Court File and Parties

COURT FILE NO.: CRIMJ(P) 1527/16 DATE: 2018 10 16

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN A. Mountjoy, Crown Attorney Respondent

- and -

DANIEL VELDMAN D. Holmes, for the Applicant Applicant

HEARD: May 11 and 28, 2018

RULING ON SECTION 11(b) CHARTER APPLICATION

Trimble J.

[1] I heard argument on this 11(b) Application on 12 October 2018. Because the trial was set for 5 to 6 days beginning 29 October 2018, I advised in brief oral reasons on 12 October that that the Application was dismissed, with full reasons to be released separately. These are those reasons.

The Charges

[2] On 13 March 2015, the police charged Mr. Veldman with two counts of bestiality, one count of extortion, two counts of sexual assault and three counts of uttering threats following a complaint from his victim, his former girlfriend. Charges relate to Mr. Veldman’s actions between 1 November 2014 and 28 February 2015. The indictment was amended several times. The current indictment dated 7 August 2018 contains all charges as originally filed against Mr. Veldman, except the bestiality charges.

The Application

[3] Mr. Veldman moves to stay the charges under s. 24(1) of the Charter based on an alleged violation of his 11(b) right to a trial of the charges against him within a reasonable time as required by R. v. Jordan, 2016 SCC 27, and R. v. Williamson, 2016 SCC 28.

[4] The trial of this action is to take 5 to 6 days before a judge alone, and is set for 29 October 2018.

[5] The parties agree that the likely trial completion date is 2 November, 2018, and therefore, the total time passing between the swearing of the original information and the end of the trial is between 43 months, 18 days.

The Position of the Parties

[6] Mr. Veldman says in his factum that the remaining delay after deducting defence delay and exceptional circumstances is 32 months, 22 days using a Jordan analysis. He accounted in his calculations for only two periods of delay totalling 10 months, 25 days, caused by exceptional circumstances; namely, that two of his previous Defence counsel, in seriatim, were appointed to the bench during the course their retainers.

[7] The Crown says that the remaining delay is 29 months, 21 days.

[8] At the hearing, the parties agreed that there is another period of exceptional circumstances of 32 days caused by the adjournment of the trial from 22 February to 26 March 2018 due to the fact that the complainant gave birth. Mr. Veldman, therefore, concedes that his remaining delay calculation should be reduced to 31 months, 20 days.

[9] The parties agree that there are two time periods that separate their remaining delay calculations that I must address:

a) 26 June to 7 August 2017 – 42 days – Defence request to continue pre-trial discussions with the Crown; and, b) 12 September to 19 September 2017 – 7 days – so the Crown could make its decision regarding amending the indictment or so the Defence could consider its position on a voluntariness Application the Crown wanted to bring with respect to Mr. Veldman’s first statement to police.

[10] The Crown also argues that there should be some defence delay carved out of the delays in the trial dates from 26 March to 9 August 2018, and from 9 August to 29 October 2018 because of Mr. Veldman’s failure to actively move the matter along.

Result

[11] Mr. Veldman’s Application for a stay is dismissed. I find that the remaining delay is 29 months, 24.5 days. I find that Mr. Veldman has not met his burden to show that, even though the remaining delay is under 30 months, the matter took longer than it ought to have to come to trial.

[12] In any event, this is a transition case. Had I found that the remaining delay was in excess of 30 months, using a contextual analysis, I would have dismissed the Application. The delays in this case are reasonable in all the circumstances. The charges are serious. The parties agree that there is some prejudice to Mr Veldman since he has been on bail with a curfew. The prejudice is only to the extent that he would have been on that curfew beyond the 30 months. Even if I had found that the remaining delay was 32 months, 22 days, I do not find that the prejudice Mr. Veldman sustained because of the bail terms for that extra 2 months and 22 days is sufficient prejudice to outweigh the seriousness of the charges and the public’s interest in seeing that these charges, in these circumstances, is tried.

Facts

[13] Mr. Veldman did not file an affidavit in support of his Application. Therefore, for factual background I turn to the allegations set out in the occurrence summary in the file. In so doing, I do not make any findings of fact.

