R. v. Rolfe

Ontario Court of Justice

Date: 2016-10-17

Court File No.: Toronto 4811-998-15-75007748-00; 4817-998-15-75009237-00

Parties

Between:

Her Majesty the Queen

— AND —

William Rolfe

Before

Justice Richard Blouin

11(b) Application heard: October 3rd, 2016

Judgment on Application Delivered: October 17th, 2016

Counsel

Yeshe Laine — counsel for the Crown

Vivian Ropchan — counsel for William Rolfe

BLOUIN, J.:

Overview

[1] On April 4th, 2015, the defendant was charged with Sexual Assault and Failing to Comply with a court order (later re-laid as Failing to Comply with a Recognizance, s. 811 of the Criminal Code). The applicant and the complainant were both residing in a group home for individuals with cognitive issues. One of the group home workers found the defendant in the complainant's bed. Both were naked. The complainant was visibly upset, and repeatedly made gestures (she formed a circle with two of her fingers and moved her other index finger in and out of the circle.)

[2] The complainant suffers from Down's Syndrome and, at 32 years old, is mostly non-verbal. Due to the complainant's disability in communicating verbally and/or responding to questions, she cannot testify. Accordingly, expert evidence was required to establish the complainant's inability to consent to sexual activity.

[3] The defendant is 60 years old, suffers cognitive impairment as well, and is assisted by an adult protection worker. The Crown sought his detention on the secondary grounds and he remained in custody until a satisfactory plan for supervision in the community was arranged. Unfortunately, that plan did not materialize until the middle of September. As a result the defendant spent 5.5 months in jail waiting for bail. His bail hearing was conducted in the Gladue court in this jurisdiction as the defendant has aboriginal heritage.

[4] A review of the transcripts filed in this application indicates that, at the very latest, a crown attorney was assigned to manage this case by May 14th, 2015.

[5] A substantial number of court appearances occurred while disclosure issues, (primarily expert evidence), and a bail plan, were perfected. Although unsatisfied with the expert opinion, both parties agreed to advance the case by conducting a judicial pre-trial, and setting dates for trial. In September 2015, the defendant was released on bail and trial was set for seven days in June, 2016. Since the expert opinion remained outstanding, appearances before one of my colleagues were scheduled to confirm those trial dates. For the reasons explained below, the June trial dates were vacated on March 21st, 2016. The Crown had not received expert evidence necessary to conduct their case. New trial dates in December, 2016 were selected. October 3rd was selected for this application and October 17th was scheduled for an O'Connor third party application.

Unreasonable Delay – R. v. Jordan

[6] In R. v. Jordan [2016 SCC 27], the Supreme Court of Canada has structured a new framework for 11(b) analyses. The presumptive ceiling for provincial court cases is set at 18 months (paragraph 46). If the total delay from the charge to the anticipated end of trial exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption the Crown must establish the presence of exceptional circumstances. If not, a stay of proceedings will follow (paragraph 47).

[7] Here, the delay is close to 21 months, (April 4th, 2015 – December 16th, 2016). I find no defence delay, in that the defendant did not waive any delay, nor did unavailability or defence actions cause any. Any time needed by defence was legitimate time required for preparation (paragraph 65). Accordingly, the delay in this case is presumptively unreasonable.

[8] Finding the delay presumptively unreasonable, the Crown must then establish exceptional circumstances. Paragraph 69 reads as follows:

Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

[9] In my view, the Crown did not establish the existence of exceptional circumstances. I accept that the illness of the complainant, and Dr. Chow and her father, were obviously uncontrollable. If that was the whole reason for the delay, I would be sympathetic. However, Dr. Chow was the third doctor consulted. The delay occasioned by the attempts to retain the first two doctors was, in my view, entirely avoidable.

[10] The Crown's office knew of the need to secure capacity to consent evidence right from the initial bail hearing, and, in my view, made surprisingly inadequate efforts to obtain it.

[11] Firstly, let me say that I know Ms. Kromm, the assigned case manager, to be exceedingly diligent and thoughtful. She was alive throughout the history of this case of the need to retain the expert quickly given the defendant was detained until the middle of September. However, there appeared to be no specific protocol to do so. In June, 2015, discussions were commenced with a family physician who, in my view, would unlikely be able to give an expert opinion on the issue of capacity to consent. As it turned out, he never did give a supported opinion. To then rely on another medical professional (the complainant's previous psychiatrist, Dr. Joszvai), to do the assessment without ensuring that she had the requisite expertise, lacks the rigour one would expect especially at that late stage of the proceedings. I am told that the OIC was informed for the first time on December 21st, 2015 that Dr. Joszvai did not feel that she had the expertise to do the assessment. However, the qualifications of the doctor should have been fully assessed before almost two months were lost. It is not until January of 2016 that a professional approach was taken. Authorisation from the Regional Director was obtained to retain an expert from the CAMH. Dr. Eva Chow was then consulted.

[12] Accordingly, I find that these delays were not exceptional circumstances that were outside of the Crown's control. Perhaps the last two months qualify as a discrete event, delayed by illness, but the Crown lost control of the process of obtaining necessary expert evidence long before that.

Cases in the System

[13] The new Jordan framework, including the presumptive ceiling, applies to cases currently in the system, subject to two qualifications (paragraph 95). First, a transitional exceptional circumstance will apply when the Crown satisfies the Court that the time taken by the case is justified based upon the parties' reasonable reliance on the law as it previously existed. Delay may also exceed the ceiling if the case was a complex case in a jurisdiction with significant institutional delay problems. The second qualification applies to cases where the total delay (minus defence delay) falls below the ceiling. As I have found above, that is not this case.

[14] In my view, the Crown has not satisfied the Court that reliance on the law as it exists played any role in the time taken for this case. They did not argue that it did, and I find that the previous delay regime would not have excused the delay.

Conclusion

[15] Having concluded the ceiling exceeded, and no exceptional circumstances existed that were beyond the control of the Crown, and this case not being a particularly complex case, I find the delay to be unreasonable. The defendant's right under s. 11(b) of The Charter has been violated, and the only remedy that can be granted is a stay of proceedings pursuant to s. 24(1).

[16] Although in no way commenting on the merits of this prosecution, I do note that the defendant is a mentally delayed 60 year old aboriginal male needing residential care for persons cognitively compromised, who spent 5.5 months in prison after arrest.

Signed: "Justice Blouin"