retaining
    the trial judges delay allocations of thirty months and three weeks.

[26]

The
    respondents argue that Moldaver J. only intended to exclude from the
Jordan
presumptive ceilings post-trial motions brought following the verdict. They say
    that a legitimate s. 11(b) application that is brought before the verdict,
    whether before or after the evidence and closing arguments at trial, should count
    in the delay calculus.

[27]

I
    would reject this argument and interpretation of
K.G.K.
In my view, Moldaver
    J.s reasons clearly indicate that he intended to draw a hard line at the end
    of the evidence and argument on the trial for the purpose of the
Jordan
ceiling calculus, and that anything that followed is not to be included.

[28]

Moldaver
    J. explained that while s. 11(b) applies to the entire time that an accused
    person is subject to the charge, including sentencing, the
Jordan
ceiling was established to address the culture of complacency that had come
    to pervade all actors in the criminal justice system in bringing an accused to
    trial. Hence the focus on the time period up to the end of trial.

[29]

Thus,
    in para. 31, he stated:

Properly construed, the
Jordan
ceilings apply from the
    date of the charge until the actual or anticipated end of the evidence and
    argument. That is when the parties involvement in the merits of the trial is
    complete, and the case is turned over to the trier of fact. As I will explain,
    this date permits the straightforward application of the
Jordan
framework in a manner consistent with its design and goals.

[30]

And
    in para. 33, he explained what the phrase end of trial was intended to mean
    in
Jordan
:

While
Jordan
states that the presumptive ceilings
    apply from the charge to the actual or anticipated end of trial, the Court
    did not explicitly define the phrase end of trial. It has been suggested that
    this phrase permits of four possible interpretations: (1) the end of the
    evidence and argument; (2) the date the verdict is delivered, excluding
    post-trial motions; (3) the conclusion of post-trial motions; or (4) the date
    of sentencing (see A.F., at para. 131). On close analysis, it is the first
    interpretation that accurately reflects the reasoning underlying
Jordan
and the mischief it sought to address. To be precise, the
Jordan
ceilings apply from the charge to the end of the evidence and argument, and no
    further.

[31]

The
    respondents submit that the references to post-trial motions in interpretations
    two and three are to post-verdict motions. Therefore, motions brought after the
    evidence and argument are complete but before the verdict were intended to be
    included in the first interpretation. I do not agree.

[32]

The
    simple fact is that any motion or application that is brought and heard following
    the close of evidence and argument is within the time period of verdict
    deliberation. Exactly as occurred in this case, once the evidence and argument
    are complete, the trial judge reserves the decision and the period of verdict
    deliberation time begins. Here, the trial judge completed his reasons for
    decision over the same period that he heard and decided the s. 11(b)
    application.

[33]

I
    do not see any anomaly, as suggested by the respondents, in counting the time
    for a s. 11(b) application within the ceiling if the application is brought
    before the end of argument, but not within it if the application is brought
    after the end of argument. To the contrary, the respondents position, if accepted,
    would encourage defendants to delay s. 11(b) applications until after the trial
    is complete, as a way of extending the time to completion  the opposite of the
    purpose of the
Jordan
decision. Instead, it is incumbent on the Crown
    and defence to schedule sufficient trial time, including for all motions and
    applications that are not explicitly intended to be heard only post-verdict.

[34]

This
    conclusion is supported by Moldaver J.s reason for selecting the anticipated
    last day of evidence and argument, discussed at para. 45 of
K.G.K.
, where
    he stated that the goal was to provide a workable and predictable date to use
    in calculating delay on pre-trial applications. He anticipated that extending
    the
Jordan
ceiling beyond the date on which evidence and argument
    conclude would lead to practical issues for post-trial s. 11(b) applications,
    writing that these applications would be particularly problematic for the
    Crown in cases where the ceiling was breached after evidence and argument
    concluded and the judge had taken the case under reserve:
K.G.K.
, at
    para. 46. It follows from his concern about post-trial s. 11(b) applications
    that the last day of evidence and argument means the last day of evidence and
    argument on the merits of the charges, and not the last day of argument on the
    s. 11(b) application.

