R. v. Ali Ismail, 2020 BCPC 144

Citation: R. v. Ali Ismail 2020 BCPC 144 Date: 20200724 File No: 229055-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REGINA v. AMED ALI ISMAIL DECISION OF THE HONOURABLE JUDGE D. BOBLIN Counsel for the Crown: S. Rail Counsel for the Accused: B. Movassagi Place of Hearing: Surrey , B.C. Dates of Hearing: July 3, 7, 2020 Date of Judgment: July 24, 2020 Introduction

[ 1 ] Ahmed Ali Ismail is charged in Counts 1 through 3 on Information 229055-1 that, on or about June 24, 2018, he attempted to commit the murder of Curtis Henneberry, he committed the aggravated assault of Curtis Henneberry and he uttered a threat to Curtis Henneberry to cause Mr. Henneberry death or bodily harm. A co-accused, Zakaria Mohammad Hasan was charged in Count 4 on the same Information that, on or about June 24, 2019, he assaulted Curtis Henneberry. [ 2 ] Mr. Ali Ismail applies for a judicial stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms , based on his assertion that his right to be tried within a reasonable time under ss. 7 and 11(

b) of the Charter has been violated. The Legal Framework [ 3 ]

Section 7 of the Charter provides that: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. [ 4 ]

Section 11(

b) of the Charter provides that: “Any person charged with an offence has the right to be tried within a reasonable time”. [ 5 ] In R. v. Jordan , 2016 SCC 27 , the Supreme Court of Canada identified a culture of complacency towards delay in the criminal justice system and established a new framework for analysis on an application for a stay of proceedings due to unreasonable delay. [ 6 ] At the core of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling for superior court trials is 30 months. The presumptive ceiling for provincial court trials is 18 months.

If the total time from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. In R. v. Singh , 2016 BCCA 427 , at para. 12 . [ 7 ] The presumption can be rebutted if the Crown can establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and the charges must be stayed ( Jordan , at paras. 46 - 47 ). Singh , at para. 13 . [ 8 ] Applying the framework begins with calculating the total elapsed time from the date of the charge to the actual or anticipated end of trial.

Any delays attributable to the defence must be subtracted. The defence should not be allowed to benefit from its own delay- causing conduct ( Jordan , at para. 60 ). Singh , at para. 14 . [ 9 ] Defence delay is divided into two components: (1) "delay waived by the defence"; and (2) "delay that is caused solely by the conduct of the defence" ( Jordan , at paras. 61 and 63 ). R. v. Cody , 2017 SCC 31 , at para. 26 . [ 10 ] A waiver of delay by the defence may be explicit or implicit, but must be informed, clear and unequivocal ( Jordan , at para. 61 ).

Cody , at para. 27 . [ 11 ] In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from "its own delay-causing action or inaction" ( Jordan , at para. 113 ). It applies to any situation where the defence conduct has "solely or directly" caused the delay ( Jordan , at para. 66 ). Cody , at para. 28 . [ 12 ] However, not all delay caused by defence conduct should be deducted under this component.

In setting the presumptive ceilings, the Supreme Court of Canada recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case ( Jordan , at para. 65 ; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted ( Jordan , at para. 65 ).

Cody , at para. 29 . [ 13 ] The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As the Supreme Court of Canada said in Jordan , the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" ( Jordan , at para. 63 ).

Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted ( Jordan , at para. 64 ). These examples were, however, just that — examples. They were not stated in Jordan , nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan , it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction. (para. 64).

Cody , at para. 30 . [ 14 ] Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted , may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations.

Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11 (

b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. Cody , para. 32 . [ 15 ] As well, inaction may amount to defence conduct that is not legitimate ( Jordan , at paras. 113 and 121 ). Illegitimacy may extend to omissions as well as acts … Accused persons must bear in mind that a corollary of the s. 11(

b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently" ( Jordan , at para. 138 ). Cody , para. 33 . [ 16 ] Delay (minus defence delay) that exceeds the ceiling is presumptively unreasonable. The Crown may rebut this presumption by showing the delay is reasonable because of exceptional circumstances ( Jordan , at para. 68 ).

Singh , at para. 16 . [ 17 ] Exceptional circumstances lie outside the control of the Crown in the sense that (1) they are reasonably unforeseen and

reasonably unavoidable; and

(2) Crown counsel cannot reasonably remedy delays emanating from those circumstances once they arise. So long as they meet this definition, the circumstances will be considered exceptional. They need not be rare or entirely uncommon ( Jordan , at para. 69 ). Singh , at para. 17 . [ 18 ] In Jordan , the Court recognized that it is impossible to identify in advance all circumstances that may qualify as exceptional for the purpose of adjudicating a s. 11(

b) application. The determination as to whether the circumstances are exceptional depends on the trial judge's good sense and experience. Although the list is not closed, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (para. 71). Singh , at para. 18 . [ 19 ] In Jordan , the Court did not attempt to categorize all the circumstances which might be considered discrete events. It did provide some examples, such as medical or family emergencies, cases with international dimensions, and unforeseeable or unavoidable developments that arise during trial.

The Court noted that if at trial unforeseeable issues arise at a time close to the ceiling, it would be more difficult for the Crown and the court to respond with a timely solution. As a result, unforeseeable or unavoidable delays occurring during trials will often qualify as presenting exceptional circumstances. Periods of delay caused by a discrete exceptional event must be subtracted from the total period of time for determining whether the ceiling has been exceeded (paras. 72 — 75). Singh , at para. 19 . [ 20 ] Exceptional circumstances also cover cases that are particularly complex.

In those cases, the nature of the evidence or issues that require an inordinate amount of trial and preparation time may justify delay. Hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, charges covering a long period of time, and a large number of pre-trial applications. Proceeding jointly against multiple co-accused, so long as it is in the interests of justice to do so, may also impact the complexity of the case (para. 77).

Singh , at para. 20 . [ 21 ] When the trial judge finds that a case is particularly complex, such that the time the case has taken is justified, the delay is reasonable and no stay will issue. No additional analysis is required (at para. 80). Singh , at para. 21 . [ 22 ] In R. v. K.N., 2018 BCCA 246 , at para. 5 , the court set out the Jordan framework as it was “neatly summarized by the Ontario Court of Appeal in R. v.

Coulter , 2016 ONCA 704 ” in part, as follows: [34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial ( Jordan , at para. 47 ). [35] Subtract defence delay from the total delay, which results in the "Net Delay" ( Jordan , at para. 66 ). [36] Compare the Net Delay to the presumptive ceiling ( Jordan , at para. 66 ). [37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances ( Jordan , para. 47 ).

If it cannot rebut the presumption, a stay will follow ( Jordan , para. 47 ).

In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases ( Jordan , para. 71 ). [ 38] Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached ( Jordan , para. 75 ). [39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable ( Jordan , at para. 80 ). [40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable ( Jordan , para. 48 ).

The Chronology of the Proceedings [ 23 ] The chronology of the proceedings relevant to Mr. Ali Ismail’s application for a stay of proceedings is as follows: [ 24 ] On July 4, 2018, Information 229055-1 charging Mr. Ali Ismail and Mr. Mohammad Hasan with the offences before the court was sworn. [ 25 ] On July 4, 2018, Mr. Ali Ismail appeared in custody in with counsel, Eric Albrecher. Mr. Albrecher asked that the matter be adjourned to July 6, 2018, to fix a date for Mr. Ali Ismail’s Judicial Interim Release (“bail”) hearing. [ 26 ] Over the next four months, from July 6 – November 5, 2018, Mr.

