R v Jama, 2021 ABQB 290

Court of Queen’s Bench of Alberta Citation: R v Jama, 2021 ABQB 290 Date: 20210416 Docket: 180603573Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Subeer Jama Applicant _______________________________________________________ Reasons for Decision of the Honourable Madam Justice Susan L. Bercov _______________________________________________________ I. Introduction [ 1 ] After conviction and before sentencing Mr. Jama filed an application for a stay of proceedings based entirely upon pre-trial delay.

The parties agree that the net delay exceeds the presumptive ceiling of 30 months established in R v Jordan , 2016 SCC 27 [ Jordan ] . Defence Counsel testified during the application that he did not bring the stay application because he erred in calculating defence delay. The error was not discovered until after trial.

[ 2 ] Few cases have considered whether a s 11(

b) stay application can be brought post-conviction for pre-conviction delay. Defence argues that an application can be brought and the remedy of a stay of proceedings is available post-conviction where there are extraordinary circumstances. Defence Counsel’s acknowledgment of his error in calculating defence delay, together with the COVID-19 pandemic, are argued to constitute extraordinary circumstances. [ 3 ] The Crown’s position is that I should apply the test for appellate intervention due to incompetency of counsel to determine whether there are extraordinary circumstances.

Applying that test, the application should be dismissed as the error did not result in a miscarriage of justice. Had Defence Counsel correctly calculated defence delay and raised the delay in a timely manner, accommodations could have been made to remedy the delay. [ 4 ] The issues I must determine are: a. Does Mr. Jama’s failure to bring the stay application before trial prevent this Court from granting a stay based on pre-trial delay? and b. If not, are the circumstances in this case extraordinary? [ 5 ] For the reasons that follow I conclude: a.

The fact that the stay application was brought after trial based on pre-trial delay does not preclude this Court from hearing the application and granting a stay; and b. I am not persuaded that the circumstances are extraordinary justifying a stay of proceedings. II. History of the Application [ 6 ] The following were marked as Exhibits in the application: a. Exhibit M1 – Agreed Statement of Facts b. Exhibit M2 - The Indictment and Endorsements c. Exhibit M3 – 6 transcripts from the proceedings in docket court d.

Exhibit M4 – CC7 completed by Defence Counsel [ 7 ] The following facts are clear from the Exhibits and the Court Record: • On January 24, 2018, Mr. Jama and two co-accused were charged with several drug offences. • On April 23, 2018, Mr. Jama was represented by Mr. Lieslar. Mr. Jama and the other two co-accused were before the Provincial Court to speak to bail. The matter was put over to May 28 th with the Crown asking for the ITO to be unsealed. • On June 25, 2018, the Provincial Court scheduled a preliminary inquiry for February 7 and 8, 2019. • The preliminary inquiry proceeded on February 8, 2019.

The Provincial Court ordered the Applicant and the two co-accused to attend arraignment on April 5, 2019. • On April 26, 2019, Mr. Jama’s current counsel went on the record. • On May 24, 2019, the Court scheduled a trial for October 13 – 20, 2020. These were the first available dates that the Court could offer for a six-day trial. Counsel for Mr.

Jama and Counsel for another co-accused put on the record that defence was not content with such a lengthy delay, but felt they were compelled to acquiesce given the unavailability of earlier trial dates. • At the first pre-trial conference on October 28, 2019, the Court set a deadline of February 28, 2020 for Charter applications. • Defence Counsel did not file a s 11(

b) Charter application by the deadline notwithstanding it was clear that the total time from the charge to the conclusion of trial was 2 years, 8 months and 26 days. • On August 12, 2020, Defence Counsel confirmed with the Crown that the Applicant was not filing a Charter notice and did not contemplate any pre-trial applications. • On September 24, 2020, at a second pre-trial conference, Defence Counsel again confirmed that the Applicant was not advancing any Charter or pre-trial applications. • The trial proceeded on October 13 – 16, 2020. • On October 28, 2020, in an oral judgment, I found Mr.

Jama guilty of possession of fentanyl for the purpose of trafficking and possession of cocaine. Sentencing was adjourned for completion of a pre-sentence report at Mr. Jama’s request. • Sentencing was scheduled for February 5, 2021. • On February 4, 2021, Mr. Jama filed an application under

section 11(

b) of the Charter for a stay of proceedings per Jordan .

