Defence application for a stay based on a s. 11(b) Charter breach. Two accused were charged with multiple trafficking, firearms and criminal organization offences.

Held: No s. 11(b) violations.

Following Albinowski, 2018 ONCA 1084 and Mullen, 2018 ABQB 831,
there is a “nearly bright line rule ascribing any unavailability of defence counsel as defence delay.” It would be a “legal absurdity” if ceilings were “exceeded for those accused who could find legal counsel with limited or no availability in their litigation calendars, while at the same time permitting a successful s. 11(b) Charter application based upon unavailability of counsel of choice.” Since Mr. Jeha’s counsel was available for a preliminary hearing one month earlier than the Crown’s first dates, but the first mutual availability was several months later, this period was attributed to the defence, with one month added to the net delay to account for defence’s earlier date. In relation to Mr. Borhot, the delay was justified as a complex case.

G. Wolch / A. Hepner – Defence