R. v. McKendrick, 2013 ONCJ 590

Citation: R. v. McKendrick , 2013 ONCJ 590 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DANIEL McKENDRICK Before Justice P. HARRIS Ruling on

Section 11(

b) Application Reasons for Judgment released on Oct. 31, 2013 C. Sweeny ...….................................................................................................... for the Crown J. Hechter …....................................................................................................... for the Defence Harris, J.: [ 1 ] Daniel McKendrick was charged with sexual assault and unlawfully in a dwelling on the 26 nd day of January, 2012. The Crown proceeded by

summary conviction on December 10, 2012, and the defendant pleaded not guilty. On October 22, 2013, Mr. McKendrick was found guilty of sexual assault. On October 24, 2013, the defendant applied for a stay of proceedings pursuant to sections 11(

b) and 24(1) of the Charter on the grounds that his right to be tried within a reasonable time had been violated. By agreement of counsel, this application was heard after the defendant’s trial as a result of the unavailability of adjournment transcripts on an earlier date. [ 2 ] The trial began on December 10, 2012 and was completed on, September 6 th , 2013.

At the outset, identity was in issue and after certain contested evidentiary issues were determined and fingerprint evidence admitted, the defence elected to present the defence of automatism in the form of parasomnia or “sexomnia.” In other words, the defendant initially took the position he was not the male who sexually assaulted the complainant T.H. and later conceded that he likely was the intruder, but that his actions were involuntary by reason of the fact he was asleep or in a state of somnambulistic automatism at the time.

SUMMARY OF FACTS [ 3 ] The facts for the purpose of this s.11(

b) application can be briefly stated: T.H. and two female roommates (one of which was K.E.) lived on the second floor of a triplex at B[…] Street in Toronto. Daniel McKendrick and his father lived on the main floor. The three young women on the second floor often left their apartment door at the top of the stairs unlocked because the front door to the building was always locked (and could only be opened by a key or by using a keypad entry system).

T.H. testified that on January 25th, 2012, she and her best friend Caitlyn and Caitlyn’s boyfriend, Lewis, were watching a video in her bedroom (she was in bed and they were on the couch). Eventually she fell asleep at about 1:00 to 1:30 a.m. January 26th, and her friends left without locking the apartment door because they did not have a key.

She said she awoke to find a male in her bed “in his boxers” “with his arm around me trying to get into my underwear.” She stated he was touching “around my butt area” “with his index and middle finger”, “inside”; “there was no actual penetration”, but “that’s what woke me up.” She stated that he was doing this with what “would have been his left [hand], I believe.” “She testified she said to him: “Who the fuck are you?” And he answered: “I’m Daniel.” And she said: “Well you need to leave right now.” “Get the fuck out.” “Leave.”

[ 4 ] According to T.H., before leaving the second floor apartment, the male “kept on asking me where he was.” She said he asked me if he was on B[…] Street or Dundas, and I said, “It doesn’t matter. Just get out. I’m calling the cops. Get the fuck out of my house.” T.H. stated: “He seemed like he was a little bit embarrassed and confused.” “I didn’t smell booze on him.” “He didn’t apologize or anything.

It didn’t seem like it was a mistake.” This evidence set the stage for the defence of automatism (parasomnia). [ 5 ] There was a very significant body of evidence from which to conclude that the defendant was the individual who entered the complainant’s apartment and sexually assaulted her while she slept. This finding was made in the trial judgment of Oct. 22, 2013 in which I found Mr. McKendrick guilty of sexual assault, and I repeat it here to the extent it serves to elucidate certain elements of the trial that resulted in delay.

I arrived at the conclusion he was the individual who accosted T.H. while she slept for the following reasons: first, the defendant’s fingerprint was located close to the complainant’s bedroom (on another bedroom door in the same apartment) and the observations and descriptions provided by the complainant T.H. and her roommate K.E. served to corroborate that circumstantial evidence.

