R v Daso Yusuf, 2023 ABKB 437

Court of King’s Bench of Alberta Citation: R v Daso Yusuf, 2023 ABKB 437 Date: 20230721 Docket: 210950598Q1 Registry: Edmonton Between: Daso Yusuf Applicant - and - His Majesty the King Respondent _______________________________________________________ Endorsement of the Honourable Justice J.S. Little _______________________________________________________ I. Introduction [ 1 ] This is Mr. Yusuf’s application for a stay of proceedings on the ground that his s.11(

b) Charter rights have been breached as a result of pre-charge delay, being a period just over two years from the date the police first received the complainant’s allegations in 2018 to the date that Mr. Yusuf was arrested in 2020. II. Background

[ 2 ] More accurately, it is Mr. Yusuf’s second application for that relief. He first sought that relief on October 14, 2022 from Justice Lema, in his capacity as case management judge. Justice Lema denied the application by written decision dated October 21, 2022 and reported at 2022 ABKB 702 . But he included in his decision at paras 29 and 30: I do not find an abuse of process; instead, orthodox process (i.e., typical steps required and taken) that took longer than it should have.

If the delays here are ultimately shown to have caused actual prejudice to the accused’s fair trial rights, the accused’s fair trial rights can be examined i.e., if pursued again in or at the end of the trial. [ 3 ] I presided over Mr. Yusuf’s five-day judge alone trial from October 24, 2022 to October 28, 2022. On November 25, 2022, I issued an oral decision finding Mr.

Yusuf guilty of sexual interference, and the Crown stayed the remaining charge of sexual assault. [ 4 ] By application scheduled to be heard March 24, 2023 and adjourned by consent to June 20, 2023 because of the unavailability of an interpreter, Mr. Yusuf renewed his application for a stay of proceedings on the ground that the trial proved that Mr. Yusuf had suffered actual prejudice at the trial as a result of pre-charge delay. At the June 20, 2023 hearing, counsel agreed to proceed by written submissions. III.

Overlap with Previous Application [ 5 ] I can deal with the broad strokes of this application quite simply. [ 6 ] Defence counsel at paragraph 17 of her submissions outlines the issues as follows: 1. Did police breach the Applicant’s s. 7 Charter rights to life, liberty, and security of the person by failing to swear an information for 2 years and 27 days? 2. Did police breach the Applicant’s s. 11(

b) Charter right to be tried within a reasonable time due to the cumulative delay (pre and post-charge) of about 47 months? [ 7 ] As to the first question, Justice Lema was required to deal with the s. 7 argument, then phrased as the right to a fair trial. He found no abuse of process that compromised Mr. Yusuf’s right to a fair trial. [ 8 ] As to the second question, Justice Lema held that pre-charge delay generally does not play into the analysis of whether a person’s right to a trial within a reasonable time has been compromised.

Without the pre-charge delay of just over two years, the relevant time period is about 22 months, being well within the Jordan framework. [ 9 ] Because this cannot be an appeal of Justice Lema’s decision, I need not address these two issues further. IV. Actual Prejudice [ 10 ] What I will address is whether, as a result of what transpired during the trial, Mr. Yusuf has shown that he suffered actual prejudice because of pre-charge delay. [ 11 ] In support of her argument, defence counsel has submitted an affidavit from Mr. Yusuf.

In general terms, he deposes that “there are details from my interactions with her [the complainant] that I simply have no memory of due to the four-years that had passed between the offence dates and the trial” and that there were “several times at trial that I could not provide full answers to the lawyer’s questions because of information that I did not remember.” [ 12 ] The affidavit does contain a number of examples of questions asked of Mr. Yusuf at trial and which he answered that he could not remember exactly.

I consider many of those examples to be peripheral to the real issue. [ 13 ] What is telling from his affidavit, though, is his statement, at paragraph 17, that “I was found guilty because I didn’t ask enough questions or take enough steps to learn about [the complainant’s] true age.” That is an accurate description of part of my reasoning in coming to a guilty verdict. The example he gives from his direct examination at trial, however, does not support his argument that his memory on key points was impaired by pre-charge delay. [1] Q.

I want to focus about any conversations you may have had with [the complainant] on that day. Do you remember talking to her? A. He say yes. Q. Okay. And what was that conversation like? A. I was – he was introduced to her by his friend Badhasa, and he knew her at the time. And he asked how old was she, and she mentioned to him that she was 21 years old. Q. Okay. And what was your reaction to that? A. So it seems little bit strange to me, and I asked – I wondered whether she- what she was saying was true. And I asked about her ID if she had. Q. How did she respond when you asked that question?

A. She just smiled, and she said age 21 years old. And we – she went into talking about it- inquiring about drugs. [ 14 ] Without limiting other considerations to which I referred in my decision, that excerpt correctly captures the primary rationale for my finding of guilt. I accepted that the complainant had told Mr. Yusuf that she was 21. The second part of the analysis is whether, regardless of what he was told, he took reasonable steps in the circumstances to ascertain her age.

There is nothing in that passage from which I can conclude that the passage of time from when the complaint was made to the time of arrest gave rise to any prejudice. As Mr. Quist states in his submissions: “When she ignored his request to see her identification he let it go as she changed the subject to her interest in Xanax.” [ 15 ] Whether they first met two years before his arrest or yesterday, Mr. Yusuf remembered that he asked for ID, and the complainant deflected the question. [ 16 ] Ms.

Matalas cites examples of the complainant, during the 2022 trial, confirming that her memory of the events was better in 2018 when she first made the complaint and provided a videotaped interview and that her memory may have been further impaired by her drug use in 2018. These factors merely bear on the credibility of a witness and are common to many historical sexual assault claims.

They are not symptomatic of pre-charge delay alone. [ 17 ] For those reasons, the application is dismissed. [ 18 ] I understand that the matter is to return to King’ Bench Appearance Court July 28, 2023 to set a sentencing date. [ 19 ] Thank you to both counsel for their concise written submissions. Heard by way of written submissions received June 30, 2023. Dated at the City of Edmonton, Alberta this 21 st day of July, 2023. J.S. Little J.C.K.B.A. Appearances: Laura Matalas for the Applicant Anders Quist for the Respondent