WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

486.4(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.4(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

486.4(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

486.4(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court and Parties

Court of Appeal for Ontario

Date: 2018-06-27

Docket: C63913

Panel: Hourigan, Pardu and Nordheimer JJ.A.

Between

Her Majesty the Queen Applicant/Appellant

and

Raymond Burke Respondent

Counsel:

• Lorna Bolton for the Crown, appellant
• Brian Eberdt for the respondent

Heard: June 19, 2018

On appeal from: the order of Justice J.A. Thorburn of the Superior Court of Justice with reasons reported at 2017 ONSC 3261.

Reasons for Decision

Background

[1] The respondent was charged with the abduction and violent sexual assault of two different women in 1986. He fled to the United States of America, in violation of the terms of his bail. A Canada-wide warrant was issued for his arrest. He assumed a false identity. In 1987, he was charged in the United States with assault, aggravated robbery and kidnapping of a third woman. In 1988, he was sentenced to 52 years imprisonment in the United States. At the time, there was no extradition treaty that would have allowed Canadian authorities to bring the respondent to Canada to stand trial while he was serving his sentence in the United States.

[2] In 2000, Toronto police were advised that the respondent was eligible for parole in May 2013. In 2003, an amendment was made to the relevant extradition treaty which would have permitted Canadian authorities to seek temporary extradition to proceed with the trial of the Ontario charges but no such efforts were made.

[3] In August 2015, Toronto police were advised that the respondent was being released from prison and would be returned to Canada. On October 26, 2015 he was deported back to Canada and was arrested on arrival. His trial was scheduled to begin July 31, 2017 and be completed, within a period less than two years after his return to Ontario. However, the charges were stayed on the respondent's application alleging that his right to trial within a reasonable time had been violated. The Crown appeals.

[4] We agree with the Crown's argument that these charges should not have been stayed, and that all of the delay caused by the respondent's flight in violation of his bail conditions should be treated as defence delay.

Trial Judge's Reasons

[5] The trial judge held that the Crown ought to have sought the temporary surrender of the respondent pursuant to the amendment to the extradition treaty between Canada and the United States. She accordingly characterized the 12 and one half year period between April 30, 2003 when the amendment came into force and October 26, 2015 when the respondent was returned to Canada as Crown delay "vastly beyond the timeframe articulated in Jordan" and also "unreasonable" under the Morin framework.

Analysis

[6] The trial judge did not have the benefit of the analysis in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659.

[7] The Supreme Court of Canada held, in both Cody and in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, that in order to determine whether there has been unreasonable delay, "defence delay" is to be deducted from the overall period of delay – from charge to the anticipated end of trial.

[8] In Cody, at paras. 26-28, the Supreme Court elaborated on the notion of defence delay and explained it is "delay that is caused solely or directly by the conduct of the defence" and that the analysis of defence delay is "intended to prevent the defence from benefitting from 'its own delay-causing action or inaction'" (citation omitted).

[9] The Supreme Court said further, at para. 30:

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests." [Citation omitted.]

[10] The Supreme Court then went on to describe illegitimate defence delay, at paras. 32-34. Defence action may not be legitimate in the context of a s. 11(b) application if "it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay." The defence is not allowed to "engage in illegitimate conduct and then have it count towards the Jordan ceiling."

[11] The respondent admitted to Toronto police that his express purpose in fleeing was to avoid capture and prosecution. The terms of his bail required he remain within the jurisdiction.

[12] The delay from the time the charges were laid until the time the respondent was returned to Canada was illegitimate defence delay. It was caused directly by the respondent, whose actions were not taken to respond to the charges, but were intended to frustrate them.

[13] This case is different from others in which delay in pursuit of extradition proceedings has been attributed to the Crown, such as R. v. MacIntosh, 2011 NSCA 111, 281 C.C.C. (3d) 291 aff'd, 2013 SCC 23, [2013] 2 S.C.R. 200. In MacIntosh, the accused was lawfully living in another jurisdiction when the charges were laid.

[14] There is no suggestion that the time following the respondent's return to Canada in 2015, until the anticipated end of the trial, was unreasonable under the Jordan, Cody or Morin analysis.

[15] Given that the time remaining after deducting defence delay from total delay does not exceed the presumptive 30 month ceiling, there is no need to go further and consider whether exceptional circumstances amounting to discrete events or particular complexity require further examination. Nor is it necessary to consider whether the transitional exceptional circumstances analysis should apply: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433; R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57.

[16] Accordingly the appeal is allowed, the stay is set aside and the matter is returned to the Superior Court of Ontario for trial. Given this conclusion, it is not necessary to address the other arguments advanced on appeal.

C.W. Hourigan J.A.

G. Pardu J.A.

I.V.B. Nordheimer J.A.