Court File and Parties

Court File No.: Toronto

Date: April 2, 2013

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Brian Rapson

Before: Justice Leslie Pringle

Heard on: March 14, 2013

Reasons on s.11(b) application released on: April 2, 2013

Counsel:

Ms. J. Prenger for the Crown

Mr. H. Black, Q.C. for the accused Brian Rapson

PRINGLE, J.:

1. Introduction and Overview

[1] Brian Rapson is charged with criminal harassment and an assault on Batsheva Gindil by way of a private complaint that was laid by Ms. Gindil on December 8, 2010. This is an application to stay those charges on the basis of unreasonable delay.

[2] At the time the charges were initiated by Ms. Gindil, Mr. Rapson was a police officer with the Toronto Police Service. Ms. Gindil had been charged with dangerous driving and assault with intent to resist arrest by the Toronto Police arising out of an incident on November 6, 2010, in which Cst. Rapson was involved as a witness. At the time of the first appearance in Scarborough the Crown referred to the private prosecution as a "counter charge" by Ms. Gindil, and indicated that Mr. Rapson's trial should follow Ms. Gindil's charges to the Finch Court. The Crown proposed that Mr. Rapson's trial be "put on hold" to see the result of Ms. Gindil's charges there.

[3] Over two years later, Ms. Gindil's trial still has not finished; although the evidence is complete and Mr. Rapson was a witness at her trial, judgement is not expected until March 19, 2013. Mr. Rapson's trial is not scheduled until November 18 and 19, 2013.

[4] The total time from the date the information was laid against Mr. Rapson until the scheduled date for his trial is almost 3 years (approximately 35 months).

[5] In my view, two factors were primarily responsible for the delay in Mr. Rapson's matter:

1. The Finch Crown's office belatedly realized that there was a conflict of interest in prosecuting Ms. Gindil on her charges while at the same time taking over her prosecution against Mr. Rapson (which arose in part out of the same matter), and it took over 12 months to get an outside Crown assigned to Mr. Rapson's case; and

2. Initially, Ms. Gindil refused to provide disclosure of her allegations against Mr. Rapson until after her trial was completed.

[6] Ms. Prenger appeared before me as outside Crown counsel from the Peel Crown Attorney's office, having been assigned to the case in August 2012. On this application, she conceded that close to 3 years to get a summary conviction matter on to trial was a remarkable period of time, and one that was highly concerning on its face. She also acknowledged that the Crown bore some responsibility for both the disclosure issues and the late assignment of an outside Crown to the case. However, she submitted that the actions of the defence also contributed to the delay, and that viewed in totality, the Applicant had not established that the delay was unreasonable.

[7] Despite Ms. Prenger's very able arguments, I can't agree that the defence contributed to the delay in any significant way, or acquiesced in it. The record provided by Applicant by way of transcripts and affidavit evidence established a clear and compelling case of problems with disclosure and problems with conflict of interest that lay squarely at the feet of the Crown. For the reasons which follow, I attribute 23 months of delay to the state.

[8] There is inferred prejudice from this length of delay, and although the Crown challenged the degree of actual prejudice suffered by Mr. Rapson, I also find there is some actual prejudice.

[9] Finally, I agree that there is an important societal interest in trying allegations of harassment, assault and intimidation of a citizen by a police officer on their merits. This can't be ignored in the 11(b) analysis. However, the primary aim of this Charter section is the protection of the rights of the accused. In balancing these interests and considering the factors set out in the case law, I find that the Applicant has established that the state delay of 23 months in this case was unreasonable.

2. The Law

[10] The legal framework for the delay analysis is well known. As set out in R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.), the factors that I must consider are as follows:

1. the length of the delay

2. waiver, if any, of time periods

3. the reasons for the delay, including

   a) the 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 the delay, as well as

4. prejudice to the accused.

[11] In balancing the interests in relation to these factors, I must keep in mind that the primary purpose of s.11(b) is the protection of the individual rights of the accused, by protecting his right to security of the person, his right to liberty, and his right to a fair trial. Society also has an interest to be protected by s.11(b), which includes the promotion of prompt trials to ensure fairness to accused persons. As well, as the seriousness of the offence increases so does the societal demand that the accused is brought to trial.

