Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 10 08 COURT FILE No.: Oshawa 23-28103514

BETWEEN:

HIS MAJESTY THE KING

— AND —

SHAWN FOLKES

Before: Justice Joseph Hanna

Heard on: October 1, 2024 Reasons for Judgment released on: October 8, 2024

Counsel: M. Fabre, counsel for the Crown Shawn Folkes, self-represented

Introduction

[1] Shawn Folkes has brought an application to stay the proceedings against him for unreasonable delay under ss. 11(b) and 24(1) of the Charter. He is charged with conveying false information, mischief, threatening to damage property, and two counts of threatening death, all contrary to the Criminal Code.

[2] Mr. Folkes’ trial is scheduled to end one month beyond the 18 month ceiling set in R. v. Jordan, 2016 SCC 27. There was a significant period of delay in this case between the swearing of the information and Mr. Folkes’ arrest. The determining factor on this application is how that delay is attributed.

[3] I have concluded that the delay in arresting Mr. Folkes cannot be characterized as a deductible discrete event and that the net delay in this case exceeds the Jordan guideline. As the Crown does not advance any other exceptional circumstance to justify this delay, it follows that the application must be allowed.

The s. 11(b) Legal Framework

[4] Applications pursuant to s. 11(b) begin with the calculation of the total delay in the case, which is the period between the laying of the charges and the anticipated end of the trial: R. v. Kirkopoulos, 2024 ONCA 596, at para. 20.

[5] Defence delay is deducted from this total, resulting in the net delay. The net delay is then assessed in accordance with the presumptive ceilings: Jordan, at para. 66; Kirkopoulos, at para. 21; R. v. Coulter, 2016 ONCA 704, at paras. 35 - 36. For summary conviction matters such is this one, the presumptive ceiling is 18 months: Jordan, at para. 46.

[6] A net delay above the ceiling is presumptively unreasonable. The Crown can rebut this presumption by demonstrating that there were exceptional circumstances: Jordan, at para. 68; Kirkopoulos, at para. 22; Coulter, at para. 37. Generally, the two categories of exceptional circumstances are discrete events and particularly complex cases: Jordan, at para. 71.

[7] The Jordan ceiling is a hard one. Any delay above the guideline, which is not justified due to exceptional circumstances, results in a breach of s. 11(b) and a stay of proceedings: Jordan, at para. 76; R. v. Long, 2023 ONCA 679, at paras. 50 – 51.

Assessment of the Delay in this Case

Total delay

[8] The information in this case was sworn on May 12, 2023. The Crown agrees that this is the starting point for the calculation of the delay, notwithstanding that Mr. Folkes was not arrested until months later. While there is some authority to the contrary [1], I agree with the Crown’s position as it is in accordance with the Supreme Court’s ruling in R. v. Kalanj, [1989] 1 S.C.R. 1594. Based on my review of the authorities, I find that this decision remains binding and applicable to situations where an arrest follows the laying of the charge. See: R. v. Thind, 2018 ONSC 1337, paras. 48 – 61; R. v. E.(K.), 2013 ONCA 175, at para. 20; R. v. Cisar, 2014 ONCA 151, at paras. 15 and 28; R. v. Khiar, 2021 ONSC 4677, at paras. 54 – 55; R. v. Vivian, 2020 ONSC 7300, at paras. 8 – 25; R. v. Gomes, 2023 ONCJ 518, at paras. 18 – 25.

[9] The anticipated end of Mr. Folkes’ trial is December 13, 2024. The total delay is therefore 19 months and 1 day.

Defence delay

[10] The only period that the Crown submits is defence delay is between March 12, 2024 and March 28, 2024. Mr. Folkes had been offered March 12th as a date to conduct a judicial pre-trial, but declined it, requesting March 28th instead. I am prepared to deduct these 16 days.

[11] While transcripts of the January 4, 2024 and March 28, 2024 appearances were not provided, the Crown was prepared to proceed with this application without them. Based on the Crown’s review of its notes from these appearances, the Crown agrees that there was no defence delay arising from those court dates.

[12] When an accused actively evades police or goes into hiding, these types of delay can be considered as defence delay: R. v. Burke, 2018 ONCA 594, at para. 4; Khiar, at para. 55; R. v. Smith, 2023 ONCJ 222, at para. 12. There is no suggestion that this occurred in this case.

Net delay

[13] Subtracting the defence delay from the total delay results in a net delay of 18.5 months.

