R. v. Faghih, 2010 ONCJ 571

COURT FILE No.: 48140940007388 Toronto Region DATE: 2009·12·21 Citation: R. v. Faghih , 2010 ONCJ 571 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — AMIR HOSSEIN FAGHIH Before Justice Charles H.

Vaillancourt Heard on October 25, 2010 Reasons for Judgment released on November 19, 2010 Maurice Mattis .............................................................................................. counsel for the Crown Leo Adler ................................................................... counsel for the accused Amir Hossein Faghih VAILLANCOURT J.: [ 1 ] Amir Hossein Faghih entered pleas of not guilty to two charges of common assault and one charge of threatening death.

The alleged offences occurred on June 22, 2009. [ 2 ] Prior to the commencement of the trial, which was scheduled to commence on November 19, 2010, counsel for the accused brought an Application for a stay of proceedings pursuant to

Section 11(

b) of the Charter . Argument on the motion was heard on October 25, 2010. OVERVIEW [ 3 ] The accused was originally charged with two counts of simple assault on a police laid information sworn on June 25, 2009. He was released on a Promise to Appear and Undertaking, with a return date of July 23, 2009. [ 4 ] Mr. A. Pazuki, then counsel for the Applicant, attended on his behalf, and set the matters over to September 2, 2009 in order to

schedule a Crown pre-trial in the interim. [ 5 ] On September 2, 2009, the matters were further remanded to October 7, 2009. [ 6 ] A Crown pre-trial was conducted on September 24, 2009. [ 7 ] As it was agreed that the trial would require a half-day, a judicial pre-trial was required and it was scheduled for November 5, 2009. [ 8 ] Mr. Adler was retained by the Applicant on November 2, 2009. [ 9 ] On September 21, 2009, an information was sworn by a private complainant alleging that the accused had uttered a death threat and committed an assault with a weapon on June 22, 2009.

The Applicant was served with a summons on November 4, 2009 directing him to attend court on these charges on November 19, 2009. [ 10 ] On November 5, 2009, Ms. Melanie Webb, an associate of Mr. Adler, attended court on behalf of the Applicant, at which time Mr. Pazuki was removed as counsel of record, and a new designation was filed on behalf of Mr. Adler. Initially, Ms. Webb requested that a trial date should be set at this stage in order to avoid unnecessary delay.

She advised the court that the trial coordinator had advised her that there were no trial dates for an out-of- custody half-day domestic assault trial until August 2010 and that the dates offered were August 4 and August 29, 2009. Ms. Webb expressed her concern that she was unable to set a trial date in the absence of a judicial pre-trial. This hurdle was overcome when Mr. Adler attended a judicial pre-trial later in the morning. Following the JPT, a trial date was selected for November 19, 2010.

The earlier mentioned dates in August had apparently disappeared by the time the Applicant’s trial date was selected. [ 11 ] Mr. Adler expressed his hope that he could obtain a much earlier date for trial since his client’s medical licence had been suspended as a result of the criminal charges before the court. Mr. Adler advised the court that he had many earlier dates than November

19, 2010 available. [ 12 ] The matters were adjourned to December 16, 2009 in order to confirm that disclosure had been completed and to explore the possibility of an earlier trial date. [ 13 ] On November 19, 2009, the privately laid charges were adjourned to December 16, 2009 in order to join up with the original counts. [ 14 ] On December 16, 2009, Ms.

Webb attended court and advised the court that she had attended the trial coordinator’s office and had been told that there were some dates available in June 2010 but they were being held for the most serious of assaults and the trial coordinator was unwilling to reschedule the trial date for the Applicant’s trial. However, she had been advised that there was hope that some dates might become available in the New Year.

