A North Bay area man accused of sex crimes involving minors has manipulated the court system to avoid a trial since his arrest in September 2018.
After almost five years of delays, a judge has denied his bid to have the charges dismissed, pointing out his obvious strategy of delaying the proceedings in hopes of getting the case thrown out.
The man, who can’t be named to protect the victims, is accused of sexually assaulting a 3 ½ year old child, as well as someone under the age of 14. He has been on bail since September 2018.
He eventually had his trial by judge and jury, which took place in June of this year – 57 months and 10 days after his arrest.
Under Canadian law, known as the Jordan rule, the Crown must bring criminal cases to trial within 30 months unless the delays are attributed to the defence or factors beyond the Crown’s control.
As the trial began, the accused brought a motion to dismiss the case under the Jordan rule. But the judge ruled that from the start, the man’s goal was to endlessly delay the case.
“From the time that the matter began, it has always been the intention of the applicant to cause as much delay as possible in order to bring about the result that he now seeks to obtain,” the judge wrote.
“In pursuit of this objective, the record makes it very clear that he has done everything in his power to obstruct and delay the matter.”
The judge described the accused as “intelligent and articulate,” someone who “has done his best to use those attributes and that experience to bring about his objective, namely, to establish sufficient delay such that a trial on the merits cannot take place.”
His strategy was noted in 2019 when a judge wrote that “the defendant will simply not cooperate with any counsel that is appointed and will continue to find reasons to adjourn the matter until it is outside of the Jordan timelines.”
The first major delay was in April 2019, when the accused filed a motion “alleging Crown misconduct” and seeking the judge in the case to recuse himself.
In addition, he was offered the chance to view evidence on DVD between 10 a.m. and noon and 2 p.m. and 4 p.m. each day.
“The accused refused to do so as he said that he wanted to be able to view this material from 9 a.m. until 5 p.m.,” the court decision said.
This move alone led to a delay of 199 days, the decision said.
Next, because he was representing himself, the accused was able to delay the process further by resisting the appointment of a separate lawyer to cross-examine the victims in this case.
Courts can prevent people who act as their own lawyer in criminal cases from cross-examining minors who are witnesses or victims.
But the accused resisted those efforts and began referring to the judge as “Mr.” instead of “Justice,” accusing him of “bullying tactics.”
“He ended by accusing the Crown of malicious prosecution,” the court decision said.
While a separate counsel was appointed, he was removed in November 2019 when it became clear that he couldn’t work with the accused because he was so uncooperative.
“The defendant states that he does not wish to have any lawyer representing him and clearly indicated that he wishes to represent himself,” the court decision said.
“Throughout the present court proceedings, the defendant has stated on numerous occasions that he wish [sic] to cross-examine the complainants without the assistance of a lawyer.”
“At this juncture of the proceedings, I have concluded that the defendant will simply not cooperate with any counsel that is appointed and will continue to find reasons to adjourn the matter until it is outside of the Jordan timelines,” the judge added.
A new lawyer was appointed in November 2019, but the accused appealed the appointment. Not long after, the COVID-19 pandemic began.
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The accused missed court dates in spring and summer of 2020 and a bench warrant was issued in September. During a phone hearing Oct. 2, 2020, the accused told the judge, “I’m not recognizing your jurisdiction to have issued the summons, sir, therefore I do not recognize your jurisdiction to put me over to any date.”
This, the court decision said, was the accused’s next delay strategy: dispute the fact that the court had jurisdiction to hear the case.
After missing court dates, a bench warrant was issued in January 2021. The accused appeared remotely at a February 2021 hearing.
After saying repeatedly that the court has no jurisdiction over him, a court official said she “strongly advised” him to attend the next court date.
“Would that be a threat, too?” the accused replied.
The matter was in court again in March 2021, when the accused said he didn’t know why he was there.
“I don’t know what I’m before the court on,” he told the court.
“Can you tell me what the charges are and who the complainants are?”
'I'LL BE OPPOSING EVERYTHING'
He followed a similar strategy at a hearing later in the month, where he said “I’ll be opposing everything.”
The judge wrote that his statement above made clear his strategy: delay for the sake of delay.
“Although unstated, it is clear he is doing this for one purpose, that purpose being to delay the matter until such time as he can mount a successful … Charter challenge,” the decision said.
The accused missed court dates in April and May of that year. After a bench warrant was issued, he appeared in June and demanded a further 12-week delay “as a result of a recent operation,” the court decision said.
“And there’s no jurisdiction,” the accused said. “Do what you gotta do.”
He skipped court dates in August and September, again claiming no jurisdiction, before appearing via telephone in October, where he again claimed the court didn’t have jurisdiction.
The court finally appointed a lawyer to cross-examine the victims in the case. That lawyer appeared at a November 2021 court hearing, but the accused did not.
In January 2022, the accused said this during a judicial pre-trial hearing:
“My position has never changed, my position remains that the court does not have jurisdiction of any matter to which you refer and I’m going to tell you that I’ve only called in today because of threat, intimidation and under great duress at the hands of (the judge) and some of your other brothers of the bench. So that’s all I have to say to you, sir.”
A bench warrant was again issued after the accused skipped other court dates, and he appeared in April of that year. By this time, he was again referring to the judge as “Mr.”
After a case conference in May 2022, the defence counsel that had been appointed told the court that the accused refused to speak with him “to provide any background information or any theories of the defence.”
He brought a motion to be removed from the case, which was denied because, as the judge said, it was clear that the accused was not going to cooperate with any lawyer.
Further, the accused was not going to be allowed to cross-examine the victims he is accused of attacking.
However, once pre-trial hearings began in June, the accused began cooperating with the lawyer, and declared he intended to file several pre-trial motions. Finally, the weeks of June 5 and June 12, 2023, were set to hold the actual trial.
But in May 2023, the accused brought a motion to remove the judge from the case – which was quickly dismissed.
Next, he tried to have his lawyer removed for failing “to properly represent his interests” and accused the Crown of misconduct.
In rejecting the application to throw the case out, the court ruled that the accused, from the beginning, was determined to use every tactic he could think of to delay the case.
NOT A COMPLICATED CASE
“This should not have been a complicated case,” the court decision said.
“If a reasonable self-represented person or a lawyer had been involved, disclosure would have been completed in a matter of weeks.”
“On the 76 occasions that this matter has been in court, there has not been one single occasion, not one, where (the accused) took steps to move the matter towards trial, to collaborate with Crown counsel, or to use time efficiently.”
In the end, the judge concluded that of the 57 months, 10 days of total delay, the Crown was only responsible for 25 months, below the 30-month Jordan threshold.
While not part of the decision, the judge in the case noted that the accused’s delaying tactics continued throughout the trial.
He brought a motion on the morning of the trial, claiming his lawyer was not following instructions, that the Crown had engaged in misconduct and that the judge in the case was biased.
“(The accused) then sought to have the trial adjourned on the basis that he had emergency non-elective surgery scheduled for the second day of trial,” the court decision said.
“In support of this application, (he) filed his own affidavit as well as an affidavit provided by his mother. No medical report or documentation of any sort was provided in support of the request.”
The judge issued a subpoena for the doctor who was supposed to perform the surgery, but no doctor ever appeared.
“In view of the fact that there was no medical evidence to support the request for the adjournment, I dismissed the application and proceeded to start the trial,” the judge wrote.
