



WARNING

The President of the panel hearing this appeal directs that
    the following should be attached to the file:

An order restricting publication in this proceeding under
    ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this subparagraph
    comes into force, if the conduct alleged involves a violation of the
    complainants sexual integrity and that conduct would be an offence referred to
    in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED:
    S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences
    being dealt with in the same proceeding, at least one of which is an offence
    referred to in paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an
    offence referred to in subsection (1), if the victim is under the age of 18
    years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to
    make an application for the order; and

(b) on application of the victim or the prosecutor, make the
    order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material or
    a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Burke, 2018 ONCA 594

DATE: 20180627

DOCKET: C63913

Hourigan, Pardu and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Applicant/Appellant

and

Raymond Burke

Respondent

Lorna Bolton for the Crown, appellant

Brian Eberdt for the respondent

Heard: June 19, 2018

On appeal from the order of Justice J.A. Thorburn of the Superior
    Court of Justice with reasons reported at 2017 ONSC 3261.

REASONS FOR DECISION

[1]

The respondent was charged with the abduction
    and violent sexual assault of two different women in 1986. He fled to the
    United States of America, in violation of the terms of his bail. A Canada-wide
    warrant was issued for his arrest. He assumed a false identity. In 1987, he was
    charged in the United States with assault, aggravated robbery and kidnapping of
    a third woman. In 1988, he was sentenced to 52 years imprisonment in the United
    States. At the time, there was no extradition treaty that would have allowed
    Canadian authorities to bring the respondent to Canada to stand trial while he
    was serving his sentence in the United States.

[2]

In 2000, Toronto police were advised that the
    respondent was eligible for parole in May 2013. In 2003, an amendment was made
    to the relevant extradition treaty which would have permitted Canadian
    authorities to seek temporary extradition to proceed with the trial of the
    Ontario charges but no such efforts were made.

[3]

In August 2015, Toronto police were advised that
    the respondent was being released from prison and would be returned to Canada.
    On October 26, 2015 he was deported back to Canada and was arrested on arrival.
    His trial was scheduled to begin July 31, 2017 and be completed, within a
    period less than two years after his return to Ontario. However, the charges
    were stayed on the respondents application alleging that his right to trial
    within a reasonable time had been violated. The Crown appeals.

[4]

We agree with the Crowns argument that these
    charges should not have been stayed, and that all of the delay caused by the
    respondents flight in violation of his bail conditions should be treated as
    defence delay.

Trial judges reasons

[5]

The trial judge held that the Crown ought to
    have sought the temporary surrender of the respondent pursuant to the amendment
    to the extradition treaty between Canada and the United States. She accordingly
    characterized the 12 and one half year period between April 30, 2003 when the
    amendment came into force and October 26, 2015 when the respondent was returned
    to Canada as Crown delay vastly beyond the timeframe articulated in
Jordan
 and also unreasonable under the
Morin
framework.

Analysis

[6]

The trial judge did not have the benefit of the
    analysis in
R. v. Cody,
2017 SCC 31, [2017] 1 S.C.R. 659
. .

[7]

The Supreme Court of Canada held, in both
Cody
and in
R. v. Jordan
, 2016 SCC 27
,
[2016] 1 S.C.R. 631,
that in order to
    determine whether there has been unreasonable delay, defence delay is to be
    deducted from the overall period of delay  from charge to the anticipated end
    of trial.

[8]

In
Cody,
at paras. 26-28,
the Supreme
    Court elaborated on the notion of defence delay and explained it is delay that
    is caused solely or directly by the conduct of the defence and that the
    analysis of defence delay is intended to prevent the defence from benefitting
    from its own delay-causing action or inaction (citation omitted).

[9]

The Supreme Court said further, at para. 30:

The only
    deductible defence delay under this component is, therefore, that which: (1) is
    solely or directly caused by the accused person; and (2) flows from defence
    action that is illegitimate insomuch as it is not taken to respond to the
    charges. As we said in
Jordan
, the most
    straightforward example is [d]eliberate and calculated defence tactics aimed
    at causing delay, which include frivolous applications and requests. [Citation
    omitted.]

[10]

The Supreme Court then went on to describe
    illegitimate defence delay, at paras. 32-34. Defence action may not be
    legitimate in the context of a s. 11(b) application if it is designed to delay
    or if it exhibits marked inefficiency or marked indifference toward delay. The
    defence is not allowed to engage in illegitimate conduct and then have it
    count towards the Jordan ceiling.

[11]

The respondent admitted to Toronto police that
    his express purpose in fleeing was to avoid capture and prosecution. The terms
    of his bail required he remain within the jurisdiction.

[12]

The delay from the time the charges were laid
    until the time the respondent was returned to Canada was illegitimate defence
    delay. It was caused directly by the respondent, whose actions were not taken
    to respond to the charges, but were intended to frustrate them.

[13]

This case is different from others in which
    delay in pursuit of extradition proceedings has been attributed to the Crown,
    such as
R. v. MacIntosh,
2011 NSCA 111, 281 C.C.C. (3d) 291
    affd, 2013 SCC 23, [2013] 2 S.C.R. 200. In
MacIntosh,
the accused was
    lawfully living in another jurisdiction when the charges were laid.

[14]

There is no suggestion that the time following
    the respondents return to Canada in 2015, until the anticipated end of the
    trial, was unreasonable under the
Jordan, Cody
or

Morin

analysis.

[15]

Given that the time remaining after deducting defence delay from
    total delay does not exceed the presumptive 30 month ceiling, there is no need
    to go further and consider whether exceptional circumstances amounting to
    discrete events or particular complexity require further examination. Nor is it
    necessary to consider whether the transitional exceptional circumstances
    analysis should apply:
R. v. Coulter
,
2016
    ONCA 704, 133 O.R. (3d) 433;
R. v. Mallozzi
,
2017
    ONCA 644, 390 C.R.R. (2d) 57.

[16]

Accordingly the appeal is allowed, the stay is
    set aside and the matter is returned to the Superior Court of Ontario for
    trial. Given this conclusion, it is not necessary to address the other
    arguments advanced on appeal.

C.W. Hourigan J.A.

G. Pardu
    J.A.

I.V.B.
    Nordheimer J.A.


