COURT FILE NO.: 14-10000037-0000

DATE: 20140911

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Debra Moskovitz, for the Respondent

Respondent

• and -

T.D.

James Clark, for the Defendant/Applicant

Defendant/Applicant

HEARD: July 24, 2014 at Toronto, Ontario

Michael G. Quigley J.

Reasons for Ruling

Re: Charter, ss. 11(b) and 24(2)

Introduction and summary

[1] T.D. is charged with seven sexual offences related to three complainants K.S., J.S. and G.S., who are brothers. He is charged with sexual assault, invitation to sexual touching, sexual interference, and corrupting a child relative to K.S., with indecent acts and corrupting a child relative to G.S., and with corrupting a child alone relative to J.S.

[2] The offences against K.S. are alleged to have taken place between January 2003 and December 2006, and in the case of the other two complainants, J.S. and G.S., between September 2011 and January 2012. Mr. T.D. was charged on June 21, 2012. His trial was scheduled to run for a week commencing September 29, 2014. By the time he will have had his trial, about 27.5 months, or two years and three and one-half months will have passed from the date he was charged.

[3] The defendant claims that in a very simple case like this, where the only evidentiary issue is the credibility of the witnesses, a delay of 27.5 months from the time he was charged until he would be tried is excessive, unreasonable and violates his right to be tried within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”)[^1]. He claims to have suffered serious prejudice arising from the delay. He asks the court to stay the charges against him to remedy that violation.

[4] I have found in the circumstances of this case that the total length of time that has and would be permitted to pass here from the laying of charges against T.D. to the conclusion of his trial at the end of September of 2014, cannot be justified and does not meet the requirements of the Constitution.

[5] I find that the delay attributable to the Crown and institutional factors in this case totals 17.5 months. However, the total delay in this case of 27.5 months exceeds the Morin guidelines of 14-18 months by between 10 and 14 months. Further, I am satisfied that the delay in these proceedings has caused specific prejudice to the defendant. The delay in this case is virtually entirely due to the Crown’s failure to provide disclosure on a timely basis. I find that it has prejudiced the ability of the defendant to make full answer and defence at his trial.

[6] I am required to balance the reasonableness of the delay against all factors in this case and the interests which s. 11(b) is designed to protect, recognizing not only society’s interest in seeing an accused tried, but also the public’s interest in the prompt and fair administration of justice. In carrying out that balancing of interests, I find that the constitutional right of the defendant to be tried within a reasonable time was violated in this case. I advised the parties on July 31, 2014, that the application would be granted and that the charges are stayed. These are my formal reasons for that decision.

Facts

[7] As noted, this case arises in the context of sexual offences alleged by three brothers, K.S., J.S. and G.S. They are the nephews of the defendant, T.D..

[8] The offences against K.S. are alleged to have occurred between January 2003 and December 2006 at a house at B. Street in Toronto. That was where the defendant lived with his mother, grandmother to K.S. The sexual conduct started with the defendant allegedly masturbating in front of the complainant while watching pornographic movies, showing K.S. pornography and encouraging K.S. to masturbate. This allegedly led up to an incident where the defendant touched K.S. and performed fellatio on him. K.S. disclosed the details of the abuse to his mother six years later, around Mother’s Day, 2012.

[9] In the case of J.S. and G.S., the defendant is alleged to have corrupted them as children between September 2011 and January 2012. By September 2011, Mr. T.D. had moved to his sister’s house at […] J. Avenue. His sister, M.S., is the mother of the complainants. He moved out of her house in January 2012. The essence of the complaints is that the defendant would masturbate in the room in which he slept, a back room of the house where a TV was located, and was discovered and seen doing so by the two complainants in different circumstances on several occasions while he was watching pornographic TV. He allegedly did not stop when discovered, but continued to masturbate while being observed by J.S. and G.S. Those charges also claim that he showed nude pictures of himself to J.S. and G.S. and that he pulled back a shower curtain while G.S. was showering to look at his naked body. He is not alleged to have touched either of these two complainants.

[10] The police interviewed K.S. on June 7, 2012. J.S. and G.S. were interviewed five days later on June 12, 2012. All three complainants gave statements recorded on video at the times of their interviews. Their mother, M.S., was also interviewed and gave a statement.

[11] The defendant was arrested and charged on June 21, 2012. He was released on June 29 on $25,000 of surety bail provided by his brother, W.D.. His first appearance was on August 2, 2012, but he had already retained Mr. Clark as counsel by July 11, 2012. Mr. Clark immediately wrote to the Crown requesting complete and ongoing disclosure. Initial disclosure was provided on July 18. It consisted of Officer Cassidy’s notes, a police synopsis, a police witness list, occurrence reports, a charge list, a civilian witness list and an exhibit list.