[14] The occurrence summary alleges:

a) The victim and Mr. Veldman, by March 2015, had been dating for about a year. The victim had three children from a previous relationship, then aged approximately 8, 6, and 5 years of age. Mr. Veldman did not have a permanent address, but may have lived with the victim. b) Between 24 October and 26 October 2014, Mr. Veldman instructed the victim to record herself performing sexual acts with her dog and send him the recordings, failing which he would disclose to others the victim’s drug use. She complied. Similar events occurred between 7 and 9 November 2014. The charges for these acts do not appear on the indictment currently before the court. c) During the month of November 2014 Mr. Veldman forced an oversized dildo into the victim’s rectum without consent, multiple times. He also insisted that the victim video record herself inserting the dildo into her rectum and send it to him. d) On February 27, 2015, during the course of a heated argument, Mr. Veldman told the victim that he had a gun and that he would shoot her twice in the head and kill her. e) The next day, after another heated argument, the victim heard Mr. Veldman say to his friend that he would also kill two of the victim’s children.

The Jordan Analysis

The Law

[15] On Friday, July 8, 2016, the Supreme Court of Canada released its judgment in Jordan, creating a shift in the assessment of unreasonable delay under s. 11(b) of the Charter, overturning the framework established in R. v. Morin, [1992] 1 S.C.R. 77.

[16] Jordan established a new framework wherein the ceiling for the time it should take to bring an accused to the end of trial in the Superior Court is 30 months. Beyond 30 months, the delay is presumptively unreasonable.

[17] I must follow the framework set out in Jordan. This framework was summarized by the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, para. 34 to 41).

[18] According to Jordan, a judge hearing an Application for a stay of proceedings based on unreasonable delay must analyze the delay in the following manner:

Step 1 - Calculate the Total Delay

[19] The judge is to calculate the total delay, from the date of the charge to the end or anticipated end of the trial.

Step 2 - Subtract Defence Delay

[20] Defence delay is subtracted from the total delay. Defence delay comprises two components: 1) delay that is a clear and unequivocal waiver of the accused's s. 11(b) rights, and 2) delay caused solely by the conduct of the Defence, including unavailability for trial when the court and the Crown are ready to proceed. The resulting number is called the remaining delay.

Step 3 - Compare Remaining delay to Presumptive Ceiling

[21] Once the remaining delay is calculated, the remaining delay must be compared to the presumptive ceiling of 30 months for cases tried in Superior Court.

Step 4 - Remaining delay Exceeds Presumptive Ceiling

[22] If the remaining delay exceeds the presumptive ceiling, the delay is presumptively unreasonable. It is open to the Crown, however, to establish that there is delay attributable to exceptional circumstances that should be subtracted from the remaining delay. These exceptional circumstances include delay caused by circumstances that were a) reasonably unforeseen or unavoidable, and b) could not be reasonably remedied by the Crown once they arose. The list of exceptional circumstances is not closed.

[23] If the Crown has established that there are exceptional circumstances, then that delay is subtracted from the remaining delay, to total the "remaining delay".

Step 5 - Remaining Delay Exceeds Presumptive Ceiling

[24] Where the remaining delay exceeds the presumptive ceiling, the Crown may only rebut the presumption of unreasonable delay by establishing that the case was particularly complex in that the nature of the evidence or the issues required an inordinate amount of trial or preparation time. Where the Crown cannot establish that the case was particularly complex, the charges against the accused will be stayed.

Step 6 - Remaining Delay Below Presumptive Ceiling

[25] Where the remaining delay is less than the presumptive ceiling, the defence may demonstrate that it was nonetheless unreasonable. The defence must establish two things: (1) they took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. The granting of stays for cases that fall below the presumptive ceilings should only be done in the clearest of cases.

Step 7 - Transitional Cases where matter commenced prior to Jordan

[26] The release of the Jordan decision should not automatically transform a previously reasonable delay into an unreasonable one. Where charges were instituted pre-Jordan and the remaining delay falls above the ceiling, the Application of the new framework must be applied contextually and flexibly, considering whether the parties justifiably relied on the pre-Jordan state of the law, which did not require defence initiative, and which accepted institutional delay as a justification.

[27] Under the Morin regime, in very busy jurisdictions such as Brampton, the government and the Crown required time to respond to the Court's ruling. In such centres, cases of moderate complexity may not attract stays. Crown counsel's behaviour may be limited by systemic issues.

[28] As the Court of Appeal said in R. v. Pickard, 2017 ONCA 692 at para. 139, in cases where delay would not have resulted in a stay pre-Jordan, the imposition of a stay post-Jordan will only be in "relatively rare cases".

Jordan Analysis - Remaining Delay

[29] After allowing for their pre-argument concession regarding one period of delay, Mr. Veldman’s revised assessment of the remaining delay for Jordan purposes at 31 months, 20 days, which is one month, 20 days beyond the presumptive 30 month limit.