[14] The net delay exceeds the Jordan ceiling and is therefore presumptively unreasonable.

Discrete events

[15] The Crown argues that some of the time between the swearing of the information on May 12, 2023 and Mr. Folkes’ arrest on August 27, 2023, should be deducted as a discrete event.

[16] The Crown called Detective Constable Aaron Trafford, the officer in charge of the case, to provide some background regarding the events leading to Mr. Folkes’ arrest. He testified that he had reviewed information regarding Mr. Folkes which indicated that Mr. Folkes had violent tendencies and a hatred towards police. D.C. Trafford observed videos which led him to believe Mr. Folkes could have access to a firearm and a sword.

[17] D.C. Trafford advised that police records and Ministry of Transportation records indicated that Mr. Folkes resided at 10 Grassmere Court, Oshawa. The officer stated that Mr. Folkes had also posted videos online wherein he had mentioned living at that address.

[18] D.C. Trafford testified that police conducted surveillance at 10 Grassmere Court on May 3 and 4, 2023, with negative results. He explained that officers had also driven by the residence on one or two further occasions, prior to the information being sworn, again without any success in locating Mr. Folkes.

[19] The officer indicated that he obtained a warrant to search Mr. Folkes’ residence, which was supposed to have been executed on May 4, 2023, with the assistance of a tactical team. The search, however, was called off by his on-duty inspector due to police safety concerns. The only information I was given regarding that decision was that it was based on a concern Mr. Folkes possibly had access to a firearm and a belief that he had a history of potentially being violent towards the police.

[20] On May 12, 2023, police swore an information charging Mr. Folkes with the offences before the court and obtained a warrant for his arrest. D.C. Trafford testified that officers did not contact Mr. Folkes regarding the investigation for two reasons. The first reason was that the police did not have a phone number for him. The second reason was that officers were concerned that tipping Mr. Folkes off regarding the investigation might pose a risk to the two civilian complainants Mr. Folkes had allegedly threatened. It should be noted that both these people lived in British Columbia.

[21] I heard no evidence of any further efforts to attend Mr. Folkes’ residence after the initial surveillance and drive-bys, which were conducted in early May 2023. D.C. Trafford acknowledged that he was not aware of any efforts to return to Mr. Folkes’ residence in either June, July, or August. Nor was I provided with any evidence that the police had formed any plans aimed at apprehending Mr. Folkes.

[22] In submissions, Crown counsel sought to rely on a synopsis which had been filed as part of another application to provide some further elaboration regarding the nature of the threats Mr. Folkes was believed to have made towards police.

[23] Mr. Folkes testified that he had been residing at 10 Grassmere Court up until the time of his arrest. According to him, he was there every day. He said he was not aware of the warrant for his arrest. He also indicated that no officer had contacted him about the warrant. Mr. Folkes further advised that an officer in Durham Region from a previous case had his email and had contacted him at that email in the past.

[24] Mr. Folkes said that on the day of his arrest he had been at his mother’s business in Oshawa. He had an interaction with an officer which involved him assisting her on an unrelated matter. Later that day, between four and six officers attended and arrested him. He indicated that the arrest was peaceful and that there had not been any tactical team involved.

[25] To qualify as an exceptional circumstance, the Crown must show that the delay was (1) reasonably unavoidable or unforeseen, and (2) that the Crown could not reasonably remedy the delay: Jordan, at para. 69. The requirement is one of reasonableness. The Crown is not required to show that it exhausted “every conceivable option for redressing the event in question”: R. v. Cody, 2017 SCC 31, at para 54; Thind, at para. 79; R. v. Leonard, 2024 ONSC 4733, at para. 53.

[26] Section 511(1)(c) of the Criminal Code imposes an obligation on the police to execute an arrest warrant “forthwith” and they must take reasonable steps to do so: Thind, at para. 75; Smith, at para. 25; R. v. Nurse, 2017 ONCJ 648, at para. 39; R. c. Diagne, 2023 QCCQ 5501, at para. 59. [2]

[27] In situations where the police have acted with reasonable diligence in executing an arrest warrant, courts have been willing to characterize the delay in arresting an accused as a discrete event. See for example: Thind, at paras. 75 – 87; Magiri, at paras. 14 – 15; R. v. Rea, 2018 ONCJ 425, at paras. 41 - 43.

