R. v. Ibrahim, 2010 ABQB 809

Court of Queen ’ s Bench of Alberta Citation: R. v. Ibrahim, 2010 ABQB 809 Date: 20101217 Docket: 060477817Q2 Registry: Calgary Between: Her Majesty the Queen Crown - and - Faried Salem Ibrahim and Richard Otto Devera Accused _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C.S. Brooker _______________________________________________________

INTRODUCTION [ 1 ] Faried Ibrahim and Richard Devera (hereinafter referred to simply as “the accused”) apply to this Court for a judicial stay of proceedings on the basis that their Charter rights have been violated. Specifically, they claim that their

section 11(

b) Charter right to be tried within a reasonable period of time has been violated. In the alternative, they seek a judicial stay on the basis that their

section 7 Charter rights have been violated in that unreasonable delay in concluding these proceedings have deprived them of their rights to liberty and security of the person. [ 2 ] I will deal with each of these claims in turn. [ 3 ] But first I wish to review some of the time frames involved in this case. TIMING [ 4 ] The written brief of the accused outlines the time lines of various steps in these proceedings.

I do not intend to repeat that other than to highlight some of the main points of time. [ 5 ] The highlights are: - The offences allegedly occurred around March 4, 2006. - Initially 4 persons were charged as being involved in these events. - The accused first appeared in court March 8, 2006.

They were denied bail and have been in custody ever since. - The accused elected trial by judge and jury and the preliminary inquiry commenced May 1, 2006 and concluded May 10, 2006. - The initial indictment was filed July 6, 2006. - On August 8, 2006 a trial date convenient to all counsel was set for April10, 2007 for 17 days with jury selection to take place April 5 and pre-trial Charter motions to be heard January 31, 2007. - The Charter motions were heard by the trial judge on January 31 and February 1, 2007 and dismissed. - On April 10, 2007 the Crown provided some late disclosure as a result of which the defence moved for a stay and costs.

The jury, which by then had been selected, was excused. Approximately 6 days of the trial time was spent litigating the disclosure issue. Consequently, there was not sufficient time to complete the trial in the remaining time and as defence counsel had other commitments which prevented them from running over into the following weeks, it was necessary to re-schedule the resumption of the trial to June 25, 2007 with jury selection to take place June 22. - On June 20, 2007 Devera fired his then counsel, Mr. McKay. Mr.

Bates appeared and suggested he might be able to come on as counsel but said that he had not yet been appointed. An adjournment of the trial was required in order to permit Mr. Devera to retain new

counsel. Mr. Chow, counsel for Ibrahim agreed that an adjournment was required. The Crown did not oppose it. The adjournment was granted. The trial judge ordered that the trial proceed with or without counsel on or before October 15, 2007. He set September 28, 2007 for jury selection and October 1, 2007 for the commencement of the trial. - The dates ordered by the trial judge were not ones available to Mr. Chow or Mr. Bates. Mr. Chow withdrew as counsel for Mr. Ibrahim on July 20.

Thereafter, neither accused were able to find counsel who could act for them at trial on the dates ordered. - The trial proceeded as scheduled and ordered by the trial judge and the accused were convicted on October 18, 2007. - On December 6, 2007 the accused were sentenced. - The accused appealed.

I do not know the date that the appeal was filed or what the course was in the Court of Appeal between the filing of their appeal and its hearing on May 5, 2010. - On May 5, 2010 the Court of Appeal quashed the convictions and ordered a new trial. - On May 10, 2010 the Court of Appeal provided its reasons for its decision in this matter. - On May 14, 2010 the matter came before the Criminal Appearance Court to set a date for the re-trial. At that time Ms. Molle represented Devera and Mr. Ivonelli represented Ibrahim.

Defence counsel requested the matter be adjourned to May 28 and it was. - On May 28 defence counsel requested the matter be adjourned to June 18 for a bail application and to set trial date. It was. - On June 18, Mr. Ibrahim’s bail application was heard. The matter was set over to July 2 to set a trial date. - On July 2 Mr. Ivonelli withdrew as counsel for Mr. Ibrahim. Devera, through his counsel was ready to select a trial date then but the matter was set over to July 16 in order to permit Mr. Ibrahim to retain new counsel. - On July 16, 2010 Mr. Wolch came on record as counsel for Mr.