Ali Ismail’s matter was adjourned a number of times, in order that Mr. Albrecher could secure Mr. Ali Ismail’s release on bail and so the Crown could complete disclosure. Mr. Ali Ismail’s release took a very long time, primarily because there were problems obtaining a Technical Suitability Report in anticipation of Mr. Ali Ismail’s release on electronic monitoring and because Mr. Ali Ismail could not immediately deposit $1,000 cash to perfect his bail. [ 27 ] By November 5, 2018, Mr. Ali Ismail had perfected his bail and disclosure was substantially complete.

The matter was arraigned on November 5, 2018 and trial dates were scheduled for September 30, October 1 - 3 and October 7 - 8, 2019. [ 28 ] On August 29, 2019, Mr. Albrecher advised Ms. Ravina Kular of the Legal Services Society of BC that he could no longer act for Mr. Ali Ismail as he was leaving private practice. [ 29 ] On August 30, 2019, Mr. Albrecher applied to withdraw as counsel of record; however, his application was adjourned to September 3, 2019, because Mr. Ali Ismail did not attend court on August 30. [ 30 ] On September 3, 2019, Crown counsel did not oppose Mr.

Albrecher’s application to withdraw given his “unique situation”, but noted on the record that the Jordan deadline was “coming up in January” and advised the court that the Crown would do its best to set the earliest trial dates, contingent on Mr. Ali Ismail retaining new counsel. The court granted Mr. Albrecher’s application and the first

trial dates were adjourned at Mr. Ali Ismail’s request, in order that he could retain new counsel. Crown counsel advised the court that Robert Fredrickson, counsel for the co-accused, Mr. Mohammad Hasan, wanted an “early turnaround so he can set the matter promptly”. The Crown also advised the court that they would like Mr. Ali Ismail to return more regularly “so that we can get an update on whether he’s able to obtain a lawyer”. The matter was adjourned to September 9, 2019. [ 31 ] On September 9, 2019, Mr. Albrecher appeared with Mr. Ali Ismail and withdrew as counsel on an unrelated matter.

Trial dates scheduled on that matter for October 29 – November 5, 2019 were not struck, in the hope that Mr. Ali Ismail could retain new counsel who would be available to take conduct of the trial as scheduled. Crown counsel informed the court that she and Mr. Fredrickson were anxious to arraign on the matter involving Mr. Ali Ismail and Mr. Mohammad Hasan and asked that Mr. Ali Ismail be required to appear at least once a week until he had retained new counsel. Mr. Fredrickson was not available for the following two weeks and so his client, Mr. Mohammad Hasan, was adjourned to September 30, 2019. Mr.

Ali Ismail was adjourned one week, to September 16, 2019. [ 32 ] On September 16, 2019, Mr. Ali Ismail appeared with new counsel, Robert Larmer. Mr. Larmer asked that the matter be adjourned to September 30, 2019, to allow him to obtain the particulars from Mr. Albrecher and speak with Mr. Fredrickson. Crown counsel advised the court that the matter was quite dated and the Crown was becoming concerned about delay. Mr. Larmer noted that the record would reflect that it was a defense adjournment and the matter was adjourned to September 30, 2019 to

schedule new trial dates [ 33 ] On September 30, 2019, Mr. Larmer applied to withdraw as counsel of record, as he was not prepared to handle the matter. The presiding Justice of the Peace granted the application and Mr. Larmer requested an adjournment of two to three weeks on behalf of Mr. Ali Ismail, in order that Mr. Ali Ismail could retain new counsel. Crown counsel expressed her concern that previous trial dates had been adjourned already and advised the court that the Jordan deadline was January 4, 2020. She said that she and Mr. Fredrickson were anxious to arraign the matter on a more urgent basis.

She suggested a shorter period for Mr. Ali Ismail’s return to court than that proposed by Mr. Larmer, to ensure that Mr. Ali Ismail had retained new counsel and would be ready to arraign “sooner rather than later”. She indicated that the Crown was ready to arraign that day and that her intention was to secure the earliest dates available and assign Crown after the fact. The court agreed that there should be a shorter adjournment and the matter was adjourned to October 11, 2019, for arraignment. [ 34 ] On October 11, 2019, Crown counsel had a conversation with Ms.

Zakirova, articled student to Bobby Movassaghi, before court and learned both that Mr. Ali Ismail had retained Mr. Movassaghi and that Mr. Movassaghi wanted an adjournment of the matter to October 17, 2019, to obtain particulars from former counsel, Mr. Larmer. Ms. Zakirova was not in court when the matter was called and did not respond to a page, but Mr. Ali Ismail was present throughout. Crown counsel expressed her concern to the court that the Jordan deadline was in January and said that the Crown was prepared to arraign the matter that day and try to secure a trial date before January.

The matter was adjourned to October 17, 2019 to allow Mr. Movassaghi to obtain the particulars from Mr. Larmer. [ 35 ] On October 17, 2019, although the Crown and Mr. Fredrickson were prepared to arraign the matter, Mr. Movassaghi was not. Ms. Zakirova appeared as Mr. Movassaghi’s agent and asked that the matter be adjourned to October 31, 2019 to allow Mr. Movassaghi time to review particulars that he had received two days earlier. Mr. Fredrickson was not available on October 31 and suggested October 29 as an alternative date. Ms. Zakirova said that although Mr.

Movassaghi could be available on October 29, she was afraid that nothing substantive is going to happen on that date because that would give Mr. Movassaghi just two weeks and, given the seriousness of the charges against Mr. Ali Ismail, she believed it would be “just another put-over at that stage.” Crown counsel responded with her concern about the Jordan issue and suggested that the matter be adjourned to October 29 for arraignment and the parties could “go from there”. [ 36 ] On October 29, 2019, the Crown and Mr. Fredrickson were ready to arraign the file. Mr.

Movassaghi was not present in court when the matter was called and had not responded to a page, so Mr. Fredrickson asked that the matter be adjourned because he had commitments in another courthouse. Crown counsel indicated that she would not consent to any further adjournments given that the Jordan deadline was in January 2020. Mr. Movassaghi responded to the page and advised the court that he was not prepared to arraign. The presiding Justice of the Peace adjourned all counsel to a courtroom to appear before a Judge. There, Mr.

Movassaghi advised the court that he had only recently been retained, had not had a chance to turn his mind to this file and needed a “few weeks” for arraignment to take place. Mr. Movassaghi advised the court that Mr. Ali Ismail had a preliminary inquiry that day on another matter and that was the file that Mr. Movassaghi was focusing on. Crown counsel gave the court a synopsis of what had occurred with Mr. Albrecher’s withdrawal, Mr. Larmer’s withdrawal and Mr. Movassaghi’s recent appearances as counsel for Mr. Ali Ismail. She advised the court that she and Mr.

Fredrickson were ready to arraign and that they needed to move the matter along. Mr. Movassaghi advised the court that he had received the particulars approximately 10 days earlier and had not had a chance to review them because he had been away and because Mr. Ali Ismail had another matter before the court that was a priority. The court agreed to allow Mr. Movassaghi two weeks and the matter was adjourned to November 15, 2019. [ 37 ] On November 15, 2019, Crown counsel expressed her “very significant concerns about delay” and the time it was taking to arraign the file. Mr.

Movassaghi advised the court that he was not in a position to fix dates that day as he was pressed for time and asked that the matter be adjourned for three days until Monday. The matter was adjourned to November 18, 2019, to

schedule trial dates. [ 38 ] On November 18, 2019, when the matter was arraigned, Mr. Movassaghi advised the court that “there may be a Jordan issue with respect to Mr. Mohammad Hasan”. He understood the Jordan deadline to be January 2020 and said he did not know if the parties would get four days of trial time before that time, but said “… that’ll be between Mr. Fredrickson and my friend’s office.” Mr. Movassaghi then attended the Judicial Case Managers’ office and scheduled a pre-trial conference for March 26 and trial dates for both accused of April 29 – 30, May 1, and May 7 – 8, 2020.