[12] In relation to prejudice, the Supreme Court of Canada stated in R. v. Godin, 2009 SCC 26, 245 C.C.C. (3d) 271 at paras. 31 and 38, that the question of prejudice cannot be considered separately from the length of the delay. In Godin, the Court found that even though the case was straightforward, when the delay exceeded the ordinary guidelines by a year or more, it was reasonable to infer that prolonged exposure to criminal proceedings resulting from the delay gave rise to some prejudice. The court confirmed that proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a violation of s.11(b).

3. Application of the Law and Analysis in this Case

3.1 Length of the Delay

[13] All parties agreed that the length of delay in this case required an inquiry into the reasons why it took this long to bring the matter on for trial.

3.2 Waiver

[14] There was never any explicit waiver of delay in this case by the Applicant. However, Ms. Prenger submitted that it can be inferred that the defence acquiesced in the delay and implicitly agreed to the process that unfolded over time. Her position was that in failing to take proactive steps to deal with the disclosure impasse, and in failing to set a date for trial once it was clear that disclosure was not forthcoming, the Applicant bore some responsibility along with the Crown for that delay.

[15] In considering this submission, I think it's important to remember that it is a fundamental precept of our criminal justice system that it is the Crown's responsibility to bring the accused to trial, and not the other way around: see R. v. Askov (1990), 59 C.C.C. (3d) 449 at p. 480. Moreover, the Supreme Court of Canada emphasized that acts of the accused should only be attributed to the defence where the acts directly caused the delay, or where the Crown shows they were "a deliberate and calculated tactic employed to delay the trial": see p. 481.

[16] Similarly in Godin, Justice Cromwell noted at para. 11, "the Crown bears the burden of explaining unusual delays", such as the delay in the forensic investigation in that situation.

[17] It's true that in some cases, it will be appropriate to attribute responsibility to the defence for choices in the trial process that will entail more time, such as a change of solicitor, a change of venue motion, or an attack on a wiretap or search warrant at trial: see R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.) at p. 17. In addition, it will be appropriate to attribute delay to the defence where requests for disclosure in advance of setting a date for trial are unreasonable, since the Crown is not obliged to disclose every last bit of evidence before a trial date is set: R. v. Kovacs-Tatar, [2004] O.J. No. 4756 (C.A.) at para. 47.

[18] Finally, there will be cases where it is apparent that the defence is not interested in a speedy trial, or is, at the very least, acquiescing in the delay. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider. In Morin, for example, Justice Sopinka noted that, "the accused was content with the pace with which things were proceeding and therefore there was little or no prejudice occasioned by the delay", (see Morin, pp. 23, 24, and 28).

[19] As I will explain below, I don't agree that the record in this case supports any inference that the defence was not interested in a speedy trial, or acquiesced in the delay.

3.3 Reasons for the Delay

3.3.1 The Intake Period

[20] The Crown suggested at the first appearance in Scarborough on January 19, 2011 that Mr. Rapson's matter should be "put on hold" until after Ms. Gindil's trial was completed. At that time, Mr. Rapson's agent agreed, but also requested disclosure of the charges against Mr. Rapson.

[21] Mr. Rapson's matter next appeared at the Finch courthouse on January 21, 2011, where the Crown re-iterated its position that Mr. Rapson's matter should follow Ms. Gindil's. Several appearances followed where the Finch Crown appeared and spoke to Mr. Rapson's trial on behalf of Ms. Gindil, and Mr. Rapson's agent raised the issue of missing disclosure.

[22] On April 7, 2011 the situation remained unchanged, and the Court said to Ms. Gindil's counsel, "so, she has to provide some documents as part of disclosure, is that being done or what?". Counsel for Ms. Gindil responded that they weren't retained to prosecute the private prosecution. The Crown stated that they hadn't determined whether to intervene, and wanted to await the outcome of the trial to make that determination.

[23] Significantly, the Court asked Mr. Rapson's agent if they wanted his case to follow along with the Gindil matter, and the agent stated, "No", because they were still dealing with disclosure issues. In the face of that response, it's difficult to infer that the defence was somehow agreeing that Mr. Rapson's matter should simply follow Ms. Gindil's.