With this in mind, the matters were adjourned to January 13, 2010. [ 15 ] The January 13, 2010 court appearance did not advance the cause regarding an earlier trial date. [ 16 ] On January, 21, 2010, Mr. Adler received a fax from the Crown’s office that the dates of June 7, July 20, 21, 22, 23, and August 30 and 31 were available for trial. [ 17 ] Mr. Adler faxed the Crown’s office on January 22, 2010 advising them that although the new trial dates had been available to him in November of 2009, they were no longer available. [ 18 ] When an agent for Mr.

Adler attended court on February 5, 2010, the Crown withdrew the two outstanding informations on the docket and indicated that they would be proceeding on a replacement information that had been sworn on December 21, 2009. This information included the two original common assault charges and one count of threatening death. The original trial date of November 19, 2010 was confirmed. FACTORS TO BE CONSIDERED ON A

SECTION 11(

b) APPLICATION [ 19 ]

Section 11(

b) of the Charter provides that persons charged with an offence have the right to be tried within a reasonable time. This right has been judicially considered in many cases. R. v. Askov (1990), 59 C.C.C. (3d) 499 (S.C.C.) and R. v. Morin (1992), 1992 CanLII 89 (SCC) , 71 C.C.C. (3d) 1 are two touchstone cases dealing with the principles and approach to be taken when one is considering unreasonable delay. [ 20 ] The four factors that must be balanced in any

Section 11(

b) application are: (

i) the length of the delay; (ii) whether there was any waiver by the accused of his rights; (iii) the reasons for the delay; and (iv) whether any prejudice was suffered by the accused. [ 21 ] As a general guideline, the Supreme Court of Canada in Askov and Morin suggested that a delay of eight to ten months should be considered the acceptable range for

summary matters. Once this range has been exceeded, courts should examine all the pertinent factors in order to determine the appropriateness of Charter relief pursuant to

Section 24 of the Charter . LENGTH OF THE DELAY [ 22 ] I find that there has been an institutional delay of twelve months and fourteen days in this case. I am concerned that when the trial date was set for these charges that it was set clearly outside the suggested range as mentioned by the Supreme Court of Canada. [ 23 ] Mr. Adler argued that the Crown’s lack of timely disclosure in this case should be kept in mind when the court is considering the issue of delay. I do not share this view. The twelve month plus delay being alleged was not influenced by post- November 5 disclosure issues.

I agree that the necessity of pursing disclosure may have resulted in additional expense to the Applicant but was neutral as far as any delay went. WAIVER BY THE ACCUSED OF HIS RIGHTS [ 24 ] Did the accused waive his Charter rights under

Section 11(b)? He did not. In fact, counsel in this case was extremely proactive in pushing for as early a trial date as possible for his client. REASONS FOR THE DELAY [ 25 ] The material on this Application clearly shows that Mr. Adler did not just accept the offered trial but continued to press for an earlier date. Mr. Adler also had earlier trial dates available when the original date for trial was set. [ 26 ] Mr. Adler certainly did not note the trial date in his diary and then wait for the passage of time to firm up a

Section 11(

b) position. In December of 2009, he attended the trial coordinator’s office to ascertain the possibility of an earlier date but was advised that there were some earlier dates open but that those dates were being held for “more serious” matters. [ 27 ] Mr. Adler’s persistence yielded some success because on January 21, 2010 the Crown advised him that seven earlier dates had materialized for trial. Regrettably and not too surprisingly, Mr. Adler had committed the pro-offered dates to other trials.

When one is assessing whether the defence should bear some of the responsibility for refusing the new found dates in this case, one should be mindful that the whole issue of earlier dates would not have even been on the table but for the persistence of defence counsel in trying to move the matter forward. PREJUDICE [ 28 ] In many cases, the prejudice element is often the weakest link of a

Section 11(

b) application. Counsel resorts to inferred

prejudice as the sole element under the prejudice factor. However, in the case at bar, the Applicant has demonstrated real prejudice in a substantial way. [ 29 ] Why was Mr. Adler so insistent on setting as early a trial date as possible? Why did he pursue moving the matter forward after the trial date was set back on November 5, 2009? The answer to these two questions can be found in the prejudice that his client was experiencing as a result of the criminal charges that he was facing.

