R. v Burke, 2017 ONSC 3261

Court File No.: CR-16-70000768-0000 Date: 2017-05-17 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent – and – Raymond Burke, Applicant

Counsel: Christine Jenkins, for the Crown Alison Craig, for the Applicant (Accused)

Heard: April 21, 2017

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4(1) of the Criminal Code of Canada.

Ruling on Stay Application Pursuant to ss. 7 and 11(b) of the Charter

Thorburn J.

1. Overview

[1] Over 30 years ago, the Applicant, Raymond Burke, was charged with offences including kidnapping, choking, sexual assault with a weapon and forcible confinement with respect to two complainants.

[2] A Canada-wide warrant was issued for his arrest.

[3] Before he could be arrested, the Applicant fled to the United States.

[4] Shortly after his arrival in the United States, he was charged and convicted of similar offences committed in the United States. Thereafter he was sentenced to 52 years in prison.

[5] Canadian authorities knew, as of early 1987, that the Applicant was in custody in the United States.

[6] At the time the Applicant was first incarcerated in the United States, there existed no means by which the Canadian authorities could extradite him to Canada while he was serving his sentence in the United States. However, in 2003, a treaty provision entered into force that enabled the Canadian authorities to seek to extradite the Applicant in order that he stand trial in Canada.

[7] The Crown has an obligation to move matters along in a criminal prosecution. However, the Canadian authorities chose not to take any steps to bring the Applicant to Canada to stand trial on the Canadian charges, although they knew where he was.

[8] No explanation was provided as to why no steps were taken.

[9] Instead, in 2005, the Crown withdrew the charges in respect of one of the two complainants and the evidence was destroyed.

[10] The Applicant served 28 years in an American prison. After his release, a replacement Information was filed for the Canadian charges that had been withdrawn.

[11] These are very serious charges and there is a strong societal interest in having this case decided on the merits.

[12] The Applicant points out, however, that the charges are now over 30 years old. He seeks to have his charges stayed on the basis that his rights under the Canadian Charter of Rights and Freedoms have been infringed. He claims that there has been unreasonable delay in bringing his case to trial. He also claims that as a result of the prosecution’s destruction of important evidence, his right to make full answer and defence has been denied.

2. Relevant Evidence

[13] Charges were brought against the Applicant on September 18, 1986 after the first complainant in this case, N.M., alleged that she had been kidnapped and sexually assaulted. The Applicant was arrested on these charges and then released on bail.

[14] While the Applicant was on bail, the second complainant in this case, A.E., came forward alleging that she had been kidnapped, sexually assaulted, choked, forcibly confined and threatened. The Applicant was charged with further offences in respect of the second complainant.

[15] On October 28, 1986, a Canada-wide warrant was issued for the Applicant’s arrest with respect to charges relating to the second complainant. The Applicant breach the terms of his bail and fled to the United States.

[16] On January 16, 1987, the Applicant was arrested in Colorado on charges laid in that state that included assault, kidnapping, aggravated robbery and violence against a woman he had never met. At the time of his arrest, the Applicant had assumed the name Darryl Jones. After speaking with Canadian authorities and obtaining other information, American authorities determined his true identity.

[17] The Applicant was tried and convicted on the charges laid in the United States.

[18] On January 12, 1988 he was sentenced to 52 years’ incarceration by an American court. At that time, there was no treaty that would have allowed Canadian authorities to bring the Applicant to Canada to stand trial while he was serving his American sentence.

[19] In July 2000, Toronto police were advised that the Applicant was still in custody in the United States and that his earliest parole date was May 2013. As a result, the International Assistance Unit of the Toronto police asked that the Canada-wide warrant remain active on CPIC.

[20] On April 30, 2003, the Second Protocol Amending the Treaty on Extradition Between the Government of Canada and the Government of the United States of America (12 January 2001, Can. T.S. 2003/11) came into force. It contained an amendment to Article 7 of the extradition treaty between Canada and the United States that provides, in part, as follows:

The requested State, after granting an extradition request made in accordance with the Extradition Treaty, may temporarily surrender a person who has been convicted and sentenced in the requested State, in order that the person sought may be prosecuted in the requesting State. The temporary surrender of the person shall not divest the Courts in the requested State of jurisdiction over any appeal or habeas corpus application relating to the conviction or sentence that otherwise may be available under the laws of the requested State.

