ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: OCJ #536/12 – SCJ #50/14
DATE: 20140930

BETWEEN:

ROBERT NELSON KIDD
Applicant

– and –

HER MAJESTY THE QUEEN
Respondent

C. Smith, Esq., for the Applicant

Ms. L. Ross, for the Crown

HEARD: September 12, 2014 at Kingston, Ontario

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION AS SET OUT IN THE FINAL PARAGRAPH OF THIS DECISION

ENDORSEMENT ON PRE-TRIAL MOTION

BLISHEN J.

INTRODUCTION

[1] Mr. Kidd has filed an application requesting that the prosecution of criminal charges against him be stayed pursuant to s. 24(1) of the Charter of Rights and Freedoms (“the Charter”), based on a breach of his right to a trial within a reasonable time set out in s. 11(b) of the Charter.

[2] Mr. Kidd is facing one charge of criminal harassment and 34 sexual offence charges including: making, possessing and accessing child pornography, 18 counts of voyeurism, sexual assault, sexual exploitation and invitation to sexual touching.

[3] Mr. Kidd argues that his right to a trial within a reasonable time has been violated. The total delay from the swearing of the first information in this case to the completion of the trial will be close to two years. Mr. Kidd submits that delay attributable to the Crown and institutional delay account for approximately 21 ½ months which has resulted in significant prejudice in relation to his health and employment. A stay pursuant to s. 24(1) of the Charter is the only appropriate remedy.

[4] Mr. Kidd submits the vast majority of delay was due to the time it took for Detective Sergeant Vern Crowley, a Senior Analyst and Investigator (“D/Sgt. Crowley”) of the E-Crimes Unit of the Ontario Provincial Police (“OPP”) to analyze electronic items seized from Mr. Kidd’s residence and produce a report. D/Sgt. Crowley was provided with electronic items seized from Mr. Kidd’s residence on August 9, 2012 and other items seized in two subsequent searches the last of which was in July, 2013. It took until November 6, 2013 for D/Sgt. Crowley to complete his report, the sanitized version of which was not provided to defence counsel until January 17, 2014. The defence argues that not much could be accomplished until that report had been received.

[5] The Crown concedes that the length of overall delay in this case gives rise to further scrutiny by the court. However, it is argued that a careful consideration of the factors outlined by the Supreme Court of Canada in R. v. Morin, [1992] 1 S.C.R. 771 (“Morin”), including the absence of any significant prejudice to Mr. Kidd and the competing societal interests protected by s. 11(b) of the Charter to ensure accused persons are brought to trial, leads to the conclusion that the delay is not unreasonable under the circumstances and there are no grounds to warrant a stay of proceedings in this case.

BACKGROUND

[6] The police began an investigation of Mr. Kidd in July, 2012 based on complaints made by the daughters of his former common law partner. The allegations were that Mr. Kidd engaged in inappropriate contact of a sexual nature with these children. Video statements were provided to the police on July 18, 2012, following which the police executed a search warrant at Mr. Kidd’s residence on August 9, 2012. A number of electronic items were seized during that search including: multiple memory cards, USB or thumb drives, an iPod, a playbook, a tower computer and an external hard drive.

[7] During the search the accused was interviewed and acknowledged some inappropriate behaviour, attributing it in part to depression. He acknowledged a suicide plan made in July 17, 2012 when his common law partner left him as a result of the disclosure from her children. Mr. Kidd was escorted to the Kingston General Hospital by police where he was admitted for psychiatric assessment and follow up.

[8] On August 9, 2012 the seized electronic items were turned over to D/Sgt. Crowley for forensic analysis.

[9] On September 11, 2012, D/Sgt. Crowley forwarded Detective Stephanie Morgan of the Kingston Police Service a hard drive for her review. This hard drive contained approximately 92,000 image files and 6,000 video files extracted by D/Sgt. Crowley from the accused’s computer and hard drive. It was necessary for Det. Morgan to view all of these files and categorize each one.

[10] As a result of a review of some of the images and videos, the police executed another search warrant at the accused’s residence on November 7, 2012, seizing a number of hard drives and two computers which were also sent to D/Sgt. Crowley for forensic analysis.

[11] Mr. Kidd, who had retained counsel as a result of the police investigation, was arrested on November 7, 2012 and charged with 16 counts pursuant to an information sworn November 8, 2012. He appeared in Bail Court at the Ontario Court of Justice on November 8, 2012 and on November 9, 2012, a date was set for a contested bail hearing to take place November 15, 2012.

[12] At the bail hearing, Det. Morgan detailed for the court and the defence samples of what she had already viewed from the hard drive provided to her by D/Sgt. Crowley including images of Mr. Kidd’s partner’s children taken with a camera hidden in the bathroom.

[13] On November 20, 2012 Mr. Kidd appeared and requested a bail review. December 15th at 2:00 p.m. was set for the review. Det. Morgan prepared a selection of videos and images of Mr. Kidd and some non-child pornographic images of some of the complainants for the defence, the court and the sureties to view at the bail review if they wished.

[14] On December 5, 2012, Mr. Kidd was released on a recognizance with a number of conditions and bail in the amount of $10,000 jointly and severally between himself, his stepmother, his sister and his new common law partner. The matter was then adjourned to January 31, 2013.

[15] Further review by Det. Morgan of images and videos from Mr. Kidd’s computer and hard drive revealed other individuals caught on camera in the bathroom. Therefore, a further information was sworn in December, 2012 adding 14 counts of voyeurism, as well as counts relating to creating and possessing child pornography with respect to another female complainant.

[16] On January 31, 2013, a replacement information was sworn and the matter was adjourned to March 7, 2013 awaiting Crown disclosure.

[17] On March 7, 2013, defence counsel acknowledged receipt of an initial disclosure package but indicated he was still awaiting complete disclosure and the matter was adjourned to March 28, 2013.

[18] On March 28, defence counsel was still awaiting the completion of disclosure including the computer forensic analysis by D/Sgt. Crowley. Defence counsel also requested unsealed copies of the ITOs. The matter was adjourned to April 25, 2013.

[19] On April 23, 2013, prior to the next court date, Crown counsel wrote to defence counsel and suggested a target preliminary hearing date be set to expedite the receipt of the E-Crimes forensic analysis report.

[20] At court on April 25, 2013, defence counsel declined to set a preliminary inquiry date but agreed to set a judicial pre-trial for May 8, 2013.

[21] On April 29, 2013, Crown counsel brought an application for the unsealing and release of the ITOs which had been retained by the Ontario Court of Justice. The order was made and the Crown received the ITOs on May 6, 2013.

[22] Det. Morgan completed her review and categorization of the thousands of images and videos by April 14, 2013. All categorization reports were provided to defence counsel by April 30, 2013.

[23] On May 8, 2013 at a pre-trial before Justice Letourneau of the Ontario Court of Justice, defence counsel acknowledged receiving four discs from the Crown; what he termed the “second wave” of disclosure, although there was more still to come. In addition, defence counsel indicated he was still awaiting the ITOs. Those were vetted by the Crown and provided on May 20, 2013.

[24] At the pre-trial on May 8, 2013, the case was adjourned on consent to a set date court of May 21, 2013 in order to set a “target” date for a preliminary inquiry which it was hoped would assist in expediting the report from the E-Crimes Unit.

[25] On May 21, 2013 after some discussion the court suggested preliminary hearing dates commencing the week of January 20, 2014. The Crown was agreeable but defence counsel was not available. Ultimately, February 3, 4, 5, and 7, 2014 were set as target dates for the preliminary. Again, it was hoped that setting these dates would expedite the provision of the report from D/Sgt. Crowley.

[26] Prior to the preliminary hearing, the police investigated allegations that Mr. Kidd had breached his recognizance by possessing a camera. On July 12, 2013, the police executed a search warrant for the residence where Mr. Kidd was living with his common law partner Ms. Berthiaume, one of his sureties. Electronic items seized included: cell phones, a tablet, multiple hard drives, a computer, and a camera. Mr. Kidd was charged with three counts of breaching his recognizance. All items were forwarded to D/Sgt. Crowley for forensic analysis and inclusion in his final report.

[27] On August 15, 2013, a meeting was held between Crown counsel, defence counsel and Det. Morgan to review a selection of images and videos from the case. Crown counsel presented these images as meeting the definition of child pornography and according to the affidavit evidence of Det. Morgan, defence counsel acknowledged he had been shown sufficient images to justify some of the counts before the court.

[28] On August 27, 2013, there was a further judicial pre-trial before Justice Letourneau on all charges including the alleged breaches. A further pre-trial was set for October 24, 2013.

[29] That pre-trial was held and the matter was adjourned to October 25, 2013 when the original informations were noted for estreatment and a trial date was set for the breaches on November 13, 2013.

[30] On November 4, 2013 D/Sgt. Crowley sent a summary of his report by e-mail to the Crown. The Crown then forwarded an e-mail to defence counsel addressing counsel’s primary concerns as to whether “the applicant had shared any of his homemade images on the internet and had he been downloading other child pornography images off the internet?”

[31] On November 6, 2013 D/Sgt. Crowley completed his report detailing the results of the analysis of all items obtained in the three searches and forwarded that report to Crown counsel. That report contained images which could be child pornography so it was necessary to vet the report and prepare a sanitized version.

[32] On November 13, 2013, Mr. Kidd entered a guilty plea to one breach charge and was sentenced to three months’ time served.

[33] On November 27, 2013, the sanitized forensic analysis report was prepared, sent to the Kingston Police Service and then to the Crown’s office.

[34] On January 14, 2014, in a fax to Crown counsel, defence counsel indicated he had still not received the report from D/Sgt. Crowley. He was however prepared to go ahead with the preliminary hearing. The Crown acknowledged this was clearly an oversight and on January 16, 2014 forwarded a copy of the sanitized report to defence counsel, 18 days before the preliminary hearing.

[35] On January 22, 2014, an estreatment hearing proceeded before Madam Justice MacLeod-Beliveau. Det. Morgan gave detailed evidence as to the nature of the case and the results of the evidence seized during the third search. The court found Mr. Kidd had replaced the items seized in earlier searches within 20 days of his release on the bail review. It was also found that two of his sureties were present with Mr. Kidd when he was using electronic devices or a camera. The court granted estreatment of 100% of the $10,000 bond at the request of the Crown.

[36] On January 28, 2014, defence counsel requested D/Sgt. Crowley be available as a witness for the preliminary inquiry. D/Sgt. Crowley was not available for that date however on the first day of the preliminary inquiry, defence counsel indicated D/Sgt. Crowley’s evidence was not required and could be dealt with by way of discovery, if necessary, on another date. Defence counsel later indicated that a formal discovery was not necessary and a meeting with the witness would suffice.

[37] The preliminary hearing took place on February 3 and 4, 2014 and Mr. Kidd was committed to stand trial on all 35 charges.

[38] A first appearance before the Superior Court of Justice was held on February 14, 2014 at which time a date was set for a judicial pre-trial on April 22, 2014. Defence counsel noted that April dates were being chosen because he was still planning to do discovery in March.

[39] Crown counsel set up the meeting for defence counsel with D/Sgt. Crowley to take place on April 15, 2014. Defence counsel indicated he no longer wished to meet with D/Sgt. Crowley but the Crown counsel and D/Sgt. Crowley met in any