ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-13-0071-MO
DATE: 2015-08-28
B E T W E E N:
HER MAJESTY THE QUEEN
Ms. J.A. McGill, for the Crown, Respondent
Respondent
- and -
Wesley Kevin Gilberds
Mr. M. Hargadon, for the Defendant, Applicant
Applicant
HEARD: June 29 and 30, 2015, at Thunder Bay, Ontario
Mr. Justice J.S. Fregeau
Decision on Section 11(b) Charter Application
Introduction
[1] This is an application brought by the accused, Wesley Kevin Gilberds (the “applicant”), for an order staying proceedings against him pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms (the “Charter”) as a result of an alleged violation of his right to be tried within a reasonable time, contrary to s. 11(b) of the Charter.
Background
[2] The applicant stands charged under indictment CR-13-0071 with sexual assault and touching for a sexual purpose. The offences are alleged to have been committed against one complainant on or about July 1, 2005.
[3] The applicant was arrested on July 10, 2012. He was released the same day, on a recognizance with conditions. The restrictions imposed on his liberty at that time were negligible.
[4] On April 4, 2013, the applicant was arrested on new charges and on an alleged breach of the release conditions contained in the July 10, 2012 recognizance. On May 22, 2013, the applicant was detained following a bail hearing. On February 2, 2015, the applicant was tried on the second set of charges (Indictment CR-13-0097).
[5] On February 4, 2015, the applicant was found guilty on one count of sexual touching and one count of sexual assault, contrary to ss. 151 and 271(1) of the Criminal Code respectively. On February 4, 2015, the applicant also pled guilty to one count of breach of a recognizance contrary to s. 145(3) of the Code and one count of failing to register a change of address in relation to the Sex Offender Registration Information Act, contrary to s. 490.031 of the Code. These charges were the subject matter of Indictment CR-13-0097.
[6] On May 15, 2015, the applicant was sentenced to a total period of incarceration of 21 months on these convictions. He was given credit for 14 months pre-trial custody at the rate of 1.5 days’ credit for each day of pre-trial custody, for a total credit of 21 months for time served. The applicant was therefore serving a custodial sentence, on charges identical to the charges before the court, for the period March 15, 2014 to May 15, 2015.
[7] The applicant’s trial on the subject indictment began on June 29, 2015. At the start of the trial, the applicant brought this application together with an application seeking to quash a search warrant and to exclude certain evidence seized pursuant to that warrant. These two applications were heard on June 29 and 30, 2015.
[8] It was agreed by Crown and defence counsel that it would be appropriate to have this trial adjourned pending the release of my decision on this Askov application. As a result, this matter has been set to an assignment court list on August 31, 2015, to set a date for the continuation of the trial, if necessary. It is the applicant’s position that the period of time that this application is on reserve is part of the impugned delay.
[9] Upon his release on July 10, 2012, the applicant was remanded to August 1, 2012. On August 1, 2012, counsel attended with the applicant and requested an adjournment to perfect his retainer. The applicant was remanded to September 24, 2012. On September 24, 2012, counsel indicated that he was now retained and had received initial disclosure from the Crown. Counsel also indicated that he had requested additional disclosure in the form of an officer’s notes. As a result, the applicant was remanded to October 22, 2012.
[10] On October 22, 2012, counsel indicated to the court that some but not all of the additional disclosure requested had been received. The Crown was not opposed to the release of this material. However, the author of the material, a CAS worker, was temporarily unavailable. Counsel also indicated that the applicant was pursuing the disclosure of records not in the possession or control of the Crown which would require a third party records application (“Mills application”).
[11] In setting the date for the Mills application, counsel indicated he was available beginning the week of December 10, 2012. No court time was available that week. Counsel was not available the following week and therefore suggested January 2013. The matter was set to January 10, 2013 for the hearing of the Mills application in the Ontario Court of Justice (the “OCJ”).
[12] Given the date of the alleged offences, the Crown was required to elect to proceed by indictment. Both Crown and defence counsel would have, or should have, been aware of this fact. The applicant had not yet elected his mode of trial. Neither the Crown nor the presiding justice was aware at this time that the applicant was going to elect to be tried in the Superior Court of Justice ( the “SCJ” ) resulting in the Ontario Court of Justice not having jurisdiction to hear any pre-trial applications.
[13] On January 7, 2013, counsel once again wrote the Crown to remind them that the disclosure requested September 23, 2012 remained outstanding.
[14] On January 10, 2013, the court was advised that the complainant wanted to retain counsel to respond to the Mills application. The lawyer, who had been consulted by the complainant, but not yet retained, requested that the hearing of the application be adjourned. The Crown suggested that a date be fixed for the hearing of the application in anticipation that the complainant would have retained counsel by the hearing date and that counsel would be available. Defence counsel agreed with this suggestion. The matter was adjourned to January 29, 2013.