Most telling was T.H.’s description of the individual who accosted her as having a piercing through the bridge of his nose, a feature of the appearance of the person arrested that was noted by police. [ 6 ] Additionally, Daniel McKendrick had access to her second floor apartment because he lived in the building, in an apartment at the base of the stairs inside the locked front door. In fact he has given evidence that he went upstairs and knocked at the apartment door earlier in the evening on which the assault occurred.

The male who entered her bedroom and bed and began touching her said his name was “Daniel.” Both young women had seen Daniel McKendrick “poke his head” in their apartment door prior to January 26th, 2012. That morning on the way into the building, K.E. saw a male come “barefoot” out of the front door of the triplex and enter the side door, just before being contacted by T.H. telling her “something really messed up just happened.” T.H. was referring to ― shortly before this ― having been touched by a male in her bed while she was asleep.

Both witnesses’ description of him that morning closely matched the appearance of Daniel McKendrick in the police photos on arrest (see exhibits 1A and 1B at trial). In my view, the identification evidence was overwhelming. [ 7 ] Nonetheless, the defendant was entitled to put the Crown to the strict proof of identity. As noted above, the defendant initially took the position he was not the male who sexually assaulted the complainant T.H. and through counsel, quite properly challenged the identification evidence.

After the fingerprint evidence was admitted, he elected to present a defence, during which he conceded that he likely was the intruder, but that his actions were involuntary by reason of the fact he was he was asleep or in a state of somnambulistic automatism at the time. The point of this detailed recitation of the facts is to highlight a seemingly obvious litigation axiom: a two-part trial strategy involving, (

a) the challenging of the prosecution’s identification evidence followed by, (

b) a defence decision to call evidence in support of an automatism defence ─ will typically result in a continuation of the trial and a selection of additional court time for the purpose of presenting that defence. That is what took place in this trial.

The delay following the prosecution’s evidence ― was entirely for the purpose of accommodating the defendant’s right to make full answer and defence ― and if the proceeding thereby required a further eight (8) months to be completed, that was a calculated defence strategy in respect to which, it can hardly be argued that the additional delay was somehow occasioned by the Crown or caused by institutional factors. [ 8 ] The trial date was set on May 14, 2012 and the trial was to begin December 10, 11, 12 and 13.

The trial continued on January 21st and was adjourned to February 1st at which time the Crown’s case was completed. Time to trial at this point was well within the Ascov/Morin guidelines. A proper trial estimate could not be proffered by the defence at the judicial pre-trial because defence counsel did not at that time know if he would be adducing evidence. It was understood by all parties at the outset that a defence of automatism (parasomnia) would require considerably more time for trial.

Just after the Crown closed its case on February 1 st , 2013, counsel for the defendant stated that the defence of automatism would be presented and shortly thereafter provided disclosure to the Crown of a report of an expert witness as the basis of a parasomnia (sleepwalking) defence. Accordingly, it was not unexpected that trial continuation dates were selected at the close of the Crown’s case. [ 9 ] The defence case was heard over the course of two days of trial in May, 2013 and following the testimony of Mr. McKendrick, and the expert witness, Dr.

Shapiro, the trial was adjourned to August 20 th for reply evidence, after which argument was heard on September 6 th and the trial was then remanded for judgment to October 4 th , 2013. The decision I have reached to dismiss this s.11(

b) Motion is primarily based on an application of the Ontario Court of Appeal decision in R. v. Allen (1996) 110 (3d) 331 (Ont.C.A.) to the facts of this case. CASE HISTORY [ 10 ] I propose to conduct an attribution analysis of the specific periods that constitute the total delay in accordance with R. v. Schertzer 2011 ONSC 3046 (Ont.C.A.) .

January 26, 2012 to May 14, 2012 [11] The delay from the date of arrest to the date the trial date was set (January 26, 2012 to May 14, 2012 of approximately 3.5months is characterized by the Crown as neutral intake or inherent delay typical of these types of charges. The defence takes the positionthat the neutral intake period should be 2.5 months and the further one month delay assessed against the Crown as a result of crucialdisclosure that was not produced in a timely fashion resulting in a further one month of delay before a trial date could be set.

