Court File and Parties

Ontario Court of Justice

Date: July 4, 2019

Court File No.: Simcoe 18-764, 19-178

Between:

Her Majesty the Queen Respondent

— And —

Dillon Miller Applicant

Before: Justice A.D. Hilliard

Heard on: June 3 & June 18, 2019

Reasons for Judgment released on: July 4, 2019

Counsel

L. Fritzley — counsel for the Crown

G. Eliany — counsel for the Applicant Dillon Miller

Reasons for Judgment

Hilliard J.:

Introduction

[1] This is an application brought by the defendant, Dillon Miller, requesting a stay of proceedings based on pre-charge delay.

Background

[2] Mr. Miller is charged with possession of property not exceeding $5,000, mischief under $5,000, possession of break-in instruments, stealing a motor vehicle with a value not exceeding $5,000, driving while disqualified, and attempted theft of a motor vehicle.

[3] The following agreed facts were submitted to the court by way of an agreed statement of facts filed in this matter as Exhibit 2.

Agreed Facts

[4] It is alleged that on February 28, 2017 Mr. Miller stole a 1996 Pontiac Sunfire and did damage to a 2003 Chevrolet Trailblazer while attempting to steal it. He is also alleged to have driven a motor vehicle while he was disqualified from so doing.

[5] The offences were reported to police at the time of the events.

[6] On February 28, 2017, Norfolk County OPP were dispatched to the recovered Pontiac Sunfire. Blood was swabbed from the steering wheel and sent to the Centre for Forensic Sciences (CFS) for DNA testing at that time.

[7] Mr. Miller was identified as a suspect on March 3, 2017 with the help of Sgt. Dave Ricker of Six Nations police.

[8] A DNA Crime Scene Index Report was received by Detective Sgt. Lambert on May 4, 2017. It matched the DNA found in this case to other occurrences in southwestern Ontario, but did not provide a suspect's name. Detective Sgt. Lambert assigned PC Tim Wood for follow-up.

[9] CFS notified Detective Sgt. Lambert by email of a Convicted Offender Hit on July 12, 2017. The suspect was identified as Dillon Miller. Detective Sgt. Lambert again emailed PC Wood to follow-up, and notified his then Platoon Sergeants, Sgt. Adams and Sgt. Ferguson on July 21, 2017.

[10] On June 27, 2018, new platoon sergeant, Sgt. Page, began reviewing occurrences that were left outstanding with PC Wood's impending retirement. One of the files was this matter.

[11] PC Tim Wood retired on June 30, 2018.

[12] On July 11, 2018, Sgt. Page sought guidance on how to deal with this case from Detective Sgt. Mike Wilfong, who had replaced Detective Sgt. Lambert as head of the Norfolk County Crime Unit (NCCU).

[13] On July 12, 2018, Detective Sgt. Wilfong advised Sgt. Page to assign another platoon member to write a DNA Warrant for this case and indicated that they could seek the assistance from the NCCU if required.

[14] Due to staffing constraints, it was not until September 5, 2018 that Sgt. Page assigned PC Timmermans, who had just returned to work from a leave of absence, to review the occurrence and consult with the NCCU.

[15] At his next shift on September 20, 2018, PC Timmermans sought help from Detective Cst. Butler of the NCCU.

[16] Detective Cst. Butler offered to take over the case and began his work on September 21, 2018. He wrote the DNA warrant between September 26 and October 6, 2018.

[17] The DNA warrant was with Crown counsel for mandatory review between October 15 and 22, 2018.

[18] The Information to Obtain a Warrant for the Taking of Bodily Substances was sworn on October 22, 2018.

[19] The DNA warrant was authorized on October 24, 2018 and executed on November 2, 2018.

[20] The Information alleging the offences before the Court was also sworn on November 2, 2018.

[21] Mr. Miller was in custody on other charges from April 20, 2017 to November 5, 2018.

[22] Mr. Miller appeared in court in Simcoe on a different matter on April 4, 2018 and regular intervals thereafter until resolution of those charges on July 17, 2018.

[23] Bail was granted for the charges in this matter on November 5, 2018.

[24] CFS reconfirmed the DNA match based on the sample taken under warrant on January 4, 2019.

[25] The trial in this matter is scheduled to proceed on September 19, October 10, and October 22, 2019.

