Overview
The Judge found that two years that the police took to arrest the accused was not justified and the accused suffered prejudice as a result. Moreover, the delay caused by the defence was not caused in bad faith. Charges of sexual assault, sexual touching, and assault were all stayed.
SUMMARY: A successful application for a stay of proceedings on the basis that the accused’s s. 11(b) rights had been violated. The Judge found that two years that the police took to arrest the accused was not justified and the accused suffered prejudice as a result. Moreover, the delay caused by the defence was not caused in bad faith. Charges of sexual assault, sexual touching, and assault were all stayed.
Ontario Superior Court of Justice
[REDACTED].
July 13, 2021.
Court File No.: CR-18-0637
[2021] O.J. No. 3835
Between Her Majesty the Queen, Respondent, and [REDACTED], Applicant
Statutes, Regulations and Rules Cited:
Canadian Charter of Rights and Freedoms, 1982, s. 11(b), s. 24(1)
Criminal Code, R.S.C. 1985, c. C-46, s. 151(a), s. 266, s. 271, s. 511
Counsel
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[REDACTED], Counsel for the Respondent.
[REDACTED], Counsel for the Applicant.
RULING ON APPLICATION FOR STAY
BY REASON OF DELAY
[REDACTED].
1 The Applicant, [REDACTED], commenced an Application seeking an Order of stay of proceedings of counts 1 to 3 of the indictment, pursuant to S. 24 (1) of the Canadian Charter of Rights and Freedoms on the ground that his right to be tried within a reasonable time as guaranteed by s. 11 (b) of the Charter has been violated.
2 For the Reasons that follow, I grant the Application and find there has been a violation of s. 11 (b) of the Charter and there shall be a stay of proceedings of counts 1 to 3 of the Indictment.
Background
3 The Applicant faces a four-count indictment, the matter is set for Judge alone trial to begin July 26, 2021. Count one alleges a sexual assault against [REDACTED] contrary to s. 271 of the Criminal Code of Canada between December 2003 and 31 December 2008; Count 2 alleges a touching of [REDACTED] for a sexual purpose, at a time [REDACTED] was under the age of fourteen years; between December 1, 2003 and 31 December 2008, contrary to s. 151 (a) of the Criminal Code of Canada. Finally, Count three alleges a count of assault on [REDACTED] contrary to s. 266 of the Criminal Code of Canada on or about May 1, 2007 and October 31, 2008.
4 The Applicant was arrested on November 30, 2016. A warrant for the Applicant's arrest was issued May 16, 2012.
5 The Applicant was a professional miner. He managed large mines and trained teams in the mining industry. The Applicant's employment required him to travel internationally from time to time.
6 The Applicant met the complainant online in 2002. At the time, [REDACTED] lived in England and had a daughter [REDACTED]who was four years old and a son [REDACTED], who was ten years old. The Applicant is not the biological father of either child. The Applicant and [REDACTED] began a relationship, then married and eventually [REDACTED]moved to Canada with her two children. The family lived in the Ontario area.
7 The Applicant and [REDACTED]agreed to separate and divorced in 2009. Approximately two years later, the Applicant began another relationship and married and began a family in the Philippines, where he lived before these charges.
8 The Applicant has two children from his second marriage a daughter age 5 years and a son age 7 years. The Applicant has not seen either child since his arrest and detention in Canada in September 2016.
9 At the time of his arrest in 2016, the Applicant lived at [REDACTED]. The Applicant lived openly at this residence with his family in the Philippines.
10 In February 2012, Family and Children's Service (CAS) contacted police regarding allegations of historical sexual assault made by [REDACTED] against the Applicant. The Applicant was in a position of trust to [REDACTED].
11 The Ontario Provincial Police began an investigation that ultimately led to these charges. After completing the investigation PC Martel of the OPP swore an information and took out a provincial wide warrant for the arrest of the Applicant for the allegations now contained in counts 1 to 3.
12 The Applicant had lived in the Philippines since approximately 2009. The complainant was in regular communication with the Applicant via email and had his address through the years after separation to 2016. The child [REDACTED] was also in communication with the Applicant via email and Facebook during the material time. The OPP investigator was aware the Applicant was remarried and living in the Philippines. On April 20,2012 the complainant provided the investigating officer with the Applicants Social Insurance number and his address as of that date in the Philippines.