[35]

I
    therefore conclude, using the trial judges delay calculations corrected to
    reflect the
K.G.K.
decision, that the total delay is 29.25 months,
    which is within the
Jordan
presumptive ceiling for reasonable delay.

(2)

Did the trial judge err in law in his characterization of any of the
    periods delay?

[36]

The
    Crown also asks the court to revisit some of the delay periods and to reallocate
    the amount of time attributed by the trial judge to each period. The
    respondents reject each of the Crowns submissions but assert that in respect
    of three of the periods, all of the 4.3 months for rejecting the first offered
    trial dates, the four months deducted for the delay from the end of the six
    weeks scheduled for the trial in the fall of 2017 and the end of the trial in
    August 2018, and the two months deducted for Crown counsels illness in January
    2018, the amounts deducted should be reduced.

[37]

I
    intend to deal with each of these arguments relatively briefly. The standard of
    review on appeals from s. 11(b) applications is well established and was
    recently restated by this court in
R. v. Pauls
, 2020 ONCA 220, 454
    C.R.R. (2d) 138, at para. 40, affd 2021 SCC 2:

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. 190, at para. 27;
R. v.
    Bulhosen
, 2019 ONCA 600; 377 C.C.C. (3d) 309, at para. 73.

[38]

In
    this case, unlike many, the late timing of the application, after the end of
    the trial and before the verdict, meant that the trial judge heard the entire trial
    evidence and observed the tactics and procedures employed by all counsel. He
    was not just working from a record of transcripts of hearing dates. He was
    uniquely positioned to assess what evidence was necessary, and what was
    redundant, and how much time should have been taken for various steps in the
    proceeding. Further, because there are no reasons for decision available to
    this court, we are not in a position to evaluate those assessments. All to say
    that in the unique circumstances of this case, particular deference is owed to
    the findings of the trial judge based on his observations of the conduct of the
    trial.

(a)

July 24, 2015 to September 25, 2015  Crown objection: defence delay in retaining
    counsel

[39]

The
    Crown argues that the trial judge should have designated this period as defence
    delay instead of finding that the parties could not have had a meaningful
    pre-trial in this period because key disclosure was not provided until
    September 2015. The Crown says that this period of delay was caused by the
    respondents as some of them had not yet retained counsel.

[40]

I
    would reject this submission. The trial judge considered the Crowns argument
    about delay in retaining counsel and made a factual finding that even if all the
    defendants had retained counsel, they could not have held a meaningful
    pre-trial in any event because of important outstanding disclosure. The
    outstanding disclosure included the respondents statements to police and will-says
    from Crown witnesses who later testified at trial. There was no palpable and
    overriding error in this finding.

(b)

June 20, 2016 to August 27, 2016  Crown objection: preliminary hearing
    delay

[41]

The
    Crown submits that the trial judge erred by not attributing the two months of delay
    caused by the need for further preliminary hearing time to the defence or to
    treat it as an exceptional circumstance.

[42]

The
    trial judge made no error in his factual findings. The parties agreed to the procedure
    of setting a two-week initial hearing with the understanding that if more time became
    necessary, they would treat it like a discovery because committal was not going
    to be in issue. They also agreed to set dates for discovery, if necessary,
    towards the end of the preliminary hearing, because the need for further dates
    would depend on, among other things, how the complainants evidence emerged.

[43]

The
    trial judge made no factual or legal error by finding that this period was not
    defence delay. Further, because the possible need for extra preliminary hearing
    time was contemplated at the outset, it was not reasonably unavoidable or unforeseen
    on the part of the Crown, and therefore could not qualify as an exceptional
    circumstance:
Jordan
, at para. 69.

(c)

May 8 to September 18, 2017  Respondents objection: too much time
    attributed to defence waiver for rejection of first trial dates

[44]

The
    respondents submit that the trial judge erred by attributing 4.3 months to
    defence waiver for this period. The defence rejected the May 2017 trial dates
    offered in favour of September 18, 2017 trial dates. The respondents argue that
    only two months should have been attributed to defence waiver, because the
    court did not offer trial dates any earlier than September.