The Evidence

[26] The evidence on the application consisted of an agreed statement of facts setting out the evidence of Detective Sgt. Lambert which was filed with the court as Exhibit 3 on the application, as well as the viva voce evidence of PC Tim Wood, Detective Cst. Jason Butler, and Dillon Miller.

Detective Sgt. Lambert (Agreed Statement of Facts)

[27] The evidence of Detective Sgt. Lambert is that she was the DNA coordinator at the Norfolk County OPP detachment in the summer of 2017, as she was head of the NCCU at that time.

[28] In her role as the DNA coordinator, it was her job to task investigating officers and their platoon sergeants with obtaining DNA warrants once a CFS notification was received by her.

[29] As the DNA coordinator Detective Sgt. Lambert would review the occurrence but always reassign the task to the investigating officer by forwarding the CFS notification by email, copying the platoon sergeant for the officer in charge (OIC).

[30] The DNA coordinator's role ends once notifications are forwarded.

[31] Every police detachment has a different procedure with respect to obtaining DNA warrants after receiving a CFS hit notification.

PC Tim Wood

[32] PC Wood testified that he was the OIC of the investigation that ultimately resulted in the charges laid against Mr. Miller.

[33] He testified that his involvement in this matter began when he responded to an initial report of a stolen vehicle just outside Delhi, Norfolk County, on February 28, 2017.

[34] As part of his investigation, PC Wood testified that he took statements from the witnesses after arriving on scene in response to the call from dispatch.

[35] Later that same day, PC Wood was dispatched to St. John's Road, Norfolk County, in response to a report of an abandoned vehicle left running with the lights off.

[36] Upon arriving at the abandoned vehicle, PC Wood was able to determine that the vehicle matched the description of the stolen motor vehicle that he had received when responding to the initial call referenced above.

[37] PC Wood determined that there was possible forensic evidence in the vehicle – a bloodlike substance was observed on the steering wheel – and he requested that a Scenes of Crime Officer (SOCO) attend at the scene. He stood by with the vehicle to maintain continuity and arranged for the vehicle to be towed to a secure compound when it began to rain to ensure preservation of the evidence.

[38] Once the SOCO arrived on scene, PC Wood completed his notes and returned to the detachment to file his report. He testified that was "pretty much" the end of his involvement in the investigation except for receiving a couple of emails.

[39] PC Wood acknowledged during his testimony that the duties of an OIC is to investigate matters to conclusion.

[40] PC Wood testified that he recalls receiving two emails, the first of which indicated that DNA evidence had been obtained. He could not recall whether that first email identified a suspect.

[41] No follow-up steps were taken by PC Wood. He testified that he was "standing by", as he was under the impression that he would get more information.

[42] A second email was received by PC Wood, the contents of which he could not remember, nor the date on which the email was sent. His evidence was that he gave the email a cursory glance and concluded that someone else would be dealing with it, specifically a member of the NCCU. Again PC Wood did not take any steps or make any inquiries in response to receipt of the second email.

[43] Neither of the emails received by PC Wood were tendered in evidence.

[44] PC Wood agreed that it was his responsibility to follow up on the emails he received and he failed to do so. His evidence was that he assumed someone from the NCCU would be following up on the DNA hit.

[45] Only twice in his entire career, prior to this investigation, had PC Wood ever been involved in an investigation involving DNA evidence – the first incident was in 1997 or 1998 and the second in 2002 or 2003.

[46] PC Wood acknowledged that although Detective Sgt. Lambert was not his immediate superior, as he was not a member of the NCCU, if he was given a direction to take action by Detective Sgt. Lambert he was duty bound to follow that directive.

[47] There was no evidence presented nor did PC Wood indicate in his testimony whether there were any follow-up emails or other inquiries by his Sergeants as to the status of the DNA warrant PC Wood was tasked to prepare.

Detective Cst. Jason Butler

[48] Detective Cst. Butler testified that his first involvement in this matter was on September 20, 2018 when he was approached by PC Timmermans who was requesting assistance in writing a DNA warrant application.

[49] Detective Cst. Butler offered to not only write the DNA warrant application for PC Timmermans but to also take over the investigation in its entirety, which offer was gladly accepted by PC Timmermans.

[50] On September 21, 2018, Detective Cst. Butler commenced a thorough review of the investigation that had been completed to that date.

