Court File and Parties

Ontario Court of Justice

Date: 2018 June 22

Court File No.: BRAMPTON 14-13231, 14-9027, 17-5140

Between:

Her Majesty the Queen

— and —

Hugh Rea

Before: Justice S. Caponecchia

Heard on: April 6, 2018

Decision made: May 2, 2018

Written reasons for 11(b) Ruling released on: June 22, 2018

Counsel

I. Singh — counsel for the Crown

J. Stone — for the defendant Hugh Rea

CAPONECCHIA J.:

Introduction

[1] Hugh Rea is charged with three counts of breach of probation. He is alleged to have contacted his wife and children in violation of three different probation orders.

[2] The first allegation is alleged to have occurred on July 7, 2014. Information 14-9027 was sworn on July 21, 2017 and a warrant was issued for Mr. Rea's arrest.

[3] Two additional charges arose on October 21, 2014. Another warrant was issued for Mr. Rea's arrest. Information 14-13231 was sworn on October 23, 2014.

[4] Mr. Rea was arrested on all charges on March 11, 2017. He was released on his own recognizance on March 12, 2017. Since being granted bail Mr. Rea's lawyer has appeared on his behalf, pursuant to a designation.

[5] The charges were joined on one Information in June 2017. On October 26, 2017 a trial was set for May 2, 2018.

[6] An 11(b) motion was heard on April 16, 2018. The Crown elected to proceed summarily and both the Crown and defence agreed in advance that the application could proceed in Mr. Rea's absence pursuant to s. 650.01 of the Criminal Code. The Crown called PC Shaidle and PC Sivanolipava to testify about the unsuccessful attempts they made to locate Mr. Rea before seeking warrants for his arrest. There was no evidence called by either party regarding how Mr. Rea came to be arrested in March 2017. However, I did learn that Mr. Rea had an outstanding warrant for his arrest. Pursuant to s. 650.01(3)(b) I ordered Mr. Rea to attend on April 30, 2018 for the 11(b) decision. He did not attend and defence counsel confirmed that Mr. Rea was aware that his attendance was required. Defence counsel indicated that it was his understanding that Mr. Rea was travelling from western Canada by bus. I issued a discretionary bench warrant returnable to the trial date.

[7] On the day of trial, May 2, 2018, Mr. Rea failed to appear and a warrant was issued for his arrest. His counsel was removed from the record. The Crown's witnesses were present and the case was ready to proceed. I dismissed the 11(b) motion. These are my reasons for doing so.

RESULT

[8] The s. 11(b) application is dismissed for two reasons:

1. Failure to Appear at Trial

Mr. Rea's failure to attend his trial date on May 2, 2018 is inconsistent with a desire to exercise his right to a trial within a reasonable time. In Jordan Justice Moldaver stated:

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. (Jordan para. 21).

In this case the trial date was set on October 26, 2017. Mr. Rea had ample time to arrange his attendance by bus or otherwise. In the absence of any other evidence I conclude that he is disinterested in exercising his 11(b) rights.

2. Net Delay Below Presumptive Ceiling

I calculate the total delay in this case as 1382 days, or 3 years, 9 months and 12 days. I find the net delay to be 10 months and 18 days based on the following deductions:

• 100 days of defence delay
• 964 days qualifies as a discrete event. This covers the time between July 21, 2014 — when the first information was sworn — and March 11, 2017, when Mr. Rea was arrested.

The net delay is below the Jordan ceiling and the defence has not persuaded me that a stay is in order. I am not satisfied the defendant took meaningful steps which demonstrate a sustained effort to expedite the proceedings. I am also not satisfied the case took markedly longer than it reasonably should have. Nor do I find this case to be a rare transitional case which qualifies for a stay under the previous Morin regime.

Analysis on Net Delay Calculation

[9] To decide this issue, I must follow the framework set out in Jordan. In Jordan the Supreme Court of Canada set out a presumptive ceiling of 18 months for cases such as this being tried in the Ontario Court of Justice.

Step 1 – Calculate the Total Delay

[10] A judge is to calculate the total delay, from the date of the charge to the end or anticipated end of the trial.

a) Position of the Parties

[11] The Crown's position is the delay should be calculated starting on the day Mr. Rea was arrested, March 11, 2017. The Crown makes two arguments in support of his position:

i. The interests described in Jordan are not engaged when the accused is not aware of the charges he faces. The accused is not being held in pre-trial custody or forced to live under stringent bail conditions. The accused suffers no anxiety or stigma. When the evidence is non-perishable, the passage of time does not cause prejudice. The Crown relies on the cases of R. v. Millar [2016] BCSC 1887 and R. v. Magiri, 2017 ONSC 2818, [2017] O.J. No. 2504.

ii. The Crown also invites the court to assume that Mr. Rea chose to avoid these charges because he presented no evidence to suggest otherwise. The Crown relies on the cases of R. v. Burke, [2017] OJ No. 2792 (SCJ) and R. v. Singleton, 2014 BCCA 232, [2014] BCJ No. 1213 (C.A.).

