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R. v. Nurse, [2017] O.J. No. 5012 Ontario Judgments Ontario Court of Justice R.H.K. Schwarzl

Ontario Judgments

Ontario Court of Justice

R.H.K. Schwarzl J.

Heard: June 22 and August 14, 2017.

Judgment: September 22, 2017.

Orangeville Court File No.: 16-1213

[2017] O.J. No. 5012

Between Her Majesty the Queen, and Mark Nurse

|

2017 ONCJ 648

|

393 C.R.R. (2d) 365

(45 paras.)

Counsel

Ms. Alayna Woodley, for the Crown.

Mr. Mark Rieger, for the Accused.

Section 11(b) Charter Ruling

R.H.K. SCHWARZL J.

1.0:

INTRODUCTION

1 The Applicant, Mark Nurse, is charged with three drug charges including the indictable offence of trafficking cocaine contained in an Information sworn July 9, 2015. His trial was scheduled for May 17, 2017 but was postponed for the defence to bring this application. The time between the swearing of the Information and the trial date is 678 days, or 22 1/2 months.

2 Mr. Nurse claims that his right to be tried within a reasonable time as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms has been breached by the passage of this time. He seeks the remedy of a judicial stay of proceedings. The Crown opposes the application.

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R. v. Nurse, [2017] O.J. No. 5012

2.0:

CHRONOLOGY OF EVENTS

2.1: Events leading up to the laying of the Information: March 20 to July 9, 2015

3 On March 20, 2015 the Applicant was seen by police at around 1:00 a.m. in the company of

two other young men near a local scrap yard that had been the subject of several burglaries. The police decided to see what they were up to and as they approached one of the group rode away on his bicycle. The police noticed a baggie containing a white powder at the feet of the Applicant. His behaviour caused the police to believe that he was trying to conceal the baggie. The officer in charge, P.C. Fisher, picked the bag up and told the Applicant that while he suspected that the Applicant was dealing drugs he didn't have reasonable grounds to charge him at that point.

4 After taking the Applicant's personal information including an address in Ajax, the officer let

the Applicant go unconditionally but told him that if the substance tested positive for illegal drugs he would be charged.

5 On April 2, 2015 the police found the person who had ridden away. He stated that he had tried to buy drugs from the Applicant when the police showed up.

6 On May 28, 2015 the police received a Certificate of Analysis that proved the substance in the

baggie seized from the feet of the Applicant was cocaine. As a result of all the investigation to date P.C. Fisher formed reasonable grounds to charge the Applicant with the three offences now in court.

7 Having formed grounds to charge the Applicant, P.C. Fisher took steps to find him. Between

May 28 and June 30, 2015 the officer ran the Applicant's name on the local records system and found four addresses associated with Mr. Nurse: three in Orangeville, and one in Shelburne. The officer went, or had other officers go to, all four addresses only to be told that the Applicant wasn't at any of them but was told at one place that the Applicant was living somewhere in Peel Region. There is no evidence that P.C. Fisher or any other officer ever (a) checked records systems beyond local ones, or (b) checked with Peel Regional Police Services to locate the Applicant. In evidence taken at this application, P.C. Fisher said that he never checked with Durham Regional Police to visit the Ajax address because he said the local ones were more current.

8 Around June 30, 2015 the officer in charge wrote a memo detailing his steps taken to locate the Applicant and explained why he couldn't be found. As a result P.C. Fisher requested an Information be sworn and an application made for a Warrant-in-the-First-Instance.

9 On July 9, 2015 the Information before the Court was sworn by the Orangeville Police Service

Court Officer, P.C. May, and a Warrant-in-the-First-Instance was issued. P.C. May sent out a service-wide email to tell all local officers about the warrant.

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10 Before the warrant was applied for, it appears that no one from the Orangeville Police

Service checked to see if the Applicant was in custody with another police service or in jail. In fact, the Applicant had been arrested on July 3, 2015 by Niagara Regional Police and was in detention at the time the warrant was issued.