[51] Detective Cst. Butler's review of the file confirmed that no investigative steps had been taken from July 2017 to September 2018. He testified that he did not find any supplementary occurrence reports filed after July 2017 until he took over the file on September 21, 2018.

[52] His initial review of the file revealed a general report referencing witnesses but no formal statements had been entered as part of the police records. Detective Cst. Butler testified that one of his first investigative steps was to reach out to the witnesses and arrange to take formal audio-recorded statements from each of them.

[53] Detective Cst. Butler testified that upon his review of the information in the police possession at the time he took over the file in September 2018, reasonable and probable grounds existed to arrest Mr. Miller for the offences currently before the Court.

[54] Detective Cst. Butler's evidence was that he is not aware of any protocol or procedure for the oversight of OICs by their Sergeant.

Dillon Miller

[55] Mr. Miller testified that he was in custody from April 20, 2017 to November 5, 2018 in relation to charges in Hamilton, Brantford, Milton, Cayuga, and Simcoe.

[56] Three days before Mr. Miller's statutory release date, he was transported from the correctional facility in Penetanguishene to the Hamilton Wentworth Detention Centre where he was arrested on the charges in this matter.

[57] In his testimony, Mr. Miller described a process over a period of 17 months where 3 different lawyers assisted him in bringing all of his 112 charges to resolution either by way of trial or guilty pleas.

[58] Mr. Miller testified as to the impact of his detention during those 17 months, particularly on days when he had required court attendance. He described the process as "overwhelming" as he would be out of the detention facility on days when he had to attend court for up to 14 hours on some days, laying on a concrete slab, and being fed "light" meals.

[59] Upon what Mr. Miller thought was the conclusion of all of his outstanding charges, he was provided a release date of November 5, 2018 and began to make plans for his rehabilitation and reintegration into his community upon his release.

[60] Although it was not specifically asked of Mr. Miller by either defence or Crown counsel, Mr. Miller visibly presents as an Indigenous person and in response to the question from the clerk as to whether he prescribes to a religion or creed that binds his conscience in attempting to determine whether an oath or affirmation was appropriate, Mr. Miller indicated that he follows the Longhouse tradition, a belief system held by the Haudenosaunee[1] 6 Nations of the Grand River peoples.

Legal Arguments of the Parties

[61] Counsel for Mr. Miller, Ms. Eliany, submitted that the issue for the Court to determine on this Application is what is the appropriate remedy for PC Wood's mistake that resulted in pre-charge delay of 15 months and 22 days.

[62] Ms. Eliany argued that there is sufficient evidence before the Court to find that Mr. Miller's s. 7 Charter rights were violated and presented a novel argument that the Court can then include the pre-charge delay period in an 11(b) Jordan analysis to ultimately find that the appropriate remedy is a stay of proceedings.

[63] Ms. Eliany submitted during argument that the trial of this matter will turn on the DNA evidence and therefore based upon Supreme Court of Canada jurisprudence Mr. Miller would not be successful in arguing that his right to a fair trial had been violated as a result of the pre-charge delay.

[64] Crown counsel, Ms. Fritzley, argued that the pre-charge delay did not breach any of Mr. Miller's Charter rights and therefore a stay should not be granted.

[65] Citing the recent decision of the Supreme Court of Canada upholding the dissenting judgment of Hoegg, J.A. from the Newfoundland Court of Appeal in [R. v. Hunt][1], Ms. Fritzley argued that the door to allowing pre-charge delay to be included in an 11(b) Jordan analysis has now been resoundingly shut by the highest court in the land.

[66] The issue for the Court to decide on this application, according to Ms. Fritzley, is assessing the conduct of the state.

[67] Ms. Fritzley further argued that even were the Court to find a breach of s. 7, which she strongly argued against, the appropriate remedy would not be a stay as that is only to be resorted to in the clearest of cases.

[68] A single officer's admitted mistake does not amount to an abuse of process she argued. Ms. Fritzley also submitted that Society has an interest in prosecuting people who have a history of stealing vehicles, breaching court orders, and driving while disqualified. She argued the public would be outraged if a DNA case was stayed because one officer made a mistake and was careless in the reading of his emails causing "a bit of delay". The Court, in her submission, must consider the integrity of the justice system and the need to bring cases to their natural conclusion.

