Court File and Parties

COURT FILE NO.: CR-15-30000157-0000 DATE: 20170525 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Soula Olver, for the Crown Respondent

- and -

CONSTANCE SEKYERE Ernest Guiste, for the Defendant/Applicant Defendant/Applicant

HEARD: May 23, 2017, at Toronto, Ontario

Michael G. Quigley J.

Reasons for Ruling

Re: Trial Adjournment Application

[1] This morning the accused, Constance Sekyere, seeks an adjournment of her trial, which was to commence today.

[2] Let me say this, this case has gone on for far too long. The trial has already been adjourned once. It has dragged along at glacial speed for several years. The public’s right to have these charges heard and tried on their merits is now critical. The accused was arrested on December 10th, 2013; three and a half years ago. Nevertheless, the accused does have the right to make full answer and defence. Those two rights need to be balanced.

[3] I am disturbed by aspects of the adjournment record before me. This is the second time in as many months that the accused has sought an adjournment. Justice Dunnet denied an adjournment request on April 6th. Yet, Mr. Guiste again applies for an adjournment today, the scheduled trial date. Further, I also noted in correspondence from Mr. Guiste to Dr. Jaffe on January 18 of this year, that Mr. Guiste indicates to Dr. Jaffe that he “is still awaiting a budget” from Legal Aid Ontario (LAO), when he ought to have known at that time that Ms. Sauvageau of LAO had actually denied the budget on December 20th, about a month before that.

[4] I now accept, however, as stated in the applicant’s affidavit, that the reason for that is that Mr. Guiste was not aware that the letter denying his claim for big case management had actually been posted on the LAO electronic “portal” a month before. Why the difficulties of extensive reliance on not always satisfactory electronic communications should stand in the way of person-to-person communications, and the saving of time and avoidance of delay that results at least in this case, is unknown to me, but equally, it hardly seems responsive to the increasing pressures post- Jordan to move cases along expeditiously.

[5] I do accept, however, that the record for the adjournment application before me today is considerably more fulsome than what was before Dunnet J. six weeks ago, since Dr. Jaffe has now provided particular times of availability that he will provide to do his assessment and to give evidence if funding availability can be arranged.

[6] The issue is the defendant’s claim that she is a victim of battered wife syndrome. Maybe she is; maybe she is not. Battered wife syndrome has been accepted as a defence by our courts for spouses who have been accused of violent offences in domestic situations, such as this accused in this case. It cannot be known whether the accused is a victim of battered wife syndrome and whether that is a defence that has an air of reality in this case because Ms. Sekyere has not yet been assessed by Dr. Jaffe.

[7] The problem is funding. Defence counsel sought big case management funding from LAO in an application dated only last December 6th, 2016, notwithstanding that this case is quite old, that defence counsel has been retained for at least two years, and has known from the outset that that was the defence that he proposed to rely upon and advance in defence of the accused's actions against her former common law spouse, Kamal McLeod, who was the alleged victim of the aggravated assaults that the accused is faced with today, and the father of their child Tamara McLeod.

[8] I note, however, notwithstanding that the alleged basis for the adjournment request relates only to the potential battered wife syndrome defence, that the big case management budget claimed by Mr. Guiste included not only funding for Dr. Jaffe, the leading expert in the field, to assess the accused and prepare a report and to be able to testify at her trial, but also for a section 11(b) Charter application to stay the charges because of delay. There was also funding requested for a third party records application for records from Children’s Aid Society, but Kelly J. dismissed that application in February of this year.

[9] The LAO funding request seeks funding for an 11(b) challenge, given that the trial that was to commence today is 41 months after charge. There is also an abuse of process application based on the claimed failure of the police to investigate this matter to the full extent it is claimed they should have, given its domestic violence context.

[10] In some ways it does not surprise me that the LAO application was dismissed. LAO says that the matter is neither complex enough nor involves serious enough charges to warrant a big case legal aid budget. I do not agree with that relative to the proposed defence, but it did surprise me that defence counsel claimed that relative to the battered wife syndrome defence, his costs would be $24,300, including 25 hours of preparing the expert witness, 25 hours to prepare for cross-examination of the complainant, 25 hours for preparation of cross-examination of the police witnesses, 15 hours for preparation of the complainant to testify, 75 hours for the preparation of closing arguments to the jury, and 15 hours to prepare for the pre-charge jury conference. These are very high estimates, in my judgment, especially for counsel like Mr. Guiste, given his many years of experience. Dr. Jaffe seems to contemplate considerably less time for this preparation.

