WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: February 20, 2018

Between:

Her Majesty the Queen

— and —

H.S.

Before: Justice M. Speyer

Heard on: December 14 and 15, 2017, and January 24, 2018

Reasons for Judgment released: February 20, 2018

Counsel:

• Alexandra Penny for the Crown
• Daniel Lerner for H.S.

M. SPEYER J.:

Introduction

[1] The Applicant, H.S., moved to the Republic of Nicaragua on September 22, 2016. On October 16, 2013, his former common law spouse reported to the Toronto police that she had been sexually assaulted and threatened by him. Following an investigation, the police charged the Applicant with sexual assault, unlawful confinement and uttering death threats. The offences are alleged to have occurred in April of 2013. The Information was sworn on October 17, 2013 and a warrant for his arrest was issued on the same day. The Applicant was arrested on these charges when he returned to Canada on April 5, 2017.

[2] The Crown is proceeding by indictment and Mr. H.S. has elected to have a trial in the Ontario Court of Justice. The trial is scheduled for March 5 and 6, 2018. The total period of delay between the swearing of the Information and the anticipated end of the trial is approximately 52 months and 19 days. The Applicant seeks a stay based on the Crown's failure to bring this matter to trial within a reasonable time, contrary to section 11(b) of the Charter of Rights and Freedoms.

The Issue

[3] The issue on this Application is how to characterize the period from October 17, 2013 to April 5, 2017 (41 months, 19 days) when Mr. H.S. was abroad. The parties agree that the remaining period of approximately 11 months does not engage any Charter concerns and is well below the 18 month limit prescribed by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, for trials in the Ontario Court of Justice.

Position of the Parties

[4] The Applicant argues that the nearly 42 month delay should be attributed entirely to the Crown because the police either knew Mr. H.S. was in Nicaragua or could easily have discovered this, and yet took no steps to locate and return him to Canada to answer these charges.

[5] The Crown submits that this period should be deducted from the total delay as it was caused solely by the Applicant choosing to remain abroad when he knew there was an arrest warrant for him for these charges. In the alternative, the period should characterized as an exceptional discrete event which could not be avoided and should be deducted from the overall length of time taken to complete this case. In the further alternative, the Crown argues that this is a transitional case and under the Morin framework, this period would have been considered as defence delay or at least, as neutral, and for which Mr. H.S. suffered no prejudice.

[6] For the reasons stated below, I dismiss the Application and find that the period when the Applicant was abroad is a delay caused solely by him and is deducted from the total delay in bringing this matter to trial. The remaining net delay of 11 months is reasonable and does not violate the Applicant's s. 11(b) rights.

The Evidence and Findings of Fact

[7] On October 16, 2013, Toronto Police Constables Marsh and Perilli attended at H[…], Scarborough, in response to a call from the complainant, S.R.E.. When they arrived, she was visibly upset. She told them that her common-law spouse, Mr. H.S. had left their home about two weeks previously and she did not know where he was. She reported that in the past few days he had called and texted her repeatedly. Ms. S.R.E. disclosed that she had been sexually assaulted by Mr. H.S. in the past and was afraid of him as he had a key to the house and returned whenever he wanted to.

[8] Ms. S.R.E. told these officers that she did not know where Mr. H.S. was currently living. She said his cell phone number was [phone number 1]. She advised that he had previously left their home in April and returned in May of 2013. She also told them that he worked as a supervisor at G[…] and that his car was parked in the driveway of their home. She did not know what he was using as transportation.

[9] PC Perilli and Marsh took Ms. S.R.E. to 42 Division where, with the assistance of a Spanish interpreter, she gave a videotaped statement to Detective Constable Emms, the officer in charge of this case. Ms. S.R.E. provided the following information relevant to this application:

• She and Mr. H.S. have been in a common law relationship for 20 years.
• She immigrated to Canada from El Salvador in 1992.
• She and Mr. H.S. met in Canada.
• Mr. H.S. is a Canadian citizen.
• She and Mr. H.S. have two children, a thirteen year old girl who lives with her at H[…] and a 20 year old son who is in the Canadian army and does not live at home.
• Problems in their relationship began about 6 years ago. Mr. H.S. frequently left their home without telling her where he was. He was abusive when he returned home and sexually assaulted her in April of 2013.
• She disclosed the physical abuse to Mr. H.S.'s sister but not the sexual assault. His sister advised her to call the police.
• Mr. H.S. left their home in April and returned in May 2013.
• On September 21, 2013, he left home again and she has not seen him since then. She does not know where he is.
• She spoke with Mr. H.S. by telephone the previous Sunday and he told her he wanted half the house as he needed money to start living his life.
• She is afraid of Mr. H.S. because she does not know where he is or when he will return home. He has threatened to kill her if he returns home and finds her with someone else.

