R v Sobh, 2023 ABCJ 266

In the Alberta Court of Justice Citation: R v Sobh, 2023 ABCJ 266 Date: 20231121 Docket: 200323517P1 Registry: Calgary In the Matter of R v Sobh Between: Yasser Sobh - and - His Majesty the King Reasons for Decision of the Honourable Justice I.L. Maharaj Introduction [ 1 ] Timely access to justice is a constitutional right enshrined in s 11(

b) of the Canadian Charter of Rights and Freedoms (“ Charter ”). [1] [ 2 ] In R v Jordan (“ Jordan ”), the Supreme Court of Canada stated, at para 1: Timely justice is one of the hallmarks of a free and democratic society. In the criminal law context, it takes on special significance.

Section 11(

b) of the Canadian Charter of Rights and Freedoms attests to this, in that it guarantees the right of accused persons “to be tried within a reasonable time”. [2] , [3] [ 3 ] This is an application by Yasser Sobh (the “Accused”) for a judicial stay of proceedings of the matters before the Court based on an alleged denial of his s 11(

b) Charter right to be tried within a reasonable time. [ 4 ] The Defence alleges that the presumptive ceiling set out in Jordan has been exceeded by 16 days and, therefore, its application for a judicial stay of proceedings ought to succeed. [ 5 ] The Crown argues that there are several discrete time periods with respect to which the delay falls at the feet of the Defence.

If any one of those discrete time periods is found to be delay attributable to the Defence, the presumptive ceiling set out in Jordan is notexceeded and the application by the Defence must fail. [6] In the event that any of the discrete time periods are found to fall at the feet of the Crown, the Crown argues in each casethat there are exceptional circumstances impacting the progress of this matter that justify the delay and the exceedance of thepresumptive ceiling in Jordan.

Summary of the Law [7] In Jordan, the Supreme Court of Canada addressed the key question of when the Crown’s delay in prosecuting an allegationagainst an accused becomes presumptively excessive, thereby depriving an accused of his s 11(

b) Charter right and justifying a judicialstay of proceedings. [8] The Supreme Court of Canada created a framework which set a ceiling on the time within which the prosecution of a matterought to be completed, and stated, at para 49 of Jordan: The most important feature of the new framework is that it sets a ceiling beyond which delay is presumptively unreasonable. For casesgoing to trial in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of trial. ….

Aswe will discuss, defence-waived or [defence]-caused delay does not count in calculating whether the presumptive ceiling has beenreached – that is, such delay is to be discounted.[4] [9] The applicable presumptive ceiling of 18 months is not disputed by the Crown in the case at Bar. [10] In Jordan, at para 50, the Court explained the purpose and importance of the concept of a presumptive ceiling as being: … required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role inensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and theircounsel, and judges.

It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and tothe public that s. 11(

b) is not a hollow promise.[5] [11] After addressing the concept of a presumptive ceiling, the Court reiterated that the presumptive ceiling is not just an arbitrarypoint in time, it is the point at which the onus switches to the Crown to provide an explanation or context for the progress, or lackthereof, of the prosecution of the matter.[6] However, a calculation of the amount of delay is still required in order to determine whetherthe presumptive ceiling has been reached or exceeded in any given case. [12] The Crown also submits the case of R v Cody, to elucidate the concept of deductible defence delay.[7] As this particularsubmission is well laid out in the Crown’s brief, I will quote paragraph 4 thereof: [4] In R. v.

Cody, 2017 SCC 31 , [2017] SCR 659, at para 28 and following the Court outlines the framework for calculation ofdefence delay. The express intention being to prevent defence from benefiting from their “own delay-causing action or inaction”(Jordan, at para. 113). At para 30, the Court provides the following concise analysis: [30] 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 we said in Jordan, the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, whichinclude 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.[8] [13] Bearing all of the foregoing in mind, I propose to address the various time periods identified by the Crown and the Defence inchronological order as to whether the represented time period is delay that falls at the feet of the Defence or delay that falls at the feet ofthe Crown.

The Time Periods in Question [14] In the case at Bar, the Crown and the Defence have both relied upon the identification of specific periods of time as delaybeing attributable either to the Crown or to the Defence. [15] The Crown identified two relevant time periods with respect to which it argues that the delay ought to be attributed to theDefence and which the Defence argues ought to be attributed to the Crown: September 3, 2020 to February 4, 2021 (154 days) (“Time Period 1”) February 6, 2023 to June 27, 2023 (141 days) (“Time Period 2”) [16] The Defence identified the following additional time period with respect to which it argues that the delay ought to beattributed to the Crown:

January 16, 2023 to February 6, 2023 (21 days) (“Time Period 3”) [ 17 ] The Crown also argues that the November 22, 2022 waiver of s 11(

b) of the Charter , by the Defence, operated retroactively to waive all procedural delay up to that point in time. The Defence disputes this

interpretation of the s 11(

b) Charter waiver and says that, at most, the waiver applies from November 22, 2022 to the next process step date, which Defence argues was January 16, 2023.

Thereafter, the Defence submits, the delay from January 16, 2023 to February 6, 2023 lies at the feet of the Crown. [ 18 ] Finally, the Crown argues that the time period from August 25, 2023, through to the anticipated completion of the trial, must fall at the feet of the Defence given the ongoing obstructionist behaviour of the Accused with respect to ordinary procedural matters. [ 19 ] The Crown and the Defence both acknowledge that the impact of a finding that any one of the foregoing time periods is deductible delay that falls at the feet of the Defence is that the presumptive ceiling in Jordan is no longer exceeded and the Defence’s application for a judicial stay of proceedings ought to fail.