Caseauthorities indicate that rather than becoming entangled in the minutia of Crown and defence actions prior to the setting of the trial date,trial courts should draw an inference based on the charges and the complexity of the matter and establish an appropriate neutral periodfor that case. A typical neutral period for a sexual assault charge is four (4) months according to a helpful digest of neutral perioddeterminations in R. v.

Mahmood 2012 ONSC 6290: The Court of Appeal for Ontario has concluded that a reasonable neutral period of time for such “intake” matters in Ontario can varybetween two months and eleven months in duration, depending upon the nature of the case and the degree and nature of the “intake”functions that must be completed. See, for example: R. v. Morin, [two months]; R. v. Sharma, [three months]; R. v. Kovacs-Tatar (ON CA), (2004), 192 C.C.C. (3d) 91 (Ont.C.A.) at para. 46-47 [sexual assault - four months]; R. v. Seegmiller (ON CA), (2004), 191 C.C.C. (3d) 347 (Ont.C.A.) at para. 14 [five months]; R. v.

Steele, 2012 ONCA 383 , 2012ONCA 383, at para. 16-17 [five months]; R. v. J.G.B. reflex, (1993), (SCC), 85 C.C.C. (3d) 112 (Ont.C.A.) at pp. 115-116; Affirmed: reflex, (1993), 85 C.C.C. (3d) 112 (S.C.C.) at p. 117 [seven months]; R. v. G.(C.R.), at para. 7 [over seven months]; R. v.Ribic, at para 119-124 [over seven months]; R. v. Khan (2011), 2011 ONCA 173 , 270 C.C.C (3d) 1 (Ont.C.A.) [seven and ahalf months]; R. v. Qureshi, at para. 27, 32, 37 [eight months]; R. v. Cranston, at para. 41-46, 52-53 [nine months]; R. v.

Schertzer, atpara. 71-72 [eleven months]. [12] Accordingly, the delay from the date of arrest to the date the trial date was set ─ of 3.5 months is entirely within the neutraltime guidelines set by the Court of Appeal for sexual assault charges (See R. v. Kovacs-Tatar, supra) and this delay will be assessed asinherent to the charge and complexity of the matter.

May 14, 2012 to December 10, 2012 [13] The trial delay from the date the trial date was set to the first day of trial ─ May 14, 2012 to December 10, 2012 ─ a period ofapproximately 7 months, will be assessed as 6 months institutional delay with one month attributable to the defence under the rubric oftrial readiness (which consists of trial availability and trial preparation inherent delays: R. v. Lahiry 2011 ONSC 6780 (Ont.S.C.), an allocation that met with agreement from the defence.

Crown counsel argues that the defence was not ready for trial until November 1st,2012, the date the “parasomnia” report was made available to the defence. In my view, counsel may never have elected to raise thatdefence in which case the trial readiness calculation for this stage of the trial is appropriately assessed at one month resulting in aninstitutional delay of six (6) months.

December 12th, 2012 to February 1st, 2013 (including trial dates Jan. 16 and 21) [14] The trial delay from December 12th, 2012 to February 1st, 2013, approximately 1.5 months will be attributed to the Crown asa result of the failure to provide the defence with fingerprint disclosure documentation and a chart that would be suitable for anindependent evaluation of that evidence as well as the contact information for potential witnesses who were present in the bedroom ofthe complainant until after she fell asleep. In my view, these were not frivolous requests.

Identification and the complainant’s state ofmind were pivotal trial issues and this disclosure was necessary to fully investigate, and make full answer and defence to, the chargesfacing the defendant. Realistically, had the missing disclosure been received by the defence in a timely fashion, it would be reasonable toassume that the Crown’s case could have been presented in the four days set for trial (heard in installments, it actually consumed 4.5 days) and since it was not completed until February 1st, 2013, a 1.5 month period of delay will be attributed to the Crown.