Position of the Parties
Crown
13 The Crown argues this case is a transitional case provided for in R v Jordan [2016] 1 S.C.R. 631. The real dispute between the Crown and Defence is the period from issuance of a warrant for arrest of the Applicant to his arrest. The warrant could only be executed within Canada. The Applicant was living outside Canada, mostly in the Philippines during the period time from warrant to arrest.
14 Crown counsel cited R v Kemp [2017] O.J. No 4687 (OCA), paragraph 5:
The second application was brought immediately following the release of Jordan, at a point when this matter was very nearly concluded: the appellant had been convicted but not yet sentenced. Assuming, that the net delay exceeded the presumptive ceiling of 30 months and that this delay could not be justified by exceptional circumstances, the outcome of the application turned on the transitional exceptional circumstances provision of Jordan. In transitional cases such as the present case, the parties are presumed to have relied on the law applied prior to Jordan That means that if the delay as assessed in accordance with the Morin regime was reasonable, it will generally be found to comply with Jordan. Only rarely will a transitional case that complied with Morin nevertheless be found unreasonable under Jordan.
15 The Crown also cites and relies upon the Ontario Court of Appeal case of Queen v Cisar (2014) ONCA 151. In that case [under the Morin framework] the information was sworn charging the appellant on April 30, 1999. A Canada wide arrest warrant was issued on May 18, 1999. The trial judge found that thereafter the investigating officers did nothing to try and locate the appellant even though employees of the Spicer Corporation (complainant) provided information to the police about the appellant's probable whereabouts. The appellant was not arrested on the outstanding warrant until August 24, 2007. After he was charged there was considerable delay before the matter came to trial. Much of the delay after arrest was due to the appellant attempting to resolve civil proceeding, which it was suggested might impact the criminal proceeding. The accused was not advised of the outstanding warrant until his arrest, eight years later. The Court held that 'it is only the fair trial rights that are implicated during this first period. Since the accused did not know of the charges, the usual concerns such as stress or damage to reputation or interference with liberty had no application. The Court ruled there was no actual prejudice to the accused and found while there was a long delay and prejudice can be inferred, but the Crown may also establish by evidence that the accused did not want an early trial. The Court at paragraph 18 found that the Crown was entitled and did rebut the claim of inferred prejudice. The Court ruled at paragraph 30; "that the delay from when the charges were laid until the sentencing is extraordinary but is explained. As I have said, the first period of delay did not prejudice any of the right that s. 11 (b) is designed to protect. The second period is explained by the appellant's express waiver of time period and his own actions. Once the appellant became aware of the charges, his conduct shows that he was not seeking an early criminal trial."
16 Applying the above decisions, Crown counsel states there was delay by the police from the time of issuance of the warrant to arrest of the accused. The Crown does not attempt to justify the delay, aside from stating obviously this case involved apprehending a suspect internationally.
17 Notwithstanding the apparent lack of action by police causing delay, Crown counsel argued that there has been no prejudice to the accused's right to a fair trial and accordingly, the delay would have been found reasonable under the Morin framework of analysis. In those circumstances the Crown argues this case falls under the transitional category of cases under Jordan and this court should find no Charter violation under s. 11 (b).
18 Prejudice in this case must be analyzed on the fair trial implications to the appellant. The accused suffered no prejudice prior to his arrest, he did not know of the charges. The Crown argues the accused did not prove he suffered actual prejudice from the delay.
19 The Crown agrees that under Morin prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not proved, the basis for the enforcement of the right is seriously undermined. The purpose of the right is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that must be considered. The Crown argues the accused in the case at bar demonstrated that he did not want a prompt trial.
20 Since the accused became aware of the charges, he has delayed the matter significantly (over 2 years of delay attributable to the defence) and demonstrated he was not concerned about the impact of further delay on his right to trial within a reasonable time. The defence-initiated delay is evidence this court should rely upon to find that the accused was not concerned about the adverse affect delay may have on the memory of witnesses. The Crown argues the accused failed to show that protection of his interest in a prompt trial (or the ancillary public interest in prompt justice) outweighed the public interest in bringing the case to trial and trial on the merits.