[10] In his affidavit, DC Emms testified that at no time did Ms. S.R.E. ever mention Nicaragua or suggest that Mr. H.S. might be in Nicaragua. She did not give him any names of Mr. H.S.'s extended family members or indicate that they may know where he might be.

[11] Following the interview with Ms. S.R.E., DC Emms contacted G[…] who advised him that Mr. H.S. had terminated his employment with them about a week before. He did not ask them if they had a forwarding address for Mr. H.S.. He tried the cell number provided by Ms. S.R.E., but the number was disconnected.

[12] In cross examination, DC Emms testified that he did not think to ask the complainant if Mr. H.S. was a native of Canada or of some other country. He also did not ask her for the contact information of Mr. H.S.'s sister or of their son and did not inquire if Mr. H.S. had other children or extended family in the Canada. He admitted that once he learned that Mr. H.S. was out of the country, he did not follow up with Ms. S.R.E. to make these inquiries. He denied speaking to Mr. H.S. at all in October 2013.

[13] After Ms. S.R.E. completed her statement, PC Perilli and Marsh drove her to H[…] and waited with her while the locks on the doors were changed. At approximately 2:36 in the afternoon, Mr. H.S. telephoned Ms. S.R.E.. After a brief conversation with her, she passed the phone to PC Perilli. PC Perilli testified that he gave Mr. H.S. the name and phone number of DC Emms at 42 Division Criminal Investigation Bureau and told him to report there. Mr. H.S. said he would do so in an hour and a half, but then said that he was out of the country. PC Perilli testified Mr. H.S. did not provide any further information about where he was, and nor did he ask him. PC Marsh testified that after the call, PC Perilli tried unsuccessfully to identify the number Mr. H.S. had telephoned from by dialing "*69".

[14] DC Cracknell was on duty at the Family Violence Unit of 42 Division on October 16, 2013. Prior to DC Emms completing his shift that day, he briefed DC Cracknell on the investigation and asked her to complete the paperwork for a warrant in the first instance for the arrest of Mr. H.S..

[15] DC Cracknell testified that approximately 2:58 p.m. that day, Mr. H.S. telephoned the Unit and spoke to her about these charges. Mr. H.S. told her he was in the United States and had been there for the past three weeks. When she asked him about quitting his job, he told her that he was on a leave of absence. DC Cracknell asked Mr. H.S. when he was returning to Canada and he told her he may return in a month or not at all, as he had to figure his life out. She advised Mr. H.S. that charges were pending and that a warrant would be issued for his arrest, to which Mr. H.S. responded, "so be it".

[16] Following that conversation, DC Cracknell made several telephone calls to inquire what steps could be taken to arrest Mr. H.S.. First, she called Citizenship and Immigration Canada and was advised that Mr. H.S. was a "landed immigrant". She next telephoned Canada Border Services at Pearson International Airport and was advised that Mr. H.S. had a Canadian passport. She asked them if they could flag his passport in case he was still in the country and tried to leave, but was advised that they only track entry into Canada, not departures.

[17] DC Cracknell then called the Intelligence Unit of the Toronto Police Service because they deal with Interpol and extraditions from foreign countries. She was advised that unless she knew exactly where Mr. H.S. was, they could not start an extradition process.

[18] DC Cracknell testified she completed the paperwork for the arrest warrant, which was obtained on October 17, 2013. She updated the Criminal Information Processing System to reflect a Canada-wide warrant for Mr. H.S.'s arrest, so that no matter where in Canada he returned, he could be arrested for these charges. She had no further dealings with this case after that.

[19] Mr. H.S. provided an affidavit and was cross examined in relation to this application. He is a Nicaraguan national, became a landed immigrant in 1996 and a Canadian citizen in 1999. He has dual citizenship with Canada and Nicaragua. He and the complainant were in a common-law relationship for about 20 years. He has two children with the complainant and three older children from a prior relationship, one of whom resided with Ms. S.R.E.. His mother and three sisters reside in the greater Toronto area.

