R. v. D.B., 2011 ONCJ 442

COURT FILE No.: NEWMARKET 4911-998-08-11155-00 DATE: 2011·08·18 Citation: R. v. D.B. , 2011 ONCJ 442 ONTARIO COURT OF JUSTICE (CENTRAL EAST REGION) BETWEEN: HER MAJESTY THE QUEEN (Respondent) — AND — D.B. (Applicant) Before Justice Richard Blouin Heard on August 10 and 11, 2011 Oral Ruling given August 11, 2011 Written 11(

b) Charter Ruling released on August 18, 2011 Jon Fuller ................................................................. for the Respondent Her Majesty the Queen Dennis Reeve .............................................................................................. for the Applicant D.B. BLOUIN J.: [ 1 ] D.B. stands charged that between December 22, 1986 and December 22, 1990 he committed the following seven offences against the same complainant: • between December 22, 1986 and December 31, 1987 did commit

an act of Gross Indecency, to wit: placed her hand on his penis, contrary to Criminal Code s. 157; • between December 22, 1986 and December 31, 1987 did commit a Sexual Assault, contrary to Criminal Code s. 246.1; • between January 1, 1988 and April 30, 1989 did, with a part of his body, directly touch a person under the age of fourteen years, contrary to Criminal Code s. 140 ; • between January 1, 1988 and April 30, 1989 did, for a sexual purpose, invite a person under the age of fourteen years to directly touch with a part of her body, to wit: her hand, the body of D.B., contrary to Criminal Code s. 141 ; • between May 1, 1989 and December 22, 1990 did commit a Sexual Assault, contrary to Criminal Code s. 271 ; • between May 1, 1989 and December 22, 1990 did, with a part of his body, for a sexual purpose, directly touch the body of a person under the age of sixteen years, contrary to Criminal Code s. 151 ; and • between May 1, 1989 and December 22, 1990 did, for a sexual purpose, invite a person under the age of sixteen years to directly touch with a part of her body, to wit: her hand, the body of D.B., contrary to Criminal Code s. 152 . [ 2 ] D.B. makes application pursuant to s. 11(

b) of the Charter that his trial was not held within a reasonable time and, as a result, a stay of proceedings should be granted pursuant to s. 24(1). Relevant Dates

[7] December 16, 2008 Information laid. Defendant appears for bail hearing with retained counsel, Alan Davidson, and is released on bail from court later that same day on a $5000 recognizance with a weapons prohibition and the following conditions: 1. Reside with surety. 2. Notify Detective Hammond of York Regional Police of any change of address, employment or occupation in writing, at least 48 hours prior to such change. 3. Abstain absolutely from communicating directly or indirectly with named persons. 4.

Not attend a public park or public swimming area where a persons under the age of fourteen years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre; or seeks, obtains or continues any employment whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of fourteen years. 5. Not to be alone with any child under the age of fourteen years except in the direct company of his surety or with his children named.

January 6, 2009 Mr. Davidson appears as counsel and files a designation. Initial disclosure is provided and audio/visual disclosure is available for pick-up in the Crown’s office. Remanded to January 20. January 16, 2009 Bail varied to amend condition 5 to read: 5.

Not to attend a public park or public swimming area where a person under the age of fourteen are present or can reasonably be expected to be present or a daycare centre, school ground, playground or community centre except in the presence of his surety or in the presence of an adult at least twenty-one years of age or seeks, obtains or continues any employment whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of fourteen years.

January 20, 2009 Counsel appears and informs the court there are disclosure issues that will be outlined in a letter to the Crown. Case remanded to February 10. February 10, 2009 Mr. Davidson requests that a Crown be assigned so as to discuss the outstanding disclosure issues. Crown indicates that this is a “serious case” and Ms. Barnier will likely be assigned. Case remanded to March 3. March 3, 2009 Counsel renews his request that a Crown be assigned. The Crown in court informs that the case is noted for assignment, but not yet assigned. Mr.

Davidson leaves his card so that he can be contacted by the assigned Crown when that happens. The Crown provides further disclosure. Case remanded to March 31. March 31, 2009 Crown provides further disclosure. Mr. Davidson indicates he has been informed this case will be handled by “Team A” in the Crown’s office and that he has scheduled a Crown pre-trial for April 6 at 2:50 p.m. by telephone. Case remanded to April 28. April 28, 2009 Mr. Davidson requests the matter be adjourned for four weeks to discuss the results of the Crown pre-trial with, and get instructions on mode of trial from, his client. Mr.