[12] Defence counsel argues there is insufficient evidence to find that Mr. Rea was aware of the charges and deliberately evaded authorities. The defence also takes the position that the s. 11(b) "clock" starts ticking on July 21, 2014, when the act of swearing the first information took place and there is no onus on the accused to surrender. There is some support for the defence positions in R. v. MacIntosh, 2011 NSCA 111, affirmed by the Supreme Court of Canada at 2013 SCC 23 and R. v. Kalanj, [1989] 1 S.C.R. 1594.

b) Finding – Step 1

[13] I decline to assume, as the Crown invites me to do, that Mr. Rea was aware of the charges as of July 2014. There is simply insufficient evidence upon which to safely infer Mr. Rea was aware of the charges or the warrants for his arrest prior to March 11, 2017. The cases the Crown relies on are distinguishable. In R. v. Burke, there was evidence that the accused was told about the charges and left the country. In R. v. Singleton, the accused left for the U.S.A. knowing he was facing income tax charges, was subsequently told he was facing criminal charges and stayed in the U.S.A.

[14] I also find that I am bound by Kalanj with respect to when the "clock starts ticking" for the purposes of calculating delay. In Kalanj, the Supreme Court of Canada held that the meaning of the term "charged with an offence" in s. 11(b) of the Charter refers to the time at which an Information is sworn. Kalanj was cited with approval by the Ontario Court of Appeal more recently in 2013:

It is well-settled that a person is "charged with an offence" within the meaning of s. 11 of the Charter, when an information is sworn alleging an offence against him or her: R. v. Kalanj, [1989] 1 S.C.R. 1594, at p. 1607. Time reckoning for the purposes of claims of infringement of the right to be tried within a reasonable time commences with the laying of the information and continues until the completion of the trial. (R. v. E. (K.), 2013 ONCA 175, 303 O.A.C. 96, para. 20)

[15] I acknowledge that the decisions urged upon me by the Crown in Millar and Magiri are very persuasive. However I am of the view that I am bound to follow Kalanj. Justice Blacklock reluctantly came to the same conclusion, as have other courts.

[16] Accordingly, I find that the calculation of the total delay in the case starts with the swearing of the first Information on July 21, 2014 and ends with the trial date, May 2, 2018. The total delay therefore is 1382 days, or 3 years, 9 months and 12 days.

Step 2 – Subtract Defence Delay

[17] Defence delay is subtracted from the total delay. Defence delay is comprised of two components. The first component is delay that is a clear and unequivocal waiver of the accused's s. 11(b) rights. The second component is delay caused solely by the conduct of the defence, including unavailability for trial when the court and the Crown are ready to proceed.

a) Position of the Parties

[18] The Crown takes the position the defence implicitly or explicitly waived 100 days of delay.

[19] The defence position is they explicitly waived only 21 days, October 5 to 26, 2017.

b) Findings – Step 2

[20] I find the defence either explicitly or implicitly waived 35 days of delay between September 21, 2017 and October 26, 2017. By September 21, 2017 disclosure was complete, a Crown resolution meeting took place and a judicial pre-trial was conducted. Instead of setting a trial date, the defence sought three adjournments on September 21, 28 and October 5, 2017. On September 21 neither Mr. Rea nor his counsel appeared. Duty Counsel adjourned the matter to September 28. Defence counsel appeared on September 28 but did not set a date for trial. On October 5 defence counsel indicated on the record that he was awaiting final instructions from his client before setting a date and explicitly waived 11(b). Defence ultimately set a trial date on October 26, 2018.

[21] I also find that the defence responsible for the following additional 65 days of delay:

i. 15 days between September 6, 2017 and September 21, 2017: The first available JPT date agreeable to the court and Crown was September 6, 2017. The defence was not available. The next agreeable date for the Court, Crown and defence was September 21, 2017.

ii. 50 days between March 14, 15, 2017 and May 2, 3, 2018: On October 26, 2017 the court offered a trial date on March 14, 15, 2017. The Crown was available, the defence was not. The next day offered and accepted by all parties was May 2, 3, 2017.