For clarity, the Defence has not argued that, even in the event that the Jordan ceiling is not exceeded, the delay is still unreasonable. [9] Therefore, I will not address that potential argument further in these reasons. Time Period 1 [ 20 ] Time Period 1 is first in time and runs from September 3, 2020 to February 4, 2021, a period of 154 days. [ 21 ] The Crown submits that delay during Time Period 1 is a function of the COVID-19 pandemic and the subsequent backlog that resulted from the period of shutdown of the courts throughout the Province of Alberta which resulted in a reduction of available court time.

That is to say, the delay during Time Period 1 was the result of matters outside the Crown’s control or ability to mitigate. [ 22 ] The Crown refers to the case of R v Loiacono , at para 19 , where the Alberta Court of Appeal stated: There can be no doubt that the delays caused by Covid-19 were neither foreseeable nor avoidable. Covid had far-reaching repercussions on the court system that affected every facet of its operations.

Its impact affected all matters then in the system as well as matters that would later enter the system during the Covid period, all as the courts developed new and different strategies to cope with this unprecedented event. [10] [ 23 ] The Defence refers to the case of R v Ghraizi , at para 12 , where the Alberta Court of Appeal stated: We agree with both the trial judge and

summary conviction appeal judge that Crown counsel illness, unavailability due to the assigned Crown’s jury trial extending, and the Covid-19 pandemic were exceptional circumstances. However, identifying an exceptional circumstance is not sufficient. As the Supreme Court of Canada instructs us in Jordan , at paras 74-75 , once the ceiling is exceeded, “the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling” and that “the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance.

So too must the justice system”. [11] [ 24 ] Further, other appellate courts have come to similar conclusions with respect to the impact of COVID-19 on the court system, its determination as an exceptional circumstance, and the fact that procedural delay occurred, without specific fault, during this unique period in our history. [12] [ 25 ] There is a wealth of authority substantiating that the COVID-19 pandemic fulfills the definition of “exceptional circumstance”.

The unique circumstances experienced by the courts and the court administration related to the COVID-19 pandemic and the impact that the health protective protocols had on the justice system and its participants both during the periods of specific shutdown and, for a reasonable time thereafter, as the backlog created by the shutdowns worked its way through the system, were novel and unprecedented. [ 26 ] Those impacts went beyond the simple reduction of available court days.

The ability of accused persons to meet with counsel, changes to the ordinary procedures surrounding the incarceration of individuals (both pre-trial and after sentencing), and the availability of court resources were all affected by the COVID-19 pandemic.

None of the foregoing was anticipated nor fully mitigatable by the Crown. [ 27 ] In support of the proposition that the COVID-19 pandemic was an exceptional circumstance, as contemplated by Jordan , and that the effect of the COVID-19 pandemic caused a ripple or cascading effect in the justice system that could not be anticipated nor mitigated by the Crown, I accept the persuasive authority provided by the Crown in the case of R v Pugh , at para 73 , where the British Columbia Court of Appeal endorsed the Nova Scotia Court of Appeal’s reasoning in R v Potter ; R v Colpitts .

In R v Potter ; R v Colpitts , the Nova Scotia Court of Appeal stated that it is appropriate for a judge to assess the “ripple-effect” of developments on a case (at para 331). At para 332 of that decision, the Nova Scotia Court of Appeal noted that a “[r]elatively small timing delay” can have a “cascading effect” that may result in a significant accumulation of delay, depending on the circumstances. [13] [ 28 ] In further support of this proposition, I find the authoritative case of R v Pettitt informative.

In that case, the Alberta Court of Queen’s Bench stated, at para 20: The adjournment of jury trials in March 2020 did not freeze the number of jury trials and non-jury trials in the queue. Like river water accumulating behind a dam, the reservoir of unheard matters composed not only the matters scheduled for trial over the months when jury trials were not heard, but the new jury and non-jury trials that (were) moving through the system. And the courts are responsible for more than criminal matters. Family, civil, commercial and judicial review matters also accumulated.

Bail and Chambers matters had to be dealt with. Emergency matters had to be dealt with. All this at sitting points across the province. [14] [ 29 ] During Time Period 1, the trial date of September 3, 2020 was adjourned by the Defence to fix a new trial date before a different justice. The endorsements on the Court record do not reflect the reason for the adjournment except to confirm that it was at the

request of the Defence. The next available date for a trial to proceed was February 4, 2021. This five-month time period between the two trial dates reflects the reduced capacity of the Courts to provide trial time. The five-month delay is longer than it may have otherwise been, absent COVID-19 and its cascading impacts. [ 30 ] I find that the delay set out in Time Period 1 is not attributable to the Crown as the COVID-19 pandemic shutdowns and the cascading impacts on the ability to move matters forward expeditiously were clearly exceptional circumstances and neither foreseeable nor mitigatable by the Crown.

There is no suggestion by the Defence that the Crown could have, or should have, done anything different to mitigate the delays that the justice system faced as a result of the COVID-19 pandemic and its cascading impacts on scheduling of trials during Time Period 1. [ 31 ] Accordingly, if Time Period 1 is removed from the calculation of the elapsed time as delay which is not attributable to the Crown, the number of days elapsed is reduced from 564 days to 410 days, which falls below the presumptive Jordan ceiling of 548 days. [ 32 ] My decision with respect to Time Period 1 is dispositive of this matter.

The Defence’s application is dismissed solely on the basis of my decision with respect to Time Period 1. [ 33 ] However, for the purposes of completeness, I will address the remaining time periods and other arguments made by the Crown and the Defence. Time Period 3 [ 34 ] Time Period 3 is next in time and runs from January 16, 2023 to February 6, 2023, a period of 21 days. [ 35 ] On November 22, 2022, the trial was adjourned by the Defence to a new trial date which was yet to be fixed. The Defence admits that this adjournment is a Defence adjournment.

