Court File and Parties
Court File No.: CR-19-70000502-0000 Date: 2020-03-18 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: George Flowers, Applicant
Counsel: Cara Sweeny, for the Crown David Connally, for the Applicant
Heard: February 20, 2020
Reasons for Judgment Cavanagh J.
Introduction
[1] The Applicant applies pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms for a stay of these proceedings due to alleged breaches of his right to a trial and his right to be sentenced within a reasonable time, as guaranteed by section 11(b) of the Charter.
[2] The Crown alleges that the Applicant, George Flowers, committed aggravated sexual assault against three individuals at various dates between 1997 and 2011. The Crown alleges that Mr. Flowers had unprotected sexual intercourse with the complainants without disclosing his HIV+ status to them prior to sexual contact and that his viral load was not low at the times of the alleged sexual contact.
[3] This matter has a procedural history involving extradition, a dangerous offender assessment, and a struck a guilty plea.
[4] The information against the Applicant was sworn on June 23, 2017. He pleaded not guilty. The Applicant made a resolution agreement with the Crown and on November 7, 2018 he pleaded guilty to the three charges. During the post-verdict period, the Crown commenced dangerous offender proceedings under Part XXIV of the Criminal Code. During these proceedings, a disagreement arose concerning the terms of the resolution agreement. As a result of this disagreement, the Applicants’ guilty pleas were struck on June 21, 2019 and he pleaded not guilty to the three charges.
[5] The matter was remanded to the Superior Court of Justice where the trial is anticipated to conclude on July 3, 2020.
[6] The Applicant accepts that the constitutional clock for the pre-verdict presumptive ceiling set by R. v. Jordan, 2016 SCC 27 stopped running during period of time between his guilty plea and the striking of his guilty plea, a period of 7 ½ months. The Applicant accepts that the net delay (after deducting admitted defence delay of 1 month and 11 days and this 7 ½ month period) is below the 30 month presumptive ceiling set by Jordan.
[7] The Applicant brings this application on three separate grounds:
a. First, he has satisfied his onus of showing that the pre-verdict delay is unreasonable. b. Second, the 7 ½ month period of time between his guilty plea and the striking of this plea should be regarded as a presumptively unreasonable period of post-verdict delay which is subject to a separate presumptive ceiling of five months set by the Court of Appeal for Ontario in R. v. Charley, 2019 ONCA 726, and the presumption has not been rebutted. c. Third, if the dangerous offender proceedings under Part XXIV of the Criminal Code are treated as an exceptional circumstance that is discrete in nature and, as a result, the net period of post-verdict delay is below the presumptive five month ceiling, he has satisfied his onus of showing that the post-verdict delay is unreasonable.
[8] For the following reasons, this application is dismissed.
Analysis
Is the Applicant entitled to a stay of proceedings based upon unreasonable pre-verdict delay?
[9] The total delay from the date of the Information charging the Applicant, June 23, 2017, to the date that his trial is anticipated to end, July 3, 2020, is 36 months and 10 days.
[10] The Applicant accepts that there was a short period of defence-caused delay which amounts to 1 month and 11 days when defence counsel were not available for dates offered for a preliminary hearing beginning March 5, 2018 and the next dates were beginning April 16, 2018. The Applicant submits that there was a further period of 2 months and 1 week of defence-caused delay when preliminary hearing dates were offered on June 21, 2019, but this delay was completely mitigated when the Applicant waived his preliminary inquiry. The Applicant submits that when the 1 month and 11 days of defence-caused delay is subtracted from the total delay of 36 months and 10 days, the net delay is 35 months less a day.
[11] At the hearing of this application, defence counsel accepted when the Applicant pleaded guilty to three offences on November 7, 2018, the constitutional clock for purposes of fixing the 30 month presumptive pre-verdict ceiling under Jordan stopped running and that it resumed running on June 21, 2019 when the guilty plea was struck. The Applicant accepts that, as a result, the net period of pre-verdict delay is less than the presumptive ceiling of 30 months.
[12] The Applicant submits that, nevertheless, there has been unreasonable delay and he is entitled to a stay of proceedings under s. 11(b) of the Charter. In these circumstances, the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. See Jordan at paras. 82-83.
[13] The Crown submits that the delays in these proceedings are the fault of the Applicant.
[14] The Applicant provided a chart of court appearances in this proceeding from June 23, 2017 to July 3, 2020, the anticipated end of the trial. I set out below a summary of these proceedings taken from this chart.
[15] The charges were laid on June 23, 2017. Initial Crown disclosure was received on August 11, 2017 and on September 8 and October 13, 2017, the Crown advised that further disclosure was available. On November 9, 2017 a judicial pre-trial was held at which dates for a preliminary hearing were set for April 16 to 19, 2018. The Crown offered a resolution position on December 18, 2017.