[24] Moreover, a pattern that would become familiar began on April 7, 2011, where the Crown assured everyone that prior to the next date, "the Crown's office will sort it out". This offer seems to have been entirely genuine and one made in accordance with the Crown's constitutional obligations to bring the matter to trial. Indeed it's clear that over time, the Crown was in communication with the officer in charge of Mr. Rapson's case, the Office of the Independent Police Review Director, the Professional Standards Investigative Unit, Ms. Gindil's counsel, and with Mr. Rapson's counsel, and was trying to "sort it out". In these circumstances, I see no reason why the defence should have questioned the Crown's good faith, or its ability to carry out its constitutional responsibilities.

[25] By this point up to April 7, 2011, there had been ample time for any intake requirements to be met. There was no issue as to bail, Mr. Rapson had counsel from the first appearance, and even Ms. Gindil had counsel in relation to the charges against her. It also appears that counsel for the Crown at the Finch courthouse had been assigned by April 7th. Therefore, while it's a generous time to allot, I will attribute this time to intake, from December 8, 2010 to April 7, 2011: 4 months.

3.3.2 Disclosure Problems

[26] When the matter came back on May 19, 2011, the Crown confirmed that the officer in charge of Mr. Rapson's case had been attempting to get disclosure from Ms. Gindil, but her lawyer had advised her not to release it. The Crown noted that Ms. Gindil was "frustrating the disclosure process". The defence stated that all they had was a letter from the complainant and a witness list but no statements of witnesses. The Crown in court suggested that everybody contact the assigned Finch Crown, because he would be addressing any substantive decisions.

[27] This state of affairs continued until July 21, 2011. At this time, the Crown acknowledged, and Mr. Black as counsel for Mr. Rapson confirmed, that Mr. Rapson was anxious to get his matter moving. Once again, in the face of this statement on the record, I find it difficult to agree with the Crown that Mr. Rapson was acquiescing to any delay in this case.

[28] Moreover, affidavit evidence filed before me revealed that on July 21, 2011, Mr. Black spoke outside court to the assigned Crown, Mr. Schembri, and told him he would like to bring an unreasonable delay application on behalf of Mr. Rapson immediately. However, Mr. Schembri advised that a trial judge would have to be assigned and this couldn't happen until the conclusion of the Gindil trial.

[29] Lest there be any doubt about whether the defence was being proactive in expressing concerns about delay, Mr. Black wrote to Mr. Schembri via email on September 14, 2011 and said:

Is there yet any hope of getting rid of his charge before the complainant's trial date? She refuses to provide disclosure which means that he waits. And he is not doing well emotionally at all. Apart from everything else his marriage recently ended. I have known Brian for probably 20 years and I have never seen him worse or in a lower state. (my emphasis)

[30] In this context, I can see no merit to the Crown's submission that it was a defence strategy to wait out Ms. Gindil's charges, and I can't agree that the record supports an inference that the defence was content to delay this matter from appearance to appearance.

[31] On July 21, 2011 the matter went over to September 8, 2011, and once again, the Crown promised to make further inquiries into the situation.

[32] Based on the events between April 7, 2011 and September 8, 2011, it seems clear that the main stumbling block to moving the case forward was Ms. Gindil's refusal to provide disclosure. Since the Crown took on the task of speaking to the matter in court on each occasion, (and on June 20, 2011 agreed that Ms. Gindil no longer needed to attend court personally), it seems clear that the Crown was assuming responsibility for attempting to obtain disclosure and "sort things out", even if a decision had not yet been made whether to take over the private prosecution.

[33] Accordingly, I would attribute this period of time to the state as a result of a failure or inability to provide disclosure: April 7, 2011 to September 8, 2011: 5 months.

3.3.3 Other Reasons for Delay

[34] On September 8, 2011, the defence mis-diarized the date of Mr. Rapson's appearance, and the matter had to be adjourned to September 15, 2011. I therefore attribute the delay from September 8, 2011 to September 15, 2011 to the defence: 1 week.