[45]

I
    would reject this submission. I see no error in the trial judges factual
    finding that the defence was unavailable to proceed in May 2017, while the
    Crown and the court were available. It was open to the trial judge to conclude
    that this delay had been waived by the defence, or alternatively, was caused by
    the defence.

(d)

October 31, 2017 to August 7, 2018  Crown objection: defence
    underestimation of trial time and unavailability for continuation dates

[46]

The
    Crown submits that following the six weeks set for the trial that ended on
    October 31, 2017, the entire nine months further time taken to complete the
    trial was caused by underestimation by the defence of the time needed for
    trial, or was a discrete exceptional circumstance that should have been
    deducted. The trial judge deducted six months for delay during this period, two
    months to account for the trial Crowns illness in January 2018, and four
    months as a discrete exceptional circumstance, in addition to four months of
    systemic delay.

[47]

The
    Crown argues first, that it was because the defence failed to meaningfully
    participate in estimating the trial time that further agreeable and available
    dates to continue the trial had to be found; and second, that defence counsel
    should be responsible for the delay caused by not accepting April 2018 dates
    that were offered to continue the trial, even though one counsel was booked for
    another serious matter, while another was scheduled to attend pre-arranged
    medical treatment.

[48]

The
    first argument is another challenge to a factual finding by the trial judge,
    that the defence did meaningfully participate in estimating the needed trial
    time. This submission must be rejected  there was no palpable and overriding
    error.

[49]

The
    second argument is based on the Crowns submission that the passage in
Godin
,
    at para. 23, which states that for s. 11(b) purposes, defence counsel is not
    required to hold themselves in a state of perpetual availability does not
    apply under
Jordan
. The Crowns position is that where a date is
    available for the Crown and the court but not the defence, that amounts to
    defence delay, citing
Jordan
, at para. 64, which states:

As another example, the defence will have directly caused the
    delay if the court and the Crown are ready to proceed, but the defence is not.
    The period of delay resulting from that unavailability will be attributed to
    the defence. However, periods of time during which the court and the Crown are
    unavailable will not constitute defence delay, even if defence counsel is also
    unavailable. This should discourage unnecessary inquiries into defence counsel
    availability at each appearance. Beyond defence unavailability, it will of
    course be open to trial judges to find that other defence actions or conduct
    have caused delay (see, e.g.,
R. v. Elliott
(2003), 114 C.R.R. (2d) 1
    (Ont. C.A.), at paras. 175-82).

[50]

In
    my view, based on the trial judges factual findings, he was entitled to
    conclude that this period of delay was not solely or directly caused by the
    defence. First, and importantly, the April dates were offered as continuation
    dates in the midst of the ongoing trial. The inadequacy of the trial estimate
    was therefore part of the cause of the delay. Second, these dates were offered
    on relatively short notice. Third, as the trial judge found, defence counsel had
    agreed to all other dates that were offered, including other dates offered with
    little notice. The April dates were the only exception. Finally, defence
    counsel had legitimate reason to decline these continuation dates. One counsel
    was booked on a serious Superior Court matter for a client who was in custody,
    while another was scheduled for medical treatment. The trial judge
    appropriately recognized that counsel could not, in good faith, compromise one
    clients interests for another.

[51]

The
    trial judge made no error by not treating defence counsels legitimate
    unavailability on the April dates as defence delay in all the circumstances.

(e)

October 31, 2017 to August 7, 2018: Respondents objection  attributing
    too much time for Crown illness and failure to acknowledge Crown delay

[52]

The
    respondents also take issue with the trial judges treatment of the same nine-month
    period. First, the respondents submit that the trial judge erred by deducting
    two months as another discrete exceptional circumstance for Crown counsels
    illness, rather than the one week of the actual illness. Second, they say he
    erred by deducting four months as a discrete exceptional circumstance for the
    inaccurate estimate of trial time, and in the alternative, if any amount was
    warranted, it should have been three weeks, the actual amount of extra trial
    time that was required beyond the initial six weeks scheduled.

[53]

I
    reiterate here that this period was during the trial, when the trial judge was directly
    involved in all the scheduling decisions and the positions taken by counsel at
    every step. I also note that in addressing each period of delay, the trial judge
    gave detailed consideration to each of the points now raised again on appeal by
    both sides and considered the applicable law.