The court offered earlier dates, but they were declined due to defense counsels’ unavailability. Specifically, Mr. Fredrickson, counsel Mr. Mohammad Hasan, was not available on January 20, 2020; neither Mr. Fredrickson nor Mr. Movassaghi was available on February 4, 2020; and Mr. Fredrickson and Mr. Movassaghi were not commonly available for the same five consecutive days beginning on March 16, 2020. [ 39 ] On December 18, 2019, Crown Counsel provided Mr.

Movassaghi with additional disclosure. [ 40 ] The presumptive Jordan ceiling for matters proceeding in Provincial Court is 18 months and expired on January 3, 2020.

[ 41 ] On January 17, 2020, Crown Counsel provided Mr. Movassaghi with additional disclosure. [ 42 ] In a letter to Mr. Movassaghi dated January 20, 2020, Crown counsel asked Mr. Movassaghi to advise her then if he was making any Charter arguments, with details sufficient to permit the Crown to adequately prepare. Crown counsel also asked Mr.

Movassaghi to consider what admissions his client would be willing to make, including admissions of the medical evidence so the Crown could dispense with two doctors, the evidence of six police officers and the evidence of a witness with respect to the integrity of the CCTV video. Crown counsel asked Mr. Movassaghi to advise which of those points/officers he would consider and said then she would draft written admissions for his consideration. [ 43 ] In an email to Mr. Movassaghi dated March 13, 2020, Crown counsel raised the issue of testimonial accommodation for the complainant.

She detailed the complainant’s cognitive, medical and psychological challenges and asked Mr. Movassaghi to advise her at the pre-trial conference on March 16 if he was consenting to or disputing those testimonial accommodations and on what basis, so that if disputed, the parties would be equipped to provide informed time estimates for how long the application would take. Crown counsel indicated that she wanted to deal with the application before trial, in order to avoid any delays in the trial on its merits. [ 44 ] In response, Mr.

Movassaghi asked whether the parties could agree that the complaint’s evidence would go in by way of admissions, given that from his perspective at least, this was an ID/recognition case and the complainant was not able to identify his client. [ 45 ] Crown counsel advised Mr. Movassaghi that she would need to call the complainant at trial, but said that whatever admissions Mr. Movassaghi was willing to make, she would consider. [ 46 ] At the pre-trial conference on March 16, 2020, Crown counsel appeared, as did Mr. Fredrickson, on behalf of his client and on behalf of Mr. Movassaghi and Mr. Ali Ismail.

Pursuant to the Directive of the OCJ, given that neither accused was in custody and the matter did not then qualify as urgent, the second trial dates were struck due to COVID-19. Also pursuant to the OCJ Directive, the matter was adjourned to May 25, 2020, for a fix date appearance. Crown counsel asked that a provincial court judge hear the matter on May 25, given that admissions and defence counsels’ positions on an application for testimonial accommodation for the complainant remained outstanding.

Crown counsel said that she was willing to pursue admission of the complainant’s evidence, in an effort to truncate matters. Her expectation was that if counsel for both accused made the admissions requested, the trial time could be reduced from six days to something significantly less, perhaps “a couple of days”. [ 47 ] Crown counsel also advised the court that Mr. Fredrickson had advised her he would be making a Jordan application on behalf of his client. Mr. Fredrickson confirmed that to be the case. [ 48 ] On April 7, 2020, Crown counsel provided Mr.

Movassaghi with additional disclosure. [ 49 ] In a letter to Mr. Movassaghi dated April 7, 2020, Crown counsel referred to her exchange of emails with him on March 13 regarding admission of the complainant’s evidence, which issue had not yet been resolved, and asked again if Mr. Movassaghi’s client would admit the evidence of the complaint, the medical evidence, the evidence of the officers who dealt with him and who took photographs of the complainant’s injuries and the authenticity of the mall surveillance video, in order to substantially reduce the current five day trial estimate to two days.

She referred to the backlog the courts were likely to experience given the COVID-19 crisis and suggested that focusing the trial on the issue of identification would enable the parties to secure a much earlier trial date than if the trial estimate was five days. She asked Mr.

Movassaghi to advise her as soon as possible if he was agreeable to all, or part of her proposal, so that she could begin drafting the admissions and have them to him for his review well in advance of the fix date appearance on May 25. [ 50 ] In an email to the Judicial Case Managers (“JCMs”) dated May 20, 2020, Crown counsel provided her available dates for the months of June and July for Mr. Ali Ismail’s trial in anticipation of the May 25 fix date appearance.

She advised the JCMs that the file was an out of custody attempt murder trial with Jordan issues that had been adjourned once already due to the COVID-19 crisis. She advised that she was scheduled to take vacation in August, but if the dates she provided did not work, she asked the JCMs to let her know when in August trial time was available and she would make every effort to accommodate it. She copied both defence counsel in order that they could respond with their available dates. [ 51 ] In an email dated May 21, 2020, to Mr. Movassaghi (and to Mr.

Fredrickson), Crown counsel said, “I have sent numerous communications requesting you to consider admissions (and including the expert notice for the doctors) and to provide details of any charter applications: Jan 20, March 3, March 13 and the last package delivered to you both on April 7. I have not received any formal response to any of my communications. I look forward to a substantive response from each of you”. [ 52 ] On May 21, 2020, Mr.

Movassaghi responded by email and said, “With respect to admissions, I’ll consider making them if Crown agrees to SOP counts 1 and 3 and the trial proceeds only on count 2 – Aggravated Assault – which is really what we’re dealing with. With respect to the Jordan Charter Application, I’ve ordered the transcripts and am waiting to receive them I will then be able to draft and send you a formal charter application.” [ 53 ] Crown counsel declined to stay the counts as suggested and advised Mr. Movassaghi that, “As per the directive, we are supposed to be canvassing admissions before the ptc.

I have sent numerous communications about them and so I won’t repeat them here. But I would appreciate you considering and responding to what your client is willing to admit at trial”. [ 54 ] Mr. Movassaghi responded, “At this point, I’m not prepared to make any admissions.” [ 55 ] On May 21, 2020, the Crown directed a stay of proceedings against Mr. Mohammad Hasan. [ 56 ] On or about May 22, 2020, Crown counsel provided Mr. Movassaghi with additional disclosure. [ 57 ] On May 25, 2020, Mr. Movassaghi asked that the matter be adjourned to June 8, 2020, because Mr.

Ali Ismail was scheduled to appear at a COVID pre-trial conference on June 3, 2020.

[ 58 ] On May 27, 2020, Mr. Movassaghi received copies of the necessary transcripts in support of his Jordan application from the transcription service. He provided copies to Crown counsel the same day. [ 59 ] On May 29, 2020, Crown counsel provided Mr. Movassaghi with additional disclosure. [ 60 ] On June 3, 2020, during the COVID-19 pre-trial conference before Judge Jetté, Mr. Ali Ismail gave notice of his intention to apply for a judicial stay of proceedings due to a breach of his rights under s. 11(

b) of the Charter . The matter was adjourned to June 8, 2020, to fix a one-day hearing for the Charter application and a new four-day trial. The reduction in trial time was as a result of admissions by Mr. Movassaghi and because the charge against Mr. Mohammad Hasan had been stayed. [ 61 ] On June 8, 2020, Crown counsel advised the court that, at the COVID-19 pre-trial conference on June 3, Judge Jetté had directed that Mr. Ali Ismail’s one day Jordan application would be conducted remotely via Microsoft Teams and that the parties should

schedule a one day remote hearing and a four day in person trial. The parties were adjourned to appear on June 8 to confirm those two dates. [ 62 ] Crown counsel advised the court further that she had provided the JCMs with her available dates on June 12; however, Mr. Movassaghi did not provide the JCMs with his dates until earlier that day, at 12:41 p.m., prior to the 2:00 p.m. court appearance. The dates Mr. Movassaghi provided for trial were in July and August. She expressed her frustration that because Mr.