As ofFebruary 1st, the total trial delay attributable to the Crown is 7.5 months (6 months institutional and 1.5 months for delay inproviding disclosure ─ a period that does not exceed the lower Ascov/Morin guidelines for trial delay.

February 1st, 2013 to October 4th, 2013 – (includes trial dates May 14-16, Aug. 20, Sept. 6th and an adjournment for judgment to Oct. 4th) [15] As noted above, the entire 8 month period of delay from February 1st, 2013 to October 4th , 2013, was entirely devoted to ―additional trial time necessary for defence evidence, Crown reply and counsel submissions on the defence of automatism (parasomnia),as well as time to prepare a judgment on that issue. To understand how this additional trial time became necessary, one has to return to

ground zero. At the judicial pre-trial on the day the trial dates were set, defence counsel inscribed a notation on the judicial pre-trial formto the effect, “To get him in the queue; time estimate up in air.” Four days were set aside for trial, December 10, 11, 12, and 13, 2012.Clearly at that time the defence was not in a position to estimate how much time would be required for trial because it was not knownwhether an automatism defence would be presented: such an eventuality would require considerably more days for trial than had beenselected at the judicial pre-trial.

The question to be determined is ─ if the defence elects to test the identification evidence first and whenthose trial dates are exhausted, requests further dates for the purpose of presenting the second stage of a two-stage defence, ─ how doesthe Court allocate the delay? In other words, in the first stage, (

a) the Crown’s identification evidence is challenged; and in the secondstage after prima facie proof of identification is made, (

b) the defence endeavours to prove the defendant was in a state of automatismduring contact with the complainant.

When further trial time is required to present the second stage of the defence, is the additional courttime required for that purpose a product of institutional delay or otherwise attributable to the Crown? [16] The leading authority on delay where the original estimate of trial time required is not definitive or is underestimated is R. v.Allen (1996) (ON CA), 110 CCC (3d) 331; 1 CR (5th) 347; 92 OAC 345 (Ont.C.A.), a case in which initial trialestimates proved inaccurate: When addressing s.11(b), one must consider the inherent time requirements needed to get a case into the system and to complete thatcase: R. v.

Morin, supra, at p. 16. Those time requirements can include adjournments necessitated by the need to find additional courttime when initial time estimates prove inaccurate: R. v. Hawkins (ON CA), (1991), 6 O.R. (3d) 724 at 728 (C.A.),aff'd, (SCC), (1992), 11 O.R. (3d) 64 (S.C.C.); R. v. Philip reflex, (1993), (ON CA), 80 C.C.C. (3d)167 at 172-73 (Ont. C.A.). The inherent time requirements needed to complete a case are considered to be neutral in the s.11(b)calculus. The recognition and treatment of such inherent time requirements in the s.11(

b) jurisprudence is simply a reflection of thereality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with alegitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of allcases.

When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneouslyprovide those additional resources. [17] In my view, in the instant case, applying Allen, supra, when the accused elected to present a defence of automatism, asubstantial adjournment was inherent in the time requirements of the case given the added time needed to complete the trial. A 3 1/2 month adjournment (from Feb. 1st to May 15, 16, 2013) in the middle of a criminal trial to present a defence is hardly desirable.

And the further 3 months for reply evidence (from May 16 to Aug. 20, 2013) and three weeks (to Sept. 6th) for trial submissions is less than ideal.However, in view of the amount of additional time required to complete the case and the attempts made at every stage to obtain theearliest continuation dates, I regard the 8 month period it took to complete the trial as properly reflective of the inherent timerequirements needed to reschedule all of the necessary trial functions to ensure that all aspects of the automatism defence were properlyaired and carefully considered. [18] In

summary, I would not hold the Crown responsible for any of the delay after February 1st, 2013. I would attribute the entire 8 months delay after February 1st, to the inherent time requirements needed for the system to respond to the request for additional trialdates in May, 2013 for defence evidence, for one day in August for reply evidence and one day in September for counsel submissions. The trial was then adjourned to October 4th, 2013 for judgment.