[20] Mr. H.S. left Canada on September 22, 2013 to move to Nicaragua. According to Mr. H.S., one of his sisters drove him to Buffalo, New York and he flew from there to Nicaragua. He testified he flew on his Canadian passport which was issued on March 15, 2013. This passport bears an entry stamp from Nicaragua dated September 23, 2013, but no stamp from US Homeland Security to indicate he was in the United States at any time in September of 2013.

[21] Mr. H.S. obtained a Nicaraguan passport on October 28, 2013. He remained in Nicaragua and lived at his mother's house in Managua until his return to Canada on April 5, 2016.

[22] Mr. H.S. confirmed that when he was in Canada, his cell number was [phone number 1], but he stopped using this number when he moved to Nicaragua. He set up an internet VoIP number, [phone number 2], and used this number to contact his family in Canada, including his 13 year old daughter who lived with Ms. S.R.E..

[23] Mr. H.S. testified that all of his family members, including the complainant, knew he had moved to Nicaragua. However, he admitted in cross examination that he did not give Ms. S.R.E. his VoIP phone number or tell her that he had moved to Nicaragua. He testified he believed she knew this because she kept in touch with at least one of his sisters. He testified that the complainant would also know he was living in his mother's house in Managua, because they had visited there together on a family trip in 2010.

[24] Mr. H.S. testified that he learned of these charges when he called his daughter on October 16, 2013, the day of her birthday. He had used his VoIP number to make the call. After a brief conversation with his daughter and the complainant, a person who identified himself as a police officer told him that Ms. S.R.E. had reported that he had sexually assaulted her. He was told to call a detective at 42 Division to discuss the situation further.

[25] According to Mr. H.S., he telephoned 42 Division the next day, on October 17, 2013, and spoke with DC Emms, a male detective. He denied speaking to DC Cracknell who is a female detective. Mr. H.S. testified that during this conversation, he told DC Emms that he had moved to Nicaragua and disclosed his VoIP number. He denied telling DC Emms that he was in the United States, only that he had travelled through there to fly to Nicaragua. He testified that DC Emms did not use the word "warrant", but told him he would be charged with these offences and that the police wanted to arrest him. He testified that DC Emms told him to contact the police about these charges whenever he returned to Canada, either "this year or in ten years".

[26] Over the next three and a half years, Mr. H.S.'s relationship with his two youngest children deteriorated. He focused on his life in Nicaragua. He decided to return to Canada to try to reconnect with his children and to address these charges. He was arrested at Pearson International Airport on his return to Canada on April 5, 2017.

[27] I reject Mr. H.S.'s testimony regarding the supposed telephone conversation with DC Emms on October 17, 2013. Mr. H.S. denied speaking to a female officer, testifying he spoke only with DC Emms, a male detective. DC Emms strongly denied this and has no notes of such a conversation. He testified that as the officer in charge of the case, Mr. H.S.'s location was of great concern to him for the safety of the complainant. I am satisfied that if Mr. H.S. had spoken to DC Emms and told him his location, DC Emms would have made a note of it and remembered it. I am satisfied that no such conversation took place. I also reject Mr. H.S.'s testimony that he told any police officer that he was in Nicaragua or that he disclosed his VoIP telephone number.

[28] I prefer and accept the evidence of DC Cracknell regarding her telephone conversation with Mr. H.S. on October 16, 2013. I found her to be a credible and reliable witness. She was tasked with obtaining a warrant in the first instance for Mr. H.S.'s arrest. His location was a key to this task and she made contemporaneous notes during and after their telephone conversation. In these circumstances, it is highly unlikely that she would be mistaken about what Mr. H.S. said regarding his whereabouts or his contact information. I accept her evidence that Mr. H.S. told her he had been in the United States for the past three weeks.

[29] I also accept DC Cracknell's evidence that Mr. H.S. was ambiguous about when or whether he would return to Canada. Based upon what he told her, it was reasonable for her to think that he might return to Canada at some point. This conclusion is supported by Mr. H.S.'s own evidence under cross examination that when he left Canada, he did not in fact know how long he would be away. Although he swore in his affidavit that in the summer of 2013 he had discussed with his family his intentions to relocate to Nicaragua, he admitted under cross examination that he never told them that he was moving there permanently. He told them the date of his departure but did not share the details of what he would be doing there. He testified that he hoped to "organize something", but was evasive about what exactly he was organizing or how he was employed in Nicaragua. He also admitted that he did not quit his job with G[…] prior to leaving Canada and waited several weeks after his arrival in Nicaragua before terminating his employment.