21 The Crown argues the Defence has failed to establish actual prejudice. The claims of lost evidence are speculative at best and should not persuade the court that this is a clear case requiring a stay.
22 Crown counsel also argues that the principal considerations under the Morin framework of analysis where: seriousness of the offences versus prejudice to the accused right of a fair trial. The case at bar involve allegations of sexual assault against a child in a breach of trust and domestic assault. The seriousness of the offences out-weigh any possible prejudice according to the Crown.
Defence
23 The Defence produced a chart outlining the delay and reasons for such delay at paragraph 33 of his factum. Crown counsel does not take serious issue with the chart. Depending on how the Court rules on the delay by police from May 16, 2021 to arrest on November 30, 2016, both parties agree the 30 months presumptive ceiling would have been significantly exceeded.
24 The Defence states the total delay form charge to estimated trial is 110 months and 10 days; subtract Defence Delay caused by defence waiver of 25 months; Net Delay is 85 months and 10 days; subtract exceptional event caused by Covid-19 (13 months and 4 days; subtract reasonable diligence by [REDACTED] (4 months and 4 days). Remaining Delay 68 months and 2 days, which is over the presumptive ceiling set out in Jordan by 38 months and 2 days.
25 The Applicant argues that in this case the delay by police of over four years from issuing the warrant for the accused arrest to his arrest was not the result of exceptional circumstances as contemplated in Jordan and not the result of reasonable diligence by the police. The Applicant cites R v Thind [2018] O.J. No. 1331 at pars 76, 79 and 82: 'where an Information was sworn and delay occurred because the accused was not located, the test to be applied is whether the police acted with reasonable diligence to bring the accused before the Court. The Crown is not required to exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement.
26 In a case where the accused is in a foreign jurisdiction and extradition is required, this could qualify as an exceptional circumstance. The Defence argues in the case at bar, the police did not make reasonable efforts to locate the accused, to execute the warrant. According to the Defence, it is never sufficient to simply post on CPIC a warrant, especially when the police have information on the accused's whereabouts. Proactive steps are required. The Defence argues that [REDACTED] was not 'on the run', nor in hiding. His location and whereabouts were known to the police and his family. He was living openly constantly traveling on commercial airlines.
27 The Defence acknowledges certain time periods were waived by it, due to the accused financial issues and inability to retain counsel and there were exceptional circumstances as the result of Covid-19.
28 The Defence argues that [REDACTED]suffered actual prejudicial as well as inferred prejudice due to the four-year delay by police.
The Law
29 The law as it relates to s. 11 (b) of the Charter is now governed by R v Jordan [2016] 1 SCR 631. The majority at paragraphs 4 and 5 stated: "Our system, however, has come to tolerate excessive delays...These difficulties have fostered a culture of complacency within the system towards delay."
30 "A change of direction is therefore required. Below, we set out a new framework for applying s. 11 (b). At the centre of this new framework is a presumptive ceiling on the time it would take to bring an accused person to trial; 18 months for cases going to trial in the provincial court and 30 months for cases going to trial in the superior court." The Court stated in paragraph 29 that the framework set out in Morin has given rise" to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it."
31 The Court in Jordan provided that the new framework, including the presumptive ceiling, applies to cases currently in the system, subject to two qualifications.
32 First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parities' reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied; and the fact that the parties' behavior cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties' reliance on the previous state of the law was reasonable.
33 The second qualification does not apply to the case at bar. It is agreed the delay in the case at bar exceeds 30 months.
34 Given the Court's statement on cases in the system prior to release of Jordan, it is necessary to examine the law as it existed previously.
35 The framework for consideration of s. 11 (b) of the Charter pre- Jordan was set out in R v Morin [1992] 1 S.C.R. 771. Sopinka J. in Morin stated at paragraph 31: "The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay.
36 The Court in Jordan was mindful that the new framework they implemented was a change from the previous Morin framework. The transition cases must be assessed in the light of Morin. The Court wishes to avoid a wholesale stay of charges; as had occurred in the 1990's.
