Court File and Parties

COURT FILE NO.: 644/17

DATE: 2020-05-13

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Julian Graham

BEFORE: Bale J.

COUNSEL: Sam Humphrey, counsel for the Crown Elizabeth Bristow, counsel, for the offender

HEARD: in writing

ENDORSEMENT

[1] A pending dangerous offender application returnable before me on March 20, 2020 was adjourned to June 2, 2020, and then to July 6, 2020, as a result of the Covid-19 suspension of court operations.

[2] On April 27, 2020, defence counsel wrote to the court requesting an earlier date on the basis that the only matter remaining in issue was the credit to which the offender is entitled for pre-sentence custody. Although not strictly complying with the April 1, 2020 Central East protocol relating to matters capable of being heard during the suspension, given the limited scope of the matters apparently in issue, I agreed to proceed by way of teleconference.

[3] Pursuant to my direction, the parties delivered sentencing briefs. The defence brief contained an affidavit sworn by the offender. Upon receipt of that affidavit, Crown counsel wrote advising that he wished to cross-examine the offender, and to obtain further evidence from the institution relating to Covid-19 measures it was taking. Defence counsel responded by saying that if the matter was not to be heard based upon the materials filed, she also would like to call evidence, and she questioned whether if viva voce evidence is required, it was appropriate to proceed by way of teleconference.

[4] In these circumstances, I cancelled the scheduled teleconference, and have concluded that the matter is not capable of being heard, at this time. In addition to the issues raised by counsel yesterday, it appears that the issues are broader that what I had initially understood. Although the offender apparently consents to a dangerous offender designation, the requested sentence is “time-served or as close to time-served as possible” (10 years minus credit for time-served, including enhanced credit for adverse jail conditions). As “time-served” is difficult to reconcile with a finding that “the offender constitutes a threat to the life, safety or physical or mental well-being of other persons”, it is not clear to me that the offender admits the facts necessary for me to make such a finding.

[5] This application remains returnable at Peterborough, on July 6, 2020, at 10:00 a.m., pursuant to the order of the Chief Justice, dated May 5, 2020.

“S.T. Bale J.”

Date: May 13, 2020