[35] On September 15, 2011, the Crown didn't have the brief in court and the matter had to be put over. The delay from September 15, 2011 to September 22, 2011 lies at the feet of the Crown: 1 week.

[36] On September 22, 2011, all parties recognized that a judicial pre-trial would be beneficial, and one was held on October 19, 2011. This time is generally seen as neutral: see R. v. Tran, 2012 ONCA 18. Therefore, September 22, 2011 to October 19, 2011 is neutral.

3.3.4 Possible Disclosure Solution

[37] Ms. Prenger submitted, and I agree, that there was nothing on the record to suggest that Ms. Gindil was deliberately attempting to frustrate the court process by refusing to provide disclosure against Mr. Rapson. Rather, it seems that with the assistance of her defence counsel, she was trying to protect her own rights in the trial in which she was charged with dangerous driving and other matters.

[38] Faced with this dilemma, an outside Crown had two options: either to work through the disclosure impasse, or to withdraw the charges against Mr. Rapson because it couldn't meet its disclosure obligations. Once she was assigned to the case, Ms. Prenger was able to act upon the former, and suggested that Ms. Gindil provide disclosure on a "without prejudice" basis where the disclosure provided for Mr. Rapson's trial would not be used against her at her trial. This suggestion was accepted by all parties, but it did not occur until late in September 2012.

[39] Ms. Prenger tried valiantly to remedy the problems with the case after she was assigned as outside Crown on August 14, 2012. On August 15, 2012, the Crown in court inquired about a concession from the defence that Mr. Rapson was waiving any rights pursuant to s.11(b) on the record. However, no waiver was obtained. This was not surprising, given the comments on the record previously about his desire to get the case moving, and given Mr. Black's comments to Mr. Schembri about unreasonable delay and the toll it was taking on Mr. Rapson.

[40] It is not clear from the record when the first meaningful disclosure was made to Mr. Rapson. A package of materials was provided on December 1, 2011, (see EX L to Ms. Martin's affidavit on this application), almost one year after the prosecution was initiated, and I infer that this likely contained the notes of the officers who attended on November 6, 2010 in response to P.C. Rapson's call for back up assistance while dealing with Ms. Gindil. However, beyond her initial complaint, Ms. Gindil was unwilling to provide any disclosure of her statements or letters in relation to this matter, nor was she willing to disclose the statements of her witnesses. These were only made available to the defence by Ms. Prenger on September 24, 2012 (see EX R to Ms. Martin's affidavit).

[41] As a result, I think it's fair to say that disclosure was a significant and on-going concern until September of 2012. (While there are still some outstanding complaints about disclosure by the defence at the present time, it appears that they could easily be resolved by the trial date in light of my recent court order for the TPS to produce some further materials, and in light of Ms. Gindil's recent consent to allow the OIPRD to provide further materials).

[42] While there will be cases where it is unreasonable for the defence to resist setting a date for trial in the face of missing disclosure, this is not one of them. Here, the missing disclosure was the heart of Ms. Gindil's case against Mr. Rapson. Moreover, the Crown recognized that this disclosure was important to the defence, and repeatedly assured everyone that it was looking into the disclosure problems and was going to sort them out. In these circumstances, it can hardly be said that there was an obligation on the defence to set a trial date.

3.3.5 Assignment of an Outside Crown

[43] The Finch Crown first mentioned a potential conflict in prosecuting Mr. Rapson in court on July 19, 2011. After the judicial pre-trial on October 19, 2011, the Crown then confirmed that it would have to get an outside Crown involved in the case, and Mr. Rapson's matter was remanded to January 18, 2012, which was after the scheduled trial dates for Ms. Gindil's matters on January 3 and 4, 2012. Mr. Schembri assured the court:

In the meantime, the Crown will get some, get outside counsel, to review this matter and deal with any issues that Mr. Black – or any designate of Mr. Black – has with any outstanding disclosure, and if there's any issues of that sort. (my emphasis)

[44] Moreover, on December 2, 2011, Mr. Schembri passed along some email correspondence to Mr. Black indicating:

Whenever charges are laid by a private informant, in this case Ms. Gindil, the charges often tag along until after the trial. Unfortunately in this case because the accused in the private complaint is a police officer and a Crown witness, our Crown's office cannot deal with the matter and outside counsel is required. There was an initial thought that our office could deal with the matter and it took some time to get any disclosure in this matter. It was determined after sometime regrettably that the Crown in this office is in a conflict even if we believed there was no merit to the Gindil complaint against P.C. Rapson. The judicial pre-trial judge agreed that our Crown's office is in a conflict. Unfortunately, independent outside counsel has yet to be obtained to review the matter.