11 P.C. Fisher testified that if any police agency comes into contact with a person subject to a

warrant the Orangeville Police Service are notified of the contact. P.C. Fisher stated that if another police service passes information regarding contact or custody with a person wanted locally the information is received by the shift sergeant in charge of the station at the time. That officer then decides whether or not to act on that information and go get the person or not. The decision to go to another town to execute the warrant is based on whether there is an officer available that day. P.C. Fisher testified that there appears to be no system in place within Orangeville Police Service to (a) notify the officer in charge of an investigation when there is a contact on his warrant nor (b) document or track down notifications by other agencies so as to permit a decision on another day to send an officer to execute the warrant when resources permit.

2.2: Events between laying of the Information to the Applicant's arrest: July 9, 2015 to April 6,

2016

12 The Applicant was in custody in Niagara Region continuously between July 3, 2015 and

January 19, 2016 when he pled guilty in St. Catharines court to a drug trafficking charge. He was sentenced to time served plus one day.

13 The day that the Applicant was sentenced, the Toronto Police executed their own Warrant-

in-the-First-Instance for robbery and other charges and returned him to Toronto where he remained in custody until April 6, 2016 when the charges were withdrawn.

14 On the very day that the Applicant was released from custody on the Toronto charges, P.C.

Phelps of the Orangeville Police Service travelled to that city and arrested the Applicant on the local Warrant-in-the-First-Instance. The Applicant was released unconditionally on a Promise to Appear. No evidence was led and no explanation was offered as to how P.C. Phelps managed to find out where the Applicant was or why the warrant was executed on that particular day.

15 P.C. Fisher testified that neither he, nor any other officer as far as he knows, did anything to

attempt to locate the Applicant between July 9, 2015 and April 6, 2016, a period of 273 days or 9 months. The Applicant was in custody this entire time and was incapable of evading or avoiding execution of the Orangeville Police Service arrest warrant.

2.3: Events between the Applicant's Arrest and his Trial: April 6, 2017 to May 17, 2017

16 The Applicant's first appearance in Court was on May 17, 2016. At that time the prosecutor

did not appear to be aware of the matter and had no file and no disclosure to provide. The matter was adjourned until June 6, 2016, or 21 days, for the Applicant to pick up the disclosure and retain counsel.

17 On June 6, 2016 the Applicant appeared personally in Court. At that time he was given

disclosure and he said that Mr. Rieger was his lawyer. The Applicant said his lawyer wanted to

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R. v. Nurse, [2017] O.J. No. 5012

adjourn the matter for three weeks. At the request of Mr. Nurse, his case was postponed for 22 days until June 27, 2016.

18 On June 27, 2016 the Applicant informed the Court that he was still in the process of

retaining Mr. Rieger and asked to adjourn the matter to July 11, 2016. His request to remand the case for 15 days was granted.

19 On July 11, 2016 duty counsel on behalf the absent Applicant said that Mr. Nurse needed

more time to retain Mr. Rieger. At the Applicant's request, his case was postponed again for 14 days to July 25, 2016.

20 On July 25, 2016 Mr. Rieger appeared on behalf of the Applicant by way of a designation

who told the Court that he had "just been retained" and needed time to receive disclosure from his client and review it. At that time, the matter was remanded for 21 days at the request of the Applicant to August 15, 2016.

21 On August 15, 2016 a judicial pre-trial conference (JPT) was set for September 1, 2016

some 17 days later. There is no indication if an earlier JPT was available or if the Applicant was available sooner.

22 On September 1, 2016 a JPT was conducted. The Applicant wanted a preliminary hearing

and as a result one-and-a-half days were set for May 17 and June 27, 2017 with a confirmation hearing on March 7, 2017. At the time the dates were set, the Applicant turned down two dates in October. The Crown turned down one date in November that was available to the Applicant. The parties were then offered ten dates between April and June. There were no dates offered by the Court in the 5 1/2 months between November 10, 2016 and April 26, 2017 The Applicant was available for all the dates, but the Crown was only available for the two dates selected. The time between setting the date and May 17, 2017 was 258 days or 8 1/2 months.

23 On March 7, 2017 this matter was in Court for the confirmation hearing. At that time the

Applicant stated that he intended to have a trial in the Provincial Court instead of a preliminary hearing. The matter was adjourned to March 16, 2016 to require the Applicant to personally attend so as to make his election as to his mode of trial.