I am advised that, in Red Deer, Alberta, matters to be set for trial are adjourned in court to the future trial date but that the date is obtained from the Case Management Office after the appearance and the matter is administratively set on the new trial date. [ 36 ] The trial date that was offered by the Case Management Office was January 16, 2023. The Crown discovered that the January 16, 2023 trial date had been fixed without consideration of certain key witnesses’ schedules.

So, the Crown brought the matter forward on November 30, 2022, eight calendar days after the November 22, 2022 appearance date, for a new trial date to be fixed, accounting for all witnesses’ availability.

That new trial date was February 6, 2023, 21 days after the initial January 16, 2023 date. [ 37 ] The Defence’s argument with respect to Time Period 3 is limited to one sentence, being “[T]he time between the first proposed trial date and the crown adjourned trial date the delay cannot fall on the accused”. [ 38 ] The short adjournment appears to have resulted solely from an error on the part of the Case Management Office, in failing to ensure all witnesses’ schedules were taken into account when the trial date of January 16, 2023 was offered. [ 39 ] In R v Cody , the Supreme Court of Canada addressed the question of whether an inadvertent oversight could qualify as a discrete event.

The Court stated, at paras 58 to 60: [58] In principle, an inadvertent oversight may well qualify as a discrete event. The first prong of the test for exceptional circumstances requires only that the event at issue be reasonably unforeseeable or reasonably unavoidable. It does not impose a standard of perfection upon the Crown. As this Court observed in Jordan , “[t]rials are not well-oiled machines” (para.73). Mistakes happen.

Indeed, they are an inevitable reality of a human criminal justice system and can lead to exceptional and reasonably unavoidable delay that should be deducted for the purpose of s. 11 (b). [59] The question under the second prong of the test is whether the Crown took reasonable steps to remediate the error and minimize delay. The Crown “is not required to show that the steps it took were ultimately successful – rather, just that it took reasonable steps in an attempt to avoid the delay” ( Jordan , at para. 70 ).

Upon discovering the error, the Crown promptly notified defence counsel and the court and maintained that the error was immaterial. Nonetheless, 7.5 months of delay ensued. [60] These events illustrate the failings of the pre- Jordan culture under which the parties operated. We expect that an issue of this nature could, and should, be resolved in short order – perhaps even in a single day.

For example, the source of the error could be identified and examined to confirm that it was inadvertent and innocuous. ... [15] [ 40 ] The Supreme Court of Canada found that the exceptional circumstances criteria were not met in that case. The Court commented that “an issue of this nature could, and should, be resolved in short order”; however, in that case, there was a delay of 7.5 months.

I have interpreted this principle to mean that, in appropriate circumstances, if a matter is resolved “in short order”, the exceptional circumstances criteria may result in a delay that is not attributed to the Crown. [ 41 ] This principle is addressed further by the Alberta Court of Appeal in the R v Poxleitner case, at paras 35, 36, and 66 , as follows: [35] When the trial resumed on September 20, 2018, Sgt. Fald was not present. Defence counsel sought an adjournment due to Sgt. Fald’s absence. This in turn precipitated a discussion about who would be responsible for the attendant delay.

After a full argument largely based on submissions of counsel and the provision of the email exchanges of counsel, the trial judge found that a misunderstanding had apparently arisen between Crown and defence counsel as to who was responsible for calling Sgt. Fald for this purpose.

[36] The defence argued that this should be characterized as Crown delay since Sgt. Fald was a Crown witness who the defence soughtto cross-examine further, albeit on matters unrelated to the charges at hand except arguably in the credibility sense. The defence pointedto emails which the defence suggested created a Crown agreement to that effect. The defence does so again on appeal. The Crowncontested the adjournment application, taking the position that there was no specific agreement for the Crown to have Sgt.

Fald attendcourt and, as late as July 15, 2018, it was not entirely clear whether the defence would call evidence at all on September 20, 2018. ... [66] Dealing first with the delay after September 30, 2018, there is no indication of dilatory conduct by the Crown. As to Crownconduct, the appeal virtually hinges on one point which the trial judge found to be a misunderstanding between counsel. As pointedout in Cody at para 58, “Mistakes happen.

Indeed, they are an inevitable reality of a human criminal justice system and can lead toexceptional and reasonably unavoidable delay that should be deducted for the purpose of s. 11(b)”.[16] [42] Another case where the question of human error is raised is the case of R v Greenridge, a decision of the Ontario Court ofJustice. While not binding on this Court, it is informative and quite similar on its facts to the case at Bar.

In that case, the Court stated, atparas 45 to 48: [45] In this case, there was a human error when the Crown's administrative assistant inadvertently deleted Defence counsel's email ofSeptember 12, 2019 seeking a Crown pre-trial date. Defence counsel fixed the situation for the Crown when she followed up on October2nd, 2019. Human error can be a discrete event/exceptional circumstance: see the R. v. Cody, 2017 SCC 31 , [2017] 1 S.C.R.659 at paragraph 58. [46] The delay caused by this human error was 20 days.

This is the time between the email of September 12 from defence counseloffering the dates and the time of October 2 when defence counsel followed up and the problem ultimately was remedied. I am notcritical of defence counsel but when a person does not respond to an email after a week or so, there is a reasonable prospect that theemail has been overlooked or some error has been made. Obviously, the email should not have been deleted, but defence counsel shouldhave followed up earlier on the point. [47] There is nothing to suggest that the error here was part of a systemic issue.

A new process has now been put in place for schedulingCrown pre trials. The delay here was not particularly long and I take that into account in my determination of this issue. The error shouldnot have happened, but human error and mistakes do occur. No one is perfect and we need to allow some latitude when human errors aremade. [48] In the circumstances of this case, I am prepared to deduct 20 days as an exceptional circumstance/discrete event associated with thedeleted email.