Davidson indicates, when asked, that 11(

b) is waived. Case remanded to May 26. May 26, 2009 Mr. Davidson indicates that trial will be in the Ontario Court of Justice, and that three days was estimated at the Crown pre-trial. The court indicates that a judicial pre-trial must be held, according to the policy regarding multi-day trials. June 26 is scheduled for the judicial pre-trial. June 26, 2009 Mr. Davidson has car trouble. Case remanded to July 3 to set a new judicial pre-trial date. July 3, 2009 Counsel asks for the earliest date available, which is August 7 and that date is scheduled for a judicial pre-trial.

August 7, 2009 A judicial pre-trial is held wherein five days is estimated for trial. May 5, 6, 7, 10 and 12, 2010 are scheduled.

December 16, 2009 Counsel brings application to adjourn the May trial dates to allow hisattendance at his son’s wedding in Florida. The Crown consents andthe new trial dates are scheduled for November 3, 4, 5, 10 and 12,2010. Mr. Davidson indicates that defence is waiving 11(b). October 12, 2010 Application made by agent for Mr. Davidson to adjourn the secondtrial dates in November 2010 as a result of counsel’s health issues. 11(

b) is waived and case remanded to October 26 to set new trialdates. October 26, 2010 New trial dates set for September 6, 7, 8, 9 and 16 by agent for Mr.Davidson. Again noted that 11(

b) is waived. Legal Framework [3]

Section 11(

b) aims to protect both the individual rights of the accused and the rights of society. It protects threeindividual rights: it protects the accused’s right to security of the person by minimizing the anxiety and stigma of criminal proceedings;it protects the accused’s right to liberty by minimizing the effect of pre-trial custody or restrictive bail conditions; and it protects theaccused’s right to a fair trial by ensuring that the proceedings occur while evidence is fresh and available. See R. v. Morin (1992), (SCC), 71 C.C.C. (3d) 1 (S.C.C.) at p. 12. [4]

Section 11(

b) also seeks to protect two societal rights. First, it protects the public’s interest in having our laws enforcedby having those who break the law tried quickly. Promptly held trials increase public confidence. Second, s. 11(

b) seeks to protect thepublic’s interest in having those accused of crime dealt with fairly. See R. v. MacDougall (1998), (SCC), 128 C.C.C.(3d) 483 (S.C.C.) at p. 496. [5] As the seriousness of the offence increases, so does the societal demand that the accused be brought to trial: R. v.Morin, supra at p. 13. While society has a heightened interest in seeing that serious offences are tried, the Crown has a heightenedobligation to ensure that the trials for such offences are held in a timely fashion: R. v. Kporwodu, (ON CA), [2005]O.J. No. 1405 at paragraph 194. [6] To decide whether s. 11(

b) has been infringed, the court must balance these individual and societal goals with thelength and causes of the delay. In Morin, the Supreme Court of Canada set out the framework for this judicial balancing. Four factorsmust be considered: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case; (

b) actions of the accused; (

c) actions of the Crown; (

d) limits on institutional resources; (

e) other reasons for delay; and 4. prejudice to the accused. Length of delay [7] The time from the arrest date to the third trial date was approximately 33 months. The Crown concedes that timeperiod requires an examination of the Morin factors. Waiver [8] The defendant retained counsel before the arrest. Very early in the process, retained counsel, Mr. Davidson, requestedfull disclosure and an assigned Crown, with whom he could communicate. [9] At the conclusion of the judicial pre-trial hearing on August 7, 2009, a five-day trial was scheduled commencing May5, 2010. On December 16, 2009, counsel brought a successful adjournment application. He purported to waive his client’s 11(

b) rightsregarding the delay occasioned by the adjournment. New trial dates commencing in November 2010 were set. [10] One witness was called by the Crown on this application, that being the defendant’s former lawyer, Alan Davidson. Mr. Davidson testified that he spoke to his client by telephone in November or early December 2009, to inform him of the conflictcounsel had which necessitated adjourning the May 5 trial (counsel’s son was to be married that day in Florida). Mr. Davidson testifiedhe told his client that since it was a defence adjournment request, 11(