Ibrahim and requested an adjournment so he could obtain material from previous counsel. Ms. Molle, on behalf of Devera, was ready to set a trial date but the adjournment was granted to August 13. - On August 13, Mr. Wolch appeared as counsel for Ibrahim and agent for Ms. Molle. The matter was adjourned to Aug. 27 at counsel’s request. - On August 27, 2010 a trial date was set for Dec.13 with a pre-trial conference date of September 17 and jury selection set for Dec.10. S.11(b) [ 6 ]

Section 11(

b) of the Charter guarantees that any person charged with an offence has the right to be tried within a reasonable period of time.

[ 7 ] The seminal case in the SCC jurisprudence on s.11(

b) of the Charter has to be R. v. Askov 1990 CanLII 45 (SCC) , [1990] S.C. J. No.106 . It outlined the 4 factors a court should consider in deciding whether a delay in bringing a matter to trial has been unreasonable. Two years later, in R. v. Morin 1992 CanLII 89 (SCC) , [1992] S.C.J. No.25 the SCC had occasion to further discuss and expand on its decision in Askov . More recently, in R .v. Godin 2009 SCC 26 (CanLII) , [2009] S.C.J. No.26 the SCC again had occasion to deal with a breach of an accused’s s.11(

b) Charter rights. [ 8 ] In Morin , Sopinka J., writing on behalf of the majority, notes the primary purpose of the s.11(

b) of the Charter is to protect the individual rights of an accused and at para.28 he shows how those individual rights are protected. However, at paras. 29 and 30 he also recognizes the societal interest which was commented on by Cory J. in Askov . In speaking of unreasonable delay, Sopinka J.’s comments at para. 31 are instructive. He writes: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. [ 9 ] The factors to be considered in analysing how much delay is too long are these: (1) the length of the delay; (2) waiver of time periods; (3) the reasons for the delay, including; (

a) the inherent time requirements of the case; (

b) actions of the accused; (

c) actions of the Crown; (

d) limits on institutional resources, and (

e) other reasons for the delay; (4) prejudice to the accused. [ 10 ] The methodology suggested by Sopinka J. is set out at para. 32 of his reasons. First, one looks to the length of the delay and then evaluates it in light of the other factors set out above to determine if the delay is unreasonable. Leaving aside the question of delay on appeal, he says the period to be considered is the time lapse between the date of the charge to the end of the trial. Periods of delay caused by waiver may be subtracted from the time. “It must then be determined whether this period is unreasonable having regard to the interests s.11(

b) seeks to protect, the explanation for the delay and the prejudice to the accused”. [ 11 ] Using this methodology, I make the following analysis.

(1) Length of the Delay [ 12 ] The accused were arrested March 7, 2006 and have been in custody ever since. Morin says one must examine the period of time between the charge to the end of the trial: para. 35. End of trial includes the sentencing phase: R. v. McDougall 1998 CanLII 763 (SCC) , [1998] S.C.J. No.74 . In this case the indictment was filed July 6, 2006.

[ 13 ] Pre-charge delay may have an influence in the analysis. Here there is none.

Furthermore in this case, I do not find anything unwarranted with respect to the period of time between the arrest on March 7 and the preferring of the indictment on July 6 - a period of 4 months during which time a preliminary inquiry was held over a number of days in May. [ 14 ] From the filing of the indictment on July 6, 2006 until the second trial commenced today is a period of about 51 ½ months, which on its face, and without considering the reasons for the delay, is well outside the time lines suggested in the cases for completion of a trial and therefore clearly warrants an inquiry into the reasons for the delay.

(2) Waiver [ 15 ] Morin states at para. 38 that waiver requires advertence to the act of release rather than mere inadvertence. “If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver”. Of course, such conduct may be taken into account elsewhere in the analysis under “conduct of the accused”.

The SCC notes further that consent to a trial date can give rise to an inference of waiver. [ 16 ] In this case, there were originally four accused persons, each of whom was represented by experienced counsel. It was necessary to co-ordinate a trial date which was agreeable to all accused. The transcript of proceedings on July 12, 2006 indicates that the Crown wished to set a trial date and was prepared to set it for anytime convenient to defence counsel. There were some problems with defence counsel’s schedules.

Specifically, counsel then acting for Ibrahim and Devera were not available for trial in this matter until at least March 2007. There was a discussion about these accused either waiting for a trial date when their present counsel could be available or else obtain new counsel who would be available for an earlier trial date. The matter was set over to August 9 to set a date for the trial. [ 17 ] On August 9, 2006 the matter appeared before me, coincidentally, to set the trial date. My notation on the indictment indicates that Mr.

Ibrahim now had new counsel and that a judge and jury trial for 17 days would commence April 10, 2007 with jury selection on April 5th and a pre-trial conference on December 8th, 2006. A three day voire dire on a Charter application was set for January 31st, 2007.