[11] The total estimated legal aid claim is $57,510 for 426 hours for a matter that involves, at most, at most, a nine-day trial, three relatively brief police witnesses, the cross-examination of the complainant, and the examination of the defendant and then submissions to the jury. So the magnitude of the claim surprises me, and perhaps provides some indication of why it was denied. I cannot say, but it does raise my eyebrows. That however, is a matter between LAO and Mr. Guiste, but if the claimed budget is excessive, then it is unlikely to be approved, and that means the funding for the proposed battered wife defence will not be available, which would defeat the entire purpose and foundation of this adjournment claim.

[12] The issue here, however, is whether the matter should be adjourned to permit the battered wife syndrome defence to be developed and to permit Mr. Guiste to again press on LAO for funding. Dr. Jaffe is prepared to assess the accused in August, to have his report done in 10 hours and to testify at trial in October and November. Interestingly, compared to Mr. Guiste’s claims of time that will be needed to be spent, Dr. Jaffe would charge only $2,400 for 16 hours - 3½ to interview the accused, 2½ for psychological testing, and 10 hours for file review and report preparation, plus $500 per day to testify at trial, and only $300 for trial preparation, plus the train fare on an economy basis to Toronto, for $900, for a total of $3,340.

[13] Notwithstanding these seeming inconsistencies and the concerns they raise, I am prepared to grant the adjournment for the purpose for which it is sought, but subject to very tight constraints and reporting to me, since I will case manage this matter forward towards a trial date of October 23rd, 2017, at the absolute latest, for nine days, peremptory to the defendant on that date regardless of the LAO funding issue.

[14] I do so reluctantly, but in the belief that if there is an air of reality to the proposed defence, and funding can be obtained, then the defendant should be able to take the steps to advance it. That is what makes the need for LAO funding important.

[15] Mr. Guiste can have until June 30th to obtain LAO funding for the expert. If that funding is not forthcoming, defence counsel will need to consider and quickly determine whether a Rowbotham application will be brought to obtain funding from the Attorney General. If such an application is to be brought, it must be brought before me and heard prior to July 30th, with consequential earlier preparation and exchanges between counsel of the applications materials.

[16] This time frame is necessary because Dr. Jaffe proposes to assess the accused in August. So if the funding is not available by that point, either provided by LAO or the Attorney General, assuming the defendant was successful on a Rowbotham application, which, I note, is by no means certain, then the assessment will not be able to be funded.

[17] Whether funded or not and whether the expert is retained or not, the matter is to be tried peremptory to the defence on October 23rd, 2017, for nine days.

[18] You will both appear before me again in three weeks time, on Friday, June 9, to report on the state of efforts to obtain LAO funding and to advise on whether there is a possibility or need that a Rowbotham application will be brought.

[19] The defendant assures the Court that s. 11(b) is waived to the next trial date, but that is of little relevance if the defence actually plans to bring a s. 11(b) application at that time. So since the time limits under Jordan are now past, even though these are pre- Jordan charges, and there has been significant defence delay based upon my brief review of the matter, the possibility for a s. 11(b) application is either to be abandoned or it is to be brought before me during the next six weeks.

[20] So that is the basis upon which I am prepared to grant this adjournment. It is as tight a time frame as I can possibly impose, as best as I can, while still permitting the defendant to at least try to determine if the defence can be advanced, yet it brings the case back before the courts at the earliest possible opportunity, but it also imposes upon defence counsel a very strict time regime within which steps have to be accomplished. We are not going to be in the position where that trial date is going to be reached and something new is going to be raised at that time. If a s. 11(b) application is going to be brought, there is no reason to wait; bring it on now.

[21] I understand that an abuse of process application would need to await the officers’ testimony at trial. That is understandable to me. I need to know if Mr. Guiste is diligently pursuing this matter, which I will note has not been the case to this point in my view. If it is being diligently pursued, we should have an answer from LAO within a month. You can provide them with a copy of my ruling so as to try to determine on an expedited basis, as the Court requires, whether they are prepared to fund Dr. Jaffe under the circumstances.

[22] Mr. Guiste, I will suggest to you that you need to sharpen your pencil on your LAO budget, and I will want to know about what the status of that matter is when you return in front of me in three weeks’ time on June 9.

[23] That is the schedule that I am setting and I will be case managing between now and the trial. Finally, I note that Crown counsel conceded today that the child, Tamara McLeod, will not be called as a witness at trial, so no s. 715.1 accommodations will be necessary for the trial scheduled for October 23, 2017.

Michael G. Quigley J. Released: May 25, 2017