COURT FILE NO.: 17-50000072
DATE: 20180404
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
GARY PINE
Andrea MacGillivray, for the Crown
Corbin Cawkell, for the Applicant
HEARD: November 6 and 17, 2017
B. P. O’Marra, J.
RULING ON AN APPLICATION FOR A STAY OF PROCEEDINGS
OVERVIEW
[1] On December 25, 2012 members of the Toronto Police Service (TPS) began an investigation into an alleged sexual assault. The police learned that the complainant had an intellectual disability. On February 15, 2013 an Information was sworn and a warrant was issued for the arrest of Gary Pine. He was not located by police until July 29, 2015 when he was arrested on unrelated charges. On January 19, 2017 he was committed for trial after a Preliminary Hearing. The anticipated end of the trial in the Superior Court was January 16, 2018.
[2] On November 6, 2017 I heard submissions on an application pursuant to sections 11(b) and 24(1) of the Charter to stay the charge. On November 17, 2017 the application was dismissed. These are my reasons.
THE CHRONOLOGY
[3] The parties agree that this application hinges on the characterization of the time period between the swearing of the Information on February 15, 2013 and the arrest on July 29, 2015. If that time period is attributed to the Crown the total delay is 59 months and a day. If that time period is not attributed to the Crown the total delay is 29 months and 18 days.
[4] On December 26, 2012 the complainant provided a video statement to police after she had been treated in hospital. She alleged that on the prior day a man named Gary had forced sexual intercourse with her. She said the suspect lived in apartment #12 in her building. The complainant’s mother was the superintendent of that building. She told police that apartment #12 was leased by a woman named Linda Froude and that a person named Dennis Dugay was also staying there.
[5] The police contacted Linda Froude on December 27, 2012. She told the police that Gary Pine was not at her apartment and that he lived in Mississauga. She did not have an address or phone number for him. The police viewed Gary Pine as a person of interest pending the results of forensic testing. The officer in charge was then off duty until January 4, 2013.
[6] On January 5, 2013 the police received a call from counsel for Gary Pine. Counsel was advised that the police still awaited the forensic test results and wanted to interview his client. Counsel provided a phone number for Gary Pine.
[7] On January 6, 2013 the police returned to apartment #12 to locate and interview Gary Pine, Dennis Dugay and Linda Froude. Dugay was the only one present and he was interviewed. The police left a business card with Dugay for Linda Froude and Gary Pine to contact them for an interview.
[8] On February 13, 2013 the police left messages with counsel for Gary Pine and also Linda Froude. There was information that Gary Pine drove a vehicle registered to Linda Froude. Police attended the address that Gary Pine had been staying at when the allegations came to light. The plan was to arrest Gary Pine. They were unable to locate him and were advised that he had not been at that address for several weeks. The officer in charge prepared a form that would flag Gary Pine as a person of interest in any subsequent contacts with police.
[9] The Information was sworn on February 15, 2013. The police attended again at apartment #12 to locate and arrest Gary Pine. They were unsuccessful. Dennis Dugay told the police that Gary Pine had not been seen for a month and left no current contact information.
[10] On February 20, 2013 the officer in charge spoke with counsel for Gary Pine and advised him that there was a warrant for the arrest of his client. Counsel advised the police that he had requested a retainer from Gary Pine some time ago and had not heard from him since. Counsel also advised that he did not have current contact information for his client.
[11] Further investigative checks indicated that Gary Pine had resided at an address on Symington Avenue in Toronto. Police attended there on February 26, 2013 and learned that he had been seen there but was not residing there. There was mail addressed to Gary Pine at that building.
[12] On March 19, 2013 police attended at an address in Mississauga to speak to a family member of Gary Pine. The police were told that they had not heard from Gary Pine for months and could not provide any contact information for him. Further checks were conducted for Gary Pine on May 1, 2013 with negative results. The police database was checked to ensure that the warrant in the first instance was still on file. It remained outstanding.
[13] On July 29, 2015 Gary Pine was arrested for an unrelated matter. The warrant in the first instance for the alleged sexual assault was executed on that day. On August 10, 2015 Gary Pine was released on a recognizance with sureties and has been on bail for the remaining time.