[54]

I
    see no error in his factual findings or application of the law. On the issue of
    the need to find new trial dates because of Crown counsels illness, the trial judge
    rejected the submission that only the actual dates lost in January should be
    deducted. He stated, and I agree, that the additional delay that was caused by
    that illness is a discrete event that includes institutional delay. The next
    available time for the court to recommence was the already scheduled date of
    March 26, 2018. The trial judge made no error in attributing the two months
    lost due to the unforeseen illness as a reasonable period to attribute to that
    discrete event.

[55]

Dealing
    with the inadequate trial estimate, both sides blamed the other for why the
    trial exceeded the estimates. The trial judge, intimately familiar with the
    evidence that he had heard, was able to respond to all the arguments about, for
    example, the timing of the disclosure of documents like hospital records, or
    the requirement and timing of calling certain medical witnesses, and what that
    showed about the attitudes of the Crown and defence to moving the case forward.

[56]

He
    concluded that the defence was more effective at moving the trial along, but
    that the Crown had acted in good faith to estimate the trial time, and that
    there were many reasons why it went longer. As a result, after recognizing that
    part of the delay, especially after March 2018, was as a result of systemic
    limitations, he attributed four months of delay to exceptional circumstances
    due to the unavoidable delay, despite the good faith efforts to estimate reasonable
    trial time or legitimate conduct to minimize delay.

[57]

The
    respondents dispute the trial judges factual findings regarding the roles of
    each side in prolonging or streamlining the trial, and submit that all the time
    beyond the three weeks of actual additional trial time should have been included
    in the trial judges calculation of net delay. I would not give effect to
    either of these submissions. The trial judges factual findings are to be
    accorded deference, and disclose no error. His allocation of only four months as
    an exceptional circumstance, recognizing that the remaining delay was caused by
    institutional limitations, given each sides role in moving the matter forward,
    is a reasonable and fair allocation.

(3)

Did the trial judge err in concluding that this was not a particularly
    complex case?

[58]

Having
    found that the net delay exceeded the
Jordan
presumptive ceiling by
    two months, the trial judge went on to consider whether the particular
    complexity of the case was an exceptional circumstance that justified the delay.
    He concluded that the case did not meet the test for particular complexity.

[59]

In
Jordan
, the majority defined particularly complex cases as follows,
    at para. 77:

Particularly complex cases are cases that, because of the
    nature of the
evidence
or the nature of the
issues
, require
    an inordinate amount of trial or preparation time such that the delay is
    justified. As for the nature of the evidence, hallmarks of particularly complex
    cases include voluminous disclosure, a large number of witnesses, significant
    requirements for expert evidence, and charges covering a long period of time.
    Particularly complex cases arising from the nature of the issues may be
    characterized by, among other things, a large number of charges and pre-trial
    applications, novel or complicated legal issues, and a large number of
    significant issues in dispute. Proceeding jointly against multiple co-accused,
    so long as it is in the interest of justice to do so, may also impact the complexity
    of the case.

[60]

And
    at para. 80, the majority explained the effect of a finding of complexity: Where
    the trial judge finds that the case was particularly complex such that the time
    the case has taken is justified, the delay is reasonable and no stay will
    issue. No further analysis is required.

[61]

The
    Crowns position on this appeal is that if this court finds errors by the trial
    judge in the delay attributions, but the net delay still exceeds the
    presumptive ceiling, then this court should reconsider the complexity
    assessment in light of the new findings. In that context, the Crown submits
    that the trial judge erred in law in his approach to the complexity analysis.

[62]

As
    I have concluded that the only error by the trial judge was in finding that the
    end of the trial included the period following the end of the evidence and
    argument while the s. 11(b) application was heard and the verdict delivered,
    and that error caused the total delay to fall below the
Jordan
presumptive ceiling, there is no need to address this ground of appeal.

(4)

Can delay in excess of the 30-month ceiling be justified on the basis
    that this was a transitional case?

