ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Anthony Magiri
Defendant
COUNSEL:
Valerie Culp, for the Crown
Franklin Lyons, for the Defendant
HEARD: May 01, 2017
MCWATT, J.
Introduction
1Mr. Anthony Magiri applies for a stay of proceedings pursuant to sections 11(b) and 24(1) of the Charter of Rights and Freedoms.
Background
2The complainant in this matter reported a sexual assault to police on April 7, 2013. On January 14, 2014, a warrant for a sample of the applicant’s DNA was issued. Pursuant to that warrant, the applicant provided DNA samples on January 28, 2014. Soon thereafter, Mr. Magiri left Canada. He arrived in Kenya on February 11, 2014. He returned to Canada and was arrested on January 30, 2015.
3Subsequent to the applicant’s departure, his DNA samples were tested, and he was charged with sexual assault. The applicant did not return to Canada for another 10 months and 3 days.
4The information was sworn on March 28, 2014. The anticipated end of trial is June 2, 2017, therefore 38 months and 6 days is the present time span for this matter.
5This motion hinges on this Court’s characterization of the 10 months and 3 days between the swearing of the information and the applicant’s arrest.
Positions of the Parties
6The applicant submits that the 38 months and 6 days is prima facie excessive and infringes his right to be tried within a reasonable time. The Crown’s position is that the 10 month, 3 day period of delay occasioned by the applicant’s leaving Canada should not be considered in the s. 11(b) analysis. The interests protected by s. 11(b) were not engaged during this time. In the alternative, the time period should be characterized as a “discrete event” exceptional circumstance, and should be deducted from the delay in bringing this matter to trial. Under either of these approaches, the resulting period of delay is 28 months, 3 days and the applicant is not able to show of these that this presumptively reasonable delay is, in fact, unreasonable. Meaningful and sustained steps to proceed to trial were not taken. The applicant has not been able to show that his case has taken markedly longer to proceed to trial than it should have.
7The application is dismissed for the following reasons.
Analysis
8The usual approach, adopted by the Supreme Court of Canada in R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, is that the time period for consideration of unreasonable delay commences on the day upon which an information or indictment is sworn against an accused. Section 11(b) protects an accused person’s interest in liberty, security of the person and a fair trial. Justice Moldaver explained in R. v. Jordan, 2016 SCC 27, 2016 S.C.C. 27 at para 20.
“Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions, Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence…”
9The interests described in Jordan, however, are not engaged when the accused is unaware of the criminal charges he faces. The accused is not held in pre-trial custody or forced to live under stringent bail conditions. The accused suffers no stress or anxiety and perceives no stigma. When evidence is physical and non-perishable, the passage of time does not cause prejudice to fair trial interests.
10In R. v. Millar, 2016 BCSC 1887 at paras 25-29, 136, the accused was arrested months after charging documents were sworn. It could not be established that the appellant knew he had been charged with an offence. He did know that his property was being held pursuant to a Criminal Code warrant. Noting that this accused did “not suffer the vexations of a criminal charge” prior to arrest, the Court identified the arrest date as the appropriate starting point for its 11(b) analysis.
11In selecting the arrest date as the appropriate starting point for its analysis, the Court in Millar distinguished the matter before it from Kalanj, finding that the Supreme Court in that case focused only on whether periods of delay between arrest and the swearing of the information should be considered in the s. 11(b) analysis. Justice Grey, in Millar, noted that the Kalanj case did not consider the characterization of pre-arrest delay in any meaningful way and thus did not apply to Mr. Millar’s case (Ibid at paras 117-122).
12The applicant’s matter is analogous to Mr. Millar’s.
13The time period for consideration in this case begins on January 30, 2015, which is the date of the arrest. The anticipated end of trial is June 2, 2017. The “total delay” in this case is, therefore, below the presumptive ceiling: 28 months and 4 days. The onus shifts to the applicant to show that the delay is unreasonable.