b) would be waived between May and November 2010, but that his11(

b) rights would survive up until May 5. Mr. Davidson indicated he did not know the exact date of this conversation. He also testified

that the defendant asked if he had a choice and Mr. Davidson told him it was his (Mr. Davidson’

s) choice, and his client agreed with it. [ 11 ] D.B. testified on the application, and provided a sworn affidavit. He maintained the first he heard about the adjournment was in April when he phoned his lawyer to arrange a meeting to prepare for trial. D.B. did not waive his 11(

b) rights at any point in the process, including the adjournment of the second trial date which was done one month prior to the November 3 commencement of that trial. [ 12 ] Interestingly, Mr. Davidson prepared a letter to his client dated December 16, 2009 (made Exhibit A). December 16, 2009 was the date the adjournment application was heard. The content of that letter ostensibly introduces Mr. Davidson’s conflict issue, and does not confirm a telephone discussion between lawyer and client taking place within the previous month (as Mr. Davidson indicated in his evidence).

D.B. maintained he did not receive that letter on December 16, 2009 as the first he knew about the issue was April 2010. I found D.B. to be a straightforward, compelling witness and Exhibit A appears to confirm his position. I conclude that he did not clearly and unequivocally waive his Charter right. Any delay of the trial dates resulted from events that D.B. had little control over. [ 13 ] Having concluded that the purported waiver connected to the adjournment of the first two trial dates was not clear and unequivocal, the issue regarding the characterization of that delay must be resolved.

The adjournments were not the Crown’s responsibility. They were not as a result of any institutional problem (with the exception of the argument that rescheduling of each trial was unreasonably far into the future – which I will speak to later). Therefore, waiver or not, that time should not be counted against the state. Reasons for the delay (

a) Inherent time requirements of the case [ 14 ] The trial was scheduled for five days. I was told the evidence would have been the complainant’s version of events 20 to 25 five years earlier versus the defendant’s version. The other witnesses would not have been lengthy. Counsel confirmed with the trial coordinator that any trial scheduled to take over one day meets the same length of institutional delay. In other words, a 1.5 or 2 day trial takes as long to come to trial as a much longer trial. (

b) Actions of the accused [ 15 ] The defendant retained counsel even before charges were laid and exhibited a desire to have these matters determined as quickly as possible. Although this case was extended significantly because two trials were vacated upon defence request and the delay could not be counted against the Crown or the state, I found that the defendant’s actions played no

part in the creation of the delay. (

c) Actions or Inaction of the Crown [ 16 ] The defendant submits two issues with the Crown’s conduct; firstly, the disclosure took unreasonably long, which delayed the case, and secondly, the Crown has a responsibility (as does the court) to prioritize older cases to protect the societal rights as well as the defendant’s rights contained in s. 11(b). Adjourned cases should not be scheduled as if they were receiving their first trial date.

Disclosure [ 17 ] Although it was difficult to piece together the provision of disclosure between December 16, 2009 and March 31, 2009 since both counsel were not involved in the case at that intake stage, some important information became known. Mr. Davidson indicated a number of times during the intake period that he wanted disclosure, and an assigned Crown with whom he could discuss the case. Even though the complainant had provided two statements in June 2008, it appears, for some unknown reason, the second statement was not made available to defence until March 4, 2009.

In addition, as late as March 23, 2009, additional notes of the officer in charge were provided. [ 18 ] There appears no defensible reason why disclosure sufficient for counsel to conduct a pre-trial conference with the Crown, and to make important decisions with his client, could not have occurred before the end of January 2009. There were no forensics, no reports, no search warrants. I was told other than the complainant, the additional witnesses were interviewed regarding peripheral issues such as opportunity and sleeping arrangements.

I am of the view that at least two months of the intake period was attributable to Crown indifference regarding the speed at which disclosure was provided. There were three appearances (January 20, February 10, March 3) where defence was attempting to move the case along but was thwarted from doing so by Crown inaction. Once full disclosure was given and a Crown assigned, the case reasonably quickly came to Crown pre-trial, to Judicial pre-trial and then trial dates scheduled. [ 19 ] I will deal with the defendant’s second argument as part of the institutional resource issue below. (

d) Limits on institutional resources [ 20 ] I repeat my comments made in the case of R. v. Chen , [2009] O.J. No. 3853 at paragraph 14 . [14] It is clear that one cannot view the demands of this case in a vacuum, as if it had a monopoly on the attention of the judicial system. However, marihuana grow operations are a serious problem in this jurisdiction and others, and prosecuting authorities have a

legal obligation to bring cases to trial within a reasonable time. The need for an increase in institutional resources has been a rallying cryfor a generation of criminal justice, but that is just part of the story. Perhaps more importantly, a more effective system of screening,management of files, and accountability to those files, must be employed to effectively deal with the volume. I’ve spoken about thisimportant issue before (see R. v. S.J., [2009] O.J.