It is not enough to bring this case under the presumptive ceiling. [43] In the R v Greenridge case, the 20-day delay was not sufficient to bring the case under the presumptive ceiling. However, inthe case at Bar, in isolation from any other delay, Time Period 3 is sufficient to bring the case under the presumptive ceiling.

While,perhaps, one might speculate that the Court in R v Greenridge was prepared to be kind given the nature of the error, the Court does notstate that it is only prepared to deduct the short delay associated with the human error on the basis that it was not determinative of theJordan delay argument. [44] Accordingly, I am inclined to be persuaded by the fact that the Ontario Court of Justice, faced with a similar human errorwhich was quickly remedied and caused a minor delay in the grand scheme of the case, found that the deduction of that delay alignedwith the concept set out in R v Cody with respect to inadvertent errors being discrete events comprising exceptional circumstances. [45] In the case at Bar, the issue was identified and remedied within eight calendar days with an overall impact of 21 days of delay.It is clear to me, on the face of the record and, based upon oral submissions made by the Crown, that the trial date of January 16, 2023was fixed in error.

The oversight in scheduling falls within the category of “mistakes happen”.

For the purposes of this decision, I find asa fact that the error in scheduling was an inadvertent oversight. [46] I further find as a fact that the Crown took all reasonable steps to address the inadvertent oversight at the earliest opportunity.I find that the overall impact, being 21 days of delay, was innocuous and did not significantly impact the overall progress of this matter. [47] Therefore, applying the reasoning in R v Cody, I find that this period of delay described as Time Period 3 is not attributable tothe Crown. [48] Accordingly, if Time Period 3 is taken in isolation and removed from the calculation of the delay attributable to the Crown inthis matter, the number of days elapsed is reduced from 564 days to 543 days, which falls below the Jordan presumptive ceiling of 548days, independent of my finding with respect to Time Period 1.

Time Period 2 [49] Time Period 2 is third in time and runs from February 6, 2023 to June 27, 2023, a period of 141 days. Two issues arise withrespect to this time period – the availability of the interpreter and the potential bifurcation of the trial.

Availability of the Interpreter [ 50 ] The Defence had requested the assistance of an interpreter for the Accused commencing on February 4, 2021. [17] [ 51 ] The interpreter, who was present on February 6, 2023 for the trial, was required to leave at 4:00 pm that day and could not stay for an extended hearing day or even until 5:00 pm. [ 52 ] The Accused stated that he was prepared to proceed with the trial on February 6, 2023, in the absence of the interpreter.

This statement by the Accused purported to be a waiver of his s 14 Charter right to the assistance of an interpreter. [18] [ 53 ] However, in the substantive matter before the Court, the Defence’s position is that the Accused did not understand English well enough to understand the terms of his release, which preceded February 6, 2023, nor did he understand the process in which he was involved, because he does not understand English well enough.

Of note is that the Accused required the assistance of an interpreter in Court on August 25, 2023 and October 22, 2023, both of the trial dates that have occurred so far. [ 54 ] The February 6, 2023 transcript reflects the communication difficulties with the Accused. The following exchange occurred between the Court and Mr. Genest, Defence counsel at the time, at page 5, lines 5 to 13: MR. GENEST: Sir, I had the opportunity to speak with the interpreter with Mr. Sobh and frankly, I am not any more clear and the interpreter is not any more clear and I think that Mr. Sobh wishes to address the Court directly.

THE COURT: Okay. MR. GENEST: And I apologize, we couldn’t do more, but even the interpreter and the prosecutor we spoke and we weren’t able to get clear instructions, Sir, so ... [19] [ 55 ] The Court proceeded to address the Accused directly as follows, at page 7, line 17 to page 8, line 7 of the transcript: THE COURT: But in reality, if Mr. Interpreter needs to leave by 4 PM and it is 3:15. THE ACCUSED: I will continue. I will continue, Sir – Your Honour without the interpreter. MR. HILL: It’s not just about you, Mr. Sobh. There are other people who require the interpreter.

THE COURT: One of the witnesses, at least, as well, requires the interpreter, so we are just unfortunately not going to be able to proceed today and I apologize, sir. All right. THE ACCUSED: I realize that, Your Honour. If there is – if it’s not possible, that’s okay, but they keep adjourning it all the time, and they told – they said – the judge last time, they said, we have to deal with it next time, it will be the last time. So I mean we are – THE COURT: I mean – THE ACCUSED: So that’s why. THE COURT: I appreciate.

Like, I understand why that happened, but I appreciate that some of the delay has been – THE ACCUSED: Yes. Yes. THE COURT: -- from your side as well, too, Mr. Sobh. THE ACCUSED: That’s right. [20] [ 56 ] As set out in the R v Tran case, a waiver of the right to an interpreter must be very clear and unequivocal. [21] In that case, the Supreme Court of Canada stated, at p 997: In the specific case of waiver of the s. 14 right to interpreter assistance, I would add to existing safeguards the following condition.

The waiver should be made personally by the accused, if necessary following an inquiry by the court through an interpreter to ensure that the accused truly understands what it is he or she is doing, unless counsel for the accused is fluent in the accused’s language or have communicated with the accused through an interpreter before coming to court and satisfies the court that the nature of the right and the effect on that right of waiving it have been explained to the accused. [22] [ 57 ] In this case, the Accused’s statement that he was willing to proceed without an interpreter was qualified and not unequivocal.

He suggested, at page 7 lines 6 to 7, that “I can continue without – if you speak slowly, Sir, I will understand you.” [23] However, at page 5, lines 5 to 7, counsel to the Accused advised the Court “Sir, I had the opportunity to speak with the interpreter with Mr. Sobh and frankly, I am not any more clear and the interpreter is not any more clear and I think that Mr.