Movassaghi had not provided the JCMs with his dates until shortly before their court appearance, the parties had not been able to arrange dates with the JCMs. [ 63 ] Crown counsel advised the court further that at 1:52 p.m. that day, Mr. Movassaghi wrote to her and advised her, for the first time, that his client was not prepared to attend the Jordan application hearing remotely, as directed by Judge Jetté, and that they would need a court room that could facilitate the hearing on an in person basis. Crown counsel expressed her concern that because Mr.

Ali Ismail now required an in-person Jordan hearing, it might be delayed. Crown counsel added that although Mr. Movassaghi had been talking about making a Jordan application for some time, she had not yet received an actual application. [ 64 ] Mr. Movassaghi advised the court that, because of Mr. Ali Ismail’s recent bail status, he had not had the chance to speak with him fully about how he wanted his Jordan application to proceed. Mr. Movassaghi indicated that Mr.

Ali Ismail had been in custody for two weeks trying to perfect his bail and thus he was only now in a position to have a meaningful discussion with him. [ 65 ] The parties were adjourned to appear on June 11, 2020, before Judge Jetté , who had offered to make himself available should they need any further case management assistance pre-trial or pre Charter application. [ 66 ] On June 11, 2020, the date for the Charte r application that had been scheduled for July 3, 2020 was confirmed, as were trial dates for August 4 – 7, 2020. The Scheduling Notice filed as Exhibit 7 on Mr.

Ali Ismail’s application indicates that Mr. Movassaghi’s availability started with July 2 for Mr. Ali Ismail’s Jordan application. Mr. Movassaghi had also provided three sets of four consecutive dates for the end of July and August for Mr. Ali Ismail’s trial. The courts had availability of a one day application commencing June 15 and any day after that. The courts were also able to accommodate a four day trial two weeks after any day that was set of the one day application. The Crown was available earlier than June 22, but provided dates starting then to give Mr.

Movassaghi time to serve the Crown with notice of his Charter application. [ 67 ] In court, Crown counsel explained that, due to the recent re-opening of court rooms in Surrey that could accommodate in person trials, the JCMs were able to offer one day for Mr. Ali Ismail’s Jordan application and four days for his trial as of that week. However, because Mr. Movassaghi had not yet provided the requisite 14-day notice to the Provincial and Federal Attorneys General of his application under the Constitutional Questions Act , Mr.

Ali Ismail’s Jordan application was scheduled for July 3, 2020 and his trial was scheduled for August 4 – 7, 2020. [ 68 ] At Crown counsel’s request, the judge directed Mr. Movassaghi to provide the Crown with the required Charter notice and any evidence Mr. Ali Ismail intended to rely on in support of his application by June 19, 2020, or 14 days in advance of the scheduled Charter application. Analysis [ 69 ] The first step under the framework established in Jordan entails “calculating the total delay from the charge to the actual or anticipated end of trial”.

In this case, the Information was sworn on July 4, 2018 and Mr. Ali Ismail’s trial is currently scheduled to conclude on August 7, 2020. The total delay from the swearing of the Information to the anticipated end of the trial is 25 months and 3 days. [ 70 ] The next step entails subtracting defence delay from the total delay, which results in the net delay. [ 71 ] The parties agree and I find that Mr. Ali Ismail did not waive any delay, explicitly or implicitly. [ 72 ] The parties also agree and I find that the time between the swearing of the Information on July 4, 2018 up to August 30, 2019, when Mr.

Albrecher first attempted to withdraw as counsel for Mr. Ali Ismail, is accounted for in the presumptive ceiling. Mr. Albrecher’s attention to Mr. Ali Ismail’s release on bail, which included an unfortunately prolonged attempt to obtain a Technical Suitability Report in anticipation of electronic monitoring; his efforts to coordinate court appearances with counsel for the co-accused for the purpose of arraigning the file and fixing trial dates; and his pursuit of further disclosure were all defence actions legitimately taken to respond to the charges and fall outside the ambit of defence delay. [ 73 ] Mr.

Ali Ismail argues that none of the delay following August 30, 2019 is defence delay. [ 74 ] One of Mr. Ali Ismail’s arguments in that regard is that although his current counsel, Mr. Movassaghi, was not available for trial dates when the court and the Crown were ready to proceed, the resulting delay is not defence delay because his counsel was

“reasonably available” as contemplated in R. v. Godin , 2009 SCC 26 . [ 75 ] I cannot accede to Mr. Ali Ismail’s argument because, in my view, the “reasonable availability” of defence counsel is not the correct test for the attribution of responsibility for delay following the decisions in Jordan and R. v. Balogh , 2020 BCCA 96 . [ 76 ] In Godin , the trial judge stayed the prosecution for unreasonable delay, but the majority of the Ontario Court of Appeal set that decision aside.

The Supreme Court of Canada allowed the appeal and restored the stay of proceedings entered by the trial judge. [ 77 ] One issue relevant to the appeal was the impact of defence counsel’s unavailability on the attribution of responsibility for delay. In that respect, based on the circumstances of the case, the Supreme Court of Canada held that ”Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(

b) purposes, require defence counsel to hold themselves in a state of perpetual availability”. Godin , at para. 23 . [ 78 ] The concept of “reasonable availability” was adopted by the courts in cases following the Godin decision, including R. v. Sepka , 2017 BCPC 356 ; R. v. Safdar , 2018 ONSC 7067 ; and R. v. Gagnon , 2018 BCPC 327 .

In each of those cases, the court granted an application for a stay of proceedings based on unreasonable delay in circumstances where defence counsel was not available on the first date when the court and Crown were available, but was otherwise found to be “reasonably available”. [ 79 ] More recently, however, the “continued relevance of Godin ” was questioned by the BC Court of Appeal in R. v.

Balogh , where Fenlon J.A. held, at para. 29, that “under Jordan the general rule is strong and clear: defence unavailability should be characterized as defence delay from the first day that the court and Crown are ready to proceed and the defence is not”. [ 80 ] The relevant facts of Godin were set out in Balogh , at paras. 23 – 24 , as follows: 23 . . . In Godin , the Crown gave the accused in a sexual assault case an important forensic DNA report only four days before trial.

In response to this new evidence, the Crown and defence agreed to adjourn the trial and that the Crown would re-elect to proceed by indictment so that the defence could explore the complainant's evidence and the forensic report at a preliminary inquiry. The earliest available date for the preliminary inquiry was seven months later, in September 2006. Defence counsel wrote to the court and the Crown proposing 31 alternative dates on which he would be available. He received no response to this request and the Crown did not explain why defence's request to expedite the matter was ignored.

As it turned out, the September date had to be adjourned for lack of court time. The preliminary inquiry was then rescheduled to February 5, 2007, because defence counsel was unavailable on the December date first proposed by the Crown. 24 The trial finally occurred in November 2007, 30 months after the charges were laid. The trial judge stayed the proceedings as a breach of s. 11(b). A majority in the Ontario Court of Appeal set aside the stay, but the Supreme Court of Canada reinstated it.

They agreed with the trial judge that the defence could not be held responsible for the month and a half of delay between the first date offered for the rescheduled preliminary inquiry and the one ultimately set, saying: [23] . . . Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry — efforts which were ignored — suggests that he wished to proceed expeditiously.

