R. v. Safdar

Brown J. — The appellant, Syed Adeel Safdar, was tried for offences related to the abuse of his wife. At the conclusion of evidence and submissions, he applied for a stay based on a breach of his right under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time (2018 ONSC 7067, 423 C.R.R. (2d) 98). The trial judge heard the application while preparing his decision on the trial proper, then reserved that decision and granted the stay. In his reasons for ordering a stay, he also advised that he had completed his reserved trial decision, which remained under seal pending the outcome of any appeal from his stay order.

The Crown appealed the stay order, arguing that, on the authority of this Court’s decision in R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364 (which was not available to the trial judge), the trial judge had erred by including as part of the total delay the period from the end of the evidence and argument to the release of the stay decision. Absent that error, the total delay fell under 30 months. The Court of Appeal for Ontario agreed, set aside the stay order and referred the matter back to the trial judge to release his decision on the trial proper (2021 ONCA 207, 469 D.L.R. (4th) 447). Mr. Safdar now appeals the Court of Appeal’s decision to this Court.

We agree with the Court of Appeal that K.G.K. is dispositive of the central issue in this appeal. For the purposes of determining whether the total delay exceeded the Jordan presumptive ceiling, the time between the conclusion of evidence and argument, and the bringing of the s. 11(b) application in this case, should not have been counted (K.G.K., at paras. 31 and 33; R. v. J.F., 2022 SCC 17, [2022] 1 S.C.R. 330, at para. 27).

Nor, in our view, and despite Mr. Hasan’s able submissions before us, has Mr. Safdar established that the total delay of 29.25 months was markedly longer than reasonable delay in the broader context of the trial (K.G.K., at paras. 3, 23 and 54‑55), taking into account the length of time taken for the application, the moderate complexity of the case, and other institutional factors that he raises (K.G.K., at paras. 65 and 68‑72).

We also agree with the Court of Appeal’s disposition of the other issues raised by Mr. Safdar in this appeal, substantially for the reasons it gives.

The appeal is dismissed.