[30] I did not find Mr. H.S. to be a trustworthy or reliable witness. He made several assertions in his affidavit which, upon cross examination, did not stand up to scrutiny. Significantly, he swore that the complainant knew he was in Nicaragua. However, on cross examination, he admitted that prior to September 2013, he frequently left home without advising Ms. S.R.E. of where he was staying; he left Canada on September 22, 2013 without telling Ms. S.R.E. where he was going; he never told her he was moving to Nicaragua; he never gave her his VoIP telephone number; he never gave her his address in Nicaragua; and he would only call his son and daughter when he was certain that they were away from H[…] as he did not want to speak to the complainant.

[31] Mr. H.S. also swore in his affidavit that he received updates from Ms. S.R.E. regarding their family court proceedings. However, on cross examination he testified that the documents were delivered to him by an aunt and were in an envelope with only his name and no address on it. This suggests that Ms. S.R.E. did not in fact know where he was.

[32] I do not accept Mr. H.S.'s assertion that his family members told Ms. S.R.E. of his location in Nicaragua. There is no evidence about this from his family members or Ms. S.R.E.. One of his sisters may have been in contact with the complainant, but there is no admissible evidence of what they discussed.

[33] Mr. H.S. also testified that his family members knew where he was and would have told the police if they contacted them. Again, there is no admissible evidence from his family members about what they would or would not have said to the police. On the other hand, Mr. H.S. testified that his family did not believe the accusations against him and thought that the complainant had ruined his life. In that context, it is difficult for me to accept Mr. H.S.'s assumptions that his family would have cooperated with the police to disclose his whereabouts.

[34] I do not accept Mr. H.S.'s evidence that he did not know there was an arrest warrant for him in relation to these charges until he was arrested at Pearson International Airport. In his affidavit he swore that he learned from DC Emms in October 2013 that he would be charged with these offences and that the police wanted to arrest him. I have already found as a fact that this conversation occurred on October 16, 2013 with DC Cracknell. I accept DC Cracknell's evidence that Mr. H.S. was aware of the charges and understood that he would be arrested upon his return to Canada. Whether or not she used the word "warrant" is irrelevant. I reject Mr. H.S.'s evidence that he was told only to "report" to police upon his return.

[35] I accept the Crown's submission that between October 2013 and April 5, 2017, Mr. H.S. actively avoided being found by Canadian authorities. I base my conclusion on the following evidence:

[36] First, he misled DC Cracknell regarding his whereabouts in their conversation of October 16, 2013, claiming to be in the United States, when he was in Nicaragua.

[37] Second, he never told his common-law spouse, the mother of his children, where he was living. He testified that after he became aware of these charges, he never spoke to Ms. S.R.E. and took no steps to notify her of his location. Even if I accept his evidence that he was told by PC Perilli to stay away from the complainant, this does not explain why he would not have taken steps to at notify her of his location. The fact that he did not, suggests that he did not want her to know.

[38] Third, it is evident from his expired and current Canadian passports that prior to September 2013, Mr. H.S. was a frequent traveler to the United States and Central America. Yet these passports also establish that he never left Nicaragua between September 23, 2013 and April 5, 2017. Mr. H.S. was evasive when questioned about why he did not return to Canada, even for a short time to visit his family, which he claimed to have been close to. His lack of travel is also inconsistent with his testimony that he had plans to establish an import/export business between Canada and Nicaragua.

[39] Four, Mr. H.S.'s explanation of why he obtained a Nicaraguan passport on October 28, 2013 is similarly unsatisfactory and not worthy of belief. He testified that he obtained the passport to avoid paying a monthly visitor's fee. Yet he admitted that as a citizen of Nicaragua, all he needed was his citizenship card, which he obtained prior to applying for his Nicaraguan passport.

[40] On all of the evidence, I am satisfied that the Applicant knew there was an outstanding warrant for his arrest on these charges. He did not tell the police or the complainant where he was residing to avoid detection. He did not travel outside of Nicaragua to avoid being arrested. He chose to return to Canada on April 5, 2016 to face these charges knowing he would be arrested.