This last period should not count against either the Crown or thedefence. [19] The defence takes the position that had the Crown provided full disclosure in advance of the 4 trial days in December, 2012, the entire case, including the automatism defence would have been completed by February 1st, 2013 and argues that much of the delay after February 1st, is attributable to the Crown.

The fact is ― a failure to provide a full and proper estimate of court time for the casemeans that additional court time beyond the number of days for trial selected, is to be treated as part of the inherent time requirements for the trial. Additionally, if the Crown’s case was completed by December 13th and on the close of the case for the prosecution, notice ofexpert testimony under s. 657.3 of the Code was given along with accompanying materials, the trial could not have proceeded for at least 30 days from the giving of notice; s. 657.3(3).

Realistically then, if 4 days were selected on December 13th, on an instalment basis asoccurred here, the first instalment for the defence evidence, the next for the reply evidence, followed by a date for counsel submissions,it is highly unlikely that the trial would have been completed very much sooner. In my view it would not be reasonable to attribute any delay after February 1st, 2013 to the Crown.

ANALYSIS [20] Whether delay has been reasonable is assessed by considering the length of the delay, less any periods that have been waivedby the defence, and then by taking into account the reasons for the delay (inherent time requirements, accused’s actions, Crown’sactions, limits on institutional resources), the prejudice to the accused and finally by balancing the interests that s.11(

b) seeks to protect:R. v. Godin, 2009 SCC 26 , [2009] S.C.J. No. 26 para 18. Accordingly, the issues under consideration will be dealt with in theabove-noted order.

LENGTH OF THE DELAY [ 21 ] The total delay to complete the trial is approximately 20 months ― from January 26, 2012, when the defendant was charged to October 4 th , 2013 when the judgment was ready to be rendered. A delay of this magnitude calls for an inquiry. WAIVER OF TIME PERIODS [ 22 ] There were no express waivers by the defence of any time period based on the transcripts, filed. During the initial intake period, the defence acquiesced in delay while awaiting crucial disclosure. According to s.11(

b) jurisprudence, the delay for counsel availability and preparation is more properly attributed to the inherent intake functions of a case and classified as neutral for s.11(

b) purposes. When trial dates were used, counsel would accept the inescapable delay to the next trial date. Mere acquiescence to the inevitable delay between trial dates does not constitute a waiver of one’s s. 11(

b) rights. REASONS FOR THE DELAY (

a) Inherent time requirements of the case and neutral periods [ 23 ] There are three inherent time calculations required in this case: (

i) the neutral intake period; (ii) the delay required for counsel availability and case preparation once the date for trial is set, and iii) trial continuation delay that was not attributable to the Crown or the lack of institutional resources. [ 24 ] The central issue in this case is the characterization of the approximately 8 months of delay from the date the Crown closed its case (February 1 st , 2013) to the date set for judgment, October 4 th , 2013.

This additional period was required, as noted above, for defence evidence on the automatism issue, reply evidence and counsel submissions on the defence evidence. As noted in the case history above, this 8 month period will be considered part of the inherent time requirements to hear the automatism defence and complete the trial, for the reasons given. ALLOCATION OF DELAY TO TRIAL’s CONCLUSION [ 25 ] The above case authorities inform the proper characterization of delay periods.

On the basis of this jurisprudence I have settled on the following allocations: January 26, 2012 to May 14, 2012 ― inherent neutral delay to retain counsel and review disclosure; May 14 to June 14, 2012 ― inherent neutral delay for defence counsel availability and preparation for trial; June 14, to December 10 th , 2012 ─ Institutional delay attributable to the Crown (6 months); December 13 th, to February 1 st , 2013 ─ Crown delay; failure to produce essential disclosure (1.5 months); February 1 st to October 4 th , 2013 ─ neutral delay as part of inherent time requirements to fully address defence of automatism; [ 26 ] On the basis of the above allocations of specific delay periods, the delay for which the Crown is responsible, including the institutional period of delay, is 7.5 months comprised of a 6 month period of institutional delay from June 14 th , 2012 to December 10 th , 2012 as well as the attributed 1.5 months delay for failure to provide timely disclosure. (See above allocation table). (