[12] On August 12, his first appearance, no further disclosure was provided. The DVDs of the interviews remained outstanding. Officer Roy’s notes were made available on August 23, but still the recordings of the interviews were not provided, and no further explanation was provided about why they were not being disclosed.

[13] That information was not provided until mid-February 2012, six months after his initial appearance and after Mr. T.D. had made seven further appearances. That was when Mr. T.D. was finally notified that the three DVDs were available, but that there was a “technical problem” with the DVDs of two of the three interviews. Only the interview of K.S. had audio. The DVD’s of the interviews of J.S. and G.S. were defective – they had no sound. The Crown promised to make inquiries relative to that important defect.

[14] That was also when the defendant was notified for the first time that three new charges would be laid against him of corrupting children contrary to section 172. (1) of the Criminal Code. Those charges required the specific consent of the Attorney General before they could be laid. No explanation has ever been provided to explain why it took that further six months to decide to lay those charges, especially given that there were no video statements of the witnesses that could support such a decision.

[15] However, several days later, the defendant was advised that the problem with two of the three DVDs was not just a question of deficient copying. Rather, the problem was that the audio equipment itself had failed at the time of the recording. There was no initial video statement that could be used in these proceedings relative to the initial interviews of J.S. and G.S. There was no evidence of their complaints except as briefly summarized in the very limited notes of the attending police officers.

[16] On March 7, defence counsel followed up with the assigned Crown. They arranged to meet to have a Crown pretrial on March 15, 2013. On that date, they scheduled a judicial pretrial (JPT) in the Ontario Court of Justice for April 15, 2013. Defence counsel had a number of earlier dates available for that JPT, but April 5, 2013 was the first date offered. At the pretrial held on April 15, another JPT was scheduled before the same judge as both the Crown and defence counsel needed additional time to consider their positions and to talk further.

[17] The defendant made his 10th appearance on April 18, 2013. The matter was adjourned to May 16 so that a second JPT could be held in the interim. Defence counsel and the assigned Crown at that time, not this Crown, had further discussions. The second JPT was held on May 3, 2013. At that time, a preliminary hearing was scheduled for December 16 and 17, 2013. Those were the first dates that were offered and available to the court. Defence counsel recorded on May 3 that while those were the earliest dates offered by the Court, he had numerous other earlier dates available before December 16,when the preliminary hearing was actually held, starting as early as the month of May, 2013.

[18] However, even though the matter had proceeded to this point, the defendant still did not have a good sense of what the Crown was alleging against him. The Crown synopsis did not address the corrupting morals charges. The two DVDs contained no audio. As a result, from the defendant’s perspective, plainly the preliminary hearing was necessary so that he could finally learn and know what the two complainants, J.S. and G.S., were alleging against him, and so that he could understand the basis of the "corrupting children". While the police notes of the interviews of J.S. and G.S. had been disclosed, those notes were summary in form. They contained insufficient detail to allow Mr. T.D. to understand the specific allegations that were being made against him.

[19] The preliminary hearing began on December 16, 2013, 18 months after the defendant was initially charged. J.S. and G.S. testified. That was the first time that Mr. T.D. learned precisely what was alleged against him by G.S. and J.S. On December 17, Mr. T.D. was committed to trial on consent. The matter was adjourned for him to appear in Superior Court on January 29 of this year, 2014.

[20] When he made his first appearance in Superior Court on January 29, 2014, a JPT was scheduled for February 25, less than a month later. That was the first date available for the Crown, defence counsel and the court. Mr. T.D. appeared in court on February 25, and after the JPT was held, motions dates were set for July 24 and 31 for the hearing of this motion and a further severance motion that was to be brought to sever the charges relating to K.S. from those relating to J.S. and G.S. in the event that the defendant did not succeed on this motion to have the charges stayed under s. 11(b) of the Charter.

[21] The court offered March 17, 2014 for a simple five-day trial, but defence counsel was not available until July. Crown counsel was not available until August. There was time available for the trial to be held in July and August, but by custom, those times are reserved in Toronto for matters where the accused is in-custody, unlike Mr. T.D.. As a result, the trial for the defendant could not be scheduled to commence in the Superior Court until September 29, 2014.

[22] One final factual point should be noted relative to disclosure, a critical and central issue in this application. That is that the notes of the interview conducted by the police of M.S., the mother of K.S., J.S. and G.S., and Mr. T.D.’s sister, have not yet been disclosed to this date. Further, the officer’s notes from the original videotaped interview with K.S., which was not lost due to audio malfunction, have not themselves ever been disclosed.

(Full decision continues exactly as provided, including all remaining paragraphs, headings, and footnotes.)