COURT FILE NO.: CR-17-50000715-0000 DATE: 20200330 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – WENDEL MCLEAN Applicant
Counsel: Sean Horgan and Brady Donohue, for the Crown Douglas Holt, for the Applicant
HEARD: March 12, 2020
Ruling on Defendant’s Section 11(b) Application Hood J.
Overview
[1] On September 29, 2018, the Applicant, Mr. McLean, was found guilty of two counts of robbery with a firearm and break and enter with intent to commit an indictable offence.
[2] Following the finding of guilt, the Crown advised that it would be seeking to have Mr. McLean declared a dangerous offender under Part XXIV of the Criminal Code. That hearing is now scheduled for May 21-27, 2020. The time between his conviction and this upcoming hearing is almost exactly 20 months.
[3] Mr. McLean has brought an application for an Order staying proceedings against him pursuant to ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms.
Position of the Parties
[4] Mr. McLean argues that the Court of Appeal in R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, has set a presumptive ceiling of 5 months for the time between conviction to sentencing and that any delay beyond 5 months is presumptively unreasonable.
[5] He argues that of the 20-month period between conviction to sentencing, there was a 2-month delay caused by him, Mr. McLean, in refusing to see Dr. Klassen who was to conduct the psychiatric assessment pursuant to s. 752.1. The Applicant also deducted the 8½ months between the verdict on September 29, 2018 to my ruling on June 14, 2019 granting the Crown’s s. 752.1 application. He argues that the s. 752.1 application, and only that application, is what is to be deducted pursuant to Charley.
[6] Deducting the total of 10½ months from the 20 months, leaves 9½ months, which Mr. McLean argues exceeds the 5 months ceiling set by Charley.
[7] The Crown argues that the 5-month sentencing clock does not begin to run until the decision has been made as to whether or not Mr. McLean has been found to be a dangerous offender, provided that the Crown acted reasonably during the dangerous offender process. The Crown argues that it did act reasonably, or rather that there was nothing unreasonable in what it did. The Crown argues that at worst it will take 18 months from verdict to the dangerous offender application or at best 14 months if further defence delays are acknowledged beyond the 2-month delay caused by Mr. McLean’s refusal to see Dr. Klassen.
Law and Analysis
[8] The Supreme Court of Canada has recently confirmed that the protection of s. 11(b) extends beyond the end of the evidence and argument at trial, up to and including the date upon which sentence is imposed: R. v. K.G.K., 2020 SCC 7, at para. 3. The presumptive ceilings set out in R. v. Jordan, 2016 SCC 27, 1 SCR 631, apply only from the date of the charge until the actual or anticipated end of the evidence and argument: K.G.K., at paras. 3, 23, 31, 33, and 50. After the conviction, the Court of Appeal has in Charley set a presumptive ceiling of 5 months for the time between conviction to sentencing, a period beyond which any delay is presumptively unreasonable.
[9] As in the case at bar, Charley also involved a dangerous offender application, albeit one which failed at the s. 752.1 stage. Despite this failure, the Court of Appeal discussed the interplay between a dangerous offender application and post-verdict delay. The court concluded at paras. 98 and 104 that the initiation of a proceeding under Part XXIV of the Criminal Code is an exceptional circumstance and is to be deducted from the post-verdict delay.
[10] In Charley the post-verdict delay was found to be a total of 7 months from late January 2017 when Mr. Charley was convicted until August 2017 when the Crown was prepared to address sentencing following the dismissal of its s. 752.1 application in June 2017. However, the time taken to determine the s. 752.1 application within the Part XXIV proceeding of 5 months was deducted leaving only a 2-month delay. This delay of 2 months was below the 5-month presumptive ceiling.
[11] The Court also held that even when delay is attributable to an exceptional circumstance the Crown has an obligation to mitigate any resulting delay. In other words, the Crown cannot proceed with a Part XXIV proceeding with impunity. The Crown must still act responsibly in moving the process forward.
[12] I do not accept the analysis put forward by Mr. McLean that only the discrete s. 752.1 application within the dangerous offender application is an exceptional circumstance. He ignores that the Part XXIV proceeding as a whole is an exceptional circumstance and that the dangerous offender application in this case has yet to conclude. As such, it is not the delay occasioned by the s. 752.1 application that is to be deducted, which would result in a delay of 9½ months, but the entirety of the ongoing Part XXIV proceeding, which on its face yields no delay to date.
[13] Mr. McLean has also failed to point out any conduct of the Crown that is unreasonable or a failure by the Crown to mitigate any resulting delay. I believe that if the Crown has the obligation to mitigate any resulting delay the onus is initially on it to show that it took reasonable steps to move the process along. The defence can always point out instances where it says the Crown did not meet its obligation.