24 On March 16, the Applicant appeared in court and elected to be tried in the Provincial Court.

The date of May 17, 2017 was confirmed as being sufficient for trial given a number of admissions to be made by the Applicant.

25 The trial was adjourned at the request of the Applicant to bring a section 11(b) Charter

application. The application started on June 22 but was not finished at that time so that the Applicant could produce and file transcripts. The application was completed on August 14, 2017 with a trial date being scheduled for September 22 if the application was dismissed. There is no issue regarding delay after May 17, 2017.

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R. v. Nurse, [2017] O.J. No. 5012

3.1:

Applicable Legal Principles

26 The guiding framework to assess this issue comes from the Supreme Court of Canada's

recent companion judgments of R. v. Jordan, [2016]

S.C.J. No.
S.C.J.
No.

27 and R. v. Williamson, [2016]

28 which were released in July 2016, just a few months after the initial trial dates for

this case had been set. This framework was reiterated by the Supreme Court in the matter of R. v. Cody, [2017] S.C.J. No. 31. In R. v. Coulter, [2016] O.J. No. 5005, the Ontario Court of Appeal provided a helpful summary of the new framework by the Supreme Court as follows:

Step 1:

Calculate Net Delay

(a)

Calculate the Total Delay from the date of the charge to the actual or anticipated end of trial.

(b)

Subtract Defence Delay from the Total Delay, which results in the Net Delay. Defence Delay may result from:

(i)

Defence Waiver: Clear and unequivocal defence waiver of his/her s. 11(b) rights;

(ii)

Defence-Caused Delay: Delay caused solely by the conduct of the defence, including delay unavailability for trial when the court and the crown are available.

Step 2:

Determine the Presumptive Ceiling

(a)

For cases in provincial courts, the Presumptive Ceiling is 18 months.

(b)

For cases in superior courts, or cases tried in provincial courts after a preliminary inquiry, the Presumptive Ceiling is 30 months.

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(a)

If the Net Delay exceeds the Presumptive Ceiling, calculate the delay caused by Discrete Events that were a) reasonably unforeseen or unavoidable, and b) not able to be reasonably remedied once they arose (i.e. sudden medical emergencies), which results in the Remaining Delay.

(b)

If the Net Delay does not exceed the Presumptive Ceiling, there is no need to consider Discrete Events.

Step 4: Remaining Delay Greater than Presumptive Ceiling

(a)

Where the Remaining Delay is still greater than the Presumptive Ceiling, it is presumed that the delay is unreasonable.

(b)

The Crown may only rebut this presumption of unreasonable delay by establishing that the case was particularly complex in that the nature of the evidence or the nature of the issues required an inordinate amount of trial time or preparation time.

(c)

Where the Crown cannot establish that the case was particularly complex, the charges against the accused will be stayed.

Step 5: Net Delay or Remaining Delay Less than Presumptive Ceiling

(a)

Where the Net Delay or Remaining Delay is less than the Presumptive Ceiling, it is presumed that the delay was reasonable.

(b)

In order to establish that the delay under the Presumptive Ceiling was unreasonable, the accused must show that:

(i)

he made a sustained effort to expedite the proceedings; and

(ii)

the case took markedly longer than it reasonably should have.

Where the accused establishes both of these elements, the charges will be stayed. Charges will only be stayed below the Presumptive Ceiling in clear cases.

Step 6: Transitional Cases where matter commenced prior to Jordan

(a)

Where charges were instituted pre-Jordan, the application of the above framework must be applied contextually and flexibly, taking into account 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.

(b)

In Williamson, the Supreme Court suggested the relevant circumstances to consider in the contextual analysis including:

(i)

the complexity of the case;

 

(ii)

the period of delay in excess of the guidelines set out by the Supreme Court in R.

v. Morin, [1992]

1

771;

(iii)

efforts by each party to move the case along; and

(iv)

prejudice cause by the delay to the Accused.

