R v Ashraf

R. v. Ashraf

2016 ONCJ 584
Ontario Court of Justice — Justice Patrice F. Band | October 3, 2016

Background

Jehanzeb Mohammad Ashraf was pulled over on March 20, 2015, failed a roadside screening test, and provided breath samples over the legal limit at the station. He was charged with impaired driving under the Criminal Code. The Information wasn't sworn until March 30, 2015 — ten days later. What started as a routine impaired driving case became a legal battlefield over trial delay under the Supreme Court's new *Jordan* framework, which set an 18-month ceiling for provincial court cases.

The case dragged through the system for over 17 months. There were disclosure delays, judicial pre-trials, and scheduling conflicts. When the original trial dates in April 2016 couldn't finish the case, the continuation was set for September 19, 2016 — exactly 18 months from the arrest date according to defense calculations. Defense counsel filed a section 11(b) Charter application claiming unreasonable delay.

Issues

1. When does the section 11(b) "clock" start — on arrest or when the Information is sworn?
2. How do you calculate the 18-month delay under *Jordan* — by counting days or by counting months like birthdays?
3. Should defense counsel unavailability count as "defense delay" under the new framework, even in transitional cases that relied on the old law?
4. Did the total delay exceed what was reasonable for this type of case?

The Jordan Framework and Transitional Cases

Justice Band grappled with applying the Supreme Court's brand-new *Jordan* decision to a case already in the system. Under *Jordan*, provincial court cases taking longer than 18 months are presumptively unreasonable unless there are exceptional circumstances. Below 18 months, the defense must prove the delay was unreasonable by showing they took meaningful steps to expedite proceedings and the case took markedly longer than it should have.

The court calculated total delay at 17 months and 21 days — starting from when the Information was sworn, not the arrest date, following established precedent. Defense counsel had turned down the first available trial date (March 17-18, 2016) because he was unavailable, accepting dates 20 days later instead. Under the new *Jordan* framework, this would normally count as "defense delay" and be subtracted from the total.

But here's where it gets interesting: Justice Band refused to subtract those 20 days. He found that in transitional cases, courts must be "sensitive to the parties' reliance on the previous state of the law." Under the old *R. v. Godin* precedent, section 11(b) didn't require defense counsel to "hold themselves in a state of perpetual availability." Since defense counsel reasonably relied on that principle when he declined the first date, it would be unfair to count those days against his client under the new rules.

Meaningful Steps and Sustained Effort

The defense had to prove they made meaningful efforts to move the case along. Justice Band found they did: counsel was retained quickly, reviewed disclosure promptly, wrote detailed disclosure requests, participated in pre-trials efficiently, and filed the Charter application in advance. The Crown argued that waiting for additional video disclosure before setting a judicial pre-trial showed the defense was content with delays, but the court disagreed — incomplete disclosure created legitimate professional obligations.

With the net delay at 17 months and 21 days (below the 18-month ceiling), the defense also had to prove the case took "markedly longer" than reasonable. For this "somewhat more than straightforward" case involving Charter arguments, Justice Band found the institutional delays of over 11 months far exceeded what should have been 8-9 months under the old guidelines for Peel Region.

Key Takeaway

Even delays under the 18-month *Jordan* ceiling can violate section 11(b) if you can prove your case took much longer than similar cases should take, and you made sustained efforts to move it along.

This decision shows that *Jordan*'s 18-month ceiling isn't a safe harbor — it's a presumptive limit. Defense counsel's reasonable reliance on pre-*Jordan* law protected the client from having scheduling conflicts counted against him, and the court's detailed analysis of what constitutes reasonable institutional delay provides a roadmap for future section 11(b) applications.