I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: " To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable ." [Emphasis added in Balogh .] [ 81 ] Fenlon J.A. then said the following, at para. 25 of Balogh : 25 I do not read Godin as standing for the categorical proposition that when the Crown is the cause of an adjournment, all delay until defence counsel has availability to reset the matter must be attributed to the Crown.

Rather, Godin does nothing more than counsel the use of common sense in the allocation of responsibility for delay. It must be remembered that defence counsel in Godin was not available on the first date the Crown and court were able to proceed. Although it is not entirely clear from the decision, it appears to have been understood that he had other dates readily available. Furthermore, the Morin analysis required a weighting of a number of factors, and in Godin the court gave considerable weight to defence counsel's earlier efforts to move the proceeding along.

And at para. 29: 29 As to the continued relevance of Godin , I would not say that a trial judge could never be justified in allocating or refusing to allocate some part of delay to a party based on the reasoning in Godin , but under Jordan the general rule is strong and clear: defence unavailability should be characterized as defence delay from the first day that the court and Crown are ready to proceed and the defence is not. [ 82 ] In response to the second ground of appeal in Balogh , which concerned whether the trial judge erred in her transitional analysis by not allowing Mr.

Balogh to rely on pre- Jordan law, Fenlon J.A. said further, at paras. 35 – 37: 35 The approach contended for by Mr. Balogh is, in my view, contrary to both the letter and the spirit of Jordan . It is contrary to the letter because Jordan applies to all cases in the system subject to the two transitional exceptional circumstances described above. It is contrary to the spirit of Jordan because the case calls on all participants in the justice system to work in concert to achieve speedier trials: para. 116. Each side is to be held accountable for the circumstances within their control.

The defence is not to be allowed to benefit from its own delay-causing conduct ( Jordan at para. 60 ), and the Crown will not be held accountable for circumstances that cause the ceiling to be breached that are genuinely outside of its control: Jordan at para. 112 . 36 It is in this light that the busy trial calendar of Mr. Balogh's counsel must be considered. Defence counsel, of course, cannot be faulted for not always being available when the court and the Crown are ready to set a date. But under Jordan , attribution of delay is not

about blame – it is about creating "incentives for both sides . . . to enhance accountability by fostering proactive, preventative problem solving": Jordan at para. 112 . In the present case, neither the Crown nor the court before whom Mr. Balogh was tried had an ability to mitigate delay caused by Mr. Balogh's choice of counsel or that counsel's schedule. 37 A judge's task on a s. 11(

b) application is to determine whether the state has failed to provide an accused with a trial within a reasonable time as guaranteed by the Charter . A stay of proceedings under s. 11(

b) is a rebuke to state action, and the state should not be rebuked because defence counsel is unavailable: R. v. Pelletier , 2016 BCSC 2496 . [ 83 ] In my view, Jordan and Balogh are clear and binding authority on me that the “reasonable availability” of defence counsel is not the correct test for attribution of responsibility for delay under the Jordan framework.

Rather, defence unavailability should be characterized as defence delay from the first day that the court and Crown are ready to proceed and the defence is not. [ 84 ] Furthermore, assuming that the reasoning in Godin may still be relevant to my analysis post Jordan and Balogh , the facts in Godin are distinguishable from the circumstances in Mr. Ali Ismail’s case . In particular, in Mr. Ali Ismail’s case, neither of the adjournments was the responsibility of the Crown, Mr.

Ali Ismail’s counsel did not propose 31 alternate dates other than the dates offered by the court and the Crown did not ignore repeated attempts by defence counsel to proceed expeditiously. On the contrary, as I will discuss in more detail in my reasons regarding the Crown’s duty to mitigate any delay arising out of discrete events, Crown counsel in this case made concerted efforts to push the case forward before and after the Jordan ceiling was reached, some of which were frustrated by counsel for Mr. Ali Ismail. [ 85 ] Another of Mr.

Ali Ismail’s arguments is that on the dates scheduled for trial in September – October 2019, as well as on the dates offered for trial when defence counsel was not available in 2020, the Crown would not have been ready to proceed to trial because disclosure was outstanding and so any delay arising should be attributed to the Crown. [ 86 ] I cannot accede to that argument because, in my view, the extent and timing of Crown disclosure did not cause any of the delay in the proceedings and thus it does not have any bearing on my decision, for the following reasons: [ 87 ] First, although the Crown’s failure to disclose the original CCTV footage of the alleged offence until January 17, 2020 was a significant oversight, that oversight did not delay the scheduling of trial dates and no scheduled trial dates were adjourned due to lack of disclosure. [ 88 ] Second, the record suggests that all three counsel responsible for the conduct of Mr.

Ali Ismail’s defence over time reviewed Crown disclosure, yet none of them pursued disclosure of the CCTV footage, even though the disclosure that was provided on July 13, 2018 referred to the existence of the CCTV footage. Specifically, the Report to Crown Counsel (“RTCC”) Narrative disclosed on July 13, 2018 referred to police seizure of CCTV video footage of the alleged offence.

The same RTCC also included a 21 page Task Action Report in which Corporal Nay set out his review of the CCTV video footage that had been seized, which included colour stills extracted from the video footage that showed the alleged offence. [ 89 ] Third, the ongoing disclosure letter from Crown counsel addressed most recently to Mr. Movassaghi, filed as Exhibit 6 on Mr.

Ali Ismail’s application, shows disclosure was substantially complete by January 17, 2020 and any disclosure outstanding thereafter was not “new disclosure,” but enhancements of evidence previously disclosed for use at trial, including vetted audio recordings of evidence previously disclosed in transcript form, enhanced stills of images previously disclosed, video timelines of video evidence that had previously been admitted and compilations of the original CCTV footage, intended to make it shorter and thus more comprehensible to the trier of fact. [ 90 ] Fourth, the argument that the Crown “would not have been ready to proceed” to trial based on lack of disclosure is speculation.

Furthermore, as Crown counsel argued, it is more likely that had the trials proceeded as scheduled, the Crown would have discovered the oversight before trial and the original CCTV video footage would have been disclosed. [ 91 ] In support of his arguments that no delay should be characterized as defence delay , Mr. Ali Ismail cited the following cases: R. v. Sepka ; R. v. Safdar ; R. v. Gagnon ; R. v. Krank , 2018 BCPC 26 ; and R. v. Hunter , 2019 BCPC 90 . [ 92 ] The cases cited in support of Mr.

Ali Ismail’s argument that no delay should be characterized as defence delay because his counsel was reasonably available ( R. v. Gagnon , R. v. Sepka and R. v. Safdar ) are not helpful because, as I have previously discussed, all of them pre-date the Balogh decision and, in all of them, the court relied on the reasoning in Godin . [ 93 ] R. v.

Hunter is distinguishable because although defence counsel had withdrawn as counsel in that case, the court found that the resulting delay was not properly characterized as defence delay because the Crown would not have been ready to proceed with the trial through to its completion on the first trial date in any event. The Crown had failed to disclose expert evidence that was critical to the Crown’s case within the statutory notice period and an adjournment of at least that part of the trial would have been inevitable as a result. That is not the case here. [ 94 ] R. v.