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3.2.1:

Calculating Net Delay

(a) Total Delay

27 In this case, the time between the swearing of the Information (July 9, 2015) and the trial

date (May 17, 2017) is 678 days, or 22 1/2 months. The Crown submits that although the Information was sworn in July 2015 the Applicant was not in fact charged until his arrest on April 6, 2016. The Crown urges me to find that the "11(b) clock" started ticking in this case upon the Applicant's arrest making the total delay is 406 days, or 13 1/2 months.

28 The Crown relies on R. v. Millar, [2016] B.C.J. No. 2144 (B.C. S.C.). In that case, the

Accused was arrested 16 months after the Information was sworn. Relying on the majority decision in R. v. Carter, [1986] 1 S.C.R. 981 (S.C.C.) and the minority opinion of the Supreme Court in Kalanj, infra, the trial judge held at paragraphs 112 to 136 that the 11(b) Charter analysis commences when the person becomes aware of the charge against him; that is when he is arrested or receives a summons because his liberty and security interests are not engaged until that time. In other words, the judge in Millar found that a defendant does not suffer the vexations of a criminal charge until he is arrested.

29 In the case of R. v. Magiri, [2017] O.J. No. 2504 (S.C.J.), Justice McWatt applied the

reasoning in Millar. In that case, the Defendant was arrested 10 months after an Information was sworn. The police made significant and diligent efforts to locate Mr. Magiri, including constant checking and searching for the Defendant after a warrant-in-the-first-instance had been issued. It turned out the Defendant had left the country and was arrested when he returned. The court found in that case that the clock started running on the Defendant's arrest. The court went on to say that if the clock started when the Information was sworn, the pre-arrest period was deductible as a "discrete event."

30 In the case of R. v. McCullough, [2017] S.J. No. 178 (Sask. Q.B.) the trial judge found no

violation of section 11(b) of the Charter where the defendant was arrested 10 years after an Information was sworn. The trial judge held that the police had exhausted all reasonable efforts to locate the defendant but he could not be located.

31 With respect to the Crown's able argument and the authorities in support of it, I find that it is

clear that the "11(b) clock" starts running once the Information is sworn. I am bound by the

appellate decisions of R. v. Kalanj, [1989]

1594 (S.C.C.), R. v. Milani (2014),

(3d) 641 (Ont. C.A.), and R. v. K.E., [2013] O.J. No. 1280 (C.A.) wherein the Court of Appeal stated at para 20:

It is well-settled that a person is "charged with an offence" within s. 11(b) of the Charter, when an information is sworn alleging an offence against him or her: R. v. Kalanj, [1989]

1 S.C.R.
1 S.C.R.

1594, at p. 1607. Time reckoning for the purposes of claims of infringement of

the right to be tried within a reasonable time commences with the laying of the information and continues until the completion of the trial.

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32 I agree with my brother Justice Blacklock who, in R. v. Sundralingam, [2017] O.J. No. 3097

(O.C.J.), found the reasoning in Millar, supra, very attractive but, absent exceptional circumstances to justify a later date, the "11 (b) clock" starts when the Information is sworn. In my view, absent exceptional circumstances in the period between the laying of the Information and the arrest of an accused person, this period is to be analyzed as a "discrete event" within the Jordan framework when calculating the net delay of a case. This is because once the warrant to arrest was obtained, the Applicant had become subject to the judicial process (whether he knew it or not) and the police were obligated to act on the warrant forthwith: Milani, supra, at para 47 - 49.

33 Therefore, I find that the total delay in this case is the time between the swearing of the

Information (July 9, 2015) and the trial date (May 17, 2017) is 678 days, or 22 1/2 months.

(b) Deductions for Defence Delay

34 I deduct 1 1/2 months for the period between June 27 and August 15, 2016 when the

Applicant was postponing the matter to retain Mr. Rieger. In this time, both the Court and the Crown were ready to move the case forward, but the defence was not: Cody, supra, at paragraph 30 -35.

(c) Net Delay

35 The net delay

deductions for defence delay of 1 1/2 months.

in

this case is

21 months, being the total delay of 22 1/2 months less

3.2.2:

Applicable Presumptive Ceiling

36 The history of this case is entirely within the Provincial Court. Thus, the applicable

presumptive ceiling is 18 months.