No. 2019, paragraphs 16 to 18). [21] The defendant submitted that when a case is delayed, as it was in this case, it is incumbent upon all parties, includingthe court, to “monitor that delay to protect both the accused’s interest and the community interest in a trial within a reasonable time.” (R.v. Wong 2010 ONCJ 310 , paragraph 9, Kenkel J.) This approach was identified by MacPherson, J. of the Ontario Court ofAppeal in R. v. R.M., (ON CA), [2003] O.J.

No. 4240 at paragraph 9: If an adjournment of a preliminary inquiry is required, there should not be a pro forma "what is the next available date" conversation.Instead, the time period that has already elapsed should be explicitly acknowledged on the record and there should be a frank discussionabout how to solve the problem. The focus of the discussion should be on ways to speed up the proceeding. The presiding judge, the trialco-ordinator if necessary, and both counsel should attempt quite consciously to

schedule the continuation of the preliminary inquiry - notseveral months down the road, but at the earliest possible date, taking into account the commitments of the presiding judge and counsel.Then, once a continuation date is set, counsel should explicitly state on the record their position with respect to the implications of thefurther delay in a Charter s. 11(

b) context. [22] All three scheduled trial dates were the first dates available and first dates offered by the trial coordinator. [23] The first trial dates were approximately nine months into the future. The second trial dates were just over 11 monthsinto the future.

The third trial dates were again just over 11 months into the future. [24] The defendant submitted that, following the principles noted above, the Crown and the court should have been morevigilant on the second and third trial dates in finding earlier dates than those offered for first trial dates. [25] While I feel that principle is sound – delayed matters should receive preference – the defendant did not make it knownthat he wanted earlier dates. I am confident that was because both adjournments were at defence request and that Mr.

Davidson hadostensibly waived 11(b), but I must add to that, the responsibility lies with all parties and no party gave the issue its due consideration. That may be because there was no date before 11 months to slot in a five-day trial (which is an institutional problem), or that none ofdefence, Crown or the court considered that the defendant’s interests, and the societal interests, were in jeopardy. [26] Mr. Reeve submits that when an adjournment is requested the defence waives a reasonable period to get a new trial, butnot an unreasonable period.

In other words, once defence requests an adjournment, the next trial date can’t be scheduled years into thefuture. Here, 11 months of institutional delay is occasioned setting the second trial dates, and the same delay is occasioned when thethird trial dates are set. Both are outside the Morin guidelines, and that can’t be reasonable. [27] Even if the outward point in the Morin range is chosen, and I ignore the principles espoused in R.M. above, a minimumof two months (one month excess on each of the second and third trial dates) is attributable to an institutional resource problem.

However, as will be outlined in paragraph 44, I don’t need to include this controversial period in my analysis. (

e) Other reasons for the delay Judicial Pre-Trials [28] In addition, another month of delay was occasioned because of the requirement of holding a judicial pre-trial. Thequestion that normally arises as to the characterization of that delay as institutional or inherent, is not in issue in this case. The Crownconceded that month as institutional delay. Prejudice [29] Prejudice in this context is concerned with the three interests of the accused that s. 11(

b) protects: liberty, as regards topre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion thataccompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendantto lead evidence, cross-examine witnesses, or otherwise to raise a defence. See R. v. Godin, 2009 SCC 26 , paragraph 30. [30] The question of prejudice cannot be considered separately from the length of the delay.

As Sopinka J. wrote in Morin,at p. 801, even in the absence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay.” See R. v.Godin, supra, paragraph 31. Full Answer and Defence [31] Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11(b)violation. This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and theexplanations for why it occurred. See R. v.