[14] The following is the timeline of events post-conviction:
- September 29, 2018: Jury finds the Applicant guilty of some of the charges. Crown counsel advised the Court of the potential for a dangerous offender application. Crown suggested late November or early December 2018 for a return date, but due to scheduling conflicts of the Applicant, matter adjourned to January 25, 2019 instead for Crown to obtain the Attorney General’s consent in bringing a Dangerous Offender Application.
- January 25, 2019: Crown indicates that they are not in a position to proceed with the application as anticipated. Crown was delayed in getting the records for Mr. McLean and some production orders. Crown suggested an adjournment of 6 weeks to ensure complete disclosure. However, Applicant was unable to do March as Applicant’s counsel had a lengthy murder trial commencing on March 18th and would not be available until May. Application scheduled for May 16 and May 17, 2019, with an interim date of March 20, 2019 to keep the Applicant in the jurisdiction.
- March 20, 2019: Counsel for Applicant still awaiting on supporting materials relied upon for the Dangerous Offender Application. Matter adjourned until May 16, 2019.
- May 16, 2019: Findings of fact and dangerous offender applications heard by Justice Hood. Discussion about possible return dates for a decision eliminated May 24, 2019 and June 7, 2019 as Crown was unavailable. All parties agreed to a date of June 14, 2019.
- June 14, 2019: Justice Hood delivers his judgment on the facts of the case followed by the Dangerous Offender Application, granting the Crown’s application to order a psychiatric assessment of the Applicant. Matter adjourned to August 23, 2019 to receive the psychiatric assessment.
- July 16, 2019: Dr. Klassen attempts to meet with the Applicant to conduct a psychiatric assessment, but the Applicant refuses him. Crown counsel is informed of this and immediately advises Applicant’s counsel who speaks to him.
- August 2, 2019: Applicant advises that he is now willing to meet with Dr. Klassen. However, Dr. Klassen is no longer able to meet the Applicant within the time frame of the 60-day period established by the s. 752.1 order. On August 23, 2019, the Order as such was extended on consent from the original date of August 9, 2019 for another 60 days and the proceedings adjourned to October 11, 2019 to make the report available.
- October 11, 2019: Court advised that testing was completed but that the report was not yet ready. The report was anticipated by November 6, 2019. The proceedings were adjourned to November 7, 2019, but it was expected that the Crown would then seek an adjournment of six to eight weeks to obtain the consent of the Attorney General and set the matter down for litigation.
- November 7, 2019: Court confirms that all parties are in possession of the Report of Dr. Klassen. Crown receives adjournment to January 9, 2020 to seek the consent of the Attorney General of Ontario. Crown advises that if consent is received, a date will be set on the next appearance to litigate the application.
- December 19, 2019: Applicant commences Application for stay of sentencing for a violation of his s.11(b) rights.
- January 9, 2020: Crown files the consent of the Attorney General to initiate dangerous offender proceedings as against the Applicant. The Parties scheduled the following proceedings: (i) submissions on the s. 11(b) application for March 12, 2020; (ii) s. 11(b) judgment to be delivered April 9, 2020; and (iii) evidence and submissions on the dangerous offender hearing on May 21-27, 2020.
[15] Mr. McLean acknowledges that there was no delay to January 25, 2019 as the Crown was still gathering the necessary documents and records. Mr. McLean also acknowledges that when he received the documents and records they were extremely well organized. This he also acknowledges takes time.
[16] The Crown had 30 years of records to compile and review with many documents being from Mr. McLean’s juvenile records. Apparently, 5,000 pages of disclosure from 7 different institutions including custodial institutions, the CAS, probation and the parole offices had to be reviewed, vetted, and organized. A database was created by the Crown and was used to narrow the documents sent to the experts.
[17] Once the records were available, the process, in my view, moved ahead at a reasonable rate. The only unusual delay from that point forward resulted from Mr. McLean’s initial refusal to see Dr. Klassen. There is nothing that I can see nor was anything pointed out to me in argument by Mr. McLean which could be viewed as a failure to mitigate delay by the Crown.
[18] I am not prepared to find that a Part XXIV proceeding should be completed within a fixed period of time and that whether the Crown has mitigated any resulting delay can be assessed by looking at the time taken measured against a fixed benchmark. That would be unwise as each case is different. However, I believe it fair to say that a dangerous offender application is out of the ordinary, can be complex by its very nature and is time consuming.
[19] Having said that there may be a case where delay is apparent from the facts, where for example, there was an inordinate delay in arranging for the psychiatric assessment to take place, having the psychiatric report produced, or Crown delay in seeking the Attorney General’s consent. In those instances, perhaps an argument could be made that there was a failure to mitigate any resulting delay. That however was not the case here.
Conclusion
[20] A dangerous offender application is an exceptional circumstance to be deducted from any post-verdict delay. As such, there is yet no delay exceeding the 5-month presumptive ceiling. I am also satisfied that the Crown mitigated any resulting delay and acted responsibly in moving the dangerous offender application forward.
[21] For the above reasons the application is dismissed.
Hood J.
Released: March 30, 2020