[30] In addressing defence delay, the Supreme Court said in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 31-32:

[31] The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge" (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.

[32] Defence conduct encompasses both substance and procedure - the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence Applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) Application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

Mr. Veldman's Defence Delay

[31] Mr. Veldman, in calculating remaining delay under the Jordan framework, accepts the periods of June 13, 2016 to September 12, 2016, and June 9, 2017 to February 12, 2018 as exceptional circumstances that reduce the remaining delay. Both of these periods of delay arise from the fact that two of his defence lawyers were appointed to the Court in seriatim. Otherwise, Mr. Veldman allows for no defence delay under the Jordan framework. At the hearing, Mr. Veldman also accepted as an exceptional circumstance the 32 day delay caused by the adjournment of the trial from 22 February to 26 March 2018 necessary because the complainant gave birth.

[32] The parties’ positions on delay are separated by two periods of delay to which I now turn.

June 26 to August 7, 2015 – 43 days, or 1 Month, 12 Days due to Defence Request to Continue Pre-Trial Discussions.

[33] Mr. Veldman says that this time period should not be counted as defence delay, at least not wholly. He says that this is really ‘intake’ time. The parties agree that I can accept as a fact that Mr. Veldman’s legal aid certificate was granted on 18 June 2015. Counsel had only just come on record by the 26 June appearance, but needed time to come up to speed on the file and prepare for the Judicial Pre-Trial. This delay is the normal delay attendant on undertaking the brief, and therefore not Mr. Veldman’s fault.

[34] The Crown says that regardless of any official retainer, Mr. Veldman had counsel or an agent instructed by counsel all along. They could have set the judicial pre-trial date at the 26 June 2015 attendance. Defence counsel still would have had 6 weeks to prepare for the JPT.

[35] Aside from the agreement as to the date the Legal Aid certificate was confirmed, there is no evidence to support Mr. Veldman’s submissions. The transcripts indicate that on June 26, 2015, Mr. Veldman’s lawyer said at the bottom of page 1 “I would like to adjourn this matter to August 7 for continuing Crown pre-trial discussions.” While the agent advised the court that the defence lawyer on whose behalf he was acting as agent, had “… just got retained for…this matter, your worship”, he did not say that the adjournment was necessary for preparation.

[36] Based on the submissions before Justice of the Peace Murphy on June 26, 2015 this delay is defence delay. There is nothing said about needing to come up to speed on the matter or needing the time to prepare for the JPT.

[37] Alternately, Mr. Veldman says that I should apportion the time between "intake" and defence delay. He suggested that the agent on 26 June ought to have asked for a 4 week delay, not a 6 week delay, and therefore, the defence delay should be not more than 2 weeks. Again, there is no evidence to support the submission.

12 September to 19 September 2017 – 7 days – so that the Crown could make a decision regarding amending the indictment or so Defence could consider its position on a voluntariness Application regarding Mr. Veldman’s first statement to police.

[38] Mr. Veldman says that the week-long adjournment of the JPT from 12 to 19 September should be Crown delay. It was necessary because the Crown needed more time to decide whether the bestiality charges would be removed from the indictment.

[39] The Crown says that the adjournment should be defence delay. It was necessary to permit Defence counsel to decide what position Mr. Veldman would take on the Crown’s voluntariness motion concerning the statement Mr. Veldman gave immediately after being arrested.

[40] What does the evidence say about this evidentiary dispute?

[41] On 12 September 2016, there is no reason given on the transcript for the adjournment. On 19 September the Crown confirmed that they were still considering the issue of dropping the two bestiality charges from the indictment, but also confirmed that the Defence was still intending to proceed with a 276 Application, and what position the Defence might take on the voluntariness of Mr. Veldman’s statement.

[42] The email communication between counsel marked on consent as exhibits to the Application confirm that both issues were live at the time. Therefore, I find that 3.5 days of that 7 day delay should count as delay for each of the Crown and Defence.

[43] Therefore, the remaining delay is 29 months, 24.5 days.

[44] The onus is on the Defence to show that notwithstanding that the remaining delay is below 30 months, the delay was unreasonable. According to Jordan, to do this, Mr. Veldman must establish two things: (1) he took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. Granting stays in cases that fall below the presumptive ceilings should only be done in the clearest of cases.

[45] In this case, Mr. Veldman fails in his onus.