[69] On the issue of Mr. Miller's status as an Indigenous person before the Court, Ms. Fritzley argued that in this case it does not alter or inform the analysis the Court has to perform as some legal principles are immutable and apply to all individuals before the Court.

Legal Analysis

[70] Section 7 of the Charter guarantees that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[71] Section 11(b) of the Charter guarantees that:

Any person charged with an offence has the right to be tried within a reasonable time.

[72] Section 11(d) of the Charter guarantees that:

Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[73] When any one of these Charter protected rights is breached by the state the remedy of a stay of proceedings is available to the court.[2]

[74] The Supreme Court of Canada made it clear in Kalanj that pre-trial delay commences upon the laying of the Information and it is clear from the post-Jordan decisions of the court in Hunt and Babos, there remains a distinction between pre-charge delay, which engages s. 7 and 11(d), and pre-trial delay, which engages s. 11(b). I can find no authority to conflate the two analyses as I am urged to do by Mr. Miller's counsel.

[75] I do not, however, accept the Crown's submission that the adoption of the dissenting judgment of the Court of Appeal in Hunt completely shuts the door to a consideration of pre-charge delay in an 11(b) analysis in the appropriate set of circumstances.

Pre-Charge Delay – s. 7 and 11(d)

[76] The common law doctrine of abuse of process was merged with section 7 of the Charter in [R. v. O'Connor][2].

[77] The Court in O'Connor set out two categories of cases when a stay of proceedings for an abuse of process will be warranted: (1) where state conduct has compromised the accused's right to a fair trial; (2) where although no risk to trial fairness, the impugned state conduct risks undermining the integrity of the judicial process.[3]

[78] It is well established that the Court has historically been loathe to oversee police investigations. As noted by the Supreme Court in Kalanj, "[t]he length of the pre-information or investigatory period is wholly unpredictable." However, the Court went on to note that there are rare instances when, "the investigation reveals evidence which would justify the swearing of an information, then for the first time the assessment of a reasonable period for the conclusion of the matter by trial becomes possible."[4]

[79] The uncontroverted evidence of Detective Cst. Butler is that reasonable and probable grounds existed to lay charges against Mr. Miller in July 2017. No investigatory steps were taken from July 2017 to September 2018 and Detective Cst. Butler's actions in taking formal statements from the witnesses and reviewing the occurrence reports previously entered led him to conclude that an Information could have been sworn in July 2017.

[80] Unlike the facts in Hunt, there was nothing complex about this case requiring additional investigatory time or resources.

[81] Justice Hoegg, in his dissenting reasons adopted by the Supreme Court, noted in finding that the lengthy pre-charge delay did not undermine the integrity of the criminal justice system in the facts of that case:

The notion that delay, in the absence of jeopardy to fair trial rights, Crown misconduct, or oppressive Crown conduct, can result in the staying of serious criminal charges, is very disturbing to me. It effectively means that charges laid after a lengthy investigation cannot be prosecuted on their merits, regardless of their complexity and volume. Complexity and volume involve time. It follows that the more complicated and voluminous the offence, the more likely that charges arising from it will be stayed. Such a result rewards sophisticated criminal conduct, and effective imposes a judicially determined limitation period on charges which take a long time to investigate simply because it is too difficult, time consuming, and/or expensive to do so.[5]

[82] An analysis of the reasonableness of the pre-charge delay period must inevitably consider the complexity of the investigation given the nature of the charges. In finding that the pre-charge delay in Hunt did not impact the integrity of the criminal justice system, it is clear that the facts of that particular case, a commercial fraud allegation, played a substantial role in the analysis leading to a conclusion that there was no section 7 breach.

[83] A more factually analogous case, is the decision of Justice Deluzio in [R. v. T.T.][3] In that case, as in Mr. Miller's case, the OIC took no steps to further his investigation of a sexual assault allegation from February 28, 2007 until January 3, 2008. In the T.T. case, the officer acknowledged that by March 5, 2007 he had grounds to apply for a DNA warrant. The Court found that there was "no explanation for the delay, except the investigating officer's lack of diligence and the systemic failure to transfer the file to another officer when Officer Geen was promoted out of the Criminal Investigations Bureau." The Court went on to find that the pre-charge delay was excessive given how early on in the investigation evidence was available to the officer.[6] Although the T.T. case was a matter under the Youth Criminal Justice Act and therefore invoked principles under that Act mandating timely intervention and enhanced procedural protections for young persons, I find the overall approach very persuasive given how closely the facts mirror this case.