37 Sopinka in Morin stated: "The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of the delay is unreasonable.
38 The majority in Morin set out the factors to consider:
1. The length of delay
2. Waiver of Time Periods
3. The Reasons for the Delay:
a) Inherent Time requirements
b) Actions of the Accused
c) Actions of the Crown
d) Limits on Institutional Resources
e) Other Reasons for Delay
4. Prejudice to the Accused
Section 11 (b) protects the individual from impairment of the right to liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to a conclusion.
39 The period of time to be scrutinized is the time elapsed from the date of charge to the end of the trial. The length may be shortened by subtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to the interests s. 11 (b) seeks to protect, the explanation for the delay and the prejudice to the accused.
40 Sopinka J. stressed that the guideline on determining unreasonable delay is not to be treated as a fixed limitation period. It will yield to other factors. The application of a guideline will also be influenced by the presence or absence of prejudice. If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern. On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact. (para 53 Morin)
Analysis
41 I agree with the approach taken by Crown counsel in argument of this Application. The delay period that is the real subject of scrutiny pursuant to s. 11 (b), is the time period from May 16, 2012, time of charge to November 30, 2012, time of arrest. This period of time is clearly above the 30 month ceiling set out in R v Jordan. This is a transition case referred to in Jordan.
42 I find the four plus-year delay was the result of the police taking virtually no steps to arrest the accused after obtaining an arrest warrant.
43 The accused was not aware of the arrest warrant and therefore did not waive any of the time period from issuance of the warrant to his arrest.
44 The Reasons for delay were almost entirely due to the police. No doubt the task of arresting [REDACTED] was more complicated than other cases; due to the fact he was living in the Philippines and had been for several years before the warrant was issued. This clearly is distinct from a case where an accused is living somewhere inside Canada. However, the fact the accused lived outside the country is not a legitimate reason for police to take no steps to locate and attempt to arrest the accused. The police have a duty under s. 511 of the Criminal Code of Canada upon issuance of an arrest warrant. It is not acceptable that arrest warrants are simply 'put on a shelf'. A Canada wide warrant for arrest of the accused was not issued until 2016.
45 There were options available to the police. They chose not to attempt to contact the accused and notify him of his outstanding warrant and determine if he would voluntarily return. Perhaps the police did not want to tip the accused off and fear he would intentionally remain outside the country to avoid the warrant. There is an absence of evidence as to what the police were thinking. The investigating officer explanation was that he became busy with other cases.
46 I am satisfied that the complainants were in contact periodically with the accused and at least at one point had an address for him in the Philippines. The accused could have been located.
47 [REDACTED] of the OPP was assigned to the task of attempting to locate and apprehend the accused in late July 2016. The accused was apprehended about four months after the officer began his attempt to locate and arrest. In co-operation with other authorities, the accused's Canadian passport was cancelled. When he traveled outside the Philippines for work and attempted to return, he was refused entry into that country. Thereafter [REDACTED] was returned to Canada and apprehended on the warrant.
48 The actions of the OPP in 2016 demonstrate that while it was not easy, there were investigative techniques that eventually were deployed to execute the warrant. The time taken by [REDACTED] to arrest the accused was the type of exceptional circumstances contemplated in Jordan.
49 There was no conduct by the accused during the four years that contributed to the delay.
50 There is little evidence on the limits of institutional resources in bringing the accused to Canada and arresting him. The investigating officer as previously stated claimed he became busy with other cases. This evidence falls far short of satisfying this court that the police resources were so lacking.
Prejudice to the Accused
51 I agree with Crown counsel that the alleged actual prejudice argued by the accused has not been proven. The Defence argument of lost evidence and the impact on the right to a fair trial is speculative at this stage. Lost evidence can best be assessed at the conclusion of the evidence.
52 Under Morin, prejudice may be actual or inferred. I turn to the issue of 'inferred' prejudice.
53 The sexual assault offences alleged to have been committed on [REDACTED] are said to have occurred between 2003 and 2008, when she was very young.
54 The complainant [REDACTED] is and was an adult at the time of the alleged assaults in 2008.
55 Credibility and reliability of witnesses is almost always a critical issue in allegations of sexual assault, touching for a sexual purpose and domestic assault. The memory of Crown witnesses, especially child witnesses is often the center of such a trial.
56 The longer the delay in bringing an accused to trial, the more one can infer prejudice. In cases such as this involving young witnesses the passage of time is significant.