The decision to adjourn [Mr. Rapson's] prosecution has nothing to do with letting anyone have a chance to further investigate the matter. I believe the investigation by TPS has been completed and counsel Mr. Black as the results of their investigation. The delay is as a result of the above situation. (emphasis added)

[45] On January 16, 2012, Mr. Schembri sent another email to Mr. Black:

I just want to inform you that the Gindil matter went over to August 1 and 2… I know P.C. Rapson wants his matter to be dealt with. We have had a JPT but did not speak about time estimate. If you want to set a trial date a further JPT may be required. We are still trying to secure outside counsel. Or if you are in agreement we can mutually agree for the private complaint to follow along. Any thoughts?

[46] The record does not disclose any response by Mr. Black, and on January 18, 2012 the case was remanded at the suggestion of the Crown with no apparent objection by Mr. Rapson's agent to February 15, 2012. On that date, Mr. Rapson's agent indicated that Ms. Gindil refused to provide disclosure until after her trial which was scheduled for August 1, 2012, and suggested a return date of August 15, 2012.

[47] On August 15, 2012, the Crown in court said that from what she had been told by Mr. Schembri, both the Crown and defence agreed that Mr. Rapson's matter would await the outcome of Ms. Gindil's trial. While Mr. Rapson's agent attempted to disagree with that characterization, the presiding judge also noted, "there a certain aspect of acquiescence… but I'll let another trier of fact play with that".

[48] Neither the Crown in court nor the presiding judge had the advantage that I have had of reviewing the entire record in these proceedings. Based on the entire record, I do not find there is a reasonable inference of acquiescence. Especially in light of the Finch Crown's position that no disclosure from Ms. Gindil was available until after her trial, and considering that the Crown also told Mr. Rapson that no delay application was possible in the interim, the defence was in a catch 22 situation. Moreover, when the Crown told Mr. Rapson that he was going to get outside counsel to deal with the disclosure issues, I think the defence was entitled to rely on that.

[49] In this case, the Crown belatedly recognized a conflict, and then belatedly assigned an outside Crown who could deal effectively with the impasse. In my view the failure to assign an outside Crown from July 2011 to August 2012 lies squarely at the feet of the state.

[50] Therefore, I find the time from the judicial pre-trial until the assignment of an outside Crown who was able to provide disclosure of Ms. Gindil's case is state delay, from October 19, 2011 to September 24, 2012: 11 months.

3.3.6 Setting a Date for Trial

[51] Once Ms. Prenger came on board and disclosure was provided, a new date for a judicial pre-trial was eventually arranged. Ms. Prenger was available in September and requested as early a date as possible for the pre-trial, but Mr. Black was not available until October 11, 2012. Accordingly, the delay from September 24, 2012 to October 11, 2012 should be borne by the defence: just over 2 weeks.

[52] After the judicial pre-trial, a trial date was set for November 18 and 19, 2013, with intervening dates for a continuing pre-trial in February, and 2 motions in March. The trial assignment sheet reveals that both the Crown and the court were able to accommodate all these matters by mid-May 2013 and had numerous dates thereafter throughout 2013, but Mr. Black was not available on any of those dates until November 18, (see EX T to Ms. Martin's affidavit). In my view, the defence cannot complain about institutional delay once the Crown and the court were available to hear the case but the defence was not.

[53] Therefore, I find the institutional delay runs from October 11, 2012 to May 14, 2013: 7 months.