[84] The decision of Justice Deluzio in T.T. was cited by the Court in [R. v. Campbell][4], a decision of the Superior Court of Justice of Ontario in 2017, granting a stay of proceedings in a case where the pre-charge delay was 26 months and 23 days.

[85] I do not accept the Crown's submission that the pre-charge delay did not result in any prejudice to Mr. Miller's right to a fair trial. It is trite to say that memory fades over time. Although the effects of time on memory equally affect Crown witnesses as well as accused persons, I find that in this case it would be an even greater impediment to Mr. Miller's ability to make full answer and defence as the period of time immediately following the incident and for a period of 17 months thereafter he was in pre-trial detention, the conditions of which he clearly enunciated in his evidence on this application. To suggest that his ability to recall with accuracy and precision his whereabouts on the day in question over two years after the incident would be disingenuous. Compounding this difficulty in mounting a defence, is the significant likelihood that this incident was just one in a series of similar incidents that Mr. Miller was likely involved in during the period of time preceding his pre-trial detention in April 2017, a fact which I expand upon later in this judgment.

[86] Although Mr. Miller's right to a fair trial was in my view affected by the pre-charge delay in this matter, I find that the inaction of Officer Woods and the consequences that followed clearly falls into the second category relating to the integrity of the judicial process.

[87] Oppression is often invoked to establish an abuse of process under the second category. Although oppression does not necessarily require "malfeasance or misconduct" on the part of the Crown, "the oppressive action must be apparent so as to permit an objective evaluation of it, and that it involve an element of injustice or unfairness, or at least result in injustice or unfairness to an accused."[7]

[88] The evidence of Officer Wood was that he failed to read an email sent to him in July 2017 and consequently failed to act on the directive of Detective Sgt. Lambert to prepare a DNA Warrant.

[89] In his testimony, Officer Wood described this failure as a mistake, terminology adopted by the Crown in submissions. Counsel for Mr. Miller described it as negligence. I find that what Officer Wood failed to do on his own evidence can be best described as a dereliction of duty, which by definition can be purposeful or accidental.

[90] In stark contrast to Officer Wood's approach to this investigation is the manner in which Detective Cst. Butler testified that he approached not only this investigation, once he took carriage of it, but all investigations in which he was the OIC even during his days as a road officer.

[91] The Crown submitted that Detective Cst. Butler is the gold standard in policing and not the standard to which all officers, particularly provincial constable road officers, should be held to. I reject this submission. I find that the public has a justifiable expectation that policing in our community will meet the standards of integrity and withstand scrutiny as Detective Cst. Butler's approach clearly does and which PC Wood's fell dismally short of.

[92] As to the question of whether this is a singular incident or part of a systemic problem, I find that on the evidence before me I cannot but conclude that there was at minimum a culture of complacency at the Norfolk OPP detachment in July 2017 up to and until September 2018, as whatever oversight procedures may have been in place at the time resulted in PC Wood's failure to discharge his duties not being discovered until almost 12 months after the fact. I come to this conclusion on the basis that the evidence before me was that the email that PC Wood failed to read and follow up on was also sent to his immediate Sergeant in July 2017. It was only the pending retirement of PC Wood and a new platoon Sergeant in charge that prompted a review of his uncompleted investigations, not a procedural safeguard or protocol wherein PC Wood's Sergeant followed up within a specific time period to ensure that the DNA Warrant Application had been completed as directed.

[93] The majority of the Court in [R. v. Babos][5] held that, in considering whether to allow the proceedings to continue or to order a stay, the question to be answered is "whether proceeding in light of the impugned conduct would do further harm to the integrity of the justice system. […] The court must still consider whether proceeding would lend judicial condonation to the impugned conduct."[8]

[94] By allowing the proceedings to continue despite PC Wood's failure to follow through on the investigation, the Court would be sending the message to the public that the judiciary condones and excuses police dereliction of duty. I cannot accept that such condonation is the ratio of the Court's decision in Babos.