As of April 30, 2003, therefore, Canadian authorities could have sought to extradite the Applicant to stand trial on the Canadian charges.

[21] The Crown concedes that “there is no record of extradition attempts until 2015 and the officer-in-charge, Detective Katherine Stephenson, has no explanation for why extradition of the Applicant was not sought” (Crown factum, at para. 54).

[22] On October 12, 2005, the charges relating to the first complainant were withdrawn.

[23] No explanation was offered as to why these charges were withdrawn.

[24] On August 31, 2015, Toronto police were advised by the RCMP that the Applicant was being released from prison in Colorado and would be returned to Canada.

[25] On October 26, 2015, after serving 28 years in prison in the United States, the Applicant was returned to Toronto and, upon arrival, was arrested for the offences pertaining to the second complainant, A.E.

[26] On May 11, 2016, the first complainant, N.M., was interviewed by Toronto police and on July 29, 2016, a replacement Information was placed before the court adding the charges relating to the first complainant.

[27] On December 8, 2016, the Applicant was committed to stand trial on the charges relating to both complainants. On January 5, 2017, a judicial pre-trial was held and a trial date set for July 31, 2017 for a three-week trial.

[28] The Property Bureau of the Toronto Police has been unable to locate any of the property, including knives, seized from the Applicant’s home after the first complainant came forward in 1986. Moreover, the officers’ notes describing the search and seizure, any photographs taken during the search and the first complainant’s original statement are no longer available. A summary of the allegations relating to the first complainant and her medical records are, however, available. The original police report, the original occurrence report, the complainant’s original statement, her medical records, photographs of her injuries and five police will-say statements are available in respect of the second complainant.

3. The Issue

[29] The issue is whether there are grounds to stay these proceedings. The court must determine:

i. how to attribute the 12½-year period between April 30, 2003, when the new treaty provision enabling Canada to extradite the Applicant to be prosecuted entered into force, and October 26, 2015, when the Applicant was returned to Canada and/or whether there is prejudice resulting from the delay for the purposes of determining whether there was unreasonable delay; and

ii. whether evidence has been lost or destroyed such that the Applicant’s right to make full answer and defence has been denied.

4. The Positions of the Parties

[30] The Applicant claims that for 12½ years, the Canadian authorities took no steps to extradite him in order to prosecute him for the charges against him, although they knew he was in custody in the United States and there were avenues open that would have enabled them to do so as of April 2003. That time greatly exceeds the Jordan ceiling and should be attributed to Crown delay.

[31] The Applicant further claims that much of the evidence gathered by the Crown has been destroyed and that of the 16 witnesses he says he would have called, he has only been able to locate 3. As such, his right to make full answer and defence has been denied.

[32] The Crown claims that the deliberate actions taken by the Applicant in absconding from the jurisdiction and committing serious crimes in the United States resulting in a long sentence in the United States constitute defence delay. But for the Applicant’s decision to flee the jurisdiction, he would have been tried within a reasonable time on these charges. The Crown therefore takes the position that time served for committing unrelated crimes in the United States should not be considered when assessing prejudice.

[33] Moreover, the Crown submits, considerable evidence is still available such that the Applicant’s right to make full answer and defence is not denied.

5. The Law

Calculation of Delay

[34] The Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 stipulates temporal ceilings for the prosecution of criminal cases in Canada. Cases that proceed to the Superior Court must be tried within 30 months from the time charges are laid. Any delay clearly waived by the defence or caused by the defence is subtracted from the calculation of delay for this purpose. If the time from the charge to the end of trial less defence delay exceeds 30 months, s. 11(b) of the Charter is presumed to be violated and the proceeding is stayed unless there are exceptional circumstances.

[35] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal for Ontario summarized the approach to be taken under the new Jordan framework as follows:

i. Calculate the total delay, from the date the charges were laid to the actual or anticipated end of trial.

ii. Subtract defence delay from the total delay to calculate the net delay.

iii. Compare the net delay to the presumptive ceiling. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. Absent exceptional circumstances, a stay will follow.

iv. Exceptional circumstances can include discrete events or particularly complex cases.

v. Delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the presumptive ceiling has been reached.

vi. Where there is delay resulting from the fact that a case is particularly complex and the presumptive ceiling is exceeded, the court must consider whether the particular complexity was such that the time the case took is justified and the delay is reasonable.

vii. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[36] Exceptional circumstances are ones that lie outside the Crown’s control in the sense that they are reasonably unforeseen or reasonably unavoidable and Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as circumstances meet this definition, they will be considered exceptional. (Jordan, at para. 69.)