After writing these dates on the indictment, I specifically noted on the indictment: “All counsel agree but Baccari wanted an earlier date and his counsel available earlier”. [ 18 ] Given the discussions of July 12th referred to earlier as well as the notation on the indictment made August 9th, I am satisfied that these accused in agreeing through their counsel to the timings set out in the preceding paragraph, waived the time period between July 12, 2006 and April 10th, 2007 — a period of approximately 9 months. [ 19 ] When the trial could not proceed on April 10th, 2007 due to late disclosure by the Crown, a new trial date was set for June 25th, 2007.

However, a few days before that date, Devera fired his lawyer and did not come up with a replacement lawyer who could proceed to trial on June 25th as scheduled. That resulted in the October trial date being set by Sullivan J. Devera had to know that firing his lawyer on the eve of trial was bound to cause an adjournment and resultant delay. I therefore find that Devera waived the period of delay between June 25th and October 1st, 2007. [ 20 ] On May 5th, 2010 the Court of Appeal set aside the convictions and sentences which had been imposed on these accused and directed a new trial.

The transcripts placed before me show that the matter came up in Calgary Criminal Appearance Court on May 14th.to set a new trial date. Both defence counsel asked that the matter be adjourned to May 28th and it was. On May 28th Mr. Ivonelli on behalf of Ibrahim asked the matter go over to June 18th. It is unclear from the record as to whether or not Ms. Molle, who was acting for Devera, actually agreed to that as she did not seem to appear on that date. However, Mr. Parker, for the Crown advises the court that he was scheduled to meet with Ms.

Molle next week to discuss trial issues and timing. [ 21 ] On June 18th Mr. Ivonelli appeared for Ibrahim and as agent for Ms. Molle who was out of the province. He asked, on behalf of both accused, that the matter be adjourned for about two weeks to July 2nd. [ 22 ] On July 2nd the matter comes before the court to set a trial date. However, Mr. Ivonelli withdraws as counsel for Ibrahim and thus a trial date cannot be set until Ibrahim retains counsel. Nevertheless, Ms. Molle was ready and eager to set a trial date at this

time. The matter was adjourned to July 16th to permit Ibrahim to retain new counsel. [ 23 ] On July 16th Ms. Molle, through her agent was ready to pick a trial date but Mr. Wolch, through his agent, had just come on the file for Mr. Ibrahim and therefore the matter was set over to August 13th. [ 24 ] On August 13th Mr. Wolch appears for Ibrahim and as agent for Ms. Molle and asks that the matter be set over to August 27th so that the mater can be discussed with a view to a resolution or setting the matter down for trial. [ 25 ] On August 27th Ms. Molle and Mr. Wolch both appear.

The transcript of the proceedings indicate that “Defence have reserved December 13th to 21st” as the trial dates. [ 26 ] It seems to me given the lack of discussion about an earlier trial date and the various adjournments sought by either or both of the accused’s counsel as noted in the preceding paragraphs, and the fact that we had very experienced counsel dealing with the setting of a new trial date, that but for the July 2nd to August 13th period, both accused can be inferred, through the actions of their counsel, to have waived the time delay between May 14th and December 13th, 2010.

If I am wrong and this does not constitute a waiver, these time periods at the very least can be attributed to the actions of the defence. The approximately 2 weeks between May 28th and June 13th as well as the 5 weeks between July 2 and August 13th cannot be attributed to Mr. Devera nor to the Crown. [ 27 ] In the result, I infer and find, subject to one qualification, the defence has waived the delay for the period between May 14th and December 13th, 2010. The one qualification is that I cannot find nor infer that Devera has waived the approximately 7 week period referred to above.

Whether that would have made any difference to the setting of an earlier trial date I cannot say on the evidence before me. I also find that Devra waived the approximate 4 month delay between the June 25th trial date and the October 1st trial date.

(3) Reasons for the Delay [ 28 ] Although the waiver periods I have found are likely sufficient to resolve the delay when one excludes the appeal period, I will briefly deal with the other factors in the analysis template. (

a) Inherent Time Requirements [ 29 ] The degree of complexity of a case will usually add to delay. Here, there were initially four accused, each of whom had his own counsel. Further, there were a number of changes of counsel so that in the end, there were, over the course of this matter, at least 10 different counsel involved at one time or another. That created delay as new counsel require time to obtain documents and other information from former counsel as well as some time to familiarize themselves with the file.