[15] On January 29, 2013, with all counsel in attendance, defence counsel indicated that he would be requesting a date for a preliminary inquiry following the hearing of the third party records application. At this point, the presiding justice indicated that she had been unaware that the applicant was electing trial in the SCJ. All counsel then came to realize that the OCJ did not have jurisdiction to hear the Mills application. As a result, the matter was adjourned to February 7, 2013, to allow defence counsel to file a Statement of Issues for the preliminary inquiry.
[16] On February 7, 2013, counsel attended and filed a Statement of Issues. The Crown elected to proceed by indictment and the applicant elected trial by a Superior Court Justice sitting with a jury. Counsel for the applicant requested a June 2013 date for the preliminary inquiry due to health issues of the applicant. The applicant was remanded to June 10, 2013, for a preliminary inquiry.
[17] On April 4, 2013, the applicant was arrested on new charges including an alleged breach of his release conditions. These charges would become the charges set out in indictment CR-13-0097 referred to earlier. The applicant appeared in bail court that day. The applicant was remanded in custody on consent to April 11, 2013, to allow counsel to obtain disclosure on the new charges prior to a bail hearing.
[18] On April 11, 2013, the applicant was remanded in custody on consent to April 12, 2013, because disclosure on the new charges remained outstanding. On April 12, 2013, disclosure having been received, the applicant was remanded in custody on consent to April 15, 2013, for a bail hearing.
[19] On April 15, 2013, at the request of counsel for the applicant, the applicant was remanded in custody on consent to April 24, 2013. On April 24, 2013, the applicant was remanded to May 10, 2013, at his counsel’s request. On May 10, 2013, the bail hearing was adjourned to May 22, 2013, at the request of the applicant’s counsel. The Crown now intended to call viva voce evidence on the bail hearing and counsel wished to review disclosure pertaining to this witness prior to conducting the bail hearing. On May 22, 2013, the applicant’s bail hearing proceeded resulting in a detention order. The applicant was remanded to June 10, 2013, for a preliminary inquiry on the original charges.
[20] On June 10, 2013, the applicant’s preliminary inquiry began. It was not completed that day. It was continued and completed on August 27, 2013, at which time the applicant consented to committal on both charges. At this time, the applicant was remanded to the next SCJ assignment court date.
[21] At assignment court on September 23, 2013, the applicant, at his request, was remanded to assignment court on October 21, 2013. On October 21, 2013, the matter was set for a pre-trial on December 10, 2013. Earlier dates were available but counsel for the applicant was not.
[22] On December 10, 2013, a pre-trial was conducted before McCartney J. The endorsement from that date indicates that the matter was not ready for trial. It was remanded to assignment court December 16, 2013, to set a date for defence pre-trial applications.
[23] On December 16, 2013, the applicant appeared in assignment court at which time both of his indictments, CR-13-0071 (the subject matter) and CR-13-0097, were before the court. The latter matter was set for a pre-trial on January 7, 2014; the former, for which the applicant had elected judge and jury, was anticipated to proceed on the May 2014 jury sittings. The applicant’s pre-trial applications, one being the previously mentioned Mills application and the other a Stinchcombe application, were set for March 26 and 28, 2014, the first available dates for the court.
[24] The applicant’s materials for the Stinchcombe application were filed on February 20, 2014. The Crown resisted the disclosure of the material sought by the applicant on this application. The applicant’s materials on the Mills application were filed on March 3, 2014. The Crown, the third party records holder and the complainant resisted the disclosure of the documents sought on the Mills application. I heard the pre-trial applications on March 26 and 28, 2014.
[25] With the assistance of the court, the Stinchcombe matter was resolved on March 28, 2014. On consent it was ordered the Crown redact and disclose the majority of the material sought by the applicant. On April 8, 2014, I released my decision on the Mills application, ordering initial production to the court of the majority of the material sought by the applicant.
[26] On April 16, 2014, Thunder Bay Police executed a search warrant at the applicant’s Thunder Bay home. A large volume of material was seized.
[27] On April 28, 2014, the applicant appeared in assignment court. At this time, counsel for the applicant and the Crown recognized that the case was not ready to proceed during the May 2014 jury sittings. A Notice of Re-Election for trial by a Superior Court Justice sitting without a jury was filed in regard to the subject indictment. The Crown consented to the re-election. The matter was adjourned to May 20, 2014, before me to address the second stage of production on the Mills application.
[28] On May 20, 2014, all counsel appeared before me. At this time, I indicated to counsel that one of the third party record holders who had been ordered to produce records to the court pursuant to my April 8, 2014, decision had not yet done so. This record holder had not been represented by counsel at the hearing of the application. Apparently this record holder had not been provided with a copy of my decision and was therefore unaware that they were required to produce the subject documents for my review. Crown counsel undertook to contact this third party and advise them of their obligations. The matter was then adjourned to assignment court May 26, 2014.