[22] Deducting a total of 100 days for defence delay, the net delay in this case 1282 days, or 3 years, 5 months, 29 days.

Step 3 – Compare Net Delay to Presumptive Ceiling

[23] The net delay in this case after deducting defence delay is above the presumptive ceiling of 18 months for cases tried in the Ontario Court of Justice.

Step 4 – Net Delay Exceeds Presumptive Ceiling – Exceptional Circumstances – Discrete Event

[24] If the net delay exceeds the presumptive ceiling, the delay is presumptively unreasonable. If the Crown can establish there is delay attributable to exceptional circumstances, that delay should be subtracted from the net delay.

[25] To rely on such circumstances, the Crown needs to show that it took reasonable steps to avoid and address the problem where it was possible to have done so. It need not prove that the steps taken were ultimately successful. Nor is the Crown required to "exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement." (R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para 54)

a) Position of the Parties

[26] The Crown position is that because Mr. Rea was of no fixed address and the police made reasonable efforts to locate him, the delay between July 21, 2014 and March 11, 2017 should be categorized as a discrete event.

[27] The defence position is the police should have done more. The defence also takes the position that if Mr. Rea was living out of the province, the state was required to go to the expense of bringing him back to Brampton, Ontario.

b) Finding – Step 4 – Discrete Event – Exceptional Circumstances

[28] In this case I find that the Crown has established there are exceptional circumstances arising from the fact that Mr. Rea could not be located when the allegations arose.

[29] In Jordan the court indicated that the list of exceptional circumstances is not closed and they need not be "rare or entirely uncommon." The court also contemplated a discrete event qualifying as exceptional circumstance in a somewhat analogous situation, in cases with an international dimension requiring the extradition of an accused from a foreign jurisdiction.

[30] Prior to Jordan in R. v. MacIntosh, 2011 NSCA 111, affirmed by the Supreme Court of Canada at 2013 SCC 23, 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. The motions judge was found to have erred in wrongly placing an onus on the accused to turn himself in to the authorities. The accused had 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. There were lengthy periods where the authorities, despite knowing exactly where the accused was located, did nothing to pursue Mr. MacIntosh. The court found that the state did not make a diligent effort to bring the accused to trial and stayed the charges.

[31] In MacIntosh the court relied on the Ontario Court of Appeal decision in R. v. White, [1997] O.J. No. 961. In White the court 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.

[32] White was also cited with approval by the British Columbia Court of Appeal in R. v. Singleton, 2014 BCCA 232. Mr. Singleton was living in the U.S.A. when he was charged in 1997. Police had information connecting the accused to a city in Texas but were told that that the accused had moved. The officer in charge of the case turned his attention to another file, leaving the case untouched for four years. When the same officer returned to the case, he was able to track down the accused through his daughter in 2004. The accused was extradited two years later and convicted at trial. He argued that the case should have been stayed because his s. 11(b) rights had been breached. The main defence argument was the four-year period of inactivity where no effort had been made to locate him. The 11(b) application was dismissed.

[33] Mr. Singleton's appeal was also dismissed. The British Columbia Court of Appeal, recognized that trying to locate someone in a country as vast as the U.S.A. was a monumental task. Frankel J.A. pointed out:

[A]lthough the police could have located Mr. Singleton earlier had they known where to look, they did not know where to look until [the officer] spoke with Ms. Singleton. There is nothing in the evidence to suggest that Mr. Singleton could have been located before [the officer] learned of his possible connection to Peck, Kansas. (R. v. Singleton, 2014 BCCA 232, para. 99)

[34] Significantly, Frankel J.A. discussed where the burden of proof lay when the question of whether police inquiries might have led to a speedier discovery:

I appreciate that in R. v. Smith, [1989] 2 S.C.R. 1120 at 1132-1133, Mr. Justice Sopinka stated that although the ultimate or legal burden of proof is on the accused who raised s. 11(b) of the Charter, it is seldom necessary to evaluate the reasonableness of any delay on the basis of the burden of proof. As well, he indicated there will be circumstances where an evidentiary or secondary burden will be placed on the Crown, for example, to explain why the Crown requested an adjournment. However, 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. (R. v. Singleton, 2014 BCCA 232, at para. 101)

[35] Since Jordan, at least four courts have considered the issue of pre-arrest delay and reasonable steps to locate an accused.