Godin, supra, paragraph 38. [32] This was a historical sexual touching, sexual assault allegation originating in 1986. By their very nature, allegations ofthis type present limitations on the defendant’s ability to lead evidence, cross-examine witnesses, or otherwise raise a defence. It isdifficult to imagine that a case delayed from 22 years after the events, to 25 years after the events, could be anything other than slightlymore prejudicial to the defendant.

[ 33 ] In this case it was really the liberty interests and the security of the person interest that were compromised by the prolongation of the case. Extraordinarily so, in the case of the security of the person. Liberty [ 34 ] Regarding the liberty interests, although there was no house arrest or curfew, the defendant gave evidence which established significant restrictions on the defendant’s ability to go about normal life. [ 35 ] D.B. runs a small flooring company, which involves his wife and two employees. He either installs flooring or subcontracts the installation.

He also purchases material directly from producer countries (such as China) which requires him to travel to those countries so as to avoid the distributor costs, which, in turn, allow his business to be competitive. Bail conditions prevented him from being in locations where children under the age of 14 could be expected to be present unless he was with another adult. This, effectively, excluded him from contracts at schools, community centres, daycare centres and arenas. As a result his income was reduced 25 to 30 percent.

Since he was to reside in Thornhill, he did not dare travel to China. [ 36 ] Although the liberty interests above were compromised, they might well have been mitigated by further bail variation requests, which did not occur. Security of the Person [ 37 ] The overriding prejudice in this case was the prejudice related to security of the person.

In my view, the overall delay of 33 months devastated D.B. and his family, both emotionally and financially. [ 38 ] Even though I find the majority of this time can’t be laid at the feet of the Crown or the court, the reality was that the defendant, through no fault of his own, had the cloud of suspicion hanging over him for the entire 33-month period. [ 39 ] Shortly after the time period of these allegations, the defendant married the sister of the complainant, T.B.. [ 40 ] The allegations involve a number of instances at a family cottage wherein sexual touching between the defendant and complainant occurred while both were sleeping in the same bed with the defendant’s girlfriend.

That girlfriend, the complainant’s older sister, became D.B.’s wife. The allegations, which became public in 2008, obviously put a tremendous strain on the B.’s marriage, and the family in general. Affidavits from T.B., their 17-year-old daughter, A., and 15-year-old son, M., chronicle increasing anxiety, stress and depression. Both M. and A. have seen their school performance diminish as time progressed. T.B. and A. have been prescribed medication for depression. [ 41 ] Of course, any prejudice is that accruing to the defendant, not his family.

But D.B.’s evidence established how the family stress and anxiety led to increased stress visited upon him. Although it was clear that stress and anxiety were present when the charges were laid, the delays in bringing the case to trial worsened the defendant’s condition. Now the defendant is prescribed Lorazepam for his difficulty sleeping, and Cypralex for depression. [ 42 ] On top of immense emotional and psychological stress that increased as time passed, the defendant suffered significant financial prejudice.

In December 2009, he took out a line of credit against the family home in order to raise $24,500 to meet Mr. Davidson’s retainer. When D.B. was told (in October 2010) that Mr. Davidson had become ill and would have to adjourn the November trial, D.B. began to look for another lawyer (the search included his present lawyer, Dennis Reeve). When he was unsuccessful in finding counsel who could take on a five-day trial the following month, the trial was adjourned until September 2011. [ 43 ] D.B. asked Mr. Davidson to transfer disclosure and all remaining trust funds.

He was told there was nothing left in the trust account. Exhibit B is comprised of 15 Interim Accounts between December 16, 2008 and June 1, 2009, which evidences payment out of trust to Mr. Davidson of the entire $24,500. D.B. testified that he never received any of those accounts. There is now a complaint to the Law Society. [ 44 ] The important result of the above interaction between D.B. and his former lawyer is that D.B. was required to go further into debt in order to retain Mr. Reeve to represent him at trial, and to conduct this application.

Obviously, significant financial prejudice resulted from the prolongation of the case. Conclusion [ 45 ] When I collate the substantial psychological and financial prejudice with the societal demand to try cases on their merits, I conclude that even the minimum delay attributable to Crown and institutional factors (amounting to 12 months), in the context of a historical sexual assault and touching case taking 33 months to come to trial, is an unreasonable delay. [ 46 ] The only appropriate remedy is a stay of proceedings. Released: August 18, 2011 Signed: “Justice Richard Blouin”