14The applicant cross-examined the officers involved in the investigation of Mr. Magiri on this application. He asserts that the evidence shows that they should have done more than they did to find out where he was and bring him to justice more quickly. It is not disputed that Mr. Magiri left the country and went to Kenya for the period in question. Significant efforts were made to locate him after his DNA test results implicated him in the sexual assault. A “warrant in the first” was issued. Police telephoned him on numerous occasions and paid multiple visits to his residence. At one point, an officer received information that the applicant had left the country. After Border Services officers were unable to determine where the applicant might have gone, the police asked that the applicant be flagged in the CBSA systems. That the officers did not contact Interpol, use social media or contact the applicant’s family and friends to find him does not make the time period in question part of an unreasonable delay. They were more than diligent with the constant checking for the applicant after the warrant for his arrest was issued. The time period should not count against the Crown’s obligations to provide Mr. Magiri with a trial within a reasonable time in these circumstances.
Exceptional Circumstances
15I also accept the Crown’s alternative argument that the 10 months and 3 days between charge and arrest are deductible from the total delay as a “discrete event” and exceptional circumstance. Even if the time period for consideration commences on March 28, 2014 (the day upon which the information was sworn), the total delay in this case amounts to 38 months and 6 days. The delay spanning March 28, 2015 to January 30, 2015 (the 10 months and 3 days the applicant was absent from Canada) should be attributed to a “discrete event” exceptional circumstance, and deducted from the total delay in bringing the applicant’s matter to trial.
16Exceptional circumstances are those that are reasonably unforeseen or reasonably unavoidable, and which generate delay the Crown cannot reasonably remedy (Jordan, supra at paras 69-72). The Court in Jordan explained that a discrete event exceptional circumstance: “cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction.” was an example of such a circumstance.
17The police in this case could not have foreseen that the applicant, shortly after providing DNA samples, would leave Canada. He had been completely cooperative prior to his leaving.
18Once the applicant was located and arrested, the Crown and police made concerted efforts to remedy the delay in commencing proceedings. Pre-trials and a preliminary hearing were swiftly scheduled and the applicant’s Superior Court trial was prioritized over in-custody matters. The Crown made significant efforts to expedite the pre-trial motions process.
19When the period of 10 months and 3 delays is deducted from the total or net delay of 38 months and 6 days, a delay of 28 months and 4 days remains. The onus then shifts to the applicant to show that the delay is unreasonable.
Rebutting the Presumption of Reasonable Delay
20As the remaining delay falls below the presumptive ceiling, the applicant must rebut the presumption of reasonable delay.
21The applicant has not rebutted the presumption of reasonable delay in this case. Defence counsel must show cooperation with the Crown attempts to set the earliest possible dates and to conduct pre-trial applications reasonably and expeditiously (Jordan at para 85).
22Conduct of an accused which causes delay significantly undermines an accused’s claim that meaningful and sustained steps to proceed to trial have been taken. An example of an accused’s conduct giving rise to “defence delay” is “foot-dragging” in securing Legal Aid funding and retaining counsel (R. v. Isaacs, 2016 ONSC 6214 at para 90, citing R. v. Boateng, 2015 ONCA 857).
23In this case, the applicant’s Legal Aid certificate was cancelled after he failed to respond to a request on August 5, 2016 for financial disclosure. Mr. Magiri did not address this request until February, 2017. Only when a “with-or-without counsel” trial date was set did the matter proceed. Allowing a Legal Aid certificate to lapse is evidence that the applicant was content with the pace of the litigation.
24In addition, defence counsel expressed his intention to file a s. 11(b) motion on December 22, 2016. April 7, 2017 was the day upon which application materials were to be filed, but none were filed on that date. Defence counsel failed to provide motion materials on April 11 and, again, on April 13.
25Ultimately, defence counsel filed a complete Constitutional challenge on the Crown on April 20, 2017, and a complete s. 11(b) application on April 21, 2017.
Conclusion
26The application is dismissed.
McWatt, J.
Released: May 12, 2017
CITATION: R. v. Magiri, 2017 ONSC 2818
COURT FILE NO.: CR-16-50000743
DATE: 20170512
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
R. v. Magiri
Charter Ruling
McWatt, J.
Released: May 12, 2017