b) Actions of the accused [ 27 ] There was no waiver of trial delay on the part of the accused. The trial readiness delay as noted above is recorded as neutral in the calculation of overall delay in accordance with R. v. Lahiry , supra. (

c) Actions of the Crown [ 28 ] As noted above, there has been one period of delay allocated to the Crown as a result of delayed disclosure. This delay period in my view is properly calculated as 1.5 months. (

d) Limits on Institutional Resources

[29] The limits on institutional resources are well known in the Ontario Court of Justice, The systemic delay in this case is theperiod from June 14 to December 10, 2012, a period of 6 months. This is a period that is well under the Askov/Morin guidelines and byitself, while not ideal, would represent a constitutionally acceptable period of trial delay. (

e) Other reasons for the delay [30] All delay in this case has been covered in my analysis under other headings. Counsel has not argued for the attribution ofdelay to any other factor in this case. [31] The total delay attributable to the Crown directly or pursuant to its responsibility for systemic or institutional delay is 7.5months. PREJUDICE [32] The Defendant provided evidence on this issue in the form of an affidavit that was not cross-examined and as a result I acceptthat his evidence that the delay became more and more difficult for him over time.

While some of the concerns expressed have as muchtoo do with the fact he was charged with sexual assault, such as the loss of his girlfriend and his position in a band, the experience offacing these charges has become increasingly stressful over the past 20 months. I can well understand how increasingly isolated thedefendant has felt and how heavily a sense of uncertainty, must have weighed upon him.

In the end result, I am satisfied that thedefendant has suffered a modest degree of actual prejudice to his security interests as a result of trial delay in terms of increasing stress,and negative impacts on future plans. As well, a relatively modest degree of inherent prejudice can be inferred in respect to thisApplicant as a result of the general stigma related to the charges he has faced, and the vexations and vicissitudes of 7.5 months of Crownand systemic delay in having these pending criminal accusations concluded.

I do note though, that there has been no assertion ofprejudice to his liberty and fair trial interests and the appropriate characterization of prejudice in this case, in terms of actual and inferredprejudice, is “modest.” BALANCING [33] The final consideration involves a balancing of the problems that the delay has caused the Applicant and society’s interests inhaving charges concluded on the merits. In accordance with R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1 (S.C.C.), “thedecision as to whether s. 11(

b) has been infringed is not to be made on the basis of a mathematical or administrative formula but rather bya judicial determination balancing the interests which the

section is designed to protect against factors which either inevitably lead todelay or are otherwise the cause of the delay.” It is well accepted that society’s interests in a trial on the merits increases as theseriousness of the charges increases. It must be acknowledged that the charges before the court are relatively serious as all criminalcharges are, but even more so in terms of the intrusion upon the dignity and sexual integrity of the complainant.

In the final analysis, thisCourt must consider whether the interest of the accused and society in a prompt trial outweighs the interest of society in bringing theaccused to trial. [34] As noted above, the total delay directly attributable to the Crown or pursuant to its overall responsibility for systemic delay is7.5 months. This trial delay is below the Ascov/Morin guidelines of eight to ten months. I have determined that the actual and inherentprejudice to be inferred with respect to the Applicant should be characterized as modest.

It follows that the amount of delay that is“tolerable” in this case must be closer to the upper end of the range given the modest level of actual and inferred prejudice to theApplicant particularly having regard to the fact that there were no real trial delay impacts on his liberty or fair trial interests (see R. v. G.(C.R.) (ON CA), [2005] O.J. No. 3764 (C.A.). Consequently, even trial delay somewhat closer to 10 months wouldbe “tolerable” in this case.

Seven and one/half months delay, however, is well within constitutionally acceptable levels, particularlyconsidering the modest degree of actual and inferred prejudice. [35] Consequently, I have concluded that the defendant’s

section 11(

b) rights have been not been breached and the Applicationwill therefore be dismissed. Released: October 31, 2013. P. Harris J.