Sobh wishes to address the Court directly”. [24] [ 58 ] The Crown argues that it is untenable for the Defence to suggest that, in February of 2023, it was prepared to proceed in the absence of the interpreter when the interpreter had been required in the past and still required at this time in light of the fact that Defence’s core argument on the merits of this matter is that the Accused does not understand English well enough to have understood the terms of his release. These positions are naturally contrary to each other. Bifurcation of the Trial

[ 59 ] The next issue that arose with respect to Time Period 2 was the potential bifurcation of the trial and whether the adjournment that occurred to avoid bifurcation falls at the feet of the Defence or the Crown. [ 60 ] The Accused’s matter was not called for trial until approximately 3:00 pm on February 6, 2023. [ 61 ] All parties agreed that, even if the trial had commenced on February 6, 2023, at approximately 3:00 pm, it may not have been completed that day as the time estimate for the trial was 2.5 hours.

When the discussion proceeded with respect to the adjournment, the Defence suggested that an entire day would be a more appropriate time estimate. [25] [ 62 ] The options to begin the trial and

schedule a continuation date or to adjourn the trial to another date were both addressed amongst counsel, the Court, and the Accused. [ 63 ] The transcript of proceedings sheds some light on the evolution of this issue. The following exchanges occurred between the Court, Mr. Genest (Defence counsel), Mr. Hill (the Crown), and the Accused: At page 3, lines 4 to 13 : THE COURT: I mean, we can a[t] the very least get going, but I appreciate when there is going to be a translator required for Mr. Sobh himself and then potentially for the witness. That may get into some gymnastics or – MR.

GENEST: We are cutting it close – THE COURT: -- a pause and go, pause and go, pause and go trial. And further, at page 4, lines 18 to 23 : THE COURT: Right. I will let you have a moment with your client Mr. Genest and then I will – if you want to get started, I mean, we can go for a bit and then – MR. GENEST: I am going to recommend against it, Sir , but I will have a word with Mr. Sobh. (emphasis added) And further, at page 5, lines 29 to 34 : THE COURT: That’s as clear as can be. All right, Mr. Hill are you prepared to call your first witness? MR.

HILL: I am prepared to call my first witness, but Sir, we may have to adjourn in the middle so that I can get my other witness here. [26] [ 64 ] Defence counsel stated that he would advise against a bifurcation of the trial but the Accused stated that he wanted to proceed on February 6, 2023 as the matter had been adjourned a number of times already.

The Crown argued that it was prepared to proceed with its first witness but would have to adjourn after that witness to secure its second witness’s attendance at Court, resulting in a natural bifurcation of the trial. [ 65 ] Both Crown and the Accused stated their willingness to commence the trial but both the Crown and the Defence counsel also indicated a concern with respect to bifurcation of the trial. Ultimately, the Court adjourned the matter to a new date.

Analysis of Time Period 2 Delay [ 66 ] With respect to the delay described as Time Period 2, a plain reading of the transcript demonstrates that a combination of factors influenced the progress of the matter on February 6, 2023. [ 67 ] When addressed by the Court, the Accused admitted that some of the delay had “come from his side”. [27] There is no elaboration of the delay for which the Defence is responsible and to which the Accused admitted. [ 68 ] However, some of the delay must be attributed to the Crown.

The Crown has some influence over the management of the docket and can ask the Court for permission to call matters out of order. This matter was not called until approximately 3:00 pm on February 6, 2023. The Crown could have chosen to proceed earlier in the day with this trial and could have adjourned other matters. In the alternative, the Crown could have commenced its case in the remaining time available. [ 69 ] Some of the delay may be attributed to institutional delay insofar as the interpreter that was ordered to be present was resident in Calgary, not in Red Deer.

While the interpreter was present on February 6, 2023, he cannot be faulted for needing to leave at the end of the business day. Arguably, the end of the business day for him must account for his travel time back to his home base, which was presumably Calgary, which added further restriction to the time available for trial on February 6, 2023.

It is unclear whether either counsel was aware of the time restriction on the day created by the interpreter’s need to leave at 4:00 pm. [ 70 ] In R v Cody , the Supreme Court of Canada addressed this issue, at paras 45 and 48: [45] Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. [28]

... [48] The exceptional circumstances analysis begins with discrete events. Like defence delay, discrete events result in quantitative deductions of particular periods of time. The delay caused by discrete exceptional events or circumstances that are reasonably foreseeable or unavoidable is deducted to the extent it could not be reasonably mitigated by the Crown and the justice system ( Jordan , at paras. 73 and 75 ). [29] [ 71 ] I rely upon R v Cody with respect to the consideration of matters outside the control of the Crown.

While the Crown did have some influence over the management of the docket on February 6, 2023, the Crown cannot be held to a standard of being prescient and, as the day developed, the Crown would have been unable to reasonably remedy the delay that emanated from the circumstances of the day; being the length of time other matters required in order to be addressed, the delay in this Accused’s matter being called, the Defence’s difficulty getting clear instructions from the Accused, and the limitation on the availability of the interpreter. [ 72 ] With respect to the Accused’s s 14 Charter right, an interpreter had been assisting the Accused since February 4, 2021.

The requirement for an interpreter was not new.

It was an accommodation that had been honoured for the preceding two years. [ 73 ] With respect to the Accused’s s 14 Charter right, I give significant weight to the fact that Defence counsel stated that he was unable to obtain clear instructions from the Accused, even with the aid of the interpreter, highlighting the need for the Accused to have the assistance of an interpreter, and that the interpreter had been required on a consistent basis for the preceding two years. [ 74 ] While the Accused stated that he would like to commence the trial and would continue after the interpreter left, I find that his statement did not rise to the level of a clear and unequivocal waiver of his s 14 Charter right, as set out in the R v Tran decision of the Supreme Court of Canada. [ 75 ] With respect to the question of the practicality of bifurcating the trial, the Crown had some ability to mitigate this risk through its influence on the management of the docket.