Krank is distinguishable because repeated defence requests for disclosure throughout November 5, 2015 to January 12, 2016 went unanswered by the Crown until March 2, 2016 and no disclosure was made until April 5, 2016, which prompted further disclosure requests, as defence had anticipated. That is not the case here. [ 95 ] In Balogh , the BC Court of Appeal held that my task “… is to determine whether the state has failed to provide [Mr. Ali Ismail] with a trial within a reasonable time as guaranteed by the Charter . A stay of proceedings under s. 11(

b) is a rebuke to state action, and the state should not be rebuked because defence counsel is unavailable”. Balogh , at para. 37 . [ 96 ] I find that any delay caused by Mr. Ali Ismail directly or any delay resulting from the unavailability of his counsel is defence delay and should be deducted from the total delay. [ 97 ] The defence delay that will be deducted from the total delay of 25 months and 3 days is as follows:

[ 98 ] August 30 – September 3, 2019 – On August 30, 2019, Mr. Albrecher appeared in court and attempted to withdraw as counsel of record. Mr. Ali Ismail was required to attend court that day, but he failed to appear, so the application was adjourned. The resulting delay was caused solely by Mr. Ali Ismail. Five days will be deducted. [ 99 ] September 16 – September 30, 2019 – On September 16, 2019, Mr. Larmer appeared in court as Mr. Ali Ismail’s counsel and then removed himself as counsel of record on September 30, 2019. Although Mr.

Larmer was not engaged in conduct intended to cause delay, the delay was caused solely by his decision to take Mr. Ali Ismail’s case on and then determine shortly thereafter that he was not prepared to see it through to trial. Fourteen days will be deducted. [ 100 ] If I am wrong in characterizing the delay from September 16 – September 30, 2019, as defence delay, I would find that period of delay attributable to the discrete event of Mr. Albrecher’s withdrawal as counsel for Mr. Ali Ismail, because that delay would not have occurred but for his withdrawal.

I would deduct that period of delay from the net delay at that stage of my analysis, based on my findings about the Crown’s attempts to mitigate the delay arising out of that discrete event. [ 101 ] February 4 – April 29, 2020 – A Scheduling Notice dated November 18, 2019, filed as Exhibit 5 on the application shows that January 20, 2020 was the first date the court was available for Mr. Ali Ismail’s second trial. Mr. Movassaghi was available, but Mr. Fredrickson, counsel for the co-accused, Mr. Mohammad Hasan, was not.

February 4, 2020 and March 16, 2020 were the next dates the court was available, but neither Mr. Fredrickson nor Mr. Movassaghi was available for all five days required for trial. April 29, 2020 was the first date available to both defence counsel. Crown counsel was not assigned to Mr. Ali Ismail’s file throughout that time, in part so that Crown unavailability did not contribute to delay; therefore, the resulting delay between February 4 and April 29 was caused solely by the defence.

Eighty-five days will be deducted. [ 102 ] In Cody , the Supreme Court of Canada discussed deductible defence delay that “flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges”, including action that “exhibits marked inefficiency or marked indifference toward delay”. Cody , at para. 32 . [ 103 ] In my view, Mr. Movassaghi’s conduct at times, as set out in the chronology of the proceedings, although not designed or intended to cause delay, exhibited a marked indifference to delay. Specifically, Mr. Movassaghi’s failure to provide adequate, timely notice of Mr.

Ali Ismail’s Jordan application is “inconsistent with a desire for an expeditious hearing”. His failure to secure instructions from Mr. Ali Ismail in advance of the COVID pre-trial conference about whether the Jordan hearing would proceed with Mr. Ali Ismail appearing by video or in person delayed scheduling of both the Jordan application and Mr. Ali Ismail’s trial. Between October 29 and November 18, 2019, Mr. Movassaghi sought adjournments of this matter, in part, to prioritize Mr. Ali Ismail’s other trial matter. In effect, Mr. Ali Ismail consciously chose to cause delay on this matter in favour of the other.

Finally, Mr. Movassaghi’s unwillingness to consider admissions for a time unless Crown counsel stayed the most serious charge Mr. Ali Ismail is facing on the Indictment showed a lack of reasonable cooperation with Crown counsel. [ 104 ] The defence delay that I will deduct from the total delay as a result of defence action that is illegitimate is as follows: [ 105 ] June 15, 2020 – August 7, 2020 – June 15, 2020 was the first date the court and Crown were available for Mr.

Ali Ismail’s second trial and that date could have been scheduled but for defence counsel’s unavailability and his failure to provide the Crown with notice of his Charter application in a timely manner. Fifty-three days will be deducted. [ 106 ] Five months and 7 days (or 157 days) will be deducted from the total delay of 25 months and 3 days (or 753 days).

The Net Delay is 19 months and 26 days (or 596 days). [ 107 ] Because the net delay of 19 months and 26 days exceeds the 18 month ceiling, it is presumptively unreasonable, and it falls to the Crown to demonstrate exceptional circumstances ( Jordan , at para. 68 ; Cody , at para. 44 ). [ 108 ] There are three events that I find fall within the definition of exceptional circumstances, under the category of discrete events, which justify a deduction of the period of delay arising from them from the net delay. They are:

(1) Mr. Albrecher’s withdrawal as counsel for Mr. Ali Ismail;

(2) Mr. Fredrickson’s unavailability for the date of January 20, 2020 when the court, the Crown and Mr. Movassaghi were available; and (3) the impact of the COVID-19 global pandemic on court operations in the provincial courts of British Columbia. The First Discrete Event – Mr. Albrecher’s withdrawal as counsel [ 109 ] Mr. Ali Ismail argues that Mr. Albrecher’s withdrawal should not be treated as a discrete event. He argues that it was foreseeable by the Crown that Mr. Ali Ismail’s right to a trial within a reasonable time would be breached when Mr. Albrecher withdrew because Mr.

Albrecher was hired by the same Crown office that had conduct of the prosecution of Mr. Ali Ismail. He submits that the Crown should have delayed Mr. Albrecher’s hire date to allow him to complete the trial and because they did not, the Crown is responsible for the delay arising out of Mr. Albrecher’s withdrawal. [ 110 ] I cannot accede to that argument. The case authorities provide that withdrawal of counsel, especially in similar circumstances, is characterized as either defence delay or a discrete event. [ 111 ] In R. v.

Singh , 2016 BCCA 427 , the court found that withdrawal of counsel due to a change of employment was defence caused delay. [ 112 ] In R. v. Cody and R. v. Roberts , 2018 BCSC 2300 , the court found that defence counsel’s appointment to the bench was a discrete event. [ 113 ] In R. v.

K.N. , 2018 BCCA 246 , the court observed, at para. 6, that the judge hearing the application “had no hesitation in determining that the prosecutor's sudden diagnosis with a terminal illness about one week before the scheduled trial date constituted an exceptional and reasonably unforeseeable discrete event that should be deducted from the total delay”. On appeal, the parties agreed that

the judge correctly deducted delay attributable to the discrete event of the prosecutor's illness. K.N. , at para. 14 . [ 114 ] In R. v. Live Nation , 2017 ONCJ 590 , the accused made an argument similar to Mr. Ali Ismail’s argument about Crown foreseeability of defence counsel’s withdrawal, which was rejected by the court. In Live Nation , the presiding trial judge was appointed to the superior court bench mid trial, which resulted in a mistrial and delay because the trial had to start over.

Defence counsel argued that the appointment should not be treated as a discrete event because, while it may have been unforeseen by the prosecuting Crown, it was not unforeseen by the state. [ 115 ] In particular, they argued that: (

a) the provincial government failed to pass legislation which would have permitted the judge to complete the trial; (

b) the judge risked causing the mistrial because he would have known he was presiding over this trial when he applied to the Superior Court bench; (

c) the judge could have deferred his appointment until after he completed the case; and (

d) the federal government should have insured that he was not appointed until after the trial had completed. [ 116 ] The court disagreed and held as follows at paras. 71 – 72: 71 As is clear from Jordan , extraordinary circumstances are those that are outside the control of the Crown, meaning the Crown charged with prosecuting the particular case before the Court. That is precisely what happened here. The prosecution could not have anticipated or mitigated the delay which resulted from the appointment of Justice Nakatsuru.