[95] Although it was pointed out by the Crown that the impugned conduct complained of in Babos was extreme, including a Crown Attorney allegedly threatening an accused person with additional charges, I note that Babos was a case involving firearms offences and the production and trafficking of methamphetamine. It is clear that the public's interest in a trial involving drugs and firearms militates heavily in favour of a trial in the balancing inquiry that must be undertaken by the Court.

[96] The Supreme Court indicated that trial courts "must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is isolated or reflect a systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits. […] in residual category cases, balance must always be considered."[9]

[97] The Crown in this case urges me to find that the public would be outraged were Mr. Miller not to have a trial on the merits, given the strong case for the Crown involving DNA of Mr. Miller found in the motor vehicle, and Mr. Miller's previous convictions for similar offences. I do not agree with the Crown's submission in this regard and find rather the opposite, that the public would be outraged if these proceedings were allowed to continue.

[98] The presence of Mr. Miller's DNA in the vehicle at the time of discovery is not determinative of the question as to whether Mr. Miller stole the vehicle or was operating the vehicle at the time in question. The presence of circumstantial evidence can support the making of reasonable inference by the Court but is not determinative of the issue. The Ontario Court of Appeal in the cases of [R. v. Grayston][6] and [R. v. Donaghue][7] in overturning the convictions at trial of the appellants articulated that the presence of the accused's DNA is not determinative of guilt and does not lead inexorably to only one inference such as to support a conviction at trial.

[99] The Crown relies upon Mr. Miller's convictions for like offences. However, it is clear from the Informations tendered as exhibits by the Crown through cross-examination of Mr. Miller that at the time of these offences Mr. Miller was on a crime spree, engaging in behaviour that led to multiple charges involving the theft of or possession of stolen motor vehicles and driving while disqualified. Had these charges been brought at the time when the police had reasonable and probable grounds to lay the charges in July 2017, Mr. Miller would not have had the convictions he has today, upon which the Crown is relying.

[100] The public's sense of decency and fair play is engaged in these circumstances. Mr. Miller was in custody facing numerous charges in multiple jurisdictions. After having spent many months in pre-trial detention at various facilities, Mr. Miller decided that he simply wanted to resolve all of his remaining charges in order to complete his time in custody and be able to get out and move on with his life. I accept Mr. Miller's evidence that so many consecutive months in detention centres, being transported to and from courthouses, became overwhelming and led to his decision to resolve his remaining matters.

[101] Mr. Miller's status as an Indigenous offender before the Court is also clearly engaged in this analysis and in assessing his credibility as to how his pre-trial detention affected him and his desire to gain certainty in the date of his release. Despite the recommendations of the Truth and Reconciliation Commission, rates of incarceration of Indigenous offenders in Canada has continued to increase in drastic disproportion to their population.

[102] The Court must also consider the form of release to which Mr. Miller was subject after his arrest. Rather than being released on an OIC Undertaking, Mr. Miller was held in custody for a night pending his bail hearing and released on a recognizance with a residential surety, the highest form of release provided for in the Criminal Code. I find that the form of his release is a relevant consideration in determining the effect of the delay on Mr. Miller. The probability of additional charges being laid as a result of non-compliance with a recognizance is far greater than when one is subject to an Undertaking. Furthermore, there is a presumption upon an allegation of breaching a recognizance with a surety that an offender will be detained in custody until the resolution of the matter.

[103] The Supreme Court adopted the reasoning of the Ontario Court of Appeal in the case of [United States v. Leonard][8] wherein it was determined that Gladue factors should be considered whenever an Aboriginal person's liberty is at stake.

[104] I accept Mr. Miller's evidence that he was "overwhelmed" by the conditions of his pre-trial detention and that at some point in the Spring or Summer of 2018 Mr. Miller decided that he no longer wished to defend any of the remaining charges and instructed his counsel to seek a global resolution. Without accepting Mr. Miller's evidence that he pled guilty to charges that he was innocent of, I can accept that after such a prolonged period in custody he wished to have finality to his charges which he thought would be brought about by resolving all of his remaining matters with guilty pleas.