3.3.7 Summary of Reasons for Delay

Date	Description	Neutral	Defence	State
December 8, 2010 to April 7, 2011	Intake	4 months
April 7, 2011 to September 8, 2011	Disclosure problems			5 months
September 8, 2011 to September 15, 2011	Defence mis-diarized		1 week
September 15, 2011 to September 22, 2011	Crown brief not available			1 week
September 22, 2011 to October 19, 2011	Time to judicial pre-trial	1 month
October 19, 2011 to September 24, 2012	Disclosure problems and failure to assign an outside Crown until August 2012			11 months
September 24, 2012 to October 11, 2012	Defence unavailable for judicial pre-trial		2 weeks
October 11, 2012 to May 14, 2013	Institutional			7 months
May 14, 2013 to November 18, 2013	Defence unavailable		6 months
Totals:		Neutral: 5 months	Defence: 6.75 months	State: 23 months

3.4 Prejudice

[54] Mr. Rapson filed an affidavit and testified on this application. He explained that the most stressful part of this case has been the fact that his case has been on hold from the outset. He said that as a police officer he knew the system, and he also had experience previously as an accused person when he was charged in a shooting back in 1990. He was ultimately acquitted in that matter and all Police Service Act charges were withdrawn, but he said that he had nightmares and suffered from Post-Traumatic Stress Disorder at that time. Mr. Rapson testified that these symptoms returned when he learned that his current charges would have to await the outcome of Ms. Gindil's charges.

[55] Ms. Prenger cross-examined Mr. Rapson about other matters that had caused him stress during the course of his working career, including a grievance relating to sick leave benefits and a disagreement with his superior officers about issuing speeding tickets for 1 km over the posted speed limit. During this time in 1999, he also said he experienced flashbacks to the 1990 shooting and experienced many of the same symptoms that he said he was currently suffering again, and again took stress leave. The Crown suggested that these symptoms had never really abated, and were necessarily a part of the stress he said he was now under. Mr. Rapson agreed that the shooting incident never really left his memory, but said that he never thought about the grievance matter once the grievance was dismissed.

[56] Mr. Rapson denied that the current anxiety and stress he was under was related to his previous experiences, and said it was not the fact of being charged by Ms. Gindil that affected him. Rather, he testified that it was the prospect of waiting till her matter ended that created the most stress for him. Although he had submitted his notice of retirement on December 6, 2010, once he learned of the charges brought by Ms. Gindil, he decided that he didn't want to retire with criminal charges hanging over his head. However, he then went on stress leave two weeks later.

[57] Mr. Rapson said that his pay and benefits were suspended by the TPS in April of 2012 because they alleged that he had become a resident of another country while he was spending a good deal of time in the Dominican Republic. He said his doctors said he was not fit to return to work, and eventually he was forced to retire on August 1, 2012.

[58] I understand the Crown's submission that Mr. Rapson did not suffer greatly as a result of the charges laid by Ms. Gindil since he was not on bail, he never appeared in court until recently, and he was able to leave the country and live in the Dominican Republic while on paid stress leave for much of this time. There is also merit to the submission that in part, his symptoms and stress were connected to prior events in his life.

[59] Nonetheless, Mr. Rapson's testimony that he worries constantly about the outcome of these charges was not surprising, and his sense of dread that he would have to wait another year and a half before Ms. Gindil's matters were completed turned out to be well-founded. In fact, it's now been well over two years. He has left the job he says he loved, he has lost weight and sleep, and he has been unable to make plans for the future with the charges hanging over his head. In the circumstances, there was undoubtedly some actual prejudice.

[60] Moreover, even if it is hard to quantify how much actual prejudice there has been to Mr. Rapson, this is a case where the inference of prejudice is overwhelming. Even the Crown conceded that the overall time frame was remarkable and highly concerning, and of that time, I have attributed almost two years of delay to the state.

4. Balancing and Conclusion

[61] Balancing the unusually long delay attributable to the state of almost two years, and considering the reasons relating to disclosure problems and failure to assign an outside Crown, I find that the delay in this case was clearly unreasonable. If the Crown truly thought there was a societal interest in pressing the private prosecution in this case, it should have taken action to move this case forward long ago. While I appreciate that Ms. Prenger did her best, by the time this case was assigned to her, the delay was already unreasonable.

[62] The charges against Mr. Rapson are stayed.

Released: to the parties on March 18, 2013; in court on April 2, 2013

Signed: "Justice Leslie Pringle"