The defence submits that it is not just the Crown in this case that must be considered but the Crown in the larger sense including the provincial and federal legislatures, judicial officers and Crown agencies. I do not accept this submission. Such a proposition casts the net far too wide and is unreasonable. 72 I am satisfied that the Crown has met its onus to establish that the judicial appointment was a discrete exceptional event. [ 117 ] In Mr. Ali Ismail’s case, there is no evidence before me to show how the application and hiring process for Crown counsel works, to which Crown counsel office or offices Mr.

Albrecher applied and when, or whose decision it was about where he would be assigned. There is also no evidence before me to suggest that Crown counsel responsible for the prosecution of Mr. Ali Ismail knew of Mr. Albrecher’s application to the Crown office, or that they had any knowledge of, responsibility for, involvement in, or control over the hiring process. [ 118 ] In my view, there is no evidence whatsoever to support the argument that Mr. Albrecher’s withdrawal as counsel for Mr. Ali Ismail was foreseeable by Crown counsel responsible for the prosecution of Mr.

Ali Ismail. [ 119 ] I am satisfied that the Crown has met its onus to establish that Mr. Albrecher’s withdrawal was a discrete event. Mr. Albrecher’s decision to stop practicing defence work was neither expected nor foreseeable by the Crown with conduct of the Ali Ismail matter before the court and was out of its control. [ 120 ] The record shows that the Crown attempted to mitigate the delay arising out of Mr. Albrecher’s decision to withdraw before the Jordan deadline was reached on January 3, 2020. Specifically, between September 3, 2019, when Mr.

Albrecher withdrew as counsel and his first trial dates were adjourned up to November 18, 2019, when Mr. Ali Ismail’s second trial dates were scheduled for April 29, 2020, Crown counsel voiced their concerns about delay and/or said that the Crown and Mr. Fredrickson were ready and anxious to arraign and/or advised the court that the Jordan deadline was on January 3 or 4, 2020 on every one of the appearances that Mr. Ali Ismail made in court. They urged the court to require Mr. Ali Ismail to appear weekly.

They declined to assign a prosecutor to the file in order that Crown counsel availability would not contribute to delay. On one occasion, the Crown refused to consent to any further adjournments. [ 121 ] Mr. Ali Ismail argues further that the judge presiding when Mr. Albrecher applied to withdraw as counsel should have dismissed his application and because he did not, the court bears some responsibility for the delay. [ 122 ] I do not agree. As I have already discussed, the case law establishes that any delay arising out of Mr.

Albrecher’s decision to withdraw would qualify as either defence delay or a discrete event. Thus, at the time Mr. Albrecher applied to withdraw, because Mr.

Ali Ismail’s case was under the Jordan ceiling and any delay attributed to his withdrawal would be deducted from the net delay, it was reasonable for the court to infer that even if the trial was adjourned, it could have completed under the Jordan ceiling. [ 123 ] The next step in the Jordan framework involves subtracting delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached. [ 124 ] I find that any delay resulting from the discrete event of Mr. Albrecher’s withdrawal as counsel for Mr.

Ali Ismail should be deducted from the net delay. The periods of delay that will be deducted from the net delay of 19 months and 26 days are as follows: [ 125 ] September 3, 2019 – September 16, 2019 – On September 3, 2019, Mr. Albrecher withdrew as counsel and Mr. Ali Ismail’s matter was adjourned to September 16, 2019, in order that he could retain new counsel. Thirteen days will be deducted. [ 126 ] September 30, 2019 – January 20, 2020 – September 30, 2019 was the first day of Mr. Ali Ismail’s trial, which was adjourned due to Mr. Albrecher’s withdrawal.

January 20, 2020 was the first date offered by the court for Mr. Ali Ismail’s second trial, which was not accepted due to Mr. Fredrickson’s unavailability. One hundred and twelve days or 3 months and 22 days deducted. The Second Discrete Event – Mr. Fredrickson’s unavailability for January 20, 2020 [ 127 ] The Scheduling Notice dated November 18, 2019, filed as Exhibit 5 on Mr. Ali Ismail’s application shows that January 20, 2020 was the first date the court was available for Mr. Ali Ismail’s second trial. Mr. Movassaghi and the Crown were available, but Mr. Fredrickson, counsel for the co-accused Mr.

Mohammad Hasan, was not. [ 128 ] Mr. Ali Ismail argues that Mr. Fredrickson’s unavailability for January 20, 2020 does not constitute a discrete event because the Crown’s decision not to assign a prosecutor to the case prior to the November 18, 2019 fix-date appearance was a failure to “reasonably

remedy delays emanating from the circumstances once they arise”. He argues that had assigned Crown counsel reviewed the file, they would have seen that the Jordan ceiling in relation to Mr. Mohammad Hasan was looming. Because Mr. Fredrickson was not available on January 20, 2020 and Mr. Movassaghi was available, Mr. Ali Ismail argues that the Crown should have stayed the charge against Mr. Mohammed Hasan at that time and proceeded only against Mr. Ali Ismail, clearing the way for a trial scheduled to begin on January 20, 2020. [ 129 ] I cannot accede to that argument. In my view, Mr.

Ali Ismail’s argument that the Crown should have stayed against Mr. Ali Ismail’s co-accused to avoid delay attributable to Mr. Fredrickson is analogous to the argument in R. v. Rai , 2019 BCCA 377 , where Mr. Rai argued that the Crown should have severed his case from that of his co-accused to avoid delay attributable to the co-accused’s counsel’s unavailability .

The BC Court of Appeal rejected that argument in Rai and held that although severing the accused from a co- accused who is causing delay is a reasonable step the Crown must take to remedy delay in some circumstances, severance is not necessarily a solution to a delay issue. The Crown is required to reasonably remedy delay ( Jordan at para. 69 ) and the real question is whether proceeding jointly is in the interests of justice. Rai , at paras. 152 – 153 [ 130 ] The BC Court of Appeal in Rai also rejected Mr.

Rai’s argument that the judge was wrong to conclude that the periods of delay attributable to the co-accused’s counsel’s unavailability resulted from exceptional circumstances. The court held the following, at para. 162: 162 Even where one accused acts responsibly in moving the case forward, as could be said of Mr. Rai here, delay caused by a co- accused can be considered an exceptional circumstance. This is especially so where Mr. Rai did not, at the time, complain of the delay or seek severance, and appeared to acquiesce in the way the proceedings unfolded: R. v. Brissett , 2019 ONCA 11 (Ont.

C.A.) at paras. 13- 17 . [ 131 ] In this case, the record shows that Mr. Ali Ismail did not complain about delay at any time before approximately February or March of 2020. On November 18, 2019, for example, the same day that Mr. Movassaghi scheduled Mr. Ali Ismail’s second trial date for April 29, 2020, he advised the court that “there may be a Jordan issue with respect to Mr. Mohammad Hasan and said “… that’ll be between Mr. Fredrickson and my friend’s office.” During a court appearance on June 11, 2020, in conversation with the court about the sufficiency of his Charter notice, Mr.

Movassaghi said, “Well, in – in fairness, Your Honour … my friend has known for a couple of months now what the application is, she knows what a Jordan application is, it’s not a novel issue.” [ 132 ] Nor did Mr. Ali Ismail seek severance of his trial from that of his co-accused at any time, including when Mr. Fredrickson was not available in January 2020 and when Mr. Movassaghi and Mr. Fredrickson did not have available dates in common in March 2020. [ 133 ] I am satisfied that the Crown has met its onus to establish that Mr. Fredrickson’s unavailability on January 20, 2020 was a discrete event.