57 The case at bar is distinguishable from R v. Cisar. The Court in Cisar stated at paragraph 18, that the accused's own evidence undercut his claim of prejudice and the timeline of the alleged delay and the actual defence. Cisar did not involve credibility findings such as will likely be required in the case at bar.
58 The Court cited the decision of the SCC in R v Godin [2009] 2 SCR 3 where Cromwell J noted that it was possible to identify a risk of prejudice because of the issues in that case: charges of sexual assault, unlawful confinement and threatening where credibility was an issue. The extra passage of time made it more likely that the ability of the appellant to cross -examine effectively had been diminished.
59 Prejudice can be inferred in the case at bar. Credibility/ reliability will be key to the case. It is very likely the delay of four years will have a negative impact on the accused right to a fair trial, specifically the right to meaningful cross examination.
60 I consider the Crown argument that the Applicant by his own actions after his arrest demonstrate he was not concerned about delay. The position was aptly summarized by Doherty J. (as he then was) in a paper given to the National Criminal Law Program in July 1989 and echoes what has been noted by numerous commentators, including Sopinka J in Morin:
An accused is often not interested in exercising the right bestowed on him by s. 11 (b). His interest lies in having the right infringed by the prosecution so that he can escape a trial on the merits. This view may seem harsh, but experience supports its validity.
61 There is no doubt that the Applicant contributed to the delay in this matter by over two years. Such delay requires an explanation. Is this two-year delay demonstrative evidence of the concerns outlined by Doherty J.?
62 I conclude that the Defence delay has been adequately explained and it is reasonable. Almost all of the Defence delay was the result of the accused not being able to complete his retainer with counsel. Under the circumstances of this case I accept he honestly experienced difficulty. The accused was apprehended and returned to Canada from the Philippines. He left his new family and his ability to earn an income in that country. Make no mistake there were reasonable grounds to return the accused to face trial. Nonetheless he faced financial difficulties after he was returned to Canada; no longer his home.
63 The terms of the Applicant's judicial interim release prohibit him from working abroad. His ability to earn income was limited and his ability to retain counsel was limited. These are serious charges and certainly it is advisable for accused in such circumstance to retain counsel. Upon review of the Record I conclude that while the Defence delay was obviously attributable to the Defence, the delay was reasonable and done in good faith. Adjournment to obtain counsel is sometimes a game played by accused. I find it was not in this circumstance.
64 I am satisfied that the accused remaining in Canada was a hardship to him, while awaiting trial. He was separated from his family, his home and his ability to work since 2016. Given a choice I have no doubt the accused would return to the Philippines. I do not consider this aspect under the heading of prejudice to the accused, but rather to assess whether the Defence delay was in good faith; ie to retain counsel, or in bad faith, to prevent a trial on the merits. I find the Defence delay was accordingly reasonable. In other words, the Defence delay does not demonstrate that he was ambivalent to his s. 11 (b) rights.
65 Further delay has been caused in this case due to the worldwide pandemic. This of course was unforeseen to everyone and is an exceptional circumstance.
66 The right of the complainants and of the public to a trial on the merits is significant. The charges before the court are serious. Sexual abuse of anyone, let alone a child in a breach of trust context carries a high interest in the general public to be prosecuted on the merits. The accused rights under s. 11(b) must be weighed and assessed in the light of the public's right of a trial on the merits. The Court should only exercise discretion and stay charges in the clearest of cases.
67 Applying the transitional provisions of Jordan, I find the delay would have been found to be unreasonable under Morin.
68 I find the accused rights under s. 11 (b) were violated as it relates to counts 1 to 3. The conduct of the police in doing nothing to attempt to arrest the accused between 2012 and 2016 was unreasonable. (except for [REDACTED] 4 months of investigation) It would not have taken much for the police to take some steps. The police were not required to 'pull out all the stops'; but they are required to take reasonable steps. They did nothing until 2016. The officers involved in the 2016 arrest engaged in good police work, however it was after an unreasonable delay of four years.
69 I conclude under either the Jordan or the Morin frameworks of analysis the Application must succeed.
70 The Applicant has suffered prejudice as outlined above. The Crown has not satisfied the court that the subsequent delay by the Defence negates the inferred prejudice.
71 The Application is granted and counts 1, 2 and 3 are stayed.