In addition, of course, there were would be delay in co-ordinating the schedules of the various lawyers to set dates for trial. [ 30 ] The case was further complicated by the two voire dires brought by the accused. (

b) Actions of the Accused

[ 31 ] I have in earlier paragraphs outlined various actions of the accused which I found to be waiver of certain delay periods. If I am wrong in that conclusion, such delay periods, if not waiver, certainly were delays caused by actions of the accused and not by the Crown. [ 32 ] In addition, the trial date set for June 25th, 2007 had to be cancelled as a result of Devera firing his lawyer and not retaining a lawyer who could be available for the June trial date. He therefore cannot complain about the delay between June 25th and the new trial date imposed of October 2007. Mr.

Chow, on behalf of Ibrahim agreed that it was better that Devera have counsel for the trial and seems to agree that the trial must be adjourned, although I would not consider that a waiver, just another factor to be balanced by me. Significantly, to my mind, is the fact that if Mr. Chow and his client were concerned about the delay this June adjournment would cause, he could have applied for severance of his client. He did not. (

c) Actions of the Crown [ 33 ] It is common ground that the Crown is responsible for or identified with police failure in disclosure. In this case, the trial which had been scheduled to start on April 10th, 2007 had to be adjourned until the October 1st 2007 trial date. Thus this period of delay of just under 5 months is due to the Crown’s actions. [ 34 ] As far as I can determine from the record before me, this is the only period of delay that was caused by the Crown’s actions. Indeed, it is clear that the Crown was prepared to accommodate earlier trial dates on a number of occasions. (

d) Limits on Institutional Resources [ 35 ] In Morin Justice Sopinka, in discussing institutional delay says at para.47: “ ...this is the period that starts to run when the parties are [page795] ready for trial but the system cannot accommodate them”. [ 36 ] Counsel for the accused argue that there are two periods of institutional delay involved in this case. The first is the period between June 20th, 2007 and sentencing on December 6th, 2007.

Counsel for the accused argue that “From June 20th, 2007 on, all of the proceedings in the first trial revolved around trying to accommodate the October 15th, 2007 start date.” [ 37 ] The second period of time is the delay between August 27th, 2010 when the accused were prepared to set a date for the second trial, and the December 21th, 2010 projected conclusion date for the second trial — a total of 116 days.

However, to that the accused add the period from the date of the May 5th decision of the Court of Appeal ordering a new trial, thus bringing the total to 231 days on the basis that had the trial judge not erred in failing to grant the adjournment requested by the accused, a second trial would not have been necessary and thus this 231 day delay is attributable to a legal error of the justice system. [ 38 ] I do not think it can fairly be said that the period between June 20th, 2007 and December 6th, 2007 is due to institutional delay.

The trial did not proceed as scheduled June 25th because Devera had fired his lawyer and did not have a replacement lawyer who could proceed with the trial on that date. The Crown and the court were prepared to have the trial proceed during the summer or in September but that was not acceptable to all of the defendants. The trial was ordered to take place in October, ironically, because, at least in part, the trial judge was concerned with the length of time it was taking to conclude the trial when these accused were in custody.

If, as the Court of Appeal has held should have happened, the trial judge had granted the requested adjournments by the accused, the trial would not have taken place until some time after October 2007. Therefore, I do not find this period to be institutional delay. [ 39 ] As to the second time period, the argument of the defence is not that there was delay by the Crown or an institutional reason for the new trial being set to December, instead of some earlier date. Indeed, given my findings earlier concerning how the December date was agreed to it is difficult to see how the defence could argue that.

Rather, the thrust of the defence argument is that this period of 231 days (between when the Court of Appeal ordered a new trial and the anticipated concluding date of the new trial) was caused because the trial judge erred in law in exercising his discretion and had he not made such an error the new trial would not have been necessary. Thus, argues the defence, this is institutional or systemic delay.

[ 40 ] This is certainly a novel argument. Not surprisingly, no authority has been cited for such a unique position. I do not accept it. To do so would mean that whenever a trial judge was reversed and a new trial ordered by the appeal court, the period of time between the reversal and the new trial would, no matter how reasonable, be attributed to institutional or systemic delay.

If that were so, there would also be no logical reason why all the time between the start of original trial, sentencing, and the appeal itself should not count as institutional or systemic delay since all of that time would have been delay caused by the first trial judge’s legal error. Yet, case law indicates that appeal time is not counted because s.11(

b) does not apply to the appeal period: see R. v. Potvin 1993 CanLII 113 (SCC) , [1993] 2 SCR 880 at paras. 23 and 31 . [ 41 ] Furthermore, the defence argument appears to be at odds with Potvin’s adoption of the statement by Doherty at para.33:

Section 11(

b) does not appear to operate at the appellate stage.