The Crown could have taken steps to call the matter earlier in the day to allow for the 2.5-hour trial estimate to fit within the ordinary court day.

It is unclear whether the Crown was advised, in advance, that the interpreter’s availability ended at 4:00 pm, which would lead to the simple conclusion that the trial had to be called by 1:30 pm, or if the Crown was not aware of the said time constraint, by 2:30 pm, in light of the 2.5-hour time estimate. [ 76 ] I put significant weight on the fact that the Crown rightly indicated that it was in a position to proceed and to call its first witness, but that it would have to adjourn at the completion of the first witness’s evidence in order for the next witness to attend at Court, which would have resulted in a bifurcation of the trial, regardless of the availability of the interpreter. [ 77 ] I also put significant weight on the fact that Defence counsel stated that he would advise the Accused against agreeing to a bifurcated trial.

This statement was made in the context of the bifurcation being impacted by the requirement for the interpreter to leave at 4:00 pm that day, shortening the available trial time from two hours to one hour, in the face of a 2.5-hour trial estimate. [ 78 ] Had Defence counsel been willing to bifurcate the trial, the Crown was ready to proceed, and the trial could have commenced on February 6, 2023 with the Crown’s first witness. While bifurcation of trials is not ideal, it is not unusual.

In fact, this trial has proceeded already on two separate dates, August 25, 2023 and October 16, 2023, and is scheduled to be continued again on January 4, 2024. [ 79 ] It is reasonable to infer that, if the trial had commenced, even for one hour out of the estimated 2.5 hours, that a time slot of 1.5 hours could have been found in the court calendar sooner than a full 2.5 hours.

Thus, there is a fictional point in time, prior to June 27, 2023, when the trial likely could have proceeded if the Crown had been allowed to commence its case. [ 80 ] Delay caused by the conduct of the Defence, in the absence of a waiver of that delay, can still be delay attributable to the Defence. [30] This category of delay addresses the potential for the defence to benefit from “its own delay-causing action or inaction”. [31] [ 81 ] What is unclear is when the fictional future continuation date could have occurred, had the trial commenced on February 6, 2023.

If that information was available, then the delay between February 6, 2023 and July 27, 2023 would likely have been shorter and could have been attributed more clearly to either the Crown or the Defence, or a portion to each of them. [ 82 ] It is also arguable that an insufficient amount of time was made available on February 6, 2023 for all matters scheduled on that day to proceed as planned. Scheduling a court docket is not a science. It is a singularly thankless art.

Court schedulers do their best to balance the number of matters that are scheduled with a reasonable estimate of how many matters may take less time than estimated or may be adjourned and not proceed, against how many may run longer than estimated. In order to optimize court resources, a balancing act ensues. In the case at Bar, it is possible that there was no likely scenario where the Accused’s matter would have been completed on February 6, 2023.

However, there is no evidence upon which I may rely to come to this conclusion. [ 83 ] As set out in R v Cody , at para 4 , 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 )”. [32] Similarly, if the Defence is able to proceed and the Crown cannot proceed, then the delay would fall at the feet of the Crown and would not be deducted.

In the case at Bar, there is the added complication that the Crown, while ready to commence, was unable to complete its case on February 6, 2023 and a continuation date would have been required in any event. [ 84 ] The Supreme Court of Canada, in R v Cody , held that there are circumstances where the delay may to be allocated to both the Crown and the defence by sharing it between them. [33] In R v Cody , there was a period of delay that resulted from a disclosure issue that came to light late in the day.

The Court held that the emergence of this issue was a discrete event and deducted a portion of the resultant delay from the total elapsed time. In that case, the Crown acted to address the delay in a reasonable manner. The Court stated

that “the requirement [on the Crown to mitigate the impact of the delay] is that of reasonableness: the Crown need not exhaust everyconceivable option for redressing the event in question to satisfy the reasonable diligence requirement”.[34] The Court deducted two outof the five months of delay in that case as being attributable to the Defence and the balance was attributed to the Crown. [85] In the case at Bar, the attribution of delay resulting from the availability of the interpreter and the potential consequences ofthe bifurcation of the trial, is indicative of the confusion and complexity of the day.

It would seem fair to acknowledge that neither partyis solely responsible for the delay and that the allocation of Time Period 2 fully to either party would result in an inequity. [86] Under the circumstances, as the Crown was ready to proceed with its first witness and the interpreter was available for onehour out of the scheduled 2.5 hours estimated for the trial (including argument), and the Defence objected to the bifurcation, I find thatthe responsibility for the delay described as Time Period 2, being 141 days from February 6, 2023 to June 27, 2023, falls equally at thefeet of the Defence and the Crown.

I attribute 70 days of this period of delay to the Defence and 71 days of this period of delay to theCrown. [87] Thus, the 564 days of elapsed time would be reduced to 494 days, which is below the presumptive Jordan ceiling of 548 days,if this delay is taken in isolation. The November 22, 2022 Waiver of Delay [88] The Crown argues that the waiver of delay on November 22, 2022 was a waiver of all delay up to and including November22, 2022.

Essentially, the waiver was of retroactive effect. [89] The Crown rightly states the law that an accused can waive those procedural rights which are present for his benefit, as longas the waiver is informed, clear, and unequivocal. The Crown relies on the Supreme Court of Canada case, R v Tran, in this regard.[35] [90] The R v Tran case, as it pertains to the question of waiver, dealt with an accused’s attempt to waive his right to an interpreter.However, the general statement with respect to the waiver of constitutional rights is instructive with respect to the purported waiver ofthe Accused’s s 11(

b) Charter right. In R v Tran, the Supreme Court of Canada stated, at pp 996 to 997: In Korponay v. Attorney General of Canada, (SCC), [1982] 1 S.C.R. 41, this Court made it clear per Lamer J. (as hethen was) that to be valid, the waiver of a statutory procedural right has to be clear and unequivocal and must be done with fullknowledge of the rights the procedure was enacted to protect and the effect that waiver will have on those rights.[36] [91] In the case at Bar, the waiver itself is poorly documented in the endorsements. [92] The endorsement on the Court record reads, simply, “waive 11b”.