[36] In R. v. Magiri, 2017 ONSC 2818, [2017] O.J. No. 2504, the accused was arrested 10 months after an Information was sworn. Mr. Magiri was out of the country. Justice McWatt accepted that the police made significant and diligent efforts to locate Mr. Magiri and found that the pre-arrest period qualified as a "discrete event."

[37] In R. v. H.S., [2018] O.J. No. 1338, the pre-arrest delay was attributed to the defence in circumstances where the police did not know the accused's location. They had no information that he was in Nicaragua and the accused had misled the police about his whereabouts. There was also no evidence that the complainant knew he was in Nicaragua. To the contrary, all the evidence pointed to her not knowing his location. Even if the police should have known H.S. was in Nicaragua because he was born there, there was no evidence that they could have discovered his exact location in that country.

[38] In R. v. Thind, [2018] O.J. No. 1331 (S.C.J.) the delay between the swearing of the information and the accused's arrest was classified as a discrete event in circumstances where Mr. Thind was in Australia. The Crown did not initiate extradition proceedings. The RCMP tried to make contact with Mr. Thind by leaving him telephone messages, as well as with his mother. The police also attempted to contact a specific university in Australia in an effort to ascertain his whereabouts. However privacy laws in Australia prohibited the disclosure of this information. The RCMP arranged for Mr. Thind to be flagged at the boarder so that he could be arrested when he returned to Canada. Justice Coroza found that while the RCMP did not take every conceivable step to apprehend the accused, they acted with reasonable diligence and in such circumstances the delay between the information being sworn and Mr. Thind's arrest was classified as discrete event.

[39] By contrast to the findings in Magiri, H.S., and Thind, in R. v. Sundralingam, 2017 ONCJ 400, [2017] O.J. No. 3097, Justice Blacklock specifically declined to find the delay between the Information being sworn and arrest qualified as exceptional circumstances because he found the police did not act with reasonable diligence in trying to locate the accused within Canada. The police had clear information from the complainant as to the accused's potential whereabouts. She provided the police with two separate addresses for the accused, one in Brampton and one in Calgary and at least one phone number. The police did nothing with this information. The only step they took was to put a warrant on CPIC. The accused knew nothing about the fact that the police were considering a charge until the warrant was executed on October the 16th, 2016, approximately two years and two months after the alleged events. The accused's arrest was triggered when he was travelling through Lester B. Pearson International Airport on route to Calgary, returning from Sri Lanka, and the outstanding warrant came to the attention of the Canadian border officials.

[40] With the exception of Sundralingam, the aforementioned cases all deal with individuals who are outside Canada. The Supreme Court of Canada held in Jordan at para. 71, that it will be for the trial judge, relying on his/her good sense and experience, to determine whether a particular event is properly determined to be exceptional. In this case, as in Sundralingam, to qualify as a discrete incident the police were required to act with reasonable diligence to try and locate Mr. Rea within Canada. I find that PC Shaidle and PC Sivanolipava did so.

[41] PC Shaidle testified she received a complaint from Mr. Rea's former partner on July 21, 2014. The accused is alleged to have messaged his kids using Skype while being prohibited from doing so as a condition of probation. PC Shaidle made the following attempts to locate the Mr. Rea in order to bring him before the courts:

• On more than one occasion PC Shaidle tried reaching Mr. Rea by calling the phone number provided by the complainant. PC Shaidle could not recall if she was able to leave a message;
• She checked Peel Police records to see if she could locate an alternative phone number for Mr. Rea. The police had the same number on file that was provided by the complainant;
• She checked Peel Police Records for any reports of recent contact with Mr. Rea which contained a current address. She did not find any;
• She contacted Waterloo police to conduct a residence check at Mr. Rea's last known address. Waterloo police reported he was not residing at his last known address;
• She checked two local shelters in Peel;
• She checked two hospitals in Peel;
• The complainant indicated that she recognized the background in the photo the accused was using on Skype. It looked like his family's house in Edmonton. PC Shaidle contacted the Edmonton Police to ask them to check their records for a current address for Mr. Rea. They only located an outdated address from 2006;
• As Mr. Rea was on probation, PC Shaidle contacted Corrections to find out if they had any additional information that could lead to Mr. Rea's whereabouts. They did not.
• She arranged for a warrant for Mr. Rea's arrest;
• In cross-examination PC Shaidle acknowledged she did not talk to Mr. Rea's children to find out if they had any information about their father's whereabouts. The children were not at home and she chose not to disrupt them at school. PC Shaidle acknowledged that she did not check the jails to see if Mr. Rea was in custody. The officer believed she checked if Mr. Rea had a driver's licence with a current address but did not make a note of doing so. The officer also testified she believed the complainant provided all the information she had to give.

