Drawn-out criminal trial faces yet another delay

A hearing into the fate of a domestic violence trial that is taking too long has been rescheduled because it was taking too long.

The three accused members of the Safdar family have made an application to the court, arguing that their right to a speedy trial has been violated because their case has been repeatedly delayed by the Crown and the bogged-down court system.

But the Crown argues that the defence caused the bulk of the delays in the recordbreaking trial that has gone on for more than a year. The judge-alone trial began in September 2017, and heard 45 days of evidence plus legal arguments spread over 13 months. This makes it the longest criminal trial in Hamilton’s history.

Adeel Safdar, his mother and brother are accused of torturing and beating his wife, Sara Salim, in their Binbrook home.

The Safdars refute the claims, saying Sara was mentally ill and caused the injuries to herself, including branding herself with a clothes iron and breaking her jaw. They say she invented stories to win back her daughter in a custody dispute.

Tuesday was set aside for what is called an 11(b) application, which refers to the section in the Charter of Rights and Freedoms giving an accused the right to be tried within a reasonable time. The application follows the Supreme Court of Canada’s 2016 decision in the Jordan case, which set a limit of 30 months from arrest to resolution in Superior Court matters.

If it can be shown that the time frame was exceeded due to unnecessary delays by the Crown or the judicial process, the charges against the accused can be stayed.

The Safdars were arrested 42 months ago, in April 2015.

Adeel, 38, is charged with assault, assault with a weapon, assault causing bodily harm, threatening death and aggravated assault. His mother, Shaheen Safdar, 63, faces the same charges. His brother, Aatif Safdar, 36, is charged with assault causing bodily harm, assault with a weapon, assault and threatening death.

The defence and Crown estimated it would take a couple of hours each to argue the 11(b) application, but by the end of Tuesday, both sides had taken longer and time ran out.

Justice Andrew Goodman had to book another date this month to continue the hearing, recognizing the delay may push back the date of his verdict, which he’d hoped to deliver in mid-November. He told the court he has nearly finished writing his 150 pages of reasons.

Adding another layer of complexity to the complicated case, the defence has come up with an innovative legal manoeuvre that has never been tried in Canada. It goes like this: If Goodman finds the Safdars not guilty, the accused want an acquittal rather than a stay of proceedings. However, if they are found guilty, they want a stay due to unreasonable delay.

“It would be deeply unfair to deny them an acquittal if evidence gives rise to a reasonable doubt,” said Toronto lawyer Nader Hasan, who represents Shaheen Safdar but argued the 11(b) application on behalf of all three accused.

Hasan said if a stay is granted when the judge was planning to acquit the Safdars, there could be an appeal and a new trial. By staying the charges only in the event of a conviction, the judge would save the system a lot of time and expense, he said.

Assistant Crown attorney Jeff Levy likened the bold request to the defence “talking out of both sides of his mouth.”

And Goodman said he’s not convinced he even has the jurisdiction to render such a “novel” decision.

Hasan carried on with presenting a list of trial delays he said violated the constitutional rights of the Safdars.

It included months-long gaps due to lack of courtroom availability; and disclosure provided on a “piecemeal” basis, including the video statements of the accused and 2,000 pages of Sara’s medical records that weren’t provided to the defence until the trial was already underway.

The defence repeatedly referred to the Crown’s original prediction that the trial would take four to six weeks, calling the underestimate “a huge issue in this case.” But Levy countered by saying that was his estimate of the Crown’s case and the defence never gave the court an estimate of how long it would take to present its side.

Levy then cited specific delays, noting Shaheen took nearly six months and seven court appearances to find a lawyer.

He also blasted the defence for its refusal to adjourn the preliminary hearing when Levy’s father passed away. Another, unprepared, Crown was forced to parachute into the case for several days. “That’s outrageous,” Levy said. Also in the delay mix were vacations; religious holidays; other trial commitments for the Crown, defence and judge; illnesses; and the scheduling of witnesses.

Goodman has given the lawyers another day to finish this. And he’s making them come in early.