The Crown has provided the following extract from thetranscript of November 22, 2022, whereby counsel for the Defence stated: “formally on the record I have waived 11(b), I have thoseinstructions from Mr. Genest, Sir”. Mr. Genest was the Accused’s counsel of record, at that time. [93] The Crown agrees that it is settled law that a waiver of s 11(

b) of the Charter is not an unqualified waiver but is a waiver ofthe impact of that right with respect to specific periods of time. In this regard, the Crown argues that the relevant period of time is ofretroactive effect from November 22, 2022 to the beginning of the proceedings against the Accused. [94] The Crown properly admits that the waiver is less than clear as to the period of time to which it was intended to apply. TheCrown argues that the fact that the waiver is unqualified means that a contra proferentum

interpretation yields the result that the waiverapplies from the commencement of process to the date of November 22, 2022. [95] The Defence argues that the waiver must be interpreted to be from November 22, 2022 to the next process date, being January16, 2023. [96] In my view, the Crown is stretching the meaning of the cases upon which it relies to make its argument. While the waiver, asstated, is not explicit as to its time frame, it is also not explicit that it is retroactive nor is there case law submitted to me that the conceptof contra proferentum applies in the case of a waiver of a constitutional right.

Without going down a rabbit hole, the concept of contraproferentum is generally concerned with leveling the playing field between contracting parties where there is a significant disparity insophistication and power, and it generally flows to the favour of the party with less sophistication and power, not the other way around. [97] In order to be operative, particularly to act to significantly remove the Accused’s legal position with respect to delay in theyears of process preceding November 22, 2022, the waiver must be clear, unequivocal, and precise. This waiver was anything but clear,unequivocal, and precise.

Accordingly, it must be interpreted in a manner that is reasonable on its face and any uncertainty resolved tothe favour of the Accused. [98] To assume that the s 11(

b) waiver applied retroactively from November 22, 2022 to the beginning of the proceeding is toimpact the rights of the Accused in a profound way and, without clarity in the wording of the waiver, it would be unreasonable tointerpret it to result in such an impact. [99] I find that the context of the waiver was a waiver of the delay caused by the adjournment of the trial on November 22, 2022until a time in the future. The lack of specificity of that date leads me to the conclusion that a reasonable

interpretation of the waiver isthat it was a waiver of delay from November 22, 2022 until the next process date, which was unspecified at that time and which neededto be secured from the Case Management Office. [100] The Crown’s argument that the waiver applies from November 22, 2022 retroactively to the commencement of process in thismatter is not accepted. The Defence’s argument that the waiver ought to be limited in time to the next process date, being January 16,2023, is accepted.

[ 101 ] As set out in my reasons above with respect to Time Period 3, I find that the waiver from November 22, 2022 to January 16, 2023 is Defence-waived delay. Delay from August 25, 2023 to the Conclusion of the Matter [ 102 ] The Crown argues, proactively, that the trial of this matter has commenced on August 25, 2023 and that no further argument of Crown delay can lie in the mouth of the Defence, particularly given the Defence’s obstructive conduct during the last two days of trial time. [ 103 ] The trial of this matter commenced before me on August 25, 2023.

Since that time, the Defence has opposed every simple procedural matter, causing significant delay. [ 104 ] As set out in the Crown’s brief, the Defence first objected to the testimony of the complainant being provided to the Court via Webex when she was out of the country on the trial date. The complainant was present on Webex on August 25, 2023 and was prepared to testify on that date. [ 105 ] The Defence requested an adjournment so that the Crown could give 10 days notice to the Defence of the request for the complainant to testify by Webex.

I granted the adjournment request and the matter was set to continue on October 16, 2023. [ 106 ] On October 16, 2023, the Defence did not object to the complainant testifying remotely. The purpose of the objection on August 25, 2023 appeared to be solely for the purpose of delay, or to hold the Crown’s feet to the fire with respect to the 10 day notice requirement, as there was no actual objection to the complainant testifying remotely when the matter came back on October 16, 2023.

I find that the delay from August 25, 2023 to October 16, 2023 falls at the feet of the Defence. [ 107 ] Then, on October 16, 2023, the Crown was prepared to proceed with the complainant’s evidence through Webex but discovered that the complainant was physically in Red Deer, Alberta that day and available to testify in person. Then, the Defence objected to the complainant appearing in person and sought a further adjournment.

I denied the Defence request for an adjournment on the basis that the Defence was not entitled to notice that the complainant would testify in person as, without leave, witnesses are expected to testify in person. [ 108 ] Next, the Defence objected to the complainant being provided with a screen to facilitate her testimony and ensure that she could provide full and frank testimony at the trial. I was advised that there was a history of aggression by the Accused towards the complainant.

The Defence sought to obtain another adjournment so that a period of notice could be given to the Defence of the Crown’s request for the complainant to testify with the aid of the screen. I denied the request for an adjournment and the Defence maintained its objection to the use of the screen. [ 109 ] So, I conducted a voir dire with respect to the specific question of whether the complainant ought to be provided with the screen as an aid to her testimony.

During the voir dire , the Defence sought to compel the complainant to appear in open Court to present her evidence as to the reason that she required a screen. The Defence was unwilling to rely upon the information provided to the Court by the Crown prosecutor that the complainant expressed to him a genuine fear of the Accused and had requested the screen in order to give full and frank testimony to the Court.

