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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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: November 12, 2019

Court File No.: Walkerton 17-67

Between:

Her Majesty the Queen

— and —

Cornelius DeBruyn

Before: Justice Brophy

Heard on: October 22, 2019

Reasons for Ruling on Delay Application released on: November 12, 2019

Counsel

Melody Martin — counsel for the Crown

Danielle Boisvert — counsel for the defendant Cornelius DeBruyn

Decision

BROPHY J.:

Introduction

[1] This is a ruling on a delay application brought by the accused Cornelius DeBruyn asserting that his rights to a trial within a reasonable time have been abused and seeking a stay of the proceedings pursuant to section 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms.

[2] The accused stands charged with committing a sexual assault on the complainant contrary to section 271 of the Criminal Code. The allegation is that this occurred on or about January 1, 2009.

[3] The Information was sworn on January 13, 2017. A two-day trial has been set for December 3 and 5, 2019. This makes the total time from the Information being sworn to the scheduled trial dates as 35.1 months. This delay is well beyond the 18-month constitutional limit established by the Supreme Court of Canada in R. v. Jordan. An inquiry into the reasonableness of the overall delay is therefore required and the onus is on the Crown to justify the delay.

Evidence and Material

[4] The evidentiary basis for the application consisted of affidavit material and a responding affidavit by the Crown. In addition, viva voce evidence was called whereby the accused testified to his circumstances and places of residence and what he did in terms of contact with the police. The Crown called the investigating officer to testify concerning the steps taken in the investigation. There was also an agreed statement of facts with reference to the court appearances and what transpired at same.

Facts

[5] This matter arose because of a referral from the Bruce Grey Children's Aid Society on July 26, 2015. The South Bruce OPP was responsible for the conduct of the investigation. Interviews were conducted and inquiries were made about any supporting material. As part of the investigation, a Ministry of Transportation search indicated that the accused resided in Edmonton, Alberta. The investigation was completed at the end of September 2015. It should be noted that no forensic steps were taken given the age of the allegations and no other types of investigative steps were employed. Reasonable and probable grounds to proceed existed in the fall of 2015.

[6] Nothing further occurred until the investigating officer, Ryan Oldham, consulted with the Bruce County Crown Attorney's office in April 2016. One of the subjects discussed was the availability and suitability of a Canada-wide warrant. This was a relevant consideration because the OPP knew that the accused lived in western Canada.

[7] The Information in these proceedings was sworn on January 13, 2017. A further inquiry with the Ministry of Transportation revealed that the accused had an address in Fort Saskatchewan, Alberta, which Officer Oldham knew was in the Edmonton area. Officer Oldham knew that the Fort Saskatchewan area was policed by the RCMP.

[8] An Ontario warrant was obtained. Not a Canada-wide warrant. The warrant was registered on CPIC.

[9] And there it sat. No further action taken.

[10] Officer Oldham made no attempts to contact the accused after the Information and warrant were issued. He did not call the RCMP in Edmonton or Fort Saskatchewan to have them act on the Ontario warrant. Officer Oldham understood that if the accused was arrested on an Ontario warrant outside of Ontario, he would be held by the local police for five days while the OPP decided whether they wished to attend and bring the accused back to Ontario.

[11] When asked why he did not take any positive steps to contact the accused, directly or indirectly, Officer Oldham indicated that in consultation with Detective Sergeant Bruce Aitkin it was decided that it would be better not to let Mr. DeBruyn know about the investigation because it might force him underground.

[12] On September 15, 2017, Officer Oldham received a message that Mr. DeBruyn had called the OPP detachment. He called Mr. DeBruyn back on September 22, 2017. In that conversation Officer Oldham explained the nature of the charges and the warrant in Ontario. Officer Oldham's evidence was that Mr. DeBruyn advised him that he was currently working on an internship in rural Saskatchewan at a location which was a multi-hour drive from Edmonton and that the internship would last for another 6½ months. There was a discussion about whether a statement could be taken in Edmonton. Officer Oldham did not say to Mr. DeBruyn that he should turn himself in. There was some conversation about Mr. DeBruyn speaking to a lawyer. Officer Oldham called Mr. DeBruyn back on September 29, 2017, but the number was no longer in service. In the September 22 conversation Officer Oldham understood that Mr. DeBruyn would make a decision about whether he would give a statement and contact him about that decision in due course.