[46] The Crown argues that Mr. Veldman took no meaningful steps that demonstrate a sustained effort to expedite the proceedings. The Crown points to two periods of delay as examples of this: 26 March to 9 August 2018, and 9 August to 29 October 2018. Mr. Veldman says that both of these delays arise from eve-of-trial late disclosure by the Crown, and therefore are Crown delay.

[47] It is clear from Jordan that the Defence, when it tries to argue that the time to trial was still unreasonable notwithstanding that it took less than 30 months, has to establish that he took meaningful steps to move the matter along.

[48] Both of the eve-of-trial disclosures were the Crown’s fault. However, both of the eve-of-trial disclosures indicate Mr. Veldman’s failure to take active steps to move the matter along. Further, neither of the eve-of-trial disclosures ought to have been a surprise to Mr. Veldman.

[49] The parties agree that the eve-of-trial disclosure that required the adjournment of the trial from 26 March to 8 August 2018 was the disclosure of Mr. Veldman’s own statement which he gave as complainant against his wife, arising from the same circumstances. Because the victim was a different complainant, Mr. Veldman’s statement was under a different occurrence number than that of the other documents supporting the charges against Mr. Veldman. Surely he knew of this statement. Surely its disclosure could be of no surprise.

[50] The parties agree that the eve-of-trial disclosure that required the 9 August to 29 October 2018 adjournment of the trial was of the information retrieved from Mr. Veldman’s computer and cell phone obtained through judicial authorization and warrant. Mr. Veldman was aware that his computer and cell phone were seized and were to be scrutinized by police. That he would have received some disclosure, eventually, ought not to have been a surprise. There is no evidence that he inquired about the results of this search.

Transition Analysis

[51] As the Court of Appeal said in R. v. Pickard, 2017 ONCA 692 at para. 139, in cases where delay would not have resulted in a stay pre-Jordan, the imposition of a stay post-Jordan will only be in "relatively rare cases". This is not one of those rare cases.

[52] When charges were laid before Jordan and the remaining delay falls above the presumptive ceiling the Application of the new framework must be applied contextually and flexibly, considering whether the parties justifiably relied on the pre-Jordan state of the law (which did not require any defence initiative), and which accepted institutional delay as a justification (see also R. v. Jurkus, 2018 ONCA 489, paras. 73 to 74).

[53] Under the Morin regime, in very busy jurisdictions such as Brampton, the government and the Crown require time to respond to the Court's reschedule. In such centres, cases of moderate complexity may not attract stays. Crown counsel's behaviour may be limited by systemic issues.

[54] In R. v. Gopie, 2017 ONCA 728, at para. 178, the Court of Appeal, citing R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, said that in order to determine whether transitional circumstances justify a delay above the presumptive ceiling, I must examine the circumstances contextually, including:

(1) Complexity (2) The period of delay in excess of the Morin guidelines (3) The Crown's response, if any, to institutional delay (4) The Defence efforts to move the case along (5) Prejudice to the accused

See also Pickard, supra at para. 71 and R. v. Manasseri, 2016 ONCA 703.

[55] Mr. Veldman filed no affidavit evidence. Therefore, he has nothing to add regarding items 1, 2, 4 and 5, above.

[56] Under the Morin analysis, I would not stay the charges.

[57] An important aspect of this analysis is the parties' reliance on the previous state of the law. Mr. Veldman says that the Crown has the onus to show reliance on the previous state of the law, and has not done so. He invites me to find that the Crown had no regard to the state of the law on this subject.

[58] The Supreme Court, in Cody at para. 69, states that reliance on the previous law can be presumed:

To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released. In this regard, the exceptionality of the "transitional exceptional circumstance" does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties' reasonable reliance on the law as it previously existed (Jordan, at para. 96). The transitional exceptional circumstance should be considered in cases that were in the system before Jordan. The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due "sensitiv[ity] to the manner in which the previous framework was applied" (Jordan, at paras. 96 and 98). Under the Morin framework, prejudice and seriousness of the offence "often played a decisive role in whether delay was unreasonable" (Jordan, at para. 96). Additionally, some jurisdictions are plagued with significant and notorious institutional delays, which were considered under Morin as well (Jordan, at para. 97; Morin, at pp. 799-800). For cases currently in the system, these considerations can inform whether any excess delay may be justified as reasonable (Jordan, at para. 96).

[59] In this case, the transcripts demonstrate reliance by all parties on the previous state of the law.