[42] PC Sivanolipava testified that he received a second complaint from Mr. Rea's former partner in October 2014. Mr. Rea allegedly sent a letter to her sister. The envelope contained some materials he wanted his kids to have. He also wanted to know where his kids were living. The complainant told the officer she believed Mr. Rea was in Edmonton. Given what he learned, PC Sivanolipava took the following steps to locate Mr. Rea:

• He ran police computer checks and learned that a warrant was already outstanding for Mr. Rea since July. He contacted PC Shaidle to see if she had any further information;
• He contacted Mr. Rea's probation officer to ascertain if s/he had an up to date address for Mr. Rea. Probation was only able to report that Mr. Rea was in Edmonton, they had no address for him;
• The officer arranged for another warrant for Mr. Rea's arrest. His understanding was that if an officer in Ontario came into contact with Mr. Rea he would be arrested and brought before the courts to face both sets of charges;
• In cross-examination PC Sivanolipava acknowledged he did not contact the complainant's sister. He said he did not do so at the request of the complainant. The officer also acknowledged there was a return address on the envelope that was sent to the complainant's sister. However, according to the contents of the letter Mr. Rea was not residing at the address on the envelope. The letter also indicated a phone number and email address where Mr. Rea could be reached. PC Sivanolipava acknowledged that he didn't try and reach Mr. Rea using the phone number or email address and this was an oversight on his part. He explained that it was busy shift and he was going from call to call that day.

[43] I accept the evidence of both officers and am satisfied that in the circumstance of this case they both acted with reasonable diligence in trying to locate Mr. Rea and bring him before the court. While they could have done more, the standard is not one of perfection. Moreover, there is no evidence that had the police taken additional steps they would have been any more successful in bringing Mr. Rea before the courts.

Step 5 – Remaining Delay Exceeds Presumptive Ceiling – Exceptional Circumstances – Complex Cases

[44] Neither party in this case suggests that Mr. Rea's case is complex.

Step 6 – Remaining Delay Below Presumptive Ceiling

[45] Where the remaining delay is less than the presumptive ceiling, the defence may demonstrate that it was nonetheless unreasonable. The defence must establish two things: (1) they took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. The granting of stays for cases that fall below the presumptive ceilings should only be done in the clearest of cases. The defence has satisfied neither requirement in this case.

[46] The defence action in delaying setting a trial date for 35 days after the judicial pre-trial is not consistent with taking sustained efforts to expedite the proceedings.

[47] Nor am I satisfied that this case took markedly longer than it reasonably should have. Had Mr. Rea attended for his trial on May 2, 2018 his case would have been completed 10 months and 18 days after he was arrested. Between his arrest on March 11, 2017 and September 6, 2017 Mr. Rea had a bail hearing, received disclosure, had a Crown resolution meeting and a judicial pretrial. When the defence was ready to set a date for trial on October 26, 2017, he obtained a trial date within six months. An earlier trial date in March was offered but the defence was not available.

Step 7 – Transitional Cases where matter commenced prior to Jordan

[48] Where, as in this case, the charges were instituted prior to Jordan and the total net delay falls below the ceiling, the application of the new framework must be applied contextually and flexibly, taking into account whether the parties justifiably relied on the pre-Jordan state of the law, which did not require defence initiative, and which accepted institutional delay as a justification.

[49] Where the remaining delay falls below the presumptive ceiling, the applicant bears the onus of showing the delay is unreasonable. A stay of proceedings for cases in which the delay falls below the presumptive ceiling are rare and limited to clear cases.

[50] Mr. Rea has not rebutted the presumption of reasonable delay in this case. He was arrested approximately eight months after Jordan was decided and both the Crown and Defence were required to conduct themselves accordingly. I also find that once Mr. Rea was arrested on March 11, 2017, there was no excessive intake, inherent or institutional delays. There was no evidence of actual or inferred prejudice caused by any of the delay in this case. Therefore I decline to find that this is a rare transitional case which merits a finding that s. 11(b) has been violated.

RESULT

[51] The 11(b) application is dismissed for the reasons indicated.

[52] The defence urged me to find that the state was required to incur the expense of transporting Mr. Rea from Alberta to Brampton. I need not decide this issue because it was never an option that presented itself to Peel Police given Mr. Rea's whereabouts were unknown prior to his arrest on March 11, 2017.

Released: June 22, 2018

Signed: Justice S. Caponecchia