• The Jordan application was scheduled for March 12, 2021. The sentencing hearing was adjourned to March 25, 2021. • On March 12, 2021, Defence Counsel advised this Court that the s 11(

b) application was not brought prior to trial due to Defence Counsel’s error in calculating defence delay. Crown Counsel was not prepared to accept the submissions of Defence Counsel as facts. Crown Counsel wanted evidence and an opportunity to cross-examine. The application was adjourned to March 25, 2021 for viva voce evidence of Defence Counsel and cross-examination by the Crown. • On March 25, 2021, new counsel appeared for Mr. Jama for the purpose of representing the Applicant on the s 11(

b) application. Mr. Jama waived solicitor-client privilege over discussions between himself and Defence Counsel relating to delay. III. Defence Counsel’s Evidence [ 8 ] I find Defence Counsel’s evidence reliable and credible. He gave his evidence in a balanced manner. He fairly answered the Crown’s questions, conceding appropriate points. The Crown agreed his evidence should be accepted. [ 9 ] I accept the evidence of Defence Counsel and find as follows: • Defence Counsel took over from Mr. Lieslar shortly before April 26, 2019. • Defence Counsel spoke to the Crown before the court appearance on May 24, 2019.

The first date the Court could offer was 14 – 15 months away. The delay was due to lack of available court time. Both Crown and Defence Counsel had earlier availability. • At the pre-trial conference on October 28, 2019, Defence Counsel was familiar with the evidence and had briefly reviewed the proceedings. Looking at the Endorsements, the months from the first appearance to scheduling the preliminary inquiry appeared to be the usual “docket churning” that Defence Counsel assumed was defence delay. • Defence Counsel tried to speak with Mr. Lieslar, but could not locate him after he retired.

There was no one else in Mr. Lieslar’s office to speak to. • Defence Counsel never spoke to Crown Counsel about the initial period as he was aware that Crown Counsel took over the file from previous counsel and she would have no information beyond the Endorsements. • While he is unsure of the exact date, well before the trial, Defence Counsel had at least one conversation with Mr. Jama that he believes was by telephone. He has no notes. He recalls Mr. Jama raising the possibility of a stay application. He told Mr.

Jama it was unlikely to succeed based on his impression of a 6-month churning period in docket. • After being convicted, even though Defence Counsel’s advice was still the same, Mr. Jama instructed Defence Counsel to bring a stay application. Defence Counsel filed the application and ordered the transcripts marked Exhibit M3. It was only after reading the transcripts, in particular the transcript from the April 23, 2018 appearance, that Defence Counsel realized his error in assuming the first 6 months were defence delay. The transcript of April 23, 2018 clearly indicated that disclosure was still not complete.

Delay does not start to run against the defence until disclosure is complete. • Defence Counsel concedes he made an error. The error he made was that he did not conduct a sufficiently diligent analysis of the time period before he was retained. He should have ordered the transcripts. The Endorsements did not present an accurate picture of what had happened. He considers this to be an error in judgment as opposed to incompetence. • Mid-March 2020 was a challenging time with the COVID-19 pandemic. The courts closing down had a disastrous effect on his firm. His office was shut down.

He moved his practice to a home-based office. This was disruptive to his usual diligence. • Defence Counsel conceded that while the effects of COVID-19 impacted the months leading up to trial, the pandemic did not impact the filing of a Charter notice. As previously indicated, the Court had set a deadline of February 28, 2020 for Charter applications, which predates the pandemic. • The time from the first appearance to the pre-trial being set was 6 months. IV. Law [ 10 ] Few cases specifically consider whether an accused is able to bring a s 11(

b) application for a stay after conviction based on pre-trial delay. Counsel could not find any cases where the reason for not advancing the application before trial was an error on the part of counsel in calculating the delay. [ 11 ] The case law indicates there is no absolute rule that a s 11(

b) application for a stay cannot be made post-conviction. Where the application is based solely on pre-trial delay, the application is usually denied on the basis of waiver. [ 12 ] In R v Warring , 2017 ABCA 128 [ Warring ], the appellant was charged with two counts of trafficking of heroin on June 22, 2011. He was convicted on both counts on August 18, 2015. Before he was sentenced, the appellant brought an application for a stay of proceedings based on an alleged breach of his s 11(

b) Charter right to a timely trial. His application was dismissed by the trial judge. [ 13 ] The appellant appealed, contending the trial judge erred in finding that he had waived the entire period of delay by failing to