[60] Morin suggested a guideline of acceptable institutional delay of 14 to 18 months, with eight to 10 in the OCJ, and six to eight additional months in the SCJ. This case, from the laying of the information to its end, is estimated to take 43 months, 18 days. This is a long time. The length of time to the trial, however, is not the test. I must determine the institutional delay and the actions of all of the parties, and determine whether the delay is reasonable and whether there is prejudice to the accused.

[61] I turn now to the factors set out in Gopie, supra.

[62] Complexity: This case is moderately complex given the number of charges concerned. However, it is no so complex that this factor weighs heavily in the analysis.

[63] Period of Delay in Excess of Morin Time Lines: Under this branch of the test, I must consider the inherent time requirements of the case. In Jurkus, the Court of Appeal held that the normal "intake process" for a case of moderate complexity, involving three accused and significant disclosure issues, was five months, and that 20 months for substantial completion of disclosure was not unusual, especially since no one complained about it. In that case, Mr. Jurkus was the operational manager of a correctional facility and the other accuseds were guards. The charge was for failing to provide the necessaries of life to an inmate who was beaten to death by his cell mate while both were in the cell, over the course of an hour, the noise of which could be heard on floors below the cell.

[64] In this case, the intake process is about 5 months. The time, overall, is double the limits in Morin, subject to other analysis. Disclosure occurred relatively quickly.

[65] Actions of the accused: In this case Mr. Veldman did not waive any specific rights or delay. I have already addressed Defence delay. I also accept that Defence has no onus under the Morin regime to move the case along. I have already commented on his contribution to adjournments of the trial in 2018 and how he may have not discharged his Jordan burden to take active steps to move the matter along.

[66] Actions of the Crown and Institutional Delay: The Defence argues that the Crown is the author of most of the delay in this matter. There is some truth to this.

[67] The trial was delayed from 26 March to 29 October, 2018, Disclosure did not become an issue again until 26 March 2018, 7 months, due to the Crown’s failure to produce two pieces of evidence in a timely manner: Mr. Veldman’s statement to police as complainant arising from the same circumstances, and the results of the police search of his computer and cell phone. As I have indicated, above, the delayed Disclosure should not have been a complete surprise to Mr. Veldman. The Crown, however, ought not to have delayed the disclosure of the cell phone and computer search. The Crown (and police) might be forgiven the delay in producing Mr. Veldman’s statement as complainant. I have no evidence, however, to permit me to make such a finding.

[68] There was a Crown delay between 25 May and 13 June 2016 (19 days) when trial dates were available for May 25 but the Crown was not available.

[69] While the Jordan limit did not become an issue until the adjournment on 26 March 2018, it does not appear from the transcripts that the Crown attempted to move this matter along to minimize any Jordan delay, after Jordan was released.

[70] On the other hand, there was delay for which no one was responsible, of over 10 months, due to the appointment of two of Mr. Veldman’s lawyers.

[71] Limits on institutional resources, legal aid: In this case, there was difficulty in Mr. Veldman obtaining Legal Aid. It took over 4 months for Legal Aid to make its final determination that it would provide funding to Mr. Veldman.

[72] Other reasons for delay: Significant delay was caused by two of Mr. Veldman’s lawyers being appointed to the bench. This was outside of his control, and resulted in over 10 months delay.

[73] Prejudice to the Accused: The onus is on the Applicant to establish prejudice arising from the delay.

[74] There is no prejudice to the accused, independent of that caused by the laying of the charges.

[75] Mr. Veldman's, if any, arises from the fact that his bail conditions included a curfew. The prejudice, therefore, arises only to the extent that he would have been on that curfew beyond the 30 months. Even had I found that the delay was 32 months, 22 days, as Mr. Veldman proffered, I would not have found that the prejudice Mr. Veldman sustained because of the bail terms for 2 months and 22 days was sufficient prejudice to outweigh the seriousness of the charges and the public’s interest in seeing that these charges, in these circumstances, is tried.

[76] Viewing the case globally, as I am required to do in a transition case such as this, the Application must be dismissed. The charges and circumstances supporting them are very serious. Mr. Veldman is accused of very serious crimes. They are made more serious as his alleged victim was his romantic and domestic partner. The alleged assaults were brutal. He forced his partner to film herself performing degrading, humiliating, and shameful acts solely for his pleasure. He used the threat of disclosing the films’ existence to extort his partner into making more videos. He threatened to kill her and threatened to kill two of her children. If these charges are proved, they carry significant sentences.

[77] The public has an interest in seeing these charges tried. Not trying them would bring the administration of justice in this Province into disrepute.

[78] The Application is dismissed.

Trimble J. Released: October 16, 2018