[13] It should be noted that after September 29, 2017, Officer Oldham took no further steps to attempt to find a new number for Mr. DeBruyn. He did not search online or with telephone services in Saskatchewan. Again, he did not seek any RCMP assistance and he never mailed any letter or emailed Mr. DeBruyn. He took no steps to have the Ontario warrant executed.

[14] The evidence I have received from the Applicant is that he travelled to Ontario in September 2018 and turned himself into the police to address the complaint.

[15] He explained that the reason he called the police in September 2017 was that he was engaged in a funeral service internship program and that as part of that educational process conducted by the Alberta Funeral Services Association, he was required to do a police check. He did that in late August 2017 and became aware of the warrant. He inquired with the Edmonton police as to what to do and they directed him to call the OPP in Ontario.

[16] He said that in the conversation with Officer Oldham he was informed that there was a warrant for his arrest in Ontario and that if he did not enter Ontario he would not be arrested. Officer Oldham suggested that a statement could be taken in Edmonton and that he could arrange that with the local police.

[17] Mr. DeBruyn indicated that he changed his mobile phone service provider when he took his internship position in Shelbrook, Saskatchewan. He had been with Wind Mobile, but they only provided service in large urban centres and he needed a service that would work in a small town. He therefore changed to SaskTel.

[18] Mr. DeBruyn indicated that he lived in Fort Saskatchewan which is a suburb of Edmonton. His education program related to the funeral service profession was mostly online with some trips to Calgary for class work. He also attended in Calgary for the provincial exam. He had obtained an internship position in Shelbrook and given that internships were difficult to get he decided it was appropriate for him to make the move to that community for the purposes of completing the internship. After he initially called the police, he did not hear back for a week and had in the interim committed to the internship. He rented a small apartment in Shelbrook and worked during the week in that community and went back to his Alberta address on weekends. His driver's licence and other identification continued throughout to show that he lived in Fort Saskatchewan.

[19] In his conversation with Officer Oldham there was some discussion that he would come to Ontario after he completed his funeral services program. He had borrowed student loan money in excess of $20,000.00 and if he did not complete the internship program he would be in default. He did not tell Officer Oldham the name of the small town he was going to be working in and Officer Oldham did not ask.

[20] Mr. DeBruyn did not follow up with the OPP for the next year because he did not think it was his responsibility to do so.

Jordan Framework

[21] This application is governed by Jordan.

[22] Jordan provides presumptive time periods within which an accused must be brought to trial. In the instance of a case in the provincial court it is 18 months from the time of the swearing of the information. In cases where the total delay, less delays either waived or exclusively caused by the defence, exceeds the presumptive ceiling, the onus shifts to the Crown to demonstrate that the delay was nevertheless reasonable.

[23] To assist in applying the Jordan principles, R. v. Coulter synthesizes the analytic framework as follows:

(a) Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial;

(b) Subtract defence delay, including delay that is waived, from the total delay, which results in the "net delay";

(c) Compare the net delay to the presumptive ceiling;

(d) If the net delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases;

(e) Subtract delay caused by discrete events from the net delay, which leaves the "remaining delay";

(f) If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time of the case has taken is justified and the delay is reasonable;

(g) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable;

(h) The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "transitional cases"). If the remaining delay exceeds the presumptive ceiling and is not determined to be justified based on the complexity of the case, then it is necessary to consider whether the delay is reasonable under the transitional exceptional circumstances. If not, then a stay of proceedings will ensue.

Analysis

[24] The important relevant dates in this case are as follows:

(a) Information sworn January 13, 2017, and Ontario warrant for arrest issued.

(b) The accused spoke to the investigating police officer on September 22, 2017.

(c) The accused surrendered to the OPP in Bruce County in September 2018 and first appeared in court on September 18, 2018.

(d) Crown Pretrial missed by the defence for health reasons on December 10, 2018.

(e) Crown Pretrial conducted February 20, 2019.

(f) First date offered for application and trial August 13, 2019. Defence not available.

(g) Application and trial dates set for October 22 and December 3 and 5, 2019.

