‘The elephant in the room ... is delay’

At three years, this complex and bizarre case is possibly the longest domestic assault trial in Hamilton history

The strange and complicated trial in which three members of the Safdar family are accused of torture and abuse is in jeopardy of being tossed because it is taking too long.

The trial already exceeds the 30-month limit from arrest to a finding placed on Superior Court cases by the game changing Jordan Decision. The Safdars were arrested in April 2015, meaning their case has been before the court for 34 months. Due to testimonies taking longer than anticipated, illness and scheduling issues, it will likely be another year — yes, a year — before Justice Andrew Goodman will be in a position to render a verdict.

This is possibly the longest domestic violence trial (that does not involve homicide) in Hamilton history. And possibly the only local trial to span three calendar years.

Adeel Safdar, 38, is charged with two counts of assault, assault with a weapon, uttering a death threat and aggravated assault upon his wife, Sara Salim, 36.

Shaheen Safdar, 61 is charged with assault bodily harm, assault with a weapon, assault, uttering death threats and aggra-

vated assault on Sara, who is her daughter-in-law.

Aatif Safdar, 36, is charged with assault bodily harm, assault with a weapon, assault and threatening death to Sara, his sister-in-law.

Sara is a medical doctor, Adeel has a PhD in kinesiology. They had an arranged marriage. The Safdars are accused of imprisoning Sara in their Binbrook home, working her like a slave, keeping her apart from her newborn daughter and subjecting her to torture and abuse, including branding her with a clothes iron and breaking her jaw.

The defence claims Sara is mentally ill and caused her own injuries, including carving death threats against Adeel and their daughter into her own leg. It argues she made false allegations of abuse in order to win her child back in an ongoing custody dispute.

All the accused are out of custody.

The charges relate to alleged incidents between December 2013 and September 2014. The trial, which has no jury, began in September 2017 with Sara on the witness stand for 10 intense days.

So far, it has sat for 28 days and there are still weeks of evidence to go.

A week of testimony scheduled for January was cancelled when assistant Crown attorney Jeff Levy became ill and was ordered to rest by his doctor. The trial was already weeks behind schedule, with the only other time set aside for evidence being four days at the end of March.

On the day Levy’s illness was announced in court, Hamilton head Crown attorney Todd Norman was there to try to mitigate some of the damage.

Trying to co-ordinate the schedules of a swamped judge, a Crown and two defence lawyers (Aatif is representing himself ) is always a challenge. But in this case, it is a train wreck.

The next dates that work for everybody are in November and into mid-December. That means it will almost certainly be 2019 before Goodman will render his verdict and, if needed, impose sentencing.

“The elephant in the room… is delay,” said Nader Hasan, who represents Shaheen.

He said the defence has made “diligent efforts” to keep the trial moving at a good pace by effi- ciently co-ordinating their crossexaminations to avoid repetition and allowing some evidence in on consent. But he criticized Levy for “spending a lot of time on issues that, I dare say, are of marginal relevance.”

Putting the trial into December is more than an “inconvenience,” he continued. Shaheen, who is unwell with diabetes and rheumatoid arthritis, court has heard, may also have cancer.

“It is a very serious situation for my client, healthwise,” Hasan said.

Though it would be “deeply unsatisfying” to bring an 11B application to have the case stayed because of unreasonable delays, Hasan said he may have to do so.

Veteran lawyer Dean Paquette, representing Adeel, told the court he would be available to continue the trial in December — “Longevity willing.”

He too said the delay “brings into play 11B.”

Defence lawyers generally take the position that “an accused would be better off being acquitted, rather than having a stay,” says Michael Lacy, president of the Criminal Lawyers’ Association of Ontario. A stay leaves people wondering as opposed to a more definitive not guilty verdict. Lacy made it clear he would not speak about the ongoing Safdar case, but rather generally about the Jordan Decision.

The Supreme Court of Canada rendered the Jordan judgment on July 8, 2016, ruling the drug convictions of Barrett Jordan in British Columbia had to be set aside due to unreasonable delay.

The court then set out specific time lines for cases in provincial and Superior court because we all have a guarantee under the Charter of Rights and Freedoms to be tried in a reasonable period of time.

In active cases where the charges predate the Jordan decision — called transitional cases — there may be some flexibility on the time limit, says Lacy.

Unexpected illness and death are considered “exceptional circumstances” by the courts because “the interests of justice are best served when you have fully prepared and capable lawyers on both sides,” Lacy says.

Yet “any delay takes its toll on an accused.”