3.2.3:

Calculation of Remaining Delay

37 Here, the net delay exceeds the presumptive ceiling by 3 months. Accordingly, I must

calculate if any of the net delay was caused by discrete events. In this case, I am urged by the Crown to find that the 9 month delay between the swearing of the Information and the Applicant's arrest was reasonably unforeseen or unavoidable. The Crown submits that the police took reasonable steps to execute the arrest warrant issued on July 9, 2015 but despite their diligence the Applicant could not be located and arrested prior to April 6, 2016. In this regard, the Crown relies on the ratio of the Millar, Magiri, and McCullough decisions referred to earlier.

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38 The Applicant submits that far from being reasonably unforeseen or unavoidable, the police

lassitude and apathy in locating the Applicant reveals a classic "culture of complacency" that the Supreme Court of Canada has declared in Jordan and Cody must be stamped out. The Applicant submits that very little about the police conduct in executing the warrant was reasonable. He points to (a) a weak effort to check some addresses, but not the one the Applicant himself gave, (b) the utter failure of the Orangeville Police Service to do any checking or searching for the Applicant after the warrant was obtained, and (c) what can be fairly described on the evidence as a flimsy internal system of documenting and following up on contacts by other police services who obviously had the Applicant in their custody. The Applicant also points out that both the Toronto and Orangeville Police Services executed their respective warrants on days when the Applicant was released from custody by a prior agency. This is called "gating" which is a practice of executing warrants only when a person is set free from prior custody. This practice has been regularly disparaged by courts across this country for decades.

39 Section 511(1)(c) of the Criminal Code of Canada places a duty on the police to execute

arrest warrants forthwith and they must take reasonable steps in doing so. On the evidentiary record before me, I find that it was reasonable for the police to check local addresses where the Applicant might have been found. Beyond this, and on the same record of evidence, the steps taken by the police prior to April 6, 2016 were woefully hollow if not non-existent. They appeared to be content to sit on the warrant and do nothing. Their conduct is distinguishable from the diligence displayed in the Magiri and McCullough cases referred to above. Had the police in this case made basic efforts, they would have readily found the Applicant in custody and could have executed the arrest warrant literally any time after the Information was sworn.

40 I agree with the Applicant's submissions on this point. Accordingly, I find there were no

discrete events which would reduce the net delay below the presumptive ceiling.

3.2.4: Rebutting the presumed unreasonableness of the net delay in excess of the presumptive ceiling

41 The Crown can rebut the presumed unreasonableness in this case by demonstrating that

the matter was particularly complex. This is a straightforward matter with no unusual evidence or legal issues. It was expected to be completed in one to one-and-a-half days. Therefore, on the face of it, the Crown cannot rebut the unreasonableness of the delay.

3.2.5:

Contextual and Flexible Assessment of Net Delay

42 Where, as here, the charges were instituted before the analytical framework was changed

by Jordan, my analysis of delay must be applied contextually and flexibly to take into account the reliance the parties had on the law as it existed prior to that case.

43 Even when applying the law as it existed prior to July, 2016 this case would not pass

constitutional muster. The 9 month delay in bringing the Applicant before the court must be

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viewed as an action of the Crown. To this, other Crown actions must be added. In this case, the Applicant was available on November 10, 2016 but the Crown turned that day down. The Crown also turned down April 26, 2017 even though the Applicant was ready for that day. As a result, this case could have been finished prior to the eventual date of May 17. In addition, I would assess a period of 5 1/2 months institutional delay because the Court was not able offer any dates to the parties between mid-November, 2016 and late April, 2017.

44 Under the old rules, the unreasonable delay caused by actions or inactions beyond the

Applicant's control amount to at least 14 1/2 months. In the circumstances of this case, when applying a flexible and contextual approach for a transitional case, the Applicant has demonstrated that there was an unacceptable overall delay.

4.0:

CONCLUSIONS

45 For the reasons set out above, I find that that Applicant has met his onus in establishing that

his right to be tried within a reasonable time was probably breached. Accordingly, all the

charges will be judicially stayed.

R.H.K. SCHWARZL J.

End of Document