Section 11(

b) guarantees a trial within a reasonable time, not a final determination of the matter at an appellate level within that time. If, however, a new trial is ordered on appeal, ... the constitutional clock should be rewound at the time of the order by the appellate court. [ 42 ] If the constitutional clock is rewound to May 5th, 2010 then surely this court is obliged to look at the reasons for and reasonableness for the delay between that date and the new trial date in December 2010. I have already found earlier in these reasons that there was a waiver of any delay in this period.

The December date was selected by agreement of all counsel after a number of adjournments requested by defence counsel. [ 43 ] Therefore, I do not find institutional or systemic delay for this period of time. (

e) Other Reasons for Delay [ 44 ] Although no other reasons for the delay are argued by the accused, it is clear when one looks at the time period involved in this matter that there was a significant period of delay between conviction and the hearing of the appeal — a period of approximately 2 years and 5 months. I do not have the appeal record before me and no explanation was given for this time period. While, as noted above, the appeal period is not counted for s.11(

b) purposes, in this case it represents a significant period of time between when the accused were charged and when their second trial will conclude.

(4) Prejudice to the Accused [ 45 ] I agree with the defence submission that the three interests which s.11(

b) seeks to protect are : Liberty (pre-trial custody or bail conditions); Security of the Person (to be free of the stress and suspicion that comes with being criminally charged); and the Right to Make Full Answer and Defence (delay may affect memories and effect the ability for the accused to cross-examine effectively). [ 46 ] Prejudice can be real prejudice or the risk of prejudice can be inferred. [ 47 ] As to the risk of prejudice, the memories of the Crown witnesses should not be significantly adversely affected by the delay in this case. They testified at a preliminary inquiry and again at trial.

Presumably they also gave statements to the police. Those transcripts should be of great assistance to refresh the witnesses memory. So, I do not infer significant prejudice from this. [ 48 ] Both accused filed affidavits outlining claims of prejudice they suffered as a result of the delays in this matter. [ 49 ] As to memory, so far as the accused themselves are concerned, if they testify they primarily need only be concerned with telling the truth and the truth as to whether or not they committed these offences should be relatively simple. It is not a question of lengthy or complicated transactions.

It involves their alleged participation in events over a relatively short period of time.

[ 50 ] I accept that they have suffered prejudice from being incarcerated for such a significant period of time. [ 51 ] I also accept that the uncertainty they have faced with these charges has caused them some stress.

However, I do not consider such prejudice to be of a great degree in the circumstances. [ 52 ] In considering whether or not charges should be stayed McLachlin J. (as she then was) said this at para.87 of Morin : The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused’s interest in prompt adjudication.

In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial. [ 53 ] Having weighed the various factors as discussed above, as well as the gravity of the offences charged, I am satisfied that the delay in this case has not breached the accused’s s.11(

b) Charter rights and therefore the application for a judicial stay is dismissed. s.7 [ 54 ] The accused have argued, in the alternative, that if the Court does not order a stay for a breach of their s.11(

b) rights, it should based on a violation of their s.7 Charter rights. [ 55 ] The guiding principle for granting a stay for abuse of process is set out in R. v.

Keyowski 1988 CanLII 74 (SCC) , [1988] 1 SCR 657 at p.137 : ...a stay should be granted where ‘compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency’, or where the proceedings are ‘oppressive or vexatious’ ... [ 56 ] That Court also made clear that the power to enter a stay for abuse of process can be exercised only in the clearest of cases. [ 57 ] It is interesting to note that this remedy is usually given in the appeal court or the Supreme Court of Canada. [ 58 ] In this case it must be noted that the appeal court presumably did not think that ordering the second trial more than 4 years after the accused went into custody was an abuse of process. [ 59 ] Having regard to the analysis in the previous paragraphs, I am not persuaded that there has been a breach of the accuseds’ s.7 Charter rights.

Nor do I conclude that this is one of the clearest of cases. Therefore the application for a judicial stay of proceedings under s.7 is dismissed. Heard on the 2nd day of December, 2010.

Dated at the City of Calgary, Alberta this 16th day of December, 2010. C.S. Brooker J.C.Q.B.A. Appearances: Shane Parker for the Crown Herch Wolch, Q.C. For the Defendant Ibrahim Karen Molle For the Defendant Devera