Charges dropped after man can’t be found — in jail
Judge calls police efforts to find suspect ‘woefully hollow,’ leading to delay in right to trial
An Orangeville man had his drug charges stayed after police claimed they couldn’t find him for nine months when he was already in jail over other matters.
Prior to his time in custody, police also could have arrested him at the address he gave to them earlier in their investigation but they never checked there, court documents show.
Because of this delay, Mark Nurse, 25, had to wait 221⁄ months for a trial on
2 three drug charges, including trafficking cocaine. The Supreme Court of Canada ruled last year that provincial court trials must be completed within 18 months.
Justice Richard Schwarzl ruled last month that Nurse’s right to be tried within a reasonable time had been breached. In his ruling, Schwarzl said that the steps Orangeville police took to locate Nurse were “woefully hollow if not non-existent.” Schwarzl stayed the charges.
In March 2015, police allegedly came across Nurse near an Orangeville scrap yard, according to the court document. When Const. Stephen Fisher approached, he said during his testimony he noticed a baggie containing a white pow- der near Nurse’s feet.
Fisher testified he told Nurse that if the powder tested positive for illegal drugs, Nurse would be charged. Nurse gave Fisher his personal information, including his current address in Ajax.
By the end of May 2015, Fisher had formed reasonable grounds to charge Nurse with three drug-related offences, Schwarzl said in his ruling.
Even though Nurse had previously given Fisher his current address in Ajax, Fisher ran Nurse’s name in the local records system and found four addresses — three in Orangeville and one in Shelburne.
“(Police) appeared to be content to sit on the warrant and do nothing.” JUSTICE RICHARD SCHWARZL FROM HIS RULING LAST MONTH
Nurse didn’t live at any of them and neither Fisher nor any of the other officers went to the Ajax address he’d provided, Schwarzl ruled.
Fisher told the court he didn’t follow up with the Ajax address because the local ones were more current.
On July 9, 2015, Orangeville police issued a warrant for Nurse’s arrest and sent out a servicewide email to all local officers about the warrant.
But on July 3, 2015, Nurse was in custody in Niagara region facing drug trafficking charges.
He remained in custody until January 19, 2016, when he pleaded guilty.
He was sentenced to time served plus one day.
The day he was sentenced, Toronto police laid robbery and other charges against him and brought him to Toronto.
He remained in custody and eventually those charges were dropped. In all, he was in jail from July 2015 to April 2016.
No one from Orangeville Police Service checked to see if Nurse was in custody with another police service, or in jail.
“(Police) appeared to be content to sit on the warrant and do nothing,” Schwarzl wrote in his ruling.
“Had the police in this case made basic efforts, they would have readily found (Nurse) in custody and could have executed the arrest warrant literally any time after the information was sworn.”
It wasn’t until the day Nurse was released from Toronto custody, nine months after Orangeville police had secured a warrant, that an Orangeville police officer travelled to Toronto and arrested him.
“Fisher testified that neither he, nor any other officer as far as he knows, did anything to attempt to locate the applicant (for) a period of 273 days,” Schwarzl wrote.
“(Nurse) was in custody the entire time and was incapable of evading or avoiding execution of the Orangeville Police Service arrest warrant.”
Nurse appeared in court on May 17, 2016.
Schwarzl wrote that the prosecutor didn’t appear to know of his case and had no file or disclosure to provide. After further delays for Nurse to retain defence lawyer Mark Rieger, a pretrial took place in September 2016.
Nurse was available for all 10 of the dates offered for trial, but the Crown turned down eight.
The trial was scheduled to proceed in May 2017 — 22 1⁄ months after
2 Orangeville police had issued a warrant for Nurse’s arrest.
“They had 18 months for a pretty simple case that, if it had gone to trial, would have taken a day,” Rieger said.
The trial was eventually adjourned so Rieger, on behalf of Nurse, could file a charter application against the delay.
“We made the decision late to file the application, but it was important,” Rieger said.
“Somebody knew Nurse was in custody, but nobody seemed to put two and two together. A case like this really demonstrates a culture of complacency on the part of the police.
“Whether this translates to action, I don’t know.”
The Orangeville police said it is working to achieve the provincial standard of completing trials within 18 months.
When asked about Nurse’s case, spokesperson Const. Scott Davis said in an email, “We take this as a learning opportunity and continue to improve our practices in this area.
“We respect the decisions of the judiciary and always accept opportunities to make changes in our practices and work in collaboration with our Crown Attorney’s office.”