Applicable Legal Principles and Analysis

[41] Section 11(b) of the Canadian Charter of Rights and Freedoms guarantees the right of accused persons "to be tried within a reasonable time". The Supreme Court of Canada in R. v. Jordan, supra, para. 105, set out a new framework for determining whether delay in a case is reasonable.

105 The new framework for s. 11(b) can be summarized as follows:

• There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.

• Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown's control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case's complexity, the delay is reasonable.

• Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.

• For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties' reliance on the previous state of the law.

[42] The first step in this framework entails calculating the total delay from the charge to the actual or anticipated end of trial: Jordan, para. 60. In this case, an information was sworn against Mr. H.S. on October 17, 2013. The anticipated end of the taking of evidence at trial is March 6, 2018, making the total delay approximately 52.5 months.

[43] After the total delay is calculated, delay attributable to the defence must be subtracted (Jordan, para. 60). Defence delay is divided into two components: delay waived by the defence; and delay that is caused solely by the conduct of the defence (Jordan, paras. 61 and 63). The result, or net delay, must then be compared to the applicable presumptive ceiling. Net delay that exceeds the ceiling is presumptively unreasonable. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances (Jordan, para. 68).

[44] The Supreme Court of Canada in R. v. Cody, 2017 SCC 31, explained what is meant by defence delay.

28 In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from "its own delay-causing action or inaction" (Jordan, at para. 113). It applies to any situation where the defence conduct has "solely or directly" caused the delay (Jordan, at para. 66).

29 However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, at para. 65).

30 The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straight-forward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that – examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64).

33 As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay.

[45] The Crown concedes that once the Applicant was arrested, he did not waive any period of delay. However, Crown counsel argues that the nearly 42 month period when the Applicant was in Nicaragua is defence delay that must be deducted from the total delay, bringing the net delay to only 11 months, well below the presumptive period allowed in the framework.

[46] Counsel for the Applicant argues that this period is not attributable to the defence as it is the state's responsibility to bring an accused to trial. There is no obligation on an accused to assist the state to bring him or herself to trial. He submits that this period must count towards the presumptive ceiling set by the Supreme Court of Canada.

[47] In support of this argument, the Applicant relies on R. v. MacIntosh, 2011 NSCA 111, affirmed by the Supreme Court of Canada at 2013 SCC 23. In that case, the accused lawfully moved to India prior to being charged with sexual assault. He became aware of the charges after he moved and told police he had no intention of returning to Canada. The Nova Scotia Court of Appeal held that in the context of a right to trial within a reasonable period of time, there was no duty on an accused to bring him or herself to trial. It held that the motions judge erred in wrongly placing an onus on the accused to turn himself in to the authorities. There were lengthy periods where the authorities, despite knowing exactly where the accused was located, did nothing to pursue Mr. MacIntosh. In the circumstances, it found that the state did not make a diligent effort to bring the accused to trial and stayed the charges against him.

[48] R. v. MacIntosh is distinguishable from the facts of this case. An important consideration in that case was that the police knew exactly where the accused was, but did not act diligently to extradite him to Canada to face trial on the charges. The court recognized this as a critical factor. It cited with approval the decision of the Ontario Court of Appeal in R. v. White, which held that where an accused knows that charges are outstanding, yet refuses to return to Canada, or notify the authorities of his whereabouts, the resulting delay is attributable to the defence, unless the authorities knew the accused's whereabouts and deliberately delayed apprehending him or otherwise failed to bring the accused to trial.

[49] Similarly, in R. v. Burke, [2017] ONSC 5675, Justice Thoburn held that the delay elapsing from the time the accused left the country until the police in Canada were able to extradite him to face charges was defence delay. However, once the police knew where the accused was and extradition became an available option, the calculation shifted and any delay after that was counted as Crown or state delay.

[50] R. v. White, supra, was also cited with approval by the British Columbia Court of Appeal in R. v. Singleton, 2014 BCCA 232. In that case, the court affirmed that there is no obligation on an accused to bring him or herself to trial. However, it held that in determining whether there has been a breach of the accused's right to trial within a reasonable time, the inquiry should focus on the state's conduct in determining whether, in the circumstances, it acted reasonably in locating and bringing the accused to trial. This must be considered contextually, taking into consideration the investigative avenues available to the authorities at the relevant time (see too, R. v. Arsenault, 2013 ONSC 5675; R. v. Burke, supra).