[16] A judicial pre-trial conference was held on January 18, 2018 which was rescheduled for February 14, 2018 and then adjourned, on consent, to March 9, 2018. On that day, the defence requested that the matter be remanded so counsel could meet with the Applicant and obtain instructions on the resolution proposal. On March 19, 2018 at a judicial pre-trial, the defence requested that the matter be put over for the purpose of a guilty plea. The dates for the preliminary inquiry were vacated.
[17] From March 19, 2018 to November 7, 2018, there were exchanges of communications between defence counsel and the Crown concerning the draft agreed statement of facts. There were some periods when Crown counsel was unavailable because of other trial commitments. During this period, the Applicant changed counsel. A further judicial pre-trial conference was held on September 7, 2018. There were continuing communications between counsel concerning the terms of resolution. On October 5, 2018, defence counsel advised the Court of a target date for resolution and asked for the matter to be adjourned to November 7, 2018. On November 7, 2018, the Applicant pleaded guilty to three offences.
[18] The guilty pleas were struck on June 21, 2019. New dates for a preliminary hearing were set for December 16-19, 2019. On July 31, 2019, the Applicant waived the preliminary inquiry and the matter was transferred to the Superior Court of Justice. On September 24, 2019 at a judicial pre-trial conference, a two week trial with a jury was scheduled to begin on June 22, 2020, the first day offered.
[19] Based on my review of the chronology of events described in the Applicant’s chart and the relevant email correspondence, I am not satisfied that the Applicant has shown that he took meaningful steps that demonstrate a sustained effort to expedite the proceedings to the extent necessary to satisfy his onus in this regard. See Jordan at paras. 84-85. In any event, I am also not satisfied that the Applicant has shown that the case took markedly longer than it should have. The Crown took active steps to advance the case and, when it appeared that a resolution was likely, the Crown acted reasonably and worked cooperatively with defence counsel to move forward towards resolution.
[20] This is far from a clear case where the defence has shown that delay has been unreasonable.
Is the Applicant entitled to a stay of proceedings based upon unreasonable post-verdict delay which exceeds the presumptive ceiling set by Charley?
[21] In R. v. Charley, 2019 ONCA 726 the Court of Appeal for Ontario addressed whether the presumptive ceilings established in Jordan include post-verdict delay.
[22] In Charley, the respondent was found guilty of offences and, subsequent to the findings of guilt but before sentence, the respondent brought a motion to stay the proceedings, claiming that his right to be tried within a reasonable time had been denied as a result of post-verdict delay. The trial judge applied the presumptive 30-month ceiling to the period beginning with the laying of the charge and extending to the anticipated date of sentencing. The trial judge calculated the net delay at 32 months and went on to hold that the Crown had not discharged its onus of showing that the delay was reasonable. The Crown appealed.
[23] In Charley, Doherty J.A., writing for the panel, held that the presumptive ceilings in Jordan do not include the post-verdict period between conviction and sentence. Doherty J.A. made the following observations at para. 53 in support of this conclusion:
The impact of including post-verdict delay when assessing whether the case has exceeded the presumptive limits is significant. In many criminal cases, particularly the more serious cases, sentencing will, of necessity, take time, sometimes a matter of months. If, for the purposes of the presumptive ceilings, the constitutional clock runs through to sentencing, what was described in Jordan as an 18 or 30-month ceiling will in reality be a significantly lower ceiling. Treating the presumptive ceilings as operating through to sentencing substantially redraws the line drawn in Jordan between presumptively reasonable delay and presumptively unconstitutional delay.
[24] Doherty J.A. also regarded as significant that, post-verdict, the accused has a different status. He explained why at paras. 55-56:
The extension of the presumptive ceilings from Jordan to include the time period between the verdict and sentence also ignores the different impact that pre-and post-verdict delay have on the rights of an accused. Prior to verdict, an accused is presumed innocent and has a constitutional right to make full answer and defence in response to the charge. Delays prior to verdict must be assessed in light of the negative impact that inordinate delay has on those rights.
Post-verdict, the accused is no longer presumed innocent. The right to make full answer and defence is spent, subject to the right to address sentence. While the accused clearly retains significant liberty and security of the person interests post-verdict, and those interests can be compromised by delay, they are qualitatively different than the interests that exist pre-verdict: see MacDougall, at paras. 32-37. The change in the accused’s status flowing from the verdict and the impact that change has on the accused’s protected interests justify a resetting of the constitutional clock for the purposes of fixing the presumptive ceiling applicable to post-verdict proceedings.