I find that the delay resulting from that discrete event should be deducted from the net delay of 19 months and 26 days as follows: [ 134 ] January 20 – February 4, 2020 – This is the period of delay that arose when Mr. Fredrickson was not available on January 20 up to February 4, 2020 when neither Mr. Fredrickson nor Mr. Movassaghi was available. Fifteen days will be deducted.

The Third Discrete Event – the impact of the COVID-19 global pandemic on court operations in the provincial courts of British Columbia. [ 135 ] In my view, there can be no dispute that the impact of the COVID-19 global pandemic on court operations in the provincial courts of British Columbia is a discrete event. Because Mr. Ali Ismail did not argue otherwise, my comments on this point will be relatively brief. [ 136 ] Jordan made clear that both the Crown and the court have roles to play in mitigating the delay resulting from a discrete exceptional circumstance.

The court held, at para. 75: The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell , 2016 SCC 26 (S.C.C.) ).

Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e., it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). [ 137 ] In my view, the global pandemic meets the definition of an exceptional circumstance because it was a circumstance that was outside the control of the Crown and the court in that (1) it was reasonably unforeseen and reasonably unavoidable; and (2) neither Crown counsel nor the court could reasonably remedy delays emanating from the impact of the pandemic once they arose.

So long as it meets this definition, the circumstance will be considered exceptional. Although the circumstances need not be rare or entirely uncommon to meet the definition of an exceptional circumstance, the COVID-19 global pandemic certainly was that. [ 138 ] The record shows that while Mr. Ali Ismail’s second trial was scheduled for April 29, 2020 and after that trial was adjourned due to the impact of the COVID-19 pandemic on Provincial Court operations in Surrey, Crown counsel continued to try to mitigate any delay arising out of the exceptional circumstances in Mr.

Ali Ismail’s case. [ 139 ] In particular, Crown counsel pursued Mr. Movassaghi with some persistence about possible admissions, to try and streamline the case and reduce the trial time required, in order to get the earliest possible dates; she encouraged Mr. Movassaghi to file his Charter notice in a timely manner, with sufficient particularity to allow the parties to

schedule the application in advance of the trial; and she asked Mr. Movassaghi to advise her what his position was on the Crown’s application for testimonial accommodation, so that issue could be resolved in advance of the trial. [ 140 ] The material filed as Exhibit 10 on Mr. Ali Ismail’s application shows the extent to which the Office of the Chief Judge of the

Provincial Court of BC (“the OCJ”) attempted to respond as quickly and innovatively as was reasonably possible to remedy the delays arising out of the pandemic.

Specifically, Exhibit 10 includes copies of the numerous messages, updates, Notices to the Profession and Public and Practice Directions issued by the OCJ between March 12 and June 12, 2020. [ 141 ] It is important to note that the OCJ’s concerns about and efforts to remedy the delays arising out of the impact of the COVID-19 pandemic applied to all Provincial Court matters, including family cases, child protection cases, civil cases, traffic and bylaw cases and criminal cases. For the purposes of Mr.

Ali Ismail’s application, my attention is focused the OCJ’s response to the delay as it affected criminal cases. [ 142 ] When the OCJ posted its first message regarding COVID-19 on March 12, the Provincial Court was “fully open and serving the public”.

The OCJ advised that the court had been closely monitoring the situation, that the situation was fluid and that the court was committed to taking the steps necessary to safeguard the health of all participants, while ensuring access to justice. [ 143 ] On March 15, the OCJ said that in order to protect the health and safety of all court users and to help contain the spread of COVID-19, the court was reducing its operations, while ensuring that those with urgent matters would be heard. [ 144 ] On March 16, the OCJ said that all out of custody criminal matters scheduled between March 18 and April 30 would be adjourned. [ 145 ] On March 17, the OCJ said that while in custody criminal trials and sentencings would proceed unless adjourned by a party, the parties were encouraged to apply to conduct them by video.

Bail hearings were to continue by phone or video and prisoners were not to appear in person unless a judge or justice ordered it. All out of custody criminal matters including trials set to proceed between March 18 and May 16 were adjourned without the parties attending court, although a party could request to appear by phone to argue the matter was urgent and should proceed. [ 146 ] On March 19, Notice to the Profession and Public (“NP”) 19 was first issued, effective March 25, then amended and amplified over time until June 12.

NP 19 was a comprehensive communication aimed at providing information and detailed directions to the legal profession and the public about how the courts were establishing processes to meet its obligations while reducing the risk of spreading the virus. [ 147 ] On April 3, the Chief Judge posted a message that the COVID-19 pandemic was “presenting us all with challenges that have no precedent in our lifetimes”. She set out what essential services the court was providing and how it had to balance the imperative of courts remaining open with the need to safeguard the health of court staff and court users.

She described how the court was wrestling with issues of technology, system capacity, privacy concerns and security considerations in attempting to facilitate remote proceedings. [ 148 ] On May 6, NP 21 was posted effective May 7, which provided a means of appearing before the court remotely using Microsoft Teams. [ 149 ] On May 26, the OCJ announced that as of June 8, there would be two in person court rooms operating in Surrey. [ 150 ] On June 5, the OCJ released NP 22.

In it, the OCJ referred to the fact that physical distancing is the foundation for any risk management strategy and that a private consultant had been retained to assist in identifying and modifying the court rooms and court houses in an attempt to mitigate the risk of transmission. She also set out what modified processes were required for in person appearances. [ 151 ] On June 12, NP 19 was released again with Directions regarding the need for a pre-trial conference before any trials that had been adjourned due to COVID-19 could be reset for the stated purpose of avoiding Jordan delay.

Notably, the first paragraph of the Notice said that the court recognizes that the Province is still impacted by the pandemic, that the Chief Public Health Officers of Canada and the Province still require people to keep a safe distance from each other, but currently there can be a cautious reopening of public places with health and safety protocols in place. [ 152 ] On June 22, the Chief Judge released a message stating that as of June 15, 40 in-person court rooms would be available throughout the province in addition to the virtual hearings.

As of July 3, the courts would resume all previously scheduled in person hearings. [ 153 ] What is evident from a review of the complete series of those communications is that the COVID-19 global pandemic was a crisis unprecedented in our time, how quickly the crisis expanded and that the OCJ was attempting to maintain access to justice for all the different types of litigants in provincial courts, while at the same time attempting to safeguard the health and safety of all participants and prevent the further spread of COVID-19. [ 154 ] I am satisfied that the Crown has met its onus to establish that the impact of the COVID-19 global pandemic on court operations in the provincial courts in BC was a discrete event.

I find that the delay resulting from that discrete event should be deducted from the net delay of 19 months and 26 days as follows: [ 155 ] April 29, 2020 – June 15, 2020 – This is the period of delay from the first day of Mr. Ali Ismail’s second scheduled trial date to the first date the court had available to accommodate Mr. Ali Ismail’s out of custody, in person third trial. Forty seven days or 1 month and 17 days will be deducted. [ 156 ] The Net Delay of 19 months and 26 days (or 596 days) minus delay of 6 months and 7 days (or 187 days) caused by discrete events is the Remaining Delay.

In this case, the Remaining Delay is 13 months and 19 days (or 409 days), which falls below the Jordan ceiling of 18 months for trials in provincial court. [ 157 ] The last step in the Jordan analysis, which applies where the Remaining Delay falls below the presumptive ceiling, shifts the onus to the defence to show that the delay is unreasonable ( Jordan , para. 48 ).

[ 158 ] Mr. Ali Ismail did not argue that the Remaining Delay is unreasonable, despite being below the ceiling. [ 159 ] As a result, Mr. Ali Ismail’s application for a judicial stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms , based on his assertion that his right to be tried within a reasonable time under ss. 7 and 11(

b) of the Charter has been violated, is dismissed. _____________________________ The Honourable Judge D. Boblin Provincial Court of British Columbia