[14] It is not necessary in this case to set out a detailed chronology of the progression of this case through two levels of court.
[15] Trial dates were originally set for September 20 – 22, 2016 inclusive in the Ontario Court of Justice. The complainant is developmentally delayed and was prepared to testify on the first day of trial. However, on September 20, 2016 counsel for Gary Pine requested an adjournment and waived the time period until new dates for trial on January 18 – 20, 2017. On January 18, 2017 the accused re-elected for trial in the Superior Court. A Preliminary Hearing was completed that day, including evidence of the complainant. Committal for trial was not contested. The four month period preceding January 18, 2017 was explicit defence delay and must be deducted from the total time between the date the Information was sworn (February 15, 2013) and the anticipated end of trial (January 16, 2018). The total net delay would then be 55 months and one day.
POSITION OF THE PARTIES
[16] The parties have properly focused their submissions on the characterization of the time period between the swearing of the Information on February 15, 2013 and the arrest on July 29, 2015 (29 months, 14 days).
[17] The applicant submits that the entire net delay between February 15, 2013 and January 16, 2018 is the relevant time period. He concedes that if the police had diligently pursued investigative techniques and inquiries to locate and arrest Gary Pine before January 29, 2015 some of the preceding time could arguably be viewed as discrete exceptional circumstances. However, he submits that the police took no steps at all to locate and arrest Gary Pine in a timely manner. He submits that the total net delay far exceeds Jordan pronouncements even in this transition case.
[18] The respondent submits that the s. 11(b) clock should begin on the date of the arrest and not the date of the swearing of the Information. In the alternative, the respondent submits that the delay in arresting Gary Pine should be viewed as a discrete event or exceptional circumstance. The respondent further submits that the proceedings after the date of arrest were not unreasonably delayed.
THE LEGAL FRAMEWORK
[19] Since July 2016, the Supreme Court of Canada has imposed a significant new framework for assessing whether delays in criminal matters are unreasonable: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R v. Williamson, [2016] 1 S.C.R. 742; R. v. Cody, 2017 SCC 31.
[20] In R v. Coulter, 2016 ONCA 704, the new framework was summarized as follows at paras. 34-41:
34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
35 Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
37 If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
38 Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
39 If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, at para. 48).
41 The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96).
[21] Jordan was released on July 8, 2016. If a case was already in the system when Jordan was released, as in this case, a “transitional exceptional circumstance” may arise “if the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed.” (Jordan, at para. 96).
[22] Delay is calculated from the date the Information is sworn. R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, Jordan at para. 47.
ANALYSIS
[23] There was no obligation on Gary Pine to present himself for arrest whenever he found out that there was a warrant. However, it is also clear that the police took reasonable and diligent steps to find him as his status evolved from person of interest to an accused. Based on those efforts I find that the time between the swearing of the Information and the arrest constitutes an exceptional circumstance and discrete event. That period of time must be subtracted from the net delay. This leaves a remaining delay of 26 months, 13 days. That falls below the presumptive ceiling in Jordan and the onus is then on the applicant to show that the delay is unreasonable. A stay of proceedings for delays that fall beneath the presumptive ceiling will be rare and are reserved for the “clearest of cases.” The defence must establish that (i) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (ii) the case took markedly longer than it reasonably should have: Jordan at paras. 48 and 82.
[24] There is no evidence on this application of meaningful steps taken by the applicant demonstrating a sustained effort to proceed to trial. The case has not taken markedly longer to reach trial than it should have.
[25] The applicant also raised the issue of actual prejudice related to memory issues for both the complainant and himself. The intellectual development level of the complainant was known from the outset of the allegations. The onus rests with the applicant to relate the effect of the delay to increased prejudice to his fair trial interests. He has failed to do so. This is not one of the clearest of cases that merits a stay of proceeding.
RESULT – The application is dismissed.
B.P. O’Marra, J
Released: April 4, 2018
COURT FILE NO.: 17-50000072
DATE: 20180404
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
GARY PINE
RULING ON AN APPLIATION FOR
A STAY OF PROCEEDINGS
B.P. O’Marra, J.
Released: April 4, 2018