bring his s 11(

b) Charter application until after conviction. The Court of Appeal held at para 11: The appellant failed to properly assert his 11(

b) rights on a timely basis. The record clearly establishes that the appellant sat on theserights until after he was convicted, changed lawyers, and discovered that two other co-accuseds had successfully obtained stays ofproceedings in the circumstances of their cases. We find support in this view in R v Rabba, (ON CA), [1991] O.J. No.883, 3 O.R. (3d) 238 (Ont. C.A.), where Arbour JA (as she then was) made the following point when dismissing an 11(

b) argumentmade for the first time on appeal: In my view, the failure to move for a stay of proceedings, either before trial or at trial, would, in most cases, be fatal. The failure to movefor a stay of proceedings would normally amount to a waiver of any claim which may arise under s. 11(

b) of the Charter. To holdotherwise would amount to imposing a duty on the trial judge to examine, in each case, the entire history of the proceedings, on his or herown motion, in order to ascertain whether or not the trial was ready to proceed within a reasonable time. . . . . [E]ven if the accused neednot assert that he wishes to exercise his right to be tried within a reasonable time, he must, at some relevant point, assert explicitly that hisright has been infringed and seek the appropriate remedy. [14] The Court of Appeal ultimately dismissed this ground of appeal.

The appellant was refused leave to appeal to the SupremeCourt of Canada. [15] In R v Cameron, 2017 ABQB 539 [Cameron], Mr. Cameron’s lawyer was suspended by the Law Society, unrelated to theaccused’s defence, after conviction and before commencement of the sentencing hearing. The new lawyer brought a s 11(

b) applicationfor a stay of proceedings on the last day of the sentencing hearing for unreasonable delay occurring entirely before the conviction. [16] Justice Jeffrey found that the right to a stay for unreasonable pre-trial delay is still available after a finding of guilt. Heconcluded that an application post-conviction, relating entirely to pre-conviction delay, should only be granted in an extraordinary casefor the following reasons: a. The failure to exercise other Charter rights in a timely manner can result in their loss; b.

A stay of proceedings is a prospective remedy which aims to prevent the continuation of prejudice to the interests protectedby the right. A stay does not redress a wrong that has already been done; and c. To grant a stay after the fact perpetuates the inefficient administration of justice. [17] Justice Jeffrey found that Mr. Cameron’s circumstances were not extraordinary and dismissed the application. [18] In addition, Justice Jeffrey found that Mr. Cameron waived his s 11(

b) right in respect of his trial as to guilt, stating at para 35: ... any defence waiver of 11(

b) rights must be informed, clear and unequivocal. Silence or failure to assert the right does not in and ofitself constitute waiver. There “must be something in the conduct of the accused that is sufficient to give rise to an inference that theaccused has understood that he or she had a s. 11(

b) guarantee, understood its nature and has waived the right provided by thatguarantee.” The onus is on the Crown to show on the facts that waiver should be inferred. [19] Since Cameron, the Supreme Court of Canada in R v KGK, 2020 SCC 7 confirmed that while delay after the end of argumentdoes not count in the 30-month ceiling, the right to be tried within a reasonable time enshrined in s 11(

b) of the Charter extends beyondthe end of the evidence and argument at trial. [20] In R v Yusuf, 2021 SCC 2, the Supreme Court chose to leave for another day the issue of whether a s 11(

b) application can bebrought post-conviction, based on pre-trial delay, and if so, whether a remedy other than a stay of proceedings is available. V. Analysis Can a Stay Application be Brought Post-Conviction for Pre-Conviction Delay? [21] I am not persuaded from the authorities that there is an absolute rule that the right to a s 11(

b) stay, based upon pre-trial delay,is lost where the accused fails to bring an application before trial. [22] In this case it cannot be argued that Mr. Jama waived his

section 11(

b) right in respect of pre-conviction delay. The evidenceof Defence Counsel is clear that any decision Mr. Jama made to not advance the stay application before trial was not informed. Mr. Jamadid not appreciate that the time to trial exceeded the presumptive ceiling. He was misinformed by his Counsel who had miscalculated thelength of the defence delay. Crown Counsel appropriately concedes that waiver does not apply in the circumstances of this case. [23] While I conclude that Mr. Jama is not barred from bringing his s 11(

b) application after conviction, for pre-conviction delay, Iagree with Justice Jeffrey that a stay in these circumstances should only be granted in extraordinary cases. [24] In determining when a stay should be granted post-conviction for pre-conviction delay, it is helpful to consider the objectivesof the Supreme Court in Jordan in setting presumptive ceilings. The goal was to address a culture of delay and complacency.