How to Calculate Delay Where an Accused Leaves the Jurisdiction

[37] Delay may be attributed to the Crown in circumstances where the whereabouts of an accused are known to authorities and no action is taken by the Crown to bring the accused to trial. This must be considered contextually, taking into consideration the investigative avenues available at the relevant time. (R. v. Arsenault, 2013 ONSC 5675, 291 C.R.R. (2d) 145; R. v. White (1997), 32 O.R. (3d) 722, 114 C.C.C. (3d) 225 (C.A.), at p. 738; R. v. Singleton, 2014 BCCA 232, 310 C.C.C. (3d) 534, at para. 96.).

[38] In R. v. James, 2008 CarswellOnt 9132, [2008] O.J. No. 5750 (Sup. Ct.), at paras. 44 to 48, Trafford J. found that the period between sentencing an accused in the United Sates and action taken by the Canadian authorities to extradite him to Canada to be tried for pre-existing charges should be attributed to Crown delay since the accused was not free to return to face the charges in Canada as he was serving a sentence and the authorities knew where he was.

[39] However, where an accused knows charges are outstanding but chooses not to return to the jurisdiction, the delay is attributable to him unless the Crown knew of his whereabouts and chose to delay apprehending him (White, at pp. 738-39).

[40] In R. v. R.E.M., 2004 BCSC 987, [2004] B.C.J. No. 1849, the court considered a situation in which an accused who was charged and released on bail, left for the United States and the Crown did not seek his extradition until further complainants came forward four years later. The court held that while the Crown could have been more diligent in seeking the accused’s extradition, the main reason for the delay lay at the feet of the accused who could have returned but chose instead to stay in the United States to avoid prosecution.

Transitional Provision

[41] Where an accused was charged prior to July 8, 2016 (the date the Jordan decision was released) and delay exceeds the 30-month ceiling, the framework in play before Jordan may apply to the extent that the Crown establishes that the delay is justified because of the parties’ reasonable reliance on the law as it existed at the time. This is so because the parties’ behaviour “cannot be judged strictly, against a standard of which they had no notice” (Jordan, at para. 96).

[42] The factors to be considered on pre-Jordan applications under s. 11(b) of the Charter were set out in R. v. Morin, [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1, at pp. 787-88. They include:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including (a) inherent time requirements of the case, (b) actions of the accused, (c) actions of the Crown, (d) limits on institutional resources, and (e) other reasons for delay; and

4. prejudice to the accused.

[43] Account must be taken of the interests that s. 11(b) is designed to protect. (Morin, at p. 788.).

[44] Where there is a heightened societal interest in a trial on the merits, the absence of prejudice (particularly to the accused’s fair trial interests) takes on added significance in the s. 11(b) analysis. The absence of meaningful prejudice can lengthen the period of delay that is constitutionally tolerable. (R. v. Seegmiller (2004), 191 C.C.C. (3d) 347, 125 C.R.R. (2d) 228 (Ont. C.A.), at para. 25.) On the other hand, society’s interests should not permit the accused’s “constitutional rights to be eviscerated” (see R. v. S.H., [2008] O.J. No. 5736, 2008 CarswellOnt 9089 (Sup. Ct.), at para. 74).

[45] Prejudice can be inferred where there is a lengthy delay although there is no judicially imposed limitation beyond which no prosecution should proceed because of inferred prejudice. (Morin, at p. 801; R. v. Faulkner, 2013 ONSC 2373, 282 C.R.R. (2d) 95.).

The Right to Make Full Answer and Defence

[46] Sections 7 and 11(d) of the Charter provide that everyone charged with an offence has the right to make “full answer and defence” in relation to those charges and has the right to a fair hearing to dispose of those charges. The Crown has an obligation to disclose all information that is likely relevant to an accused’s case and the Crown and police have an obligation to preserve relevant evidence. (R. v. Bero (2000), 151 C.C.C. (3d) 545, 39 C.R. (5th) 291 (Ont. C.A.).).