[51] In R. v. Singleton, the police had information that the accused was in the Nocona, Texas, however, his sister and local authorities told them that he had left and they did not know where he was. The police took no further action to locate the accused for the next 4 years. The British Columbia Court of Appeal held that the police action in the circumstances was reasonable, observing that the United States is a large country and "without any idea of where to look is akin to trying to find a needle in a haystack": (Singleton, para. 99).

[52] In the case at bar, the police did not know of Mr. H.S.'s location. They had no information that he was in Nicaragua. Indeed, the Applicant misled the police about his whereabouts. There is no evidence that the complainant knew he was in Nicaragua. To the contrary, all of the evidence points to her not knowing his location. Even if the police should have known the Applicant was in Nicaragua because he was born there, there is no evidence that they could have discovered his exact location in that country.

[53] The court in Singleton held that the Crown does not bear the burden of establishing that hypothetical steps police may have taken would have failed to locate the accused. It concluded that this would result in an impossible burden being placed on the Crown. "The Crown would first have to prove what the police might reasonably have done at any particular time to attempt to locate an accused and then prove that doing those things would not have made a difference" (paragraph 100).

… in a case where an accused who was located in a foreign country pleads, in effect, "the police could have found me sooner", I consider it appropriate to place the burden of establishing that fact on the accused. The police should not be faulted for failing to pursue a possible avenue of inquiry unless it is shown that doing so would have provided useful information (Singleton, paragraph 101).

[54] The Applicant argues that even if the police did not know where he was, they did absolutely nothing to try to locate him and were simply content to wait for him to return to Canada. In support of this argument, the Applicant points to the evidence of DC Emms wherein he admitted that after the arrest warrant was issued, he considered the case to be inactive. DC Emms conceded that it would not have been difficult to follow up with the complainant over the years to inquire if she had received any new information of Mr. H.S.'s whereabouts. He also admitted that it would not have been difficult to inquire if he had family in the area who might know where he was.

[55] This argument is based on speculation that these potential avenues of inquiry would have borne fruit. As stated previously, there is no evidence that the complainant knew of the accused's location and there is no evidence that other family members would have cooperated with the police and disclosed his location. The Applicant has failed to establish that these inquiries would have provided useful information.

[56] I am satisfied that in the circumstances of this case, the police acted with due diligence to apprehend Mr. H.S.. PC Cracknell's reasonably inquired of Canada Border Services and the Toronto Police Intelligence Unit what steps could be taken. She was advised that without knowing Mr. H.S.'s exact location, extradition was not possible. The police obtained a Canada-wide arrest warrant and updated CPIC to ensure that no matter where, how or when Mr. H.S. entered Canada, he could be arrested.

[57] In the Jordan and Cody decisions, the Supreme Court of Canada recognized that the right to a trial within a reasonable time requires an analysis of both state and defence conduct in determining the reasonableness of the delay. The court confirmed that an accused person must not be permitted to benefit from his or her own delay-causing action or inaction. As stated by Justice Moldaver in Jordan at paragraph 21:

Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole. Section 11(b) was not intended to be a sword to frustrate the ends of justice (Morin, at pp. 801-2).

Conclusion

[58] In the circumstances of this case, I find that the period of nearly 42 months when the Applicant was in Nicaragua is delay caused solely by him and must be deducted from the total delay. This period of delay is solely and directly caused by Mr. H.S. choosing to remain abroad, knowing he was wanted for these charges in Canada. The delay was not caused by any legitimate defence conduct taken to respond to the charges. To the contrary, Mr. H.S. was prepared to live his life in Nicaragua and delay dealing with these charges until he was ready to return to Canada.

[59] The Applicant in this case cannot complain that the state did not do enough to bring him to trial. He was content to remain in Nicaragua, knowing that there were charges outstanding in Canada. The police did not cause any of this period of delay and acted with due diligence to bring the accused to trial.

[60] When the nearly 42 months is deducted from the total delay, the net delay is approximately 11 months, well below the Jordan ceiling for trials in the Ontario Court of Justice. It is not necessary for the purpose of this Application to determine whether the delay incurred while Mr. H.S. was abroad is an exceptional discrete event that was not reasonably foreseen or avoidable. The Applicant does not argue that the net delay of 11 months is unreasonable.

[61] On all of the evidence, the Applicant has failed to show that his right to be tried within a reasonable time was breached. The application is dismissed.

Released: February 20, 2018

Signed: "Justice M. Speyer"