One of thekey messages of Jordan, and the subsequent decision in R v Cody, 2017 SCC 31, is that all participants in the criminal justice systemhave a role to play in addressing this culture of delay and complacency. [25] Granting a stay of proceedings after conviction, based on pre-conviction delay, not only fails to address the goal of settingpresumptive ceilings, it also results in trial time being wasted.

As Justice Jeffrey states in Cameron, at para 17 “...to grant a stay after thefact perpetuates the inefficient administration of justice.” To achieve the Jordan objectives, a stay of proceedings should only be granted

after conviction for pre-conviction delay in extraordinary circumstances. Is this an Extraordinary Case? [26] Defence argues this case is extraordinary. This is a case where there was a very efficient docket stage where matters movedquickly. This case is not like Warring or Cameron where defence counsel asked for multiple adjournments, did not cooperate, andcontributed to the delay. In this case, counsel for all three accused worked together to ensure no untimely delay. An honest mistake wasmade by Mr. Jama’s Defence Counsel that the first 6 months of docket was due to defence delay.

This mistake was not discovered untilafter the trial when the transcripts of the docket proceedings were ordered and reviewed. Defence Counsel testified that the error was hisand the Charter application should have been brought earlier. In the months leading up to the trial, Defence Counsel’s practice was indisarray due to the COVID-19 pandemic. These circumstances, Defence argues, are extraordinary. [27] I am not satisfied on a balance of probabilities that an acknowledged error by counsel in calculating the period of defencedelay, without more, is extraordinary.

Counsel do make judgment calls on Jordan calculations that in retrospect may be wrong. This isparticularly so where the period of delay is only slightly above the presumptive ceiling, as in this case. In addition to Mr. Jama, therewere two other co-accused. The other co-accused did not bring a stay application. One co-accused pleaded guilty the first day of trial andthe other was acquitted. There was no suggestion that the other co-accused’s delay circumstances were significantly different from Mr.Jama’s.

Defence’s submissions were that there was a very efficient docket stage where counsel for all three accused worked together toensure no untimely delay. [28] I am also not satisfied that Defence Counsel’s practice being in disarray due to COVID-19 makes this case extraordinary.While I do accept that the period after March 2020 was a very challenging time for all participants in the criminal justice system,Defence Counsel conceded in cross-examination that the filing of the Charter notice was not impacted by COVID-19.

Moreover, theCourt had directed that all Charter applications be filed by February 28, 2020, which was prior to the date that the COVID-19 pandemicbegan. [29] In determining whether the circumstances in this case are extraordinary, the Crown argues I should apply the test forappellate intervention due to incompetency of counsel. The Crown relies on R v MacDonald, 2018 ABCA 138 at para 13 [MacDonald]where the Court of Appeal sets out the following three-part test gleaned from the Ontario Court of Appeal decision R v Joanisse (1995),85 OAC 186 at para 69, (Ont CA): a.

The appellant must establish the facts on which the claim of incompetence is based; b. The appellant must establish that the representation provided by trial counsel was incompetent; and c. The appellant must establish that the incompetent representation resulted in a miscarriage of justice. [30] I agree with the Crown that where the reason for not bringing a s 11(

b) application before trial based upon pre-trial delay iscounsel error, the three-part appellate intervention test provides helpful guidance in ascertaining what is an extraordinary case. [31] The Crown concedes that the first two parts of the test are met. The Crown argues the application should fail as theincompetence did not result in a miscarriage of justice. [32] Defence Counsel came on the record on April 26, 2019. Trial dates were set May 24, 2019 that were more than 30 monthsafter the charges were laid.

Competent counsel would have ordered the transcripts then, or at least before the first pre-trial conference onOctober 28, 2019. At the very latest, Defence Counsel should have ordered the transcripts before the deadline set of February 28, 2020for filing Charter applications. If the appropriate inquires had been made and the delay raised, this would have provided the Crown andthe Court with an opportunity to address and remedy the delay.

In short, the Crown argues there is no injustice as earlier trial dates couldhave been secured had the error not occurred and the delay raised earlier. [33] Defence Counsel argues that whether or not an earlier trial date would have resulted, had the delay been raised earlier, isspeculative. [34] While I am persuaded that an error was made by Defence Counsel in assuming the first months of docket were defence delay,despite the Crown’s concession, I am not persuaded on the evidence that the error amounts to incompetence of counsel.