[25] From the swearing of the information to the last date set for trial there is a total delay of 35.1 months.

[26] The Crown argues that there is defence delay or waiver from December 10, 2018, to February 20, 2019, for 2.4 months and a further period of defence delay or waiver from August 13, 2019, to December 3, 2019, for 3.73 months. In the court's opinion these times are defence delay. They amount to 6.13 months.

[27] The Crown also argues that the 12 months from the conversation with Officer Oldham in September 2017 to the time Mr. DeBruyn turned himself in in September 2018 is defence delay. The court does not agree with this proposition.

[28] There is no factual basis to conclude that Mr. DeBruyn was deliberately evading the authorities or hiding his identity or his whereabouts to avoid this process.

[29] It is clear Mr. DeBruyn did not leave Ontario to avoid the charges. He did nothing to hide his whereabouts and was in vital statistics databases. He was in school or employed and would necessarily file tax returns with respect to his employment income. He submitted to a security clearance check and in so doing provided all the information needed to locate him.

[30] The police always knew the general location of the accused. They knew that he was registered with a driver's licence and address in Fort Saskatchewan, Alberta.

[31] The OPP did nothing to contact Mr. DeBruyn or make him aware of the warrant. The OPP took no steps to have the warrant extend to Alberta, nor did they request the RCMP to locate and arrest Mr. DeBruyn allowing the Ontario provincial authorities to take custody of him.

[32] Upon becoming aware of the warrant for his arrest the accused spoke to Officer Oldham but was never directed to turn himself in to Ontario authorities. Even after that contact Officer Oldham took no steps to have the warrant executed in Alberta.

[33] It is abundantly clear that the OPP took no steps to further the investigation and engaged in no efforts whatsoever to advance the case. They were extremely passive. Jordan stands for the principle that all the participants in the criminal justice system are to actively pursue the process to its conclusion. Here the police did nothing.

[34] The police say they did not want to do something that would cause him to go underground. And yet there is nothing in the facts which suggest that he was at risk of doing so.

[35] Mr. DeBruyn was not avoiding the police. He was waiting for them. And they never showed up.

[36] The requirement of the state to take steps to execute a warrant, as opposed to the accused's obligation to turn himself in, was confirmed by the Supreme Court of Canada in R. v. MacIntosh, a 2011 decision from the NSCA, affirmed by the SCC in 2013. It is clear that the state was required to take steps to bring this matter to a head. They did not do so.

[37] With respect to the question of waiver, Jordan at paragraph 61 says that "Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well the effect waiver will have on those rights." Mr. DeBruyn was under the reasonable belief that if he did not return to Ontario there were no negative consequences. Indeed, as mentioned he was not asked to turn himself in. He also thought, quite reasonably, and as it turns out in accordance with the law as set out in R. v. Daggett and R. v. Nurse, that it was not his responsibility to prosecute himself. In the court's view inaction on the part of an accused does not amount to a waiver of his 11(b) rights.

[38] The 12 months from September 2017 to September 2018 was not defence delay or waiver. The court is of the view therefore that the only defence delay or waiver is the 6.13 months attributable to the brief delay setting the Crown Pretrial and then the lead time for trial availability. If the defence delay of 6.13 months is deducted from the overall delay the net delay is 28.97 months.

[39] This means that the net delay exceeds the presumptive ceiling. For a stay not to be issued the Crown must establish the presence of exceptional circumstances.

[40] The Crown has conceded that this case is not particularly complex.

[41] There are no discrete events for which the defence is responsible that caused any delay. The court has already considered the 12 months from September 2017 to September 2018 with respect to delay and found that it was not defence delay and does not qualify as delay under the rubric of a discrete event.

[42] It should be noted that this is not a transitional case with the Information having been sworn after the Jordan decision in 2016.

[43] In sum, the net delay exceeds the presumptive ceiling and there are no exceptional circumstances. As the Crown has not been able to justify the delay as reasonable, it follows that the action must be stayed.

Conclusion and Order

[44] This court finds that the section 11(b) rights of the accused have been infringed and the charge against Mr. DeBruyn is stayed pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms.

Released: November 12, 2019

Signed: Justice Brophy