[47] Where the Crown cannot comply with its disclosure obligations because evidence has been lost, the Crown bears the onus to show that evidence was not lost due to unacceptable negligence on the part of the prosecution. The main consideration for a court determining whether evidence has been lost due to unacceptable negligence is whether the Crown or the police took reasonable steps to preserve the evidence for disclosure. (R. v. La, [1997] 2 S.C.R. 680, 116 C.C.C. (3d) 97.).

5. Analysis and Conclusion

[48] These are very serious charges. There is therefore a strong societal interest in having these charges determined on their merits.

[49] The Crown has an obligation to move matters along in a criminal prosecution (see Jordan, at para. 112).

[50] The question here is whether the prosecution can proceed given the delay of more than 30 years in bringing this case to trial and that some evidence has been destroyed.

[51] The parties agree that the Applicant chose to flee to the United States although he knew that he was facing charges in Canada. The time during which the Crown was not able to move the prosecution forward because the Applicant had absconded should be attributed to defence delay.

[52] However, as of April 30, 2003, Canadian authorities could and should have sought to bring the Applicant to Canada to stand trial on these charges. They knew where he was and they knew he was incarcerated. The Crown was asked but offered no explanation for its failure to seek extradition when the law allowed them to do so.

[53] The cases of R.E.M. and White are distinguishable from this case because although the accused in those cases absconded, they were not in custody in another jurisdiction and could therefore have chosen to return to Canada to face charges but did not.

[54] The facts of this case are akin to the facts in James, where, after the accused was sentenced in the United States, he could no longer choose to return to Canada as he was incarcerated. In James, the court held that as and when the authorities knew where he was, and the law allowed them to do so, they ought to have brought him to Canada to face charges here.

[55] Further, in 2005, the Crown chose to withdraw the charges in respect of the first complainant. Again, no explanation was offered by the Crown for its decision to withdraw the charges rather than seeking the Applicant’s extradition to stand trial.

[56] For these reasons, the time from the Applicant’s departure from Canada to April 30, 2003, when Canadian authorities were able to seek to bring him to Canada to stand trial, is defence delay. However, the 12½-year delay from April 30, 2003 to October 16, 2015 cannot be attributed to the defence and, under the pre-Jordan framework, would be characterized as Crown delay.

[57] This 12½-year delay is vastly beyond the timeframe articulated in Jordan.

[58] This delay cannot be attributed to exceptional circumstances or circumstances beyond the Crown’s control as the Canadian authorities knew where the Applicant was, knew about the outstanding charges and knew or ought to have known that they could seek to extradite him to Canada to stand trial on these charges as of April 30, 2003. Instead, they were seemingly content to know that he was serving a sentence in a United States correctional facility.

[59] There is also significant inferred and real prejudice to the Applicant. Prejudice in this case can be inferred from the length of the delay and there is meaningful real prejudice because considerable evidence is now missing, including property seized during the search of the Applicant’s home and police officers’ notes regarding that search, the statement of one complainant taken shortly after the alleged offences were committed, and witness statements.

[60] Moreover, where the Crown cannot comply with its disclosure obligations because evidence has been lost, the Crown bears the onus to show that evidence was not lost due to unacceptable negligence on the part of the prosecution and that instead, it took reasonable steps to preserve the evidence for disclosure. No evidence was adduced to address this issue.

[61] Even if the Jordan ceiling is not applied and the Morin framework is invoked instead (as these charges were laid before the decision in Jordan was rendered), given the extent of the delay and the considerable real and inferred prejudice to the Applicant, the delay is unreasonable.

[62] The case is now over 30 years old.

[63] This very lengthy delay, 12½ years of which is attributable to Crown delay, is most unfortunate given the high societal interest in having this case heard on the merits. It has been rendered all the more problematic because significant evidence has now been destroyed. No explanation has been provided to account for the delay.

[64] With considerable reticence therefore, I conclude that given the 12½-year delay attributable to the Crown’s failure to seek the Applicant’s extradition to stand trial on these charges and the meaningful prejudice to the Applicant resulting from the delay, the application to dismiss these proceedings for delay is granted and these proceedings are stayed.

Thorburn J. Released: May 17, 2017