[63]

On
    appeal, the Crown argues that the trial Crown wrongly conceded that the
    transitional exceptional circumstance set out in
Jordan
does not apply
    to this case. The Crown submits that this court is not bound by that concession.
    I would decline to consider this issue because, for the same reasons as the
    complexity issue, it is unnecessary to do so.

(5)

Although the delay falls below the presumptive ceiling, is it
    nevertheless unreasonable?

[64]

When
    the delay falls below the
Jordan
presumptive ceiling, the onus is on
    the defence to establish that the delay is unreasonable because the case took
    markedly longer than it reasonably should have, and the defence took meaningful
    steps that demonstrated a sustained effort to expedite the proceedings:
Jordan
,
    at para. 82. The majority in
Jordan
stated, at para. 83, that: We
    expect stays beneath the ceiling to be granted only in clear cases.

[65]

The
    respondents submit that this is one of those cases. As the trial judge did not
    address this issue in light of his conclusion that the net delay exceeded the
    presumptive ceiling, it falls to this court to do so.

[66]

When
    considering the roles of the defence and the Crown in the context of examining
    the reasons for the inaccurate estimation of trial time and the steps taken
    afterward to address the situation, the trial judge found that the defence had
    taken more steps than the Crown to expedite matters. In
Jordan
, the majority
    described the obligation on the defence as follows, at para. 85:

it falls to the defence to show that it attempted to set the
    earliest possible hearing dates, was cooperative with and responsive to the
    Crown and the court, put the Crown on timely notice when delay was becoming a
    problem, and conducted all applications (including the s. 11(b) application)
    reasonably and expeditiously.

[67]

The
    trial judge was clearly in the best position to determine whether the level of
    cooperation by the defence met this high threshold. The defence certainly acted
    in the spirit of co-operation.

[68]

In
    my view, however, this submission that the delay below the
Jordan
ceiling was nevertheless unreasonable, fails on the first requirement: that the
    trial took markedly longer than it reasonably should have. This was a difficult
    case of alleged very serious domestic abuse involving three defendants and a
    significant medical dispute that required voluminous disclosure of medical
    records. It was supposed to take six weeks to try, but took another three weeks
    in circumstances where the initial number of witnesses was significantly
    reduced. This cannot be considered a clear case of unreasonable delay.

E.

Conclusion

[69]

As
    the delay of 29.25 months falls below the presumptive ceiling of 30 months, and
    having concluded that the delay was not unreasonable, I would allow the appeal
    and set aside the stay.

[70]

The
    respondents submit that this court should not return the matter to the Superior
    Court for the verdict, but rather, unseal the reasons of the trial judge, and
    retain the matter at this level to await the decisions of the parties
    respecting an appeal, depending on the outcome.

[71]

I
    would not give effect to this submission. I would return the matter to the
    Superior Court for the verdict. The parties can then proceed with appeal
    decisions in the ordinary course.

Released: April 1, 2021 K.F.

K. Feldman J.A.

I agree. E.E.
    Gillese J.A.

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

Appendix A: Chronology of
    Proceedings



DATE

EVENT



April 16, 2015

Respondents were arrested and charged.



May 8, 2015

First appearance in the Ontario Court of Justice. Initial
          disclosure was provided to defence counsel appearing for all three accused.



June 5, 2015

Counsel on behalf of all accused asked for an adjournment
          to review disclosure.



July 3, 2015

Counsel advised that he was prepared to set a judicial
          pre-trial (JPT) for his client Adeel Safdar, but an adjournment was
          required to find counsel for the other two co-accused. Owing to a potential
          conflict, he could not act for all three.



July 24, 2015

An adjournment was granted to allow Shaheen Safdar to
          retain counsel. Aatif Safdar intended to represent himself.



August 7, 2015

An adjournment was granted, again to allow Shaheen Safdar
          to retain counsel.



September 4, 2015

An adjournment was granted to allow both Shaheen and Aatif
          Safdar to retain counsel.



September 25, 2015

Counsel got on the record for Shaheen Safdar. Significant
          additional disclosure was provided. The parties agreed to schedule a date for
          an in-court JPT.



