Summary

39110

Jamis Yusuf, et al. v. Her Majesty the Queen, et al.

(Ont.) (Criminal) (As of Right)

Keywords

Criminal law - Constitutional law - Charter of Rights - Right to be tried within reasonable time - Whether the Court of Appeal for Ontario erred in applying the wrong standard of review and/or in misapplying the standard of review by substituting its own factual findings for that of the trial judge in re-calculating which party was responsible for the delay - Whether the Court of Appeal for Ontario erred by, after the conclusion of argument on the appeal, requesting supplementary materials be provided by the Crown, and/or in then relying on these materials to reject the Crown’s concession in relation to a factual finding as to delay made by the trial judge, all without providing the appellants the opportunity to make submissions on the issue - Whether the Court of Appeal for Ontario erred by adopting the “micro-counting” approach rejected by this Court in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, in allocating delay in quarter-day increments - Whether the Court of Appeal for Ontario erred by deducting periods of delay which were caused by one appellant when calculating the “net delay” for the two other appellants.

Summary

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At trial before the Ontario Court of Justice that lasted from August 2015 until July 2017, the appellants, Aziz Pauls, Jamal Yusuf and Jamis Yusuf, were found not guilty of aggravated assault, but guilty of the included offence of assault causing bodily harm. Jamal and Jamis Yusuf were also found guilty of unlawful confinement.

Following the guilty verdicts, the three appellants successfully applied for a Jordan stay of proceedings under s. 11(b) of the Canadian Charter of Rights and Freedoms. Applying the Jordan framework, the trial judge found that the presumptive ceiling for delay was 18 months. For Jamal and Jamis Yusuf, the trial judge calculated the net total delay from arrest to verdict at 32 months and 5 days — above the presumptive ceiling. For Aziz Pauls, the net total delay from his arrest to verdict was 22 months and 18 days — also well above the presumptive ceiling.

On appeal, the main issue was whether the trial judge erred in staying proceedings against the three appellants under s. 11(b) of the Charter. A unanimous Court of Appeal allowed the Crown’s appeal, set aside the s. 11(b) stay and remitted the matter to the Ontario Court of Justice for sentencing. On the Court of Appeal’s calculations, the net delay under the Jordan framework for Jamal and Jamis Yusuf was 17 months and 29.5 days and, for Aziz Pauls, 16 months and 4.5 days. Given that the net delay for all appellants fell under the presumptive Jordan ceiling and because the Court of Appeal found there was defence delay, a stay was not warranted.