[28] In cases where the police’s efforts to arrest an accused consisted merely of obtaining a warrant and putting it on CPIC, courts have found this insufficient: R. v. M.A., 2023 ONCJ 113, at para. 37; Leonard, at paras. 54 – 58; R. v. Sundralingam, 2017 ONCJ 400, at para. 34; R. v. Boutin, 2016 SKQB 77, at paras. 36 – 38. Furthermore, it is expected that the police make more than perfunctory efforts to locate an accused once they have obtained an arrest warrant: R. v. Patrick, 2012 SKQB 331, at paras. 14 – 15; Smith, at paras. 27 – 45.

[29] In this case the police had good reason to believe that Mr. Folkes resided at 10 Grassmere Court, Oshawa. I have no evidence that the police believed Mr. Folkes had moved. On the contrary, they obtained a warrant to search this residence, though they did not execute it. Mr. Folkes has confirmed that he had been residing at this address throughout the period that the arrest warrant was in effect. There is no suggestion that the police so much as knocked on his door during that time or left a note at his residence. Moreover, Mr. Folkes testified that he had corresponded with a Durham Regional Police officer in the past by email. There is no indication that any officer attempted to email Mr. Folkes regarding the warrant for his arrest.

[30] Notwithstanding the legitimate safety concerns the police may have had regarding how they would apprehend Mr. Folkes, I am unable to accept that it was reasonable for them to completely give up attempting to arrest him or contact him.

[31] I note as well that when Mr. Folkes was arrested in August 2023, there does not appear to have been any exceptional police tactics used in executing the arrest. There was no tactical team involved in his arrest, nor could the situation be characterized as anything approaching a high-risk takedown. This evidence does not fit well with the suggestion that the police were unable to prepare a plan to safely arrest Mr. Folkes.

[32] In the absence of any evidence that the police made some effort to arrest Mr. Folkes or even formulated any plan to do so, despite knowing where he lived, I have no basis to deduct any delay between the swearing of the information and the date of his arrest. To characterize any of this period as a discrete event would, in the circumstances of this case, be arbitrary and based on speculation.

[33] Furthermore, to qualify as a discrete event, “[i]t is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling”: Jordan, at para. 70. While the Crown made some effort between March 28, 2024 and April 9, 2024 to secure earlier dates for a trial, there does not appear to have been any urgency on the part of the Crown between August 2023 and March 28, 2024 to accelerate the scheduling of a trial, notwithstanding the delay that had already accumulated prior to Mr. Folkes’ arrest. Initial disclosure was not provided until October 25, 2023, nearly two months after Mr. Folkes was arrested. Furthermore, it must be noted that the transcripts reveal that Mr. Folkes repeatedly expressed an eagerness to move the matter forward.

[34] The Crown has not met its burden in establishing that any of the time between May 12, 2023 and August 27, 2023 should be deducted as a discrete event.

The presumption of unreasonableness has not been rebutted

[35] There are no discrete events that warrant a deduction from the 18.5 month net delay. The Crown fairly concedes that this case was not particularly complex. Furthermore, the Crown does not submit that there were any other exceptional circumstances which may justify a delay above the presumptive ceiling. The Crown has therefore not rebutted the presumption of unreasonableness.

Conclusion

[36] Given that Mr. Folkes was unaware of his charges for 3 ½ months it might seem surprising that the delay in arresting him would play such a prominent role in this application. Indeed, there have been instances where courts have expressed “discomfort arising from the application of the Kalanj starting point for delay” in these types of circumstances: Vivian, at para. 22. [3]

[37] That said, it is well-settled that the laying of a charge begins the s. 11(b) clock. It is equally clear that the absence of actual prejudice cannot render a delay beyond the Jordan ceiling reasonable: Jordan, para. 54. Accordingly, it must be stressed that when the police obtain an arrest warrant but do not fulfill their obligations to diligently execute it there can be significant s. 11(b) implications.

[38] The application is allowed, and the charges are stayed.

Released: October 8, 2024 Signed: Justice Joseph Hanna

Notes

[1] R. v. Magiri, 2017 ONSC 2818; R. v. Millar, 2016 BCSC 2039 and R. v. J.K., 2020 ONSC 4936.

[2] The court in R. c. Diagne, 2023 QCCQ 5501, at para. 59, emphasizes that the French version of the provision uses the word “immédiatement” with respect to the order to arrest the accused.

[3] The court lists Magiri, Millar, and J.K. as examples of this. See supra, note 1.