November 25, 2015

JPT held. Respondents all elected to be tried by judge and
          jury with a preliminary hearing. Parties agreed to set a two-week preliminary
          inquiry, and if more time was required for defence witnesses, those witnesses
          could be dealt with by way of discovery. Defence advised that any discovery
          dates could be set later, in June, when the preliminary inquiry took place.



May 17, 2016

Crown provided defence with further disclosure and a list
          of Crown witnesses for the preliminary hearing.



May 20, 2016

Defence provided Crown with Statement of Issues indicating
          committal was in issue (unless the complainant testified in accordance with
          her police statement) and list of 37 witnesses to be called at the
          preliminary inquiry. Crown expressed concern that scheduled dates would be
          inadequate.



June 6, 2016

Preliminary inquiry began with complainants evidence; committal
          conceded at the end of the day. Respondents re-elected to be tried in the
          Superior Court by judge alone.



June 14, 2016

Cross-examination of complainant. Assigned Crowns father
          died. Replacement Crown requested an adjournment, which was opposed by
          defence counsel. Adjournment refused.



June 20, 2016

Cross-examination of complainant completed on the last
          date scheduled for the preliminary inquiry. Counsel put on the record they
          were concerned about delay.



June 24, 2016

Dates set for continuing preliminary hearing as a
          discovery without a judge.



August 19, 22, 23, 26, 2016

Defence examination of witnesses by way of discovery,
          without a judge. Accused committed to stand trial on August 26, 2016.



September 19, 2016

Indictment filed, including four new charges against Aatif
          Safdar.



September 23, 2016

First appearance in SCJ. Parties scheduled a JPT. Aatif
          requested a later date for the JPT to allow him time to obtain counsel.



November 15, 2016

JPT. The Crown provided a trial estimate of 4-6 weeks for
          trial, and 6-8.5 days for
voir dires
. Defence did not provide a
          trial estimate in advance of the JPT, but at the JPT estimated 4 weeks.

Parties were offered three potential options for trial:
          May, September 5, or September 18, 2017. Defence counsel were not available
          for the first two options, so trial was scheduled to begin September 18,
          2017.



November 28, 2016

Crown contacted trial coordinator seeking earlier trial
          dates.



April 21, May 2, May 10, and May 16, 2017

Hearing of applications to appoint counsel to
          cross-examine complainant on behalf of self-represented accused and to
          appoint amicus. Interpreter now required because Shaheen Safdar was
          self-represented.



September 18, 2017

Trial commenced. A handful of days were lost in the
          beginning of the trial because of the unavailability of various participants
          (September 21 and 22  Crown) (October 20 and 27  defence) (September 29 
          court).



October 25, 2017

Crown closed its case. Trial continuation dates for
          January 2018 obtained.



January 8-9, 2018

Trial resumed for half days, owing to the illness of Crown
          counsel.



January 10, 2018

Trial continued.



January 11, 2018

Trial adjourned because of illness of the daughter of
          Adeel Safdar (who was under cross-examination).



January 15, 2018

Trial did not continue owing to illness of Crown counsel.
          Additional dates in March, June, July, and August were secured. Defence noted
          concern about delay.



February 2018

The trial coordinator advised that the week of April 3,
          2018 was available. Counsel for Shaheen Safdar was not available. Shortly
          after offering this week, the trial coordinator confirmed that it was not
          available.



March 5, 2018

The trial coordinator offered the weeks of April 16 and
          23, 2018. The Crown was available but the defence was not. The week of June
          11 was also offered, but the Crown was not available.



March 26, 2018

Trial resumed.



June 28, 2018

Defence concluded its case.





Crown brought a successful
Browne v. Dunn
application. Although the trial judge held the Crown was entitled to re-call
          the complainant, the Crown declined to call her.



August 7, 2018

End of closing submissions on the trial.



October 9 and 25, 2018

Argument on s. 11(b) application.



December 3, 2018

Decision on s. 11(b) application staying the charges.







[1]

Counsel for the respondent Shaheen Safdar advised the court
    during oral argument that the other respondents wished to adopt the submissions
    made on behalf of Shaheen Safdar.



[2]

The court made this finding despite the fact that he advised
    counsel that the reasons for judgment that he had prepared and placed under
    seal are over 150 pages long.


