Court File and Parties

COURT FILE NO.: 14-32002 DATE: March 1, 2017

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

- and -

RICHARD GENDRON Applicant

COUNSEL: Lisa Miles, for Her Majesty the Queen Robert J. McGowan, Solicitor for the Applicant

HEARD: February 15, 2017

RULING

JAMES J.

[1] The applicant applied for a stay of proceedings on the basis of section 11(b) of the Charter and the principles stated in R. v. Jordan, [2016] SCC 27. The application was dismissed following argument with reasons to follow. These are those reasons.

[2] The relevant dates are as follows:

February 24, 2014 Charge date July 10, 2014 First Judicial Pre-Trial August 5, 2014 Second Judicial Pre-Trial at request of both counsel August 12, 2014 Date set for a 2 week preliminary hearing July 14-31, 2015 Preliminary Hearing This is an exceptionally lengthy preliminary hearing due to large number of complainants and counts September 4, 2015 First assignment court following committal for trial. JPT in SCJ set for October 30, 2015. October 30, 2015 First date offered was April 11, 2016 but Crown counsel not available. Next date offered September 26, 2016, Crown not available. Next date offered was November 2016. Applicant’s counsel prepared to waive Sec 11(b) from September to November but Crown counsel opts to re-allocate case assignments to be available for September 2016 trial date. September 26, 2016 Commencement of trial. October 14, 2016 Evidence completed. Date for final submissions to be set. November 17, 2016 Final argument by both parties for a full day. November 18, 2016 Applicant’s counsel gives first indication of possible Section 11(b) application. December 6, 2016 Proceeding listed to be spoken to due to pending section 11(b) application. January 11, 2017 Decision rendered; findings of guilt on 8 counts. February 15, 2017 Delay application argued and dismissed. March 3, 2017 Date for sentencing submissions.

[3] The total delay from date of charge to date of decision was 34.5 months.

[4] From the date of charge to date of sentencing submissions, less one month for defence to prepare delay application (January 11, 2017 to February 15, 2017), was about 35.5 months.

Factors Considered

[5] The delay exceeds the presumptive limit of 30 months and onus shifts to Crown to show that the delay was reasonable in the circumstances.

[6] This is a transitional case and transitional considerations apply. Crown counsel is obliged to demonstrate that the time the case has taken is justified based on parties’ reasonable reliance on the law as it previously existed.

[7] There was no defence delay or defence waiver leading up to the trial. The only period that shouldn’t count in the time calculation is the one month interval from the date of decision finding Mr. Gendron guilty on January 11, 2017 to February 15, 2017 to allow time for the defence to prepare this application.

[8] The proceeding was complex with so many underage complainants and the large number of counts. Some of the complainants lived outside of Ontario. It was unusual to set aside fifteen court days for the preliminary hearing. This in itself contributed to the long interval between August 2014 when the date for the preliminary hearing was set and July 2015 when the preliminary hearing commenced. Since the complainants were underage, their evidence at the preliminary hearing and at trial was presented both by way of video evidence and in-court oral testimony which added to the required trial time.

[9] Defence counsel did not object to the timelines as they developed.

[10] The first trial date offered was April 2016 but Crown counsel demurred due to a previously-scheduled trial. Although Crown counsel was also previously booked for the next date offered, being September 2016, she accepted this date knowing her schedule would have to be adjusted. Under the former law, counsel were not required to hold themselves available for the first date offered and there would unlikely have been delay implications as a result of opting for the next offered date. This would have taken about 4 or 5 months out of the calculation under the old system.

[11] Defence counsel offered to waive any delay issues for the period between the September date and the next date available which was November when it became apparent that Crown counsel had a prior commitment for September as well as April. Instead, Crown counsel opted for the September date, knowing re-assignments would be necessary. I accept the submission by Crown counsel that she committed to the earlier date in order to minimize the impact of delay upon the accused.

[12] The timing of the defence decision to apply for a stay occurred at a late stage. The Jordan decision was released in July 2016. This case was about one month beyond the 30 month guideline when the trial commenced in September. The first mention of a delay concern by the defence was on November 18, 2017, the day after closing arguments were heard and the decision was on reserve. This prompted Crown counsel to request an opportunity to speak to the status of the case on December 6, 2016. On this date Crown counsel advised me of the defence intention to bring a delay application and inquired as to what steps, if any, were available to expedite the completion of the proceeding. At that point little could be done because I was about to start a criminal jury trial that continued to just before Christmas. Subsequently a date to receive the court’s decision was set for January 11, 2017. A date for hearing the delay application was set for February 15, 2017 based on the indication by defence counsel that a month would be required to prepare the application.

[13] To summarize, there is no evidence of unreasonable delay or disregard for the rights of the accused by the Crown under the former, pre-Jordan regime. Defence counsel did not signal any delay concerns until a very late stage of the proceeding. This case was sufficiently complex with an absence of unreasonable delay such that a stay would be inappropriate. Moreover, the fact that this is a transitional case with exceptional circumstances constitutes an alternate basis for refusing to grant a stay. The time expended to bring the trial to a conclusion was justified by the parties’ reasonable reliance on the earlier framework. Consequently, the application was dismissed.

Mr. Justice Martin James

DATE RELEASED: March 1, 2017