The Defence argued that the Crown prosecutor’s statement was hearsay. [ 110 ] Then, the Defence argued that there should be some evidence, like an affidavit, to justify the complainant’s concern, if she was not going to be present in Court to testify as to her concern, which would require a further adjournment.

I held that, despite the hearsay objection, the Crown prosecutor’s information to the Court was reliable and acceptable to me as he is an officer of the Court and bound by his oath to be truthful to the Court and to never mislead the Court. [ 111 ] The Crown was willing to place the Accused’s criminal record into evidence and properly raised the question of whether the Defence consented to the criminal record being put before me on the basis of its potentially prejudicial effect.

The Defence objected to the criminal record being provided to me, even within the confines of the voir dire , as it could be more prejudicial than probative, but consented to the Crown raising the existence of a conviction for assault against the complainant before me in the confines of the voir dire . [ 112 ] The Crown proceeded to attempt to enter the Accused’s record of the criminal conviction for assault against the complainant. Then, the Accused denied this criminal conviction and the Crown was required to take additional time to prove the criminal record.

Ultimately, the Accused did admit that he had been convicted of assault against the complainant, as was reflected on his criminal record. I allowed the information confirming that the Accused had a criminal conviction for assault against the complainant to be entered within the confines of the voir dire . Then, I ruled that the complainant ought to be provided with the security of a screen in order to provide her full and frank testimony to the Court.

All of this took an inordinate amount of time before the trial evidence could proceed. [ 113 ] Additionally, as the trial progressed, the Accused refused to admit to his signature on the Peace Bond that is the foundation of one of the breach charges against him.

In order for the Accused to finally admit that he signed the Peace Bond, the Crown was required to obtain a copy of a Rowbotham application executed by the Accused when he applied for Legal Aid counsel and seek to have the Accused admit to his signature on the Rowbotham Application as a bridge to gaining the admission by the Accused of his signature on the Peace Bond. Having admitted to his signature on the Rowbotham Application, the Crown sought to have me compare the signatures and, in essence, become a handwriting expert.

I declined to do so and put the Defence to the task of presenting the admitted signature on the Rowbotham Application to the Accused and asking whether he wanted to reconsider his position as to whether he had, in fact, signed the Peace Bond. [37] The Accused finally admitted his signature was the signature on the Peace Bond. This objection and necessity to prove his signature on the Peace Bond caused further delay to the proceeding. [ 114 ] All of these matters utilized the majority of the day that was available for the trial on October 16, 2023.

[ 115 ] In R v Cody , the Supreme Court of Canada turned its mind to the question of delay caused by defence conduct that should not fall at the feet of the Crown, that is to say that the Accused should not be allowed to benefit from his delay-causing conduct. At paras 30 to 34, the Court stated: [30] ... As we 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). [31] The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “fist instances judges are uniquely positioned to gauge” ( Jordan , at para. 65 ). It is highly discretionary ...

While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so. [32] 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 surround the action or conduct may therefore be considered. ...

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. ... [34] This understanding of illegitimate defence conduct should not be taken as diminishing an accused person’s right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count toward the Jordan ceiling.

In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time – and the need to balance both – in our view, neither right is diminished by the deduction of delay caused by illegitimate defence conduct. [38] [ 116 ] The Crown argues that the Defence’s non-meritorious objections to ordinary procedural matters created delay and caused the trial to be adjourned, yet again.

The Crown argues that these delays must fall squarely at the feet of the Defence. [ 117 ] I find that the Accused’s instructions to his counsel on October 16, 2023 served only to delay the progress of the trial. While the Defence may argue that the objections to procedural matters were necessary for a full answer and defence to the charges, for the purposes of this s 11(

b) argument, I find that the actions of the Defence, particularly on August 26, 2023 and October 16, 2023 were illegitimate conduct as they did nothing to further the Accused’s full answer and defence to the matters before the Court.

The necessity of a further adjournment was inevitable as a result of the Accused’s persistent, often frivolous, objections to ordinary procedural matters. [ 118 ] Accordingly, I find that the delay from August 26, 2023 until the next trial date, currently fixed to be January 4, 2024, falls at the feet of the Defence. [ 119 ] I am not prepared to make a determination with respect to delays that may or may not occur after January 4, 2024.

Conclusion [ 120 ] The Defence submits that the presumptive Jordan ceiling of 548 days has been exceeded by 16 days and, therefore, that the Accused is entitled to a judicial stay of proceedings. [ 121 ] Upon application of my findings above, I calculate the Crown delay in this matter as follows: 564 actual elapsed days less 154 days attributable to Time Period 1 (which I have determined is deductible delay) which results in an elapsed time of 410 days attributable to the Crown. 410 days of elapsed time is well below the presumptive Jordan ceiling of 548 days. [ 122 ] If my ruling with respect to Time Period 1 was not dispositive of the Defence’s application for a judicial stay of proceedings, the delay set out in Time Period 2 and Time Period 3 would both also be deductible delay resulting in a total elapsed time which is below the presumptive Jordan ceiling of 548 days. [ 123 ] Finally, I find that the delay from August 26, 2023 until January 4, 2023 is Defence-caused delay and shall not be deducted from the total elapsed time in the future. [ 124 ] Accordingly, the application by the Defence for a judicial stay of proceedings is dismissed.

I.L. Maharaj Justice of the Alberta Court of Justice Appearances: Alan Hogg for the Crown David Reeves for the Accused [16] R v Poxleitner , 2020 ABCA 136 . See also R v Vega Ramirez , 2019 BCCA 446 , at paras 52 to 56 ; R v AB , 2020 BCSC 1708 , at paras 72 to 75 ; R v Shlyk , 2021 BCCA 472 , at paras 38 and 47 to 48 .