This prejudice was brought to the attention of the Crown and the court during the trial selection process and thereafter. [ 30 ] Dr. Faghih was and continues to be engaged in completing the process of Board certification by the Medical Council of Canada so that he can practice medicine in Canada. Prior to his arrival in Canada, Dr. Faghih had been certified in Iran by the Iranian National Certification Board in internal medicine in 2000 and in hematology and oncology in 2004. Dr.

Faghih has also successfully completed the Medical Council of Canada Evaluating Exam (2007), the Medical Council of Canada Qualifying Exam I (2007) and the Medical Council of Canada Qualifying Exam II (2008). [ 31 ] The results of his Canadian examinations certainly demonstrate the Applicant’s aptitude for his present career. [ 32 ] However, as a result of the outstanding charges, Dr. Faghih had his professional career sidetracked. Dr. Faghih had applied for a certificate of registration authorizing postgraduate education to undertake residency training in internal medicine program at the University of Toronto.

However, due to these charges, he took a month’s leave of absence in July 2009 from this program and returned to Iran. Dr. Faghih did this because he did not have family or close supportive friends in Canada and wanted and needed the support and advice of those close to him. [ 33 ] Furthermore, Dr. Faghih was advised by the College of Physicians and Surgeons of Ontario that his application for a certificate of residency authorizing post-graduate education would be referred to the Registration Committee for its consideration. By letter dated November 18, 2009, the College notified Dr.

Faghih that he would be allowed to undertake the post-graduate training but be subject to reports on his clinical and professional behaviour every three months. He was also required to have his legal counsel update the College as to the status of his legal matters. This request was contained in a letter dated May 7, 2010. [ 34 ] The stress caused from the delay in this case has resulted in Dr. Faghih becoming distracted at his work. He advised the court that on one occasion he inadvertently stabbed himself with a needle.

He had never had such an incident in his previous years of practice. [ 35 ] The stress experienced by Dr. Faghih also caused him to postpone his examinations for final certification by one year. The stressors included (

a) the increased scrutiny of his performance by colleagues and his professional organization (

b) the uncertainty of his future professional status in Canada and (

c) the lack of supportive family members and friends in Canada. [ 36 ] This stress has been amplified by the delay in not getting the criminal matters heard in an expeditious fashion. APPLICATION OF

SECTION 24 OF THE CHARTER AND CONCLUSION [ 37 ] Dr. Faghih is charged with Criminal Code offences that are straightforward on their face. [ 38 ] Once charged, he quickly retained counsel and followed the intake process with a view to set as early a trial date as possible. [ 39 ] The time between the setting of the trial date and the trial exceeded the time that is considered reasonable in the context of

Section 11(b). [ 40 ] Counsel for the Applicant actively continued to pursue an earlier trial date after the trial had been set. [ 41 ] By the time earlier dates were offered, they were not available to counsel. [ 42 ] The Applicant suffered both inferred and actual prejudice as a result of the delay. [ 43 ] When dealing with

Section 11(

b) applications, a trial judge’s task is not finished once a certain number is struck. There are many cases where significant time delays exceeding the suggested time periods will not result in a stay.

The length of the delay is but one factor to be weighed in the overall determination in deciding whether a stay is appropriate or not. [ 44 ] In the case at bar, the Applicant has demonstrated that the time to trial exceeded acceptable guidelines; that he moved with due dispatch to obtain as early trial date as possible; that there were no reasons to suggest that the setting of the trial date required extra time; and that he suffered both inferred and actual prejudice because of the delay. [ 45 ] When one balances the factors in this case, an unreasonable delay is made out and I find that Dr. Faghih’s

Section 11(

b) rights have been infringed and that the appropriate remedy is a stay of proceedings. Released: November 19, 2010

Signed: “Justice Charles H. Vaillancourt”