The SupremeCourt of Canada in R v GDB, 2000 SCC 22 at para 27 advised the incompetent counsel analysis “proceeds upon a strong presumptionthat counsel’s conduct fell within the wide range of reasonable professional assistance.” No evidence was given as to whether it is thestandard practice of defence counsel, when taking over a file, to order transcripts of the docket proceedings to determine the amount ofdefence delay.

Defence Counsel in evidence characterized the error as one of judgment as opposed to competence. [35] Regardless of whether the error is an error of professional judgment or amounts to incompetence, I disagree with the Defencethat securing an earlier trial date if timely notice of delay had been given is speculative. I do agree that it cannot be concluded withcertainty that an earlier date would have been available. However, certainty is not required. Using the MacDonald test to assess whetherthe circumstances are extraordinary the onus of proof is on Mr.

Jama to establish that had the error not occurred, there is a reasonableprobability (more than mere possibility but less than a likelihood) that a stay application before trial would have succeeded. [36] On the evidence, I am not satisfied that there is a reasonable probability that a stay would have issued had Defence Counseltaken the appropriate steps to determine the cause of any delay and brought a s 11(

b) application on Mr. Jama’s behalf prior to the trial. [37] Counsel testified he should have ordered the transcripts rather than rely on the Endorsements. He knew on May 24, 2019,when the trial was scheduled, that the trial dates were over the 30-month ceiling. Exercising due diligence, this is when the transcriptsshould have been ordered. Even allowing several months for the transcripts to be prepared and reviewed, Defence Counsel would haveknown by the end of summer 2019 that the first five to six months of delay were not attributable to defence delay. At the very least, he

should have ordered the transcripts in advance of the February 28, 2020 deadline for the filing of Charter applications. Had he done so, a s 11(

b) application could have been brought before the filing deadline. [ 38 ] Had Defence Counsel not assumed the first 6 months were defence delay and had he brought a Charter application by the deadline of February 28, 2020, at the latest, I am not persuaded that there is a reasonable probability that the application would have been successful. The time between the charges and the conclusion of the trial is 2 years, 8 months and 26 days, just shy of 33 months. While Crown conceded that the delay exceeded the presumptive ceiling, Crown did not concede that there was no defence delay.

Crown indicated there might be some defence delay but not sufficient to bring the case below the ceiling. The issue of how much delay was defence delay, if any, was not argued. The important point is that if the application was filed by the deadline of February 28, 2020, any trial dates offered to Defence before the end of June 2020 would have put the trial below the presumptive ceiling. I can take judicial notice of the fact that the Court’s

schedule is not set in stone. Trials frequently resolve or adjourn. New judges are appointed expanding the Court’s scheduling capacity. The Chief Justice has been clear that Jordan threatened matters are a priority in scheduling.

If longer trial dates could not be offered, the Crown could have applied to sever in order to secure earlier trial dates if shorter dates were available [ 39 ] Moreover, had earlier trial dates been secured, but had they not been able to proceed due to the COVID-19 pandemic and the Court’s response thereto, I am satisfied this would have constituted exceptional circumstances within the Jordan framework. See: R v KGY , 2020 ABPC 171 at paras 40-41 ; R v Drummond , 2020 ONSC 5495 at paras 76-80 . [ 40 ] In

summary, using the Macdonald test to assess whether this case is extraordinary, I am not persuaded that Defence Counsel’s error amounts to incompetence and I am not persuaded that if Defence Counsel had filed the application by February 28, 2020 there is a reasonable probability that the application would have been successful. Accordingly, I am not satisfied that Defence Counsel’s error resulted in a miscarriage of justice or that it makes this an extraordinary case. VI. Conclusion [ 41 ] Mr.

Jama’s application for a stay of proceedings is dismissed. [ 42 ] I want to acknowledge Defence Counsel’s integrity in stepping forward to acknowledge the error and wish to repeat that I am not satisfied on the evidentiary record that the error is one of incompetence. Heard on the 12 th and 25 th day of March, 2021. Dated at the City of Edmonton, Alberta this 16 th day of April, 2021. Susan L. Bercov J.C.Q.B.A. Appearances: Caitlin McKall and Jeremy Newton Crown Prosecutors’ Office for the Respondent Paul Moreau Moreau Law and Cameron S Mitchell Axon Law

for the Applicant