[25] Doherty J.A. held that the Jordan principles should apply to post-verdict delay and he set the presumptive ceiling for post-verdict delay at five months. In doing so, Doherty J.A. stressed that five months is not the norm, and should not be allowed to become the norm. Instead, five months is the point at which the delay is sufficiently long that it is regarded as presumptively unreasonable for the purposes of s. 11(b). The onus falls on the Crown to justify the delay. See Charley at para. 87.
[26] In this case, following the guilty pleas, the Crown commenced dangerous offender proceedings under Part XXIV of the Criminal Code. The Crown and defence counsel cooperated to identify an agreed upon psychiatrist to conduct an assessment and the assessment order was signed on December 19, 2018. In January and March 2019, there were two attempts made for the Applicant to meet with the assessor which were unsuccessful, through no fault of the Applicant. A contested hearing was held on March 15, 2019 on the Crown’s application for an order to extend the time for the assessment report to be prepared and filed, and the application was granted. On April 18, 2019, Crown counsel advised the Court that she was awaiting records that had been requested, with the Applicant’s consent, and the assessment report had not been completed. Further status reports to the Court were provided on April 24, May 7, and May 17, 2019. On June 5, 2019, the Crown advised the Court that the assessment report had been received and requested an adjournment in order to follow up with the assessor to address some concerns. The defence asked that a date be set for a sentencing hearing. The matter was adjourned to June 11, 2019 and then to June 19, 2019. The assigned Crown was ill on June 19, 2019 and the matter was adjourned to June 21, 2019. On that day, after a lengthy hearing, the guilty pleas were struck.
[27] In Charley, there was a net delay of seven months which exceeded the presumptive ceiling of five months as applicable to post-verdict proceedings. However, five of the seven months were occupied with the Crown’s application under s. 752.1 for an order directing the psychiatric assessment of the respondent. Doherty J.A. held, at paragraph 98, that Part XXIV proceedings are, of necessity, taken after verdict and, in his view, those proceedings are properly characterized as exceptional in the sense that they are “reasonably unavoidable” once the Crown has determined that the circumstances dictate that a Part XXIV designation should be sought. Doherty J.A. noted that even when delay is attributable to a reasonably unavoidable circumstance or event, the Crown has an obligation to mitigate any resulting delay. See Charley at para. 98.
[28] I accept that the commencement of dangerous offender proceedings under Party XXIV of the Criminal Code are properly characterized as exceptional circumstances and I am satisfied that obtaining the assessment report from the assessor would qualify as a discrete event. Virtually the entire 7 ½ month period in question was occupied by the Part XXIV proceedings. I am not satisfied that it has been shown that the Crown failed to act reasonably to mitigate the delay resulting from these proceedings.
[29] The net delay during the post-verdict period, after subtracting the delay caused by exceptional circumstances, does not exceed the presumptive five month ceiling set by Charley. There is no onus on the Crown to justify the delay in this post-verdict period.
Is the Applicant entitled to a stay of proceedings based upon unreasonable post-verdict delay?
[30] The Applicant submits that where, during a post-verdict period, delay falls below the presumptive five month ceiling, the defence may, nonetheless, seek a remedy for unreasonable delay under s. 11(b) of the Charter. The Applicant submits that the defence bears the onus to show delay is unreasonable and to do so the defence must establish (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the sentencing took markedly longer than it reasonably should have.
[31] I accept, in principle, that it is open to the defence in a given case to apply for relief based on s. 11(b) of the Charter where there is post-verdict delay which falls below the presumptive five month ceiling. I expect that such applications will be exceedingly rare. In this case, I am not satisfied that the Applicant has met his onus of showing that there was unreasonable delay between the guilty pleas and when these pleas were struck. This period of time was largely occupied by the Part XXIV proceedings, which I have addressed.
[32] The application before me, to the extent that it is based on post-verdict delay, is unusual because the verdict arrived at through guilty pleas was set aside when the guilty pleas were struck. The matter is now proceeding to trial. In this respect, the factual circumstances differ markedly from those in Charley. Counsel for the Applicant submits, nevertheless, that I should analyze the period of post-verdict delay, 7 ½ months, in the same way as I would if delay occurred following a verdict which was not set aside, and where the sentence had not been given. I did not receive fulsome submissions concerning whether, given that the charges against the Applicant are proceeding to trial, it is open to the Applicant to apply to stay the proceedings based upon post-verdict delay in respect of the period between the guilty pleas and the striking of the guilty pleas. Because of my conclusion that, in any event, the Applicant is not entitled to a stay of proceedings based on post-verdict delay, it is not necessary for me to decide this question.
[33] The Applicant has failed to show unreasonable post-verdict delay.
Disposition
[34] For these reasons, the Applicant’s s. 11(b) application is dismissed.
Cavanagh J.