[105] I find that the public's sense of decency and fair play would be offended by the constructive, albeit not intentional, gating of Mr. Miller for an offence that should rightly have been dealt with during his time in pre-trial custody dealing with like offences in and around the same time period as these allegations. The sense of finality that Mr. Miller attempted to gain in resolving his remaining matters in a global fashion, a finality Mr. Miller believed he had until 3 days before he was to be released from custody, was shattered by his arrest on the charges currently before the Court. The psychological impact on Mr. Miller of a further period of incarceration cannot in my view be discounted in assessing the personal circumstances of the accused in this case.

[106] I acknowledge as binding upon me the findings of Justice DiLuca in [R. v. T.G.][9] that "the loss of an opportunity to seek a favourable disposition of all charges" does not amount to an abuse of process. However, it is not on that basis that I find that the pre-charge delay in this matter constitutes an abuse of process and has therefore led to a breach of Mr. Miller's s. 7 rights.

[107] It is for all of the reasons articulated above and after engaging in the balancing exercise as directed by the Supreme Court that I conclude that there has been a breach of Mr. Miller's s. 7 Charter rights under the second residual category in which the state conduct risks impugning the integrity of the judicial process.

Stay of Proceedings – s. 24(1)

[108] I do not accept the Crown's submission that in this case something other than a stay would suffice to remedy the breach of Mr. Miller's s. 7 rights.

[109] I agree that a stay of proceedings must only ever be ordered in the clearest of cases. This is one of those cases.

[110] On his own evidence, PC Wood failed to discharge his duties as a police officer in this investigation. The result was a delay in the laying of charges against Mr. Miller of almost 16 months.

[111] During the period in which no investigative steps were taken by PC Wood his dereliction of duty was not discovered by his superior officers as there were no oversight protocols in place.

[112] Given the failure of PC Wood to act on direct instructions from a superior officer and the clear lack of protocols to ensure that an officer's dereliction of duty was discovered and remedied in a timely manner, I find that there was a culture of complacency at the Norfolk OPP detachment from July 2017 to September 2018 that involved at a minimum PC Wood and his immediate superior officers, specifically Sgt. Adams and Sgt. Ferguson. The public can and does expect that police officers will discharge their duties to investigate crimes in a diligent and timely way.

[113] This is one of those rare cases in which it is abundantly clear when the police should have laid the Information charging Mr. Miller as reasonable and probable grounds existed for his arrest in July 2017 and there were no overriding considerations such as public safety, protection of a confidential informant, or the need for further investigatory steps to be taken prior to the swearing of an Information. Indeed, Detective Cst. Butler's uncontroverted evidence was that the delay in proceeding to have an Information sworn and proceed with the arrest of Mr. Miller when he took over the investigation was as a result of directions he had received to proceed with the swearing of the DNA Warrant prior to the laying of the Information, not lack of reasonable and probable grounds. This directive resulted in a further delay of over 2 months.

[114] In this case, on these particular facts, I find that anything short of a stay of proceedings would amount to a judicial condonation of PC Wood's dereliction of duty and would send a message to the public that the judiciary does not hold police to account. This is not a case where the public's interest in having a trial on the merits overrides every other consideration, as it often does in cases involving guns or drugs. The charges in this case, although serious, cannot be likened to the charges in a case such as Babos, which involved firearms, and the production and trafficking of methamphetamine.

[115] I also find that Mr. Miller's status as an Indigenous person must be considered in determining whether a stay of proceedings is appropriate and necessary. The fact that PC Wood was unaware at the time that Mr. Miller was an Indigenous person does not eliminate that factor from the analysis. The continuation of these proceedings would clearly put at stake Mr. Miller's liberty and therefore the Court must consider the potential impact of the possible future incarceration of Mr. Miller in determining the appropriate remedy.

[116] I find that allowing these proceedings to continue would send a message to the Indigenous community that the judiciary is prepared to excuse police misconduct that directly impacts on the liberty interests of an accused person thereby perpetuating the recognized negative impacts of Colonialism on Indigenous persons.

[117] I therefore find that the only appropriate remedy in this case is to stay the proceedings.

[118] Given my findings on s. 7 and 24(1), I do not find that it is necessary to engage in an 11(b) Jordan analysis in this case as requested to do so by Mr. Miller's counsel and so I will leave the issue of how Hunt has affected a trial court's ability to include pre-charge delay in an 11(b) analysis to another one of my learned colleagues to grapple with when appropriate.

July 4, 2019

Signed: Justice A.D. Hilliard