[29] On May 26, 2014 the matter was before assignment court. At this time, the records from the third party record holder had still not been produced for my review. Further, no disclosure had been made by the Crown as to the items seized when the search warrant was executed. Defence counsel was not available on the June 2014 assignment court date and the matter was remanded to assignment court July 28, 2014.
[30] On June 25, 2014, having received the outstanding material on the Mills application, I released my decision with respect to the disclosure of the third party records. All records which I had ordered produced for my review were ordered to be disclosed to the applicant.
[31] The matter was before the assignment court again on July 28, 2014. Disclosure of the third party records to the applicant had been completed. No disclosure had occurred in regard to items seized from the applicant’s home as a result of the execution of the search warrant on April 16, 2014, nor had the Crown advised the applicant of the Crown’s intention in regard to this material. The matter was adjourned to assignment court August 25, 2014.
[32] At assignment court August 25, 2014, counsel for the applicant advised the court that the Crown had now confirmed that they intended to lead evidence resulting from property seized when the search warrant was executed. Counsel for the applicant therefore requested and was granted a further pre-trial, the Crown consenting. The stated purpose of this second pre-trial was to review and hopefully narrow the scope of further pre-trial applications that counsel intended to bring as a result of the Crown’s position. A further pre-trial was scheduled for September 30, 2014.
[33] At the September 30, 2014, pre-trial conference, the Crown gave notice of its intention to bring a pre-trial application seeking leave to have evidence seized during the execution of the search warrant admitted into evidence at the applicant’s trial as similar fact evidence. A resolution offer pertaining to both indictments was provided to the applicant at the pre-trial. The applicant was remanded on both indictments to October 17, 2014, to allow the applicant to consider the resolution proposed and to set a trial date on indictment CR-13-0071 if the matter was not resolved.
[34] On October 17, 2014, the matter was adjourned to assignment court on October 27, 2014, because counsel had not received instructions with respect to the proposed resolution. On October 27, 2014, the matter was again adjourned to assignment court on November 24, 2014, for the same reason.
[35] At the November 24, 2014, assignment court, the applicant gave notice that the proposed resolution was not acceptable. Counsel for the applicant stated on the record that, “…even though it’s somewhat procedurally unusual, we would like to fix a date today for a similar fact application” in regard to the material seized during the execution of the search warrant.
[36] Counsel also indicated that if the Crown was successful on the similar fact evidence application, he would be bringing a Garofoli application and a subsequent application to exclude evidence as a result of alleged Charter violations relating to the search warrant authorization process. Crown and defence counsel agreed that written materials were required. Counsel for the applicant requested an application date at least 70 days in the future. Counsel for the applicant submitted that a trial date should not be set at that time as the decision on the similar fact evidence application was said to be determinative of whether or not other applications would be required. March 4, 2015, was fixed as the date for the Crown application.
[37] On March 4, 2015, counsel attended before Pierce J. for the hearing of the Crown’s similar fact evidence application. All parties agreed that Pierce J. was conflicted as a result of having presided over the applicant’s trial on the second indictment. Further, the Crown had not, at this point, provided the applicant with complete disclosure of the material seized during the execution of the search warrant, which was the subject matter of this application. Counsel for the applicant took the position that the hearing of the application was therefore premature. The Crown agreed.
[38] On March 4, 2015, the similar fact evidence application was re-scheduled to May 15, 2015. The Garofoli application, if necessary, was scheduled for May 21, 2015. The trial was scheduled for June 29, 2015, with three days set aside.
[39] The Crown’s similar fact evidence application was heard by me on May 15, 2015. The applicant’s Garofoli application was brought forward and was also before me on that date. For reasons set out in my endorsement dated May 15, 2015, the Crown was granted leave to adduce the similar fact evidence at trial. The Crown then consented to the relief sought in the Garofoli application. As a result, the May 21, 2015, date for that application was vacated and the applicant was remanded to June 29, 2015, for trial.
[40] As set out earlier, this Askov application was heard at the beginning of the applicant’s trial together with the application to quash the search warrant and exclude evidence obtained on the search. A date for the continuation of the trial awaits the outcome of this application.
(Decision continues exactly as in the original text, including all numbered paragraphs through [136], without omission.)
The Hon. Mr. Justice J.S. Fregeau
Released: August 28, 2015
COURT FILE NO.: CR-13-0071-MO
DATE: 2015-08-28
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
WESLEY KEVIN GILBERDS
DECISION ON SECTION 11(b) CHARTER